R v LON WILCOX RETI [2003] NZCA 299 (16 December 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA212/03

THE QUEEN

v

LON WILCOX RETI

Hearing: 14 October 2003

Coram: McGrath J

Goddard J

Laurenson J

Appearances: DC Ruth for Appellant

JM Jelaś for Crown

Judgment: 16 December 2003

JUDGMENT OF THE COURT DELIVERED BY LAURENSON J

[1] The appellant was found guilty of murder by a jury in the High Court at Christchurch on 1 July 1998.

[2] He appealed against his conviction.His counsel at the time sought to do so on the basis that there may have been inadequacies relating to the manner in which the defence of provocation had been dealt with at trial.The appellant was not, however, prepared to undergo a psychiatric examination which might have assisted a further consideration of this defence.

[3] His then counsel had felt obliged to withdraw from the appeal, which was then dealt with, and dismissed, on the papers.The appellant now appeals against conviction and sentence having obtained leave to appeal under s15 of the Crimes (Criminal Appeals) Amendment Act 2001.

[4] His present counsel, Mr Ruth, has very properly made it quite clear that the issues raised at the previous appeal hearing have not been pursued and that the only matter the appellant wishes to have advanced on his behalf, at this appeal, is the submission that the death of the deceased was accidental.

Factual Background

[5] On his version of events, at the time of the homicide both the appellant and the deceased were street people.The deceased, a Mr Edmonds, had been unable to stay at the City Mission on the night of 22-23 October 1997.He had asked the appellant if he could stay the night with him in the room of ahouse where the appellant and others were squatting.The appellant had agreed.The following morning the deceased had sexually assaulted the appellant and had persisted in further efforts to do so.The appellant managed to get him to leave, but he returned and continued to propose further sexual activities.The appellant said the deceased removed all his clothing, other than a pair of ladies briefs, climbed into bed with him and continued to make further sexual advances.The appellant then punched him, but this still did not stop the deceased.The appellant, by this stage, had retreated away into a corner of the room where he took out, and opened, a knife which he presented at the deceased to deter him advancing any further.The appellant’s principal contention was that the deceased had then impaled himself on the knife, producing an injury to his chest.There was a further stab wound in the same area.Both wounds were in a similar downwards path and to the right.The accused’s aorta was penetrated causing a blood loss which, in turn, led to death.The appellant gave evidence that the second chest wound was inflicted after death.

[6] The deceased had died after one or both of these wounds had been inflicted.The appellant had then inflicted further wounds to the accused’s neck and had cut off his ears.

[7] At trial the main emphasis by the defence seems to have been concentrated on issues of self-defence and provocation.No issue is taken with the trial Judge’s summing up in relation to either of these.The issue in this appeal, as we have already noted, is in relation to the defence of accident.

[8] This defence appears to have only clearly become an issue near the end of the trial when the accused gave evidence.The trial Judge, in an effort to clarify the position, had asked the accused “was it an accident that he ran onto the knife or did you stab him consciously?”The accused had replied that he did not stab the deceased consciously, that he did not mean to hurt him at all, that he just “fell over and he died and, no the answer your honour is no”.

[9] Appellant’s counsel submitted that the defence of accident was not adequately addressed in the summing up.Reference was made to the following paragraphs:

a) At paragraph 23

[23] In this case there are two particular defences that arise, leaving aside a general denial of a murderous intent.These defences are self-defence and provocation and I will deal first with self-defence.

In relation to this it was submitted that the specific reference to the two defences of self-defence and provocation had the effect of highlighting these in the minds of the jury, whereas the reference to “leaving aside a general denial of a murderous intent” did not sufficiently define the issue of accidental death as being a third ground of defence.

b) Paragraph 28

[28] On the other hand, if all the accused did was to present the knife to the deceased in the hope of dissuading him from further groping, I suppose then you might conceivably think that this was a reasonable defensive response to the prospect of further groping or whatever else the accused was concerned about.But even so, members of the jury, to pull a knife such as the one involved in this case, to open the blade and to present it at another human being, come to, in the totality, pretty strong defensive measures necessarily involving an appreciable risk of death.And the issue of reasonableness, even on this footing, is not an easy one for the accused.And it is probably for that reason that, in his address to you, Mr Callaghan, while leaving the issue of self-defence in the ring and never really abandoning it, did not put any real emphasis on this defence.”

It was submitted that this direction, whilst it impliedly addressed the issue of accidental death, was done in terms which tended to be dismissive of it in a context which was primarily addressed to the defence of self-defence.

c) Paragraphs [43] and [44]

[43] The first is that you may conclude that he is a reliable and truthful witness and that may be an answer in whole or in part to the Crown case.To give you a simple illustration – here the accused says that he didn’t intentionally stab Mr Edmonds.If you accept that, well then that is an end of the charge of murder because there is no murderous intent.

[44] Such evidence can have another effect.Although you may not accept it as the total truth you may think that it, when considered with all the other evidence, leaves you with a reasonable doubt.So if you, having heard the accused’s evidence that he did not intend to stab Mr Edmonds, are left with a reasonable doubt as to that well then that too would result in an acquittal on the charge of murder.

[10] At this point the Judge was directing the jury on the first and second alternatives which could follow if the accused gave evidence.There are two points to note:

a) There was a failure to direct that the verdict could nevertheless amount to manslaughter;and

b) Later on in the summing up he commented critically on the manner in which the evidence was presented as to lack of intent, which was the basis for the defence of accident.

[11] At paragraph [52] there was a clear direction as follows:

If you find there is no murderous intent well then the verdict is not guilty of murder but guilty of manslaughter and your enquiry really stops there.

This was followed, however, by the following directions:

[53] I have to say members of the jury that the way the defence in this case emerged was far from satisfactory.There are three significant features of the evidence which Mr Reti gave which I have in mind in this respect.The first, where he said the stabbing occurred – in the north west corner of the room.Secondly, the suggestion that the deceased impaled himself on the accused’s knife and that there was no stabbing in the deliberate sense.And thirdly, the suggestion that the second stab wound to the chest was inflicted after death.

[54] Now these propositions were not put to the Crown witnesses as they should have been (if this was Mr Reti’s defence) at the start of the trial.Dr Taylor, as Mr McVeigh has said could almost certainly have given – well I say almost certainly but that is perhaps too strong – could probably have given useful evidence as to whether the stabbing really could have taken place in the north west corner of the room.Dr Berkeley could have commented usefully you might think on whether the second stab wound to the chest was inflicted after death.You may recall there was a lot of cross-examination about the neck wound and the severing of the ears and whether that all happened after Mr Edmonds had died – no suggestion, as I read the evidence, of the second stab wound to the chest being inflicted after death.You may recall Dr Berkeley’s evidence about the stab wounds being inclined downwards and may wonder whether that lines up easily with the suggestion of the accused holding out his knife and the deceased in some way impaling himself on it.You may think that Dr Berkeley might also have been asked whether one wound might have been inflicted in that way but the other wound with an apparently similar angle was likely to have been inflicted at a time when the deceased was dead and presumably lying on the floor on the mattress.

[55] You may recall that at the end of the evidence yesterday I asked the accused some questions and this was because after listening to his evidence I didn’t really understand quite what he was saying.Was he saying, as at one stage he seemed to be saying, that this was him holding out the knife and the deceased impaling himself on it or was he saying “I stabbed him” and you can remember I imagine the way he made a sort of stabbing gesture in the witness box.When I asked him this at the end of the case he said:-

“I didn’t stab him consciously.I didn’t mean to hurt him at all.I was the only one there.I didn’t mean to stab Les.I didn’t mean to hurt anyone, I mean he just fell over, he died.”

[12] Appellant’s counsel submitted that the net effect of the failure to specifically refer to the defence of accident, other than in the context of lack of murderous intent, and then to comment adversely on the appellant’s evidence in relation to this issue, may have swayed the jury in its decision-making process unfairly and to the extent it may not have considered the question of accidental death which was in fact the appellant’s primary line of defence according to his own evidence.

[13] Counsel for the Crown submitted:

a) The failure of the defence to put matters relevant to the defence of accident was important, particularly the failure to question the Crown pathologist regarding whether the second injury to the chest had been inflicted before or after death and whether the direction of both wounds was consistent with an accident;

b) The significance of the failure to put such evidence at the appropriate time during the course of the trial was a matter which could escape the attention of a jury.Accordingly, and given the importance of this failure, it was appropriate that its significance should have been identified by the Judge;

c) Whilst the Judge’s comments were indeed critical of the manner in which the defence of accident had been handled, there were ample other instances where the Judge had emphasised the respective roles of himself and the jury;and

d) Furthermore the summing up as a whole was balanced and did not fail to put the defence case in relation to all the defences raised as best it could in the circumstances of the case.

Discussion

[14] It is helpful when considering the grounds advanced in support of this appeal, to clearly identify the legal steps required to prove murder and then relate these to this case.

[15] Section 158 of the Crimes Act 1961 defines homicide as the killing of a human being by another, directly or indirectly, by any means whatsoever.There can be no doubt from the evidence that the direct cause of the victim’s death was a stab wound from a knife held by the accused.Accordingly there was a homicide.

[16] Section 160 provides that a homicide can be culpable or non-culpable and that it is culpable when it consists of the killing of any person by inter alia, an unlawful act.

The appellant had said in his evidence that he had produced the knife, in effect to deter the victim after a hit from the accused’s hand had failed to do so.His evidence was not consistent from that point.He said, for a start:

Then he was coming at me again and I pulled out my knife and he got stabbed and he walked straight into it ...

Later, however, he said:

I took the knife out and struck at him with it.

Whichever is correct, either action amounts to an unlawful act, namely an assault.The trial Judge in his summing up dealt specifically with this issue.(Para [15])

To present a knife at someone by way of a threat is also an assault.So if you come to deal with the case on the basis that the deceased impaled himself on the accused’s knife, the killing is still unlawful unless there is a justification such as self-defence.

[17] Section 167 then provides that culpable homicide is murder in a number of cases, including:

a) If the offender means to cause the death of the person killed;

b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not.

[18] The trial Judge explained the elements of both and then went on to say at paragraph [23]:

In this case there are two particular defences that arise, leaving aside a general denial of a murderous intent.These defences are self-defence and provocation ...

He then went on to deal with each separately.He made it clear at paragraph [24] that

If the use of force by the accused here was in self-defence, then his actions were justified and lawful with the result that he is entitled to an outright acquittal.

[19] At paragraph [30] he said:

The first is that provocation is only a limited defence.If the defence applies then the result is that what would otherwise be murder is reduced to manslaughter.So it is only relevant if you are satisfied that the accused did not act in self-defence and had the necessary murderous intent which would otherwise render him guilty of murder.

[20] At paragraphs [51] and [52] the Judge drew together the three defences of lack of murderous intent, self-defence, and provocation.He said:

In the form that I have given to you I have set out what is an approach to the case.It is not the only approach.Indeed, when I was dealing with the elements of murder earlier in my summing up I came at the matter from a slightly different chronological sequence.But the first question, as I have indicated “was there a killing” and there is probably no issue as to that.The second is whether it is culpable or unlawful and there is no issue as to that save as to self-defence.Then you get to the self-defence issue.I have set out the test on this piece of paper and I have also explained it to you.Remember the onus of proof is on the Crown.If you cannot exclude the reasonable possibility of self-defence then the accused is entitled to an outright acquittal.So if you say self-defence well then you stop there and verdict is not guilty of murder and manslaughter.

And

Assuming you don’t stop there, you then go on on this approach of the facts to decide whether there was a murderous intention.If you find there is no murderous intent well then the verdict is not guilty of murder but guilty of manslaughter and your enquiry really stops there.If you find there is a murderous intent you then go on to consider the issue of provocation and I have set out point 5 the test of provocation and I have put some notes of what the consequences are, that if you find that the Crown has not excluded provocation then the proper verdict is not guilty of murder but guilty of manslaughter.If you reject provocation, if you have got this far then the proper verdict is guilty of murder.

[21] By reference to the excerpts from the summing up which we have referred to, we are satisfied at this point the Judge had made the position quite clear as to the possible consequences of the jury’s findings in relation to the three defences:

a) Self-defence – complete acquittal;

b) Lack of murderous intent – manslaughter;

c) Provocation – manslaughter.

[22] We should also mention that the Judge was, at this point, referring to a form which he had given out to the jury, in which he had set out an approach to the case.We are advised that there is no copy of the form available on the Court file nor in the hands of the Crown or counsel for the appellant.We make the comment that in cases where such forms are used it is most important that a copy be retained on the Court file.Having said this we feel able to assume that the contents of the form would have reflected the Judge's summary in paragraphs [51] and [52] of the summing up which we have referred to.

[23] The Judge then went on to consider the evidence in relation to the defence and commented at (paragraph [53]:

That the way the defence emerged in this case was far from satisfactory.There are three significant features of the evidence which Mr Reti gave which I have in mind in this respect.The first, where he said the stabbing occurred – in the north west corner of the room.Secondly, the suggestion that the deceased impaled himself on the accused’s knife and that there was no stabbing in the deliberate sense.And thirdly, the suggestion that the second stab wound to the chest was inflicted after death.

[24] In our view these comments were justified and appropriate in the context of what we perceive to have been the way this particular case developed.So too were the subsequent comments regarding the evidence relating to the three defences.

[25] Taking all the above matters into account we are satisfied that the defences put forward, principally it seems provocation and lack of murderous intent, were adequately covered by the trial Judge.

[26] There are, however, two matters referred to in the summing up which we feel call for comment.The first is the direction in paragraph [73]:

If you are not satisfied beyond reasonable doubt that Mr Reti acted in self-defence then he should be acquitted even if you think that his behaviour that day was not acceptable.

This direction should have been:

If you are not satisfied beyond reasonable doubt that Mr Reti did not act in self-defence then he should be acquitted even if you think that his behaviour that day was not acceptable.

[27] Having noted this point we have decided that when viewed within the total summing up, and noting in particular the comparative insignificance attached to the defence of self defence, we do not consider the point to be of any material significance.

[28] The second matter is the direction in paragraph [54]:

The (Defence Counsel) said that if you accept Mr Reti’s evidence of intent he is not guilty of murder.He said manslaughter although that would be dependant upon you acknowledging that there is self-defence available.He said that if you accepted provocation which seemed, I think, to be the principal plank of his argument, then Mr Reti should be found guilty of manslaughter.

[29] This passage caused us some difficulty.At first sight it appeared to indicate that a finding of manslaughter in the event of the jury finding a lack of murderous intent, was also dependent on a finding of self-defence which is somewhat difficult to follow.We are satisfied, however, that the insertion of a comma after the word “you” and before “acknowledging”, to reflect the point at which we consider the Judge must have paused, almost certainly conveys the correct sense of the passage.It does this by separating the defences of lack of intent and self-defence.For this reason we are satisfied that, in fact, the passage, as it would have been heard by the jury, would have been properly understood and as intended by the Judge.

Result

[30] For the above reasons the appeal is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington