The Queen v Makoare [2000] NZCA 333; [2001] 1 NZLR 318; (2000) 18 CRNZ 511 (20 November 2000)

Last Updated: 7 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA324/00

THE QUEEN

V

SONNY-BOY MAKOARE

Hearing:	8 November 2000
Coram:	Richardson P Gault J Thomas J Blanchard J McGrath J
Appearances:	P O’Driscoll and G J King for Appellant J C Pike for Crown
Judgment:	20 November 2000

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1] Sonny-Boy Makoare has been convicted of the murder of Rashley Walker at a re-trial ordered by this Court (R v Makoare CA469/99, judgment 18 April 2000). He had claimed in his defence that (a) he did not have murderous intent within s167 of the Crimes Act 1961 when he stabbed the victim or (b), if the jury found against him on that question, then by reason of his acting under provocation he should be convicted only of manslaughter. Obviously the jury rejected both defences.
[2] At the re-trial in the High Court at Auckland the trial Judge directed on provocation in accordance with the decision of this Court in R v Rongonui [2000] NZCA 273; [2000] 2 NZLR 385. On this appeal counsel for the appellant makes no criticism of the trial Judge’s direction in terms of Rongonui but asks the Court to reconsider what was said by the majority in Rongonui in the light of the subsequent majority decision of the House of Lords in R v Smith (Morgan) [2000] 3 WLR 654.
[3] A second matter is raised, namely that the Judge ought not to have excluded the evidence of Dr Chaplow, a psychiatrist, whom the defence had wanted to call as a witness. That evidence is said to have been admissible both as to the question of Mr Makoare’s intent at the time of the stabbing and to show that he had a particular characteristic for the purpose of the application of s169.

Facts

[4] The appellant was 15 at the time of the offending and lived with his family at Otara in South Auckland. The Crown case was that, in company with a Mr Crosby and some other youths, he had been looking for Mr Walker on the evening in question with a view to attacking him. (Mr Crosby was acquitted of murder at the first trial but found guilty of assault with intent to injure. He gave evidence for the Crown at the second trial.) The Crown case was that the appellant, who was very drunk, was motivated by the belief that the victim had “raped” the appellant’s girlfriend about a week earlier. There was an attack on the victim by the appellant and Crosby. The victim was stabbed twice. The fatal wound, which the defence accepted was caused by the appellant, entered the victim’s back 22cm below the top of the left shoulder, penetrated the chest cavity, cut the lower left lung and severed a large vein. The victim was dead on arrival at hospital.

Provocation

[5] The evidence of provocation was, perhaps generously, described by this Court in its earlier judgment as “somewhat equivocal”. Chronologically, the matters said to have given rise to loss of self-control were an incident some two weeks earlier in which the victim had punched the appellant in the head; the appellant’s (mistaken) belief that a rape of his girlfriend had occurred a week beforehand; and an incident on the evening of the killing in which the victim had upset the appellant’s parents. It should be noted that the last of these three matters to which counsel referred us was not even mentioned in the appellant’s evidence at trial.
[6] Section 169(1)(2) provides as follows:

169 Provocation-

(1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation.

(2) Anything done or said may be provocation if-

(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and

(b) It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide

[7] In Rongonui the majority view was that the statute required there to be a sufficient relationship between a characteristic of the accused and the provocation. “A characteristic which produces only a general lowering of the power of self-control is not enough, unless there is in addition a more specific connection between the provocation and the characteristic” (per Tipping J at para [226]). Furthermore, a qualifying characteristic was held to be relevant only to the susceptibility of the accused to the provocative acts or words (their gravity to the defendant) and was not relevant in measuring the self-control required to be exercised. The Court explained R v McCarthy [1992] 2 NZLR 550 and followed R v Campbell [1997] 1 NZLR 16 and the majority decision of the Privy Council in Luc Thiet Thuan v R [1996] UKPC 57; [1997] AC 131.
[8] Elias CJ expressed the view of the minority in Rongonui in the following way. She said that by s169(2)(a) all offenders are held to the standard of self-control of the ordinary person. But if they have a characteristic which affects their self-control because in them the control mechanism of the ordinary man is diminished by the characteristic, then the New Zealand section permits the characteristic to be taken into account in assessing whether the provocation was sufficient to cause loss of self-control (para [125]).
[9] The vigorous dissenting judgments in Rongonui took an approach closer to that in the English Court of Appeal in R v Smith [1998] EWCA Crim 2291; [1998] 4 All ER 387, which had not at that time reached the House of Lords. The English statutory provision (s3 of the Homicide Act 1957) is expressed in rather different terms:

Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question, the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.

[10] The Rongonui decision was delivered on 13 April of this year. On 27 July the House of Lords gave judgment on the appeal in Smith. It is fair to say that their Lordships were as unable to reach a consensus as this Court and, before it, the Privy Council in Luc Thiet Thuan where two of the present Law Lords, who did not sit in Smith, had been of differing opinions.
[11] In Smith the majority considered that under s3 the particular characteristics of the accused could be taken into account at both stages of the inquiry and need not be connected with the provocation. Lord Hoffman said that the jury must think that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence, applying what they considered to be the appropriate standards of behaviour, “on the one hand making allowance for human nature and the power of the emotions but, on the other hand, not allowing someone to rely upon his own violent disposition”. (p678) It would not be consistent with s3 to tell the jury as a matter of law that they should ignore any factor or characteristic in deciding whether the objective element of provocation had been satisfied. Lord Clyde said that s3 required that the accused should have made reasonable efforts to control himself “within the limits of what he is reasonably able to do”. (p684) The minority (Lord Hobhouse of Woodborough and Lord Millett) considered that the accused’s conduct had to be tested against that of someone with normal powers of self-control taking into account the gravity of the provocation for the particular defendant in all the circumstances. Lord Millett put the difference between majority and minority in this way:

I respectfully agree with Lord Hoffman that the question is whether the defendant’s behaviour fell below that standard which could reasonably be expected of him, but only if that is taken to mean of him exercising normal self-control. (p714)

[12] Mr O’Driscoll invited this Court to revisit Rongonui and to follow Smith, pointing to statements which have been made about the desirability of harmony between English and New Zealand law on this question, to the House of Lords’ refusal to follow the Privy Council and to Lord Simon’s suggestion in R v Camplin [1978] UKHL 2; [1978] AC 705, 727 that New Zealand law is substantially the same. Counsel also said that at the practical level it appeared that juries were having real difficulties in following the “mental gymnastics” (Tipping J’s term in Rongonui) involved in the directions required from the Judge.
[13] We do not accept this invitation. Rongonui is a considered, very recent interpretation of s169, a statute which is differently worded from the section which had to be applied in Smith. In Smith the House of Lords, whilst in some respects critical of the drafting of s169, and understandably raising their collective eyebrows at the course of the New Zealand jurisprudence, refrained from any interpretation of our section.
[14] A Full Court having so recently gone through the exercise of resolving long-standing differences of opinion amongst New Zealand Judges over the meaning and application of s169, it would be wrong, we think, to reopen the matter, particularly when the provocation defence is under consideration by the Law Commission (see its Preliminary Paper, Battered Defendants (NZLC PP41) and indeed Parliament has before it the Degrees of Murder Bill. This Court was unanimous in calling for statutory reform. That process would not, we think, be assisted by a further change of course by the Courts even if a different majority view were to emerge. In the meantime there is no doubt some degree of difficulty for trial Judges and for juries but obviously that is not something of which this Court was unmindful in coming to its decision in Rongonui.
[15] So far as harmonisation of the law is concerned, we make two points. The first is that the provocation defence in England sits alongside a specific defence of diminished responsibility which is not recognised in New Zealand criminal law, although the minority in Rongonui did not see this as significant. Secondly, if harmony is desirable – and we see no particular need for it in this context – the natural tendency might perhaps be to look to the position in Australia which is quite different from that in Smith.
[16] We are, moreover, far from convinced that the jury in the present case would have reached a different verdict on the question of provocation even if directed in accordance with Smith. We say this not merely because of our impression of the matters said to have been the cause of provocation but also because we are satisfied that no characteristic of the appellant bearing upon his power of self-control has been identified. His youth was taken into account as a variable feature of the ordinary person (Rongonui para [231]).
[17] This leads us to a consideration of Dr Chaplow’s brief of the evidence which the trial Judge ruled inadmissible. We have not been supplied with a copy of the draft brief but the Judge quoted from it in his ruling as follows:

1. This killing occurred in a sub-cultural context of violence being the norm (including the use of fists and knives) heavy drinking and apparent permissiveness by the parents and the group that such violence should occur.

2. The ongoing exposure to violence had an effect on Makoare. He shared a sub-cultural under-estimation of the danger of beating people up and/or sticking them with knives that differs from that of an ordinary New Zealander.

3. This is something definite and of sufficient significance to make Makoare a different person from the ordinary run of mankind. It has also a sufficient degree of permanence to warrant its being regarded as something constituting part of the [sic] Makoare’s character or personality.

[18] The Judge held that if Mr Makoare did have the characteristic described in the second quoted paragraph, it related to “how Mr Makoare would react if provoked rather than [to] whether the alleged provocation was likely to cause him to lose his self-control.”
[19] Dr Chaplow identified a group, said to include the appellant, who are de-sensitised to violence. They are said not to appreciate its consequences as ordinary people do and therefore to resort more readily to the use of violence, including knives. Accepting for the sake of argument that this may possibly be so, it is apparent that what the witness is positing is not a propensity to lose self-control, but a propensity to choose to act violently when others would not, because they would realise the dangers involved, whereas Mr Makoare and his group would supposedly be oblivious to these dangers. In other words, violence done to people with this characteristic is met with violence because that seems to them to be an appropriate response, not because their minds have been overcome by the passion of the moment.
[20] Dr Chaplow’s evidence could never therefore have been relevant so far as it was directed to the provocation defence.

Intent

[21] The question of whether at the time of the fatal stabbing the appellant had an intent falling within s167(a) or (b), which we will for convenience call murderous intent, is classically a matter for the jury. Courts are ordinarily reluctant to allow expert evidence on whether a defendant was or was not acting with such intent, just as they are when it is sought to ask an expert about the credibility of a witness; to allow expert opinion on such issues would be to defeat the purpose for which juries are used (R v B (an accused) [1987] 1 NZLR 362, 367, citing R v Chard (1971) 56 Cr App R 268). And, quite apart from the danger that an expert’s opinion may unduly influence the jury on a matter which it is exclusively their function to determine, particularly one involving a central issue in the case, such an opinion is usually quite unnecessary, for the jury is well capable of determining the matter by bringing to bear their collective knowledge and experience. Psychiatric evidence as to a defendant’s state of mind has, for instance, been rejected when sought to be admitted to show that a defendant was likely to have been provoked in particular circumstances (R v Turner [1975] QB 834).
[22] It may be different, however, where the Court has to decide if someone is mentally abnormal. An expert is then able to supply the Court with scientific or medical opinion which is likely to be beyond the experience and knowledge of jurors. Such testimony may also be helpful when the case involves human behaviour which does not conform which what a lay person might expect. A well-known example is the behaviour of a battered woman who has not taken the opportunity of leaving her abuser, as an untutored observer might expect her to have done. Expert evidence may be permitted of such counter-intuitive behaviour in order to provide an explanation (R v Guthrie (1997) 15 CRNZ 67). As the study of the mind progresses the Courts have been increasingly, if cautiously, willing to allow appropriate evidence so that the jury will have the advantage of a greater understanding of human responses.
[23] But before admitting evidence of this kind the Court requires to be satisfied not only that the witness is properly qualified as an expert in the area in respect of which he or she will testify but also that the subject matter of the testimony is supported by a body of knowledge or experience which is sufficiently organised or recognised to be accepted as reliable (R v Bonython (1984) 38 SASR 45, 46-7; R v B (an accused) at 367; Farrell v R (1998) 155 ALR 652, 661-2 at para [29] (Kirby J); Osland v R [1998] HCA 75; (1998) 159 ALR 170, 184 (Gaudron and Gummow JJ); R v Anderson [2000] VSCA 16; (2000) 1 VR 1, 25). It is not enough for a witness, however eminently qualified in his or her field, simply to advance a theory or to offer an explanation in the absence of supporting literature or other verification of the pedigree of their opinion.
[24] Furthermore, the expert’s testimony will not be permitted unless he or she is able to point to admissible evidence which sufficiently connects the opinion expressed as to human behaviour generally or relating to a group within society, with the behaviour of the individual whose conduct or thought process is in issue. This aspect of admissibility is discussed in Rongonui in the portion of the judgment of the Chief Justice in respect of which the members of the Court were unanimous (paras [27] to [64]). Before a court can assess the value of an opinion it must know the facts upon which it is based. If no such basis is given, or, if given, can be seen to be speculative or irrelevant to the opinion expressed, then the opinion will be worthless (R v Turner at 840; R v Anderson at 25).
[25] In the present case it can be acknowledged that Dr Chaplow is, as the Judge said in his ruling, a respected registered medical practitioner practising in the area of general and forensic psychiatry with over 30 years experience. But the material provided to the Court established no basis at all for his assertions about a sub-cultural context of violence and about its effect upon Mr Makoare which were made in the draft brief of evidence (para [17] above). There was apparently no reference to any scientifically based study by Dr Chaplow or any other person, nor even a mention of expressions of opinion by other qualified persons. Nor was any observation of Mr Makoare reported upon.
[26] The only reference to the idea underlying Dr Chaplow’s opinion which is to be found in the evidence at trial is in the following passage of cross-examination of the appellant (notably the subject matter was not touched on in his evidence in chief and there was no re-examination):

What sort of parts of the body are inside the chest at the back and front...Lungs and hearts.

What happens if you stick a knife into somebody’s back sufficiently deep to go thru the lungs near the heart...Stab wound.

You know there is a good chance they might die...No, not really.

Did you think it was important that you not agree with me when I said that...Say it again.

If somebody is stabbed round the lungs, good chance of a lot of bleeding...Yes after a lot of hurt.

Good chance the person will have problems breathing...Yes definitely.

And really because of where you’ve grown up you’ve always known that since you wr much younger than that...No.

What happens if a knife goes into the heart...Dead.

Cos your body cant operate if there is injury round that area...Yeah youd die.

[27] This is an altogether too flimsy a basis for the suggestion that the appellant may have been so de-sensitised to the effects of violence that he was unconscious of the likely result of stabbing someone as he did. That suggestion can rely only upon the answers which have been italicised. It is seriously weakened by his admission that he knows that there is a good chance of a lot of bleeding and “definitely” breathing problems if someone were to be stabbed around the lungs near the heart.
[28] The Judge does not appear in his ruling to have considered the possibility that the evidence of Dr Chaplow might be admissible in relation to the issue of murderous intent, but if he had done so the only conclusion to which he could properly have come was that the evidence should not be admitted.

Result

[29] The appeal is accordingly dismissed.

Solicitors
Crown Law Office, Wellington