THE QUEEN v SONNY-BOY MAKOARE [2000] NZCA 277 (18 April 2000)

IN THE court of appeal of new zealand

ca469/99

THE QUEEN

V

SONNY-BOY MAKOARE

Hearing:	29 February 2000
Coram:	Blanchard J Robertson J Williams J
Appearances:	P O'Driscoll & G J King for Appellant J C Pike for Crown
Judgment:	18 April 2000

judgment of the court delivered by blanchard j

[1] The appellant, Sonny-Boy Makoare, and a co-accused, William Crosby, stood trial in the High Court at Auckland charged with murdering Rashley Walker on 19 September 1998 at Otara.The appellant was convicted of murder.Mr Crosby was acquitted on that charge but found guilty of assault with intent to injure.

[2] The appellant was aged 15 at the time of the offending.The Crown case was that he, Mr Crosby and some other youths had been looking for Mr Walker with the intention of stabbing him; that the appellant wanted to do so because he believed that Walker had "raped" the appellant's girlfriend a few days earlier; and that there was an attack on the victim by the appellant and Crosby during which the victim was stabbed twice in the back.It was admitted that the appellant had inflicted the fatal stab wound which entered the victim's back 22cm below the top of his left shoulder.It penetrated the chest cavity, cut the lower left lung and severed a large vein.The victim was dead on arrival at hospital.

[3] It was conceded by the defence that the appellant was guilty of at least manslaughter.His defence to the murder charge was, firstly, lack of murderous intent in terms of s167(a) and (b) or, secondly, if such intent were proven, that he acted under provocation (s169).The Judge decided that there was evidence sufficient to leave the provocation partial defence to the jury.Mr Pike, for the Crown, advanced some criticism of that decision, directing attention to R v Clark (CA 46/70, 26 August 1970) in which this Court approved the following statement of Viscount Simon in Holmes v Director of Public Prosecutions [1946] AC 588, 597:

In dealing with provocation as justifying the view that the crime may be manslaughter and not murder, a distinction must be made between what the judge lays down as a matter of law, and what the jury decides as a matter of fact. If there is no sufficient material, even on a view of the evidence most favourable to the accused, for a jury (which means a reasonable jury) to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of self-control, to the degree and method and continuance of violence which produces the death it is the duty of the judge as a matter of law to direct the jury that the evidence does not support a verdict of manslaughter.

[4] It is fair to say, however, that New Zealand Judges have tended in more recent years, perhaps because there is always a degree of uncertainty about the workings of the human mind, to take a liberal view about what may constitute sufficient material on which the partial defence of provocation might be available.Although in the present case the relevant evidence was somewhat equivocal, we consider that the Judge was right to allow the defence to go to the jury, though pointing out the difficulties faced by the appellant.

[5] The appeal was heard while the Full Court's decision in R v Rongonui (CA124/99, 13 April 2000) was reserved.It appeared that several of the legal issues discussed in Mr O'Driscoll's written submissions would be dealt with in that decision and it was therefore thought inexpedient to hear oral argument on those topics.As it happens, Rongonui has effectively determined them and therefore only brief mention needs to be made later in the course of this judgment.There were, however, some matters raised for the appellant with which the judgments in Rongonui were not concerned.

Misdirection as to intoxication

[6] The evidence strongly suggested that the appellant was grossly intoxicated at the time the stabbing occurred.The victim's grandmother described his condition that night as "really paralytic, he could hardly stand up" and said that he had to lean on the wall to keep himself upright.He had vomited prior to the incident.

[7] The Judge took the jury through s169(1) and (2) and told them that when considering provocation they could have regard to "all the relevant circumstances including all the events that had preceded the day on which Rashley Walker was stabbed".Later she said:

You judge whether provocation was sufficient by considering what would have been the effect, not on this particular accused but on the normal person having the power of self control of an ordinary person but otherwise having the characteristics of this accused.Characteristics has a particular meaning.It is not every characteristic of an accused which can be taken into account when considering provocation.The characteristic must be something definite and of sufficient significance to make Sonny-Boy Makoare different from the ordinary person.It also must have a degree of permanence to warrant it being regarded as something constituting part of the individual's character or personality. Moreover, there must be some real connection between the nature of the provocation and the particular characteristic of the accused by which it is sought to modify that test of what an ordinary person would feel.

[8] After dealing with what was meant by loss of self-control, the Judge continued:

And paragraph (b) [of s169(2)] makes it a requirement that the provocation did in fact deprive Sonny-Boy Makoare of the power of self-control and thereby induced him to do what he did.So some of the questions you should ask yourselves are these - Was it the provocation claimed by Sonny-Boy Makoare that caused him to kill Rashley Walker or was there some other reason?...

[9] She then referred to the evidence said to support the view that the appellant had been provoked by words or conduct of the deceased and told the jury that they must look on the appellant as a person with ordinary self-control but with his particular characteristics.She mentioned in this connection only his age at the time of the killing.

[10] Then, in a passage which is at the heart of the appeal, the Judge concluded her direction on provocation as follows:

It is important also that I explain to you that intoxication is not a factor which can be taken into account when considering whether the defence of provocation can succeed.It may, however, have relevance to your determination as to whether Sonny-Boy had the necessary murderous intent for you to bring back a verdict of guilty of murder.So I am going to explain to you how drunkenness or intoxication is viewed in law.

Of itself intoxication by alcohol abuse is not a defence.It may, as I have already said, be relevant to a decision as to whether or not Sonny-Boy Makoare had the necessary guilty intent at the time he stabbed Rashley Walker.The onus of proving that intent lies on the Crown just as it does with all the other elements of the crime, so the relevance of intoxication in the case of Sonny-Boy Makoare is that as a jury you must take into account all the evidence that you have heard concerning his intent, including the evidence about his state of sobriety or intoxication, and draw such inference as appears to you to be proper in the circumstances.If you think that because he was so intoxicated he did not intend or may not have intended to kill Rashley Walker then the intention has not been proved and you must acquit him.There is evidence in this case of the consumption of a fair amount of moonshine shared amongst 4 or 5 youths present on that evening, but while drink or drugs are often a precipitating factor or an influence in the commission of offences, an absence of intent because of drunkenness or solvent abuse is a conclusion that is not to be reached lightly.A drunken intent is still an intent.In summary then, evidence of Sonny-Boy's intoxication, if you accept it, is not relevant to provocation but it may be relevant to whether he had the necessary murderous intent for you to bring back a verdict of manslaughter rather than murder.

[11] The submission for the appellant is that in twice telling the jury that intoxication had relevance to murderous intent but no relevance to provocation the Judge gave a misdirection.Mr O'Driscoll accepted, as he had to do, that intoxication is not a characteristic for the purposes of s169(2) and therefore irrelevant under para (a) but he was able to point to settled authority that it is to be taken into account under para (b) in determining whether the defendant actually lost his or her self-control and thus acted with murderous intent.In R v Barton [1977] 1 NZLR 295, 297 the judgment of this Court referred to a statement by Parke B in R v Thomas [1837] EngR 242; (1837) 7 C & P 817; 173 ER 356:

But drunkenness may be taken into consideration in cases where what the law deems sufficient provocation has been given, because the question is, in such cases, whether the fatal act is to be attributed to the passion of anger excited by the previous provocation, and that passion is more easily excitable in a person when in a state of intoxication than when he is sober. (820; 358)

[12] This Court also referred to the views of Glanville Williams and a line of Canadian authority to the same effect.In R v Fryer [1981] 1 NZLR 748, 753 and in R v McCarthy [1992] 2 NZLR 550, 558 that approach was confirmed.

[13] No doubt, when a jury considers that intoxication was a reason for a defendant's actual loss of self-control, often it may then also be inclined to think that the defendant has, because of its influence, not shown the self-control of an ordinary person in terms of para (a).It is possible however to imagine cases in which that conclusion may not follow (for example, where the defendant is a person whose greater than ordinary powers of self-control are reduced to ordinary levels by consumption of alcohol).But, more importantly, as Mr O'Driscoll pointed out, there must be the very real danger that a jury which is told that intoxication is not relevant to provocation will go first to the question of whether self-control was actually lost (para (b)) and, taking the direction to refer also to that paragraph, will consider that question upon the assumption that the drunken defendant was actually sober.If it consequently finds, on that false basis, that there was no actual loss of self-control, the jury may then not think it necessary to proceed to consider para (a) at all.

[14] The Judge in the present case did not, as is common, suggest that the jury consider para (b) first, but Mr O"Driscoll told us that in addressing the jury on provocation he had spoken to them about actual loss of self-control before proceeding to the test in para (a).There is accordingly a distinct possibility that the Judge's failure to make it clear that intoxication is relevant under para (b) may have deflected the jury from a proper consideration of the provocation defence in this case.

[15] That deficiency would not have been cured by the Judge telling the jury that intoxication was relevant to intent.That was a separate question.The jury did not need to consider provocation until and unless it had concluded that a murderous intent was present.Having done so, there is a real possibility that it may then have thought that in proceeding to consider provocation it had to exclude intoxication entirely as a factor.

[16] It is impossible to be sure that the misdirection has not given rise to a miscarriage of justice.

Characteristics

[17] It was submitted that the Judge failed to instruct the jury adequately on what was capable, on the evidence, of amounting to a relevant characteristic of the appellant.She mentioned only his age, which is not so much a characteristic as a variable feature of an ordinary person (Rongonui para [231]).When pressed by the Bench to say what other matters particular to the appellant should have been mentioned by the Judge as characteristics, Mr O'Driscoll could suggest only that Mr Makoare is lacking in education or guidance and has been de-sensitised to violence.In the circles in which he moves, it was said, it is customary to meet violence with violence.Counsel was not arguing that Mr Makoare was suffering from any mental disorder and, with respect, what he was submitting was no more than that by reason of Mr Makoare's educational and other background he lacks the self-control of an ordinary person when confronted with violence.That obviously cannot qualify as a characteristic where, in terms of para (a), the accused must be taken to have "the power of self-control of an ordinary person".

[18] The Judge therefore did not err by omitting to describe any relevant characteristic.

Connection between provocation and characteristic

[19] In written submissions the argument was made that the Judge was wrong to direct the jury that there must be some real connection between the nature of the provocation and the particular characteristic of the defendant by which it was sought to modify the test of what an ordinary person would feel.The Judge's direction on this point was correct, as has now been confirmed in Rongonui.

Defendant's appreciation of consequences of causing injury

[20] When instructing the jury on s167(b) the Judge told them that Mr Makoare must have had in mind an actual or conscious appreciation that death was a likely consequence of his acts, adding the comment that although it was, of course, a matter entirely for the jury, they may not have too much difficulty in concluding, if they accepted the evidence, that "any person carrying a knife and talking of stabbing another must have known that death was a likely outcome".

[21] The Judge was of course, in using the word "likely", simply adopting the language of the section, which has been paraphrased as requiring that the defendant have appreciated that there was "a real risk" or "a substantial risk" of death ensuing (R v Piri [1987] 1 NZLR 66).

[22] Mr O'Driscoll referred us to the recent decision of the House of Lords in R v Woollin [1998] 4 All ER 103, in which the House disapproved the use of the phrase "substantial risk" in the application of s8 of the Criminal Justice Act 1967 and said that a jury should be directed that they were not entitled to infer an intention to kill or do serious bodily harm unless they felt sure that death or serious bodily harm was a virtually certain result of the defendant's action and that the defendant had appreciated that fact.

[23] In our view, however, R v Woollin provides no authority on the application of s167(b), which prescribes its own test.It is necessary for the Crown to prove beyond reasonable doubt under s167(b), as the Judge told the jury in this case, that the offender meant to cause the person killed the sort of bodily harm that is known to the offender to be likely to cause death and that he was reckless whether death ensued or not.Parliament has deliberately chosen to use the word "likely".There is no reason to depart from the well established interpretation of that word in this context on the basis of an English decision given on a provision of more general application which does not prescribe in precise terms the test to be applied, as s167(b) does.

Diminished responsibility

[24] Finally, Mr O'Driscoll submitted that the Judge had been wrong to decline to allow a defence of diminished responsibility to be put to the jury.This submission was based upon a remark in this Court in R v McCarthy [1992] 2 NZLR 550, 558 but, as is pointed out in Tipping J's judgment in Rongonui, that remark was related to the defence of provocation.There is no such defence generally available in this country.This ruling was therefore perfectly correct.

Result

[25] For the reasons given in the section of the judgment headed "Misdirection as to intoxication" the appeal against conviction is allowed and a re-trial is ordered.

Solicitors

Crown Law Office, Wellington