THE QUEEN v LON WILCOX RETI [1999] NZCA 314 (16 December 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca200/99

THE QUEEN

V

LON WILCOX RETI

Coram:	Gault J Blanchard J Tipping J
Decision: (ex parte):	16 December 1999

judgment of the court delivered by blanchard j

[1] The appellant was convicted of murder and given the mandatory sentence of life imprisonment on 1 July 1998 in the High Court at Christchurch.He now seeks leave to appeal that conviction out of time.

[2] The appellant applied for legal aid in respect of this appeal having drafted the Notice of Appeal without the aid of counsel.The Registrar made a grant of aid so that an experienced counsel could be assigned in order to formulate any proper ground of appeal which might exist.After a thorough examination counsel reported that there was no matter of concern with the verdict other than a possible line of defence which had not been pursued by trial counsel.In order to ascertain whether it had been, in reality, available at trial there was a need for Mr Reti to agree to be examined for a psychiatric report.The Registrar was willing to facilitate this course but Mr Reti was not prepared to undergo such examination despite the urging of counsel who reported that he was unable to take the matter further.Accordingly, no ground of appeal having been demonstrated, the Registrar declined the application for further legal aid after the necessary consultation with a Judge of this Court pursuant to s15 of the Legal Services Act 1991.The appeal is, therefore, determined on the basis of written submissions.

[3] The conviction arose out of an incident at a vacant house on Hereford St where the appellant was living.The appellant allowed the victim to stay the night in the house when he was unable to stay at the City Mission.In the morning, according to the appellant, he awoke to find the victim engaged in performing oral sex on him. The appellant made a number of requests for the victim to leave the house.However, the victim was reluctant to do so, suggesting instead further sexual activity between the men.After leaving for a brief period the victim returned to the house, again inviting sexual activity between himself and the appellant.The victim persisted with these sexual overtures and the appellant punched him.When this did not dissuade the victim from his approaches, the appellant stabbed him a number of times in the chest and throat.He then cut off the victim's ears and put them in his pocket.

[4] The appellant in his written submissions advances two related grounds of appeal.He submits, firstly, that the photographs presented by the Crown were of such a nature that they unfairly prejudiced his defence and, secondly, that his counsel had not followed instructions in failing to oppose their admission. In support of the claim that the photographs were unfairly prejudicial the appellant submits that he gave evidence that the victim walked into the knife he was holding and that he then stabbed the victim after he was dead.In light of this evidence he says that the photographs add nothing to the case against him and therefore served only a prejudicial purpose.

[5] The submission of the appellant that his own evidence somehow made the photographs unnecessary is misconceived.The Crown has a duty to prove the facts of the case independently of evidence to be given by the defendant.The use of photographic exhibits is an accepted aid to putting those facts before the Court.

[6] The photographs were of the deceased, including photographs of the severed ears.The Court has a general jurisdiction to exclude evidence if it would have a prejudicial effect which outweighs any probative value.The photographic evidence was used by the pathologist in giving evidence about whether the ears were severed before or after death.Furthermore, the fact that the appellant severed the victim's ears was relevant so that the Crown could negate a defence that the fatal wound was accidental and relevant also to the defence of provocation.The photographs were therefore of probative value. There is no reason to believe that their admission improperly prejudiced the appellant's defence.

[7] The submissions alleging the failure by counsel to oppose the admission of the photographs must be considered in light of the conclusions as to the use of the photographs.Since they were properly admitted opposition to admission would have been unavailing.

[8] Accordingly the application for leave is granted but the appeal is dismissed.

Solicitor

Crown Law Office, Wellington