Seu v R [2005] NZCA 310 (8 December 2005)

Last Updated: 14 December 2005

NOTE: THE JUDGMENT IN R V KINGI IS SUBJECT TO A SUPPRESSION ORDER

IN THE COURT OF APPEAL OF NEW ZEALAND

CA81/05

THE QUEEN



v



EMANI SEU

Hearing: 13 October 2005

Court: Glazebrook, Wild and Doogue JJ

Counsel: R M Lithgow for Appellant
J C Pike and G J Burston for Crown

Judgment: 8 December 2005

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS

(Given by Glazebrook J)

Table of Contents

Para No
Introduction [1]
Facts [2]
Mr Seu’s defence at trial [9]
Extracts from Mr Seu’s statement [12]
Mr Shirley’s evidence in chief [15]
Professor Ogloff’s report [20]
Cross-examination of Mr Shirley [32]
Sheet provided to the jury [38]
Summing up [39]
Mr Seu’s submissions [50]

The summing up [51]

Hearsay and lies [54]

Disclosure issues [58]

The juror’s letter [61]
Submissions of the Crown [63]

The summing up [63]

Hearsay and lies [66]

Disclosure issues [67]

The juror’s letter [68]
Discussion [69]

The summing up [69]

Hearsay and lies [75]

Disclosure issues [78]

Juror’s letter [87]
Result [88]
Appendix

Introduction

[1]	Mr Seu was convicted of murder in the High Court, Wellington on 12 February 2005. He now appeals against that conviction on the basis that there was non-disclosure by the Crown of an expert report and on the basis of a number of alleged deficiencies in the summing up.

Facts

[2]	Mr Seu and the victim (Mr Rex Hopper) were inmates at Rimutaka Prison. According to Mr Seu’s statement, he went on 4 March 2004 to the prison garden workshop where Mr Hopper was working, to ask whether he could borrow some tools to fix his radio. He said he did not know Mr Hopper very well and that he had not had any trouble with Mr Hopper before. Mr Hopper and Mr Seu argued and Mr Seu swore at Mr Hopper. Mr Hopper told Mr Seu to come back later. Mr Seu said that he returned to the workshop about 10 to 15 minutes later and again asked to borrow some tools. Mr Hopper and Mr Seu had another argument.
[3]	Mr Hopper swore at Mr Seu. Mr Seu said that Mr Hopper then hit him, causing him to fall to the ground. We note that there was some other evidential support for this proposition as Mr Seu had a visible injury to his eye. There was also some inflammation on Mr Hopper’s right index finger knuckle, which the pathologist accepted in cross-examination could have been consistent with him having punched something. There were also possible defensive injuries on Mr Hopper’s left hand.
[4]	Mr Seu then said that, when he looked up, Mr Hopper was holding a garden fork in his hands. Mr Seu reached up and managed to take the fork from Mr Hopper. This struggle took place in the doorway of the shed. Mr Seu said that he hit Mr Hopper on the back of the neck with the handle of the garden fork, causing Mr Hopper to fall back on his back to the ground. While Mr Hopper was lying on the ground, Mr Seu struck him in the front of the neck with the pointed end of the fork.
[5]	There was evidence that a garden fork was missing on the morning of Mr Hopper’s death from a place to which Mr Seu had access. We note that there was evidence that the fork may have been missing for two to three weeks prior to the killing. No one had seen the fork in Mr Hopper’s shed and there was no reason for it to have been there as it was not broken. No one had, however, seen Mr Seu with the fork either.
[6]	Mr Seu was interviewed by Detective Karl Ruby on the day of Mr Hopper’s death. In that interview, Mr Seu acknowledged that "I was the one that did it". When asked by the Detective whether all Mr Seu wanted to say is that he killed Mr Hopper, Mr Seu nodded his head and said yes.
[7]	There were no witnesses to the events immediately leading up to Mr Hopper’s death, although, as indicated below, there was a witness who overheard the first quarrel. The Crown thus relied mainly on the forensic evidence in order to prove its case. The pathologist’s evidence was that Mr Hopper’s death was the result of multiple skull fractures caused by at least four blows with a weapon. The most severe blows were to the back and left side of the head. The impaling with the garden fork was, in the pathologist’s opinion, inflicted after death. The forensic evidence suggested Mr Hopper was rolled over before being impaled by the fork. From the blood found on the door frame of the shed, it appeared that Mr Hopper had been hit (probably twice) while standing inside the shed. It can be seen, therefore, that, in many important respects, the pathology and forensic evidence was at odds with Mr Seu’s version of events as given in his statement.
[8]	There was other evidence that was at odds with Mr Seu’s statement. The evidence of other inmates at Rimutaka Prison suggested that there had been disagreements between Mr Hopper and Mr Seu on the days leading up to 4 March, the day of Mr Hopper’s death. One inmate also gave evidence that, on 4 March, he had witnessed Mr Seu bandaging his hands in a boxer-style. He said that inmates sometimes bound their hands when lifting weights in the gym, but that the hand-binding that Mr Seu had on 4 March was different from the hand-binding normally used when in the gym. One inmate also witnessed the quarrel between Mr Seu and Mr Hopper when Mr Seu had first taken his radio down to be fixed. He confirmed that Mr Seu’s hands were bandaged at that time.

Mr Seu’s defence at trial

[9]	As indicated above, Mr Seu acknowledged killing Mr Hopper. His defences at trial were self-defence, provocation or lack of intent. The main evidential basis for the defences was Mr Seu’s account in his police statement that Mr Hopper hit him first, knocking him to the ground and then threatened him with the garden fork. Mr Seu allegedly responded in self-defence. Alternatively, Mr Seu responded with a loss of control triggered by a "flight or fight" mechanism linked to post traumatic stress disorder (PTSD).
[10]	The evidence of PTSD was provided by an expert witness for the defence, a psychologist, Mr Geoffrey Shirley. Mr Shirley’s report had been disclosed to the Crown prior to trial, although there is currently no obligation to do so. We note, however, the Criminal Disclosure Bill, which is currently before Parliament, would, in its present form, require that, if a defendant proposes to call a person as an expert witness, the defendant must disclose to the prosecutor before trial any brief of evidence to be given or report provided by that expert witness or a summary of that evidence or report – see cl 38.
[11]	Mr Shirley’s evidence was based upon an analysis of materials given to him, an interview with Mr Seu and psychometric testing of Mr Seu. Mr Seu’s complaint about non-disclosure of an expert report relates to the alleged failure of the Crown to disclose a report prepared by Professor Ogloff of Monash University on Mr Shirley’s proposed evidence. We set out below a summary of Mr Shirley’s evidence as well as Professor Ogloff’s report. Before doing that we set out some extracts from Mr Seu’s statements.

Extracts from Mr Seu’s statement

[12]	The first extract relates to an earlier attack, which was obviously of relevance to the issue of PTSD. GK is Mr Greg King, Mr Seu’s lawyer and ES is Mr Seu.

GK: Emani earlier when we were alone you were telling me about an assault in 1992, when I asked you about the bad scarring on your nose. Can you tell Detective Ruby about that?
ES: In 1992 it’s a really ah, I got the beating from a lot of, three people. But that happened in Christchurch in 1992. And he bashed me from the back and he cut open my nose and ah when I was happen with me and the victim today and bring back that kind of memory.

[13]	The next extract discussed why Mr Seu did not run away after Mr Seu had allegedly struck Mr Hopper to the ground. It also covered the strength of the blow and some issues relating to intent. KR is Detective Karl Ruby of the Upper Hutt Police:

KR: When Rex [Hopper] was lying on the ground after you hit him in the back of the head, he was lying there, why didn’t you walk away?
ES: I can’t stop it I was angry. I was really angry.
KR: You could have walked away because Rex was lying on the ground. How hard did you use the pitchfork into his neck?
ES: I was really angry. I was too hard, yeah.
KR: After he had hit the ground and was on his back you could have walked away, couldn’t you?
ES: That’s all I can say Sir, that’s all I can say.
KR: When you used the pitchfork to Rex’s neck while he was lying on the ground, is it fair to say that you knew when you pushed it through his neck, it would kill him?
ES: See it was happened really fast, 5 seconds.
KR: What did you think would happen when you put the pitchfork into Rex’s neck?
ES: See that’s what I say, it happened really quick and the fork was on it.
KR: Emani when you hit Rex in the back of the head, you say it was with the handle, the handle of the pitchfork, is that correct?
ES: Yeah, it happened really quick I don’t know where the sharp end or the handle.
KR: Whichever end it was, how hard did you hit Rex in the back of the head?
ES: Well ah, I’m a bodybuilder, whatever I say it was hard I thought it was a light sort of swing.
KR: There was a lot of damage.
ES: I don’t know it might have been the damage when he fall down. But I know that I hit the back of the neck but there might be another when he fell down.
KR: What did you do when he was lying on the ground. What did you do with the pitchfork?
ES: The pitchfork was on the see it was ah it happened really quick and he fall down on the ground and the fork was on it.
KR: I understand it happened fast but we need to know what you did when he was lying on the ground. How many times did you use the pitchfork on Rex while he was lying on the ground?
ES: The fork was on it. Just one, might be one. Just one.
KR: And that was where?
ES: Might be the neck.
KR: When did Rex let go of the pitchfork?
ES: I reached out my hand and I grabbed the fork and struggle with it. He fall down and the fork was on it. It happened really quick.

[14]	Later in the interview, the detective returned to the topic of why Mr Seu had continued to strike Mr Hopper. The exchange was as follows:

KR: We want to clear up that when Rex punched you was he inside the shed?
ES: Yes, just beside the door, just beside the door. On the inside.
KR: When Rex punched you and you fell over, did you fall inside or outside the shed?
ES: Yes, outside the step.
KR: You talk about the pitchfork being on it, what do you mean by that?
ES: Ah it’s on it. It mean see what’s happened is really really fast and on it mean it’s put through the neck.
KR: When Rex was lying on the ground on his back, was his eyes open or closed?
ES: I didn’t even see them, I never even look at it.
KR: Emani, you had the chance to walk away before you put the pitchfork through Rex’s neck, you were angry, you are a bodybuilder and Rex was lying on the ground. You said you used the pitchfork too hard, you must have known that that would have killed Rex. Is that correct?
ES: I explained before you see what has happened it happened really really fast and I all I remember is the fork was go through him in the neck.
KR: What do you think was going to happen when you put the fork through his neck?
ES: I so sorry about I’m so sorry that a man is dead. I never want that to happen. It happen so fast. No time to think. When he attacked me I was in shock. I was scared and angry but there was no time to think. I wish it never happened.
KR: Why didn’t you run away when you were outside the shed?
ES: I was ah fall down on my back and I look up and the man was holding a fork. I can’t do anything I can’t move.
KR: But Rex was inside the shed and you were outside the shed.
ES: Yep. I was ah fall over outside the shed just beside the door.

Mr Shirley’s evidence in chief

[15]	In his evidence in chief, Mr Shirley said that, based on Mr Seu’s statement to the police, he had hypothesised that Mr Seu may have PTSD, that he may have some degree of mental retardation, and that he may have had organic brain impairment or brain damage. He tested these specific hypotheses in an interview with Mr Seu on 11 October 2004 that lasted some four hours.
[16]	Mr Shirley had first obtained from Mr Seu a description of his childhood in Samoa in a Catholic family. Mr Seu told him that his father had been very violent towards his mother and his 11 siblings. Mr Seu said that he had been assaulted on numerous occasions by his father, who used whatever weapon was available to him. When he was 15 his father had attacked him with a machete and he had evident scars from that assault. When he was eight Mr Seu had gone to live for a period with an aunt in American Samoa. He had been put to work with his siblings ferrying rock to build the foundations for her new house and he had been without schooling for the next four years. Mr Seu also told Mr Shirley that a man associated with his aunt had sexually abused him not long after he arrived in American Samoa. This abuse included penetrative sodomy. His aunt had also allegedly sexually abused him.
[17]	Mr Seu came to New Zealand at the age of 22 in 1979. Mr Seu described to Mr Shirley three assaults he had experienced in New Zealand. One of the incidents occurred in 1992, when he was hit by the son of a Samoan family he was staying with in Christchurch with a bottle of beer, knocking him out and cutting a vein in his left eye. Mr Seu also told Mr Shirley that he had been beaten by two prison guards in 1997. One had sat on his back, hitting him repeatedly in the head cutting his eye and both ears. Mr Seu also reported a third incident where he was attacked by a psychiatric patient in 1999, damaging his knee. Mr Seu told Mr Shirley that he had experienced recurrent intrusive visual flashbacks in relation to those attacks. The most prevalent imagery that he experienced, however, were flashbacks to his father hitting him in childhood. Mr Seu had also described to Mr Shirley a number of the other symptoms of PTSD, such as being hyper-vigilant and having an exaggerated startle response.
[18]	In Mr Shirley’s opinion, Mr Seu met the first criteria of PTSD in that he had been injured and that he had responded to all those instances of injury with fear. He had also subsequently experienced recurrent intrusive imagery in respect of those instances. Mr Shirley had asked Mr Seu to give an account of the incident leading to Mr Hopper’s death and Mr Shirley understood Mr Seu to say that his recollections of previous physical trauma were activated by the situation he found himself in. Mr Shirley considered that Mr Seu’s response was triggered by his fear response to the threat he felt himself under. In Mr Shirley’s opinion, Mr Seu would have been highly aroused physiologically and probably placed in a situation which activated the so-called "fight or flight" response which is known as the General Adaptation Syndrome. The predisposition to the fight or flight response is far higher in a person with PTSD than in someone who does not have that disorder. One of the symptoms of PTSD is the exaggerated startle response, and another is hyper-vigilance, scanning for danger. The increased predisposition to fight or flight arises when there are some conditions that are reminiscent of the existing trauma.
[19]	Mr Shirley also described the psychometric testing that he had performed with regard to intellectual functioning. Mr Seu had performed poorly on all of the tests given. Mr Shirley had administered organic brain impairment tests because of Mr Seu’s disclosure that he had abused solvents in Samoa during his teenage years. Mr Shirley concluded that Mr Seu’s organic brain performance was impaired.

Professor Ogloff’s report

[20]	Mr Shirley’s report, upon which his evidence in chief was based, had been disclosed by the defence on 1 November 2004. By letter dated 24 November 2004, the Crown instructed Professor Ogloff to review the psychological report filed by Mr Shirley. The reply dated 29 November 2004 was received by facsimile at the Crown room at the High Court at 8.18 am on 30 November 2004, although we understand it was not seen by the Crown counsel, Mr Burston, until just before he went into court at 10.00 am. At that stage, arguments as to the admissibility of hearsay evidence upon which Mr Shirley relied for his diagnosis of PTSD were heard, culminating in a ruling from the Judge.
[21]	The defence then opened and Mr Shirley began giving his evidence in chief at 12.22 pm. The examination in chief continued after the luncheon adjournment with the cross-examination starting at 2.31 pm. Mr Shirley had been given the Ogloff report to read over the luncheon adjournment.
[22]	In his report, Professor Ogloff emphasised that he had not had the opportunity to review Mr Seu’s files and that he did not interview him. That means that his report could not be construed as commenting upon the correct diagnosis and/or any causal link that may be drawn between any diagnoses and the events leading to Mr Hopper’s death. Professor Ogloff’s review was limited to the methodology used in Mr Shirley’s assessment, to ascertain whether it was valid and justified the conclusions drawn by Mr Shirley. Mr Shirley articulated those conclusions as being that Mr Seu suffers from PTSD and that a PTSD flashback may have led Mr Seu to react without conscious thought, which resulted in Mr Seu displacing his "long history of psychologically untreated trauma" onto Mr Hopper, thereby causing his death.
[23]	As a preliminary comment, Professor Ogloff noted that it is critical that the foundation of any assessment of PTSD be based upon valid information that is corroborated in the file material and by other sources. It is not sufficient for a forensic assessment simply to rely upon the accused’s own report of events. Mr Shirley had relied largely upon a clinical interview with Mr Seu to make his determination that he suffered from PTSD. Mr Shirley’s speculation that the PTSD led Mr Seu to kill Mr Hopper without unconscious thought had not, in Professor Ogloff’s opinion, been adequately tested to rule out other possibilities. In Professor Ogloff’s opinion, Mr Shirley’s diagnosis of PTSD and his assertion that it led to Mr Seu reacting without conscious thought to kill Mr Hopper was fundamentally flawed and the conclusions too speculative to be of any assistance to the Court or the jury.
[24]	The major problem Professor Ogloff saw with the assessment was that Mr Shirley had failed adequately to consider and rule out the possibility that Mr Seu was exaggerating or malingering symptoms of anxiety and PTSD. The DSM-IV-TR, the diagnostic system upon which Mr Shirley relied for his assessment, requires that malingering be ruled out in those situations in which financial remuneration, benefit eligibility or forensic determinations play a role. Professor Ogloff also noted that it was not clear, based on Mr Shirley’s report, whether the stressors that Mr Shirley had identified had been verified by collateral sources.
[25]	Professor Ogloff said that a well accepted and well validated psychological test that is routinely used in assessments of PTSD is the Trauma Symptom Inventory (TSI). The test includes measures to assess whether the person being examined is exaggerating symptoms. The results include both systematic evaluation of the range of symptoms of trauma that the person is experiencing as well as the likelihood that the person’s self-reported symptoms are prone to exaggeration. Professor Ogloff pointed to a recent study which showed that, while it is easy for people to fake symptoms of PTSD, most respondents who malinger symptoms are not able to avoid detection on the validity scales of the TSI. There are many other approaches to determining the possibility of malingering, none of which Mr Shirley employed.
[26]	Professor Ogloff also noted that it was very important to place the presence or absence of PTSD in Mr Seu in context. The incidence of anxiety disorders, such as PTSD, is higher in prisoners than in the general population. Although one out of every five male prisoners in New Zealand experiences PTSD, very few of these men engage in behaviour similar to that with which Mr Seu has been charged.
[27]	Professor Ogloff also said that another factor must be considered in light of Mr Shirley’s diagnosis of PTSD and reliance upon the belief that Mr Seu’s alleged murder of Mr Hopper occurred as the result of a "flashback to previous assaults". That factor is the extent to which Mr Seu’s experiences at the time of the offence, as recounted in his statement to the police and to Mr Shirley, were consistent with what is known about flashbacks in those who have PTSD. Much of the research on PTSD flashbacks and their relation to offending comes from research with Vietnam veterans. It was those combat experiences rather than the ones Mr Seu has been said to have experienced that have been found in rare cases to relate to violent offending behaviour.
[28]	Based on the research with Vietnam veterans, the following characteristics of flashback behaviour have been identified:

(a) The ‘flashback’ behaviour appears to have been sudden and unpremeditated;
(b) The ‘flashback’ behaviour is uncharacteristic of the person in normal circumstances;
(c) There is retrievable history of one or more traumatic (combat) events that are reasonably re-enacted by the ‘flashback’ behaviour;
(d) The defendant is amnesic for all or part of the episode.
(e) There is lack of any current motivation for the ‘flashback’ behaviour;
(f) There are identifiable stimuli in the current environment which are reminiscent of the environmental features of the trauma;
(g) The defendant is unaware of the specific ways in which he has re-enacted prior experiences;
(h) The victim may be fortuitous or accidental; and
(i) The patient has, or has had, other symptoms of PTSD.

[29]	In Professor Ogloff’s opinion, the above criteria should have been used to evaluate the extent to which Mr Seu’s so-called "flashbacks" and their relationship to the offending are consistent with what is known about such flashbacks. Professor Ogloff also noted that Mr Shirley speculated that, in his opinion, as fear is the predominate associated emotional response of a PTSD flashback, the fight or flight response may have been activated. Mr Shirley also opined that in this state Mr Seu might have reacted without conscious thought. Professor Ogloff noted that there was at least a question of whether Mr Seu may have had some motivated anger towards Mr Hopper. It also had to be asked why Mr Seu’s response would not have been "flight" (ie, to flee) rather than to "fight".
[30]	Professor Ogloff then went on to criticise the measures of intellectual functioning that Mr Shirley chose to administer, on the basis that those measures do not provide a comprehensive assessment of intellectual functioning and are not among the measures recommended for forensic neuro-psychology evaluations of intelligence. He also commented that Mr Shirley’s assessment of Mr Seu’s organic brain impairment fell far below the extensive sort of neuro-physical assessments with which he was familiar.
[31]	Professor Ogloff noted at the end of his report that he was aware that it might be used in High Court proceedings. He said that he had read the expert witness code of conduct (presumably referring to the Code of Conduct for Expert Witnesses, contained in Schedule 4 to the High Court Rules). He confirmed that the content of the report was within his area of expertise and that he was willing to comply with all the requirements of the code.

Cross-examination of Mr Shirley

[32]	Most of the cross-examination of Mr Shirley consisted of showing Mr Shirley hospital and prison records which tended to throw major doubt on Mr Seu’s account of the violent incidents on which Mr Shirley based his opinion. Mr Shirley had also attached some significance to the fact that he was the first person that Mr Seu had told about the sexual abuse. Mr Shirley was referred to a report made in 1997 where Mr Seu had disclosed sexual abuse. It also appeared as if Mr Seu’s level of intellectual functioning, as gleaned from various records, was not consistent with Mr Shirley’s conclusions that Mr Seu had a very low intellectual capacity. Mr Shirley was also referred to a number of psychological and psychiatric reports, which again did not substantiate Mr Shirley’s conclusion in that regard.
[33]	Mr Shirley acknowledged that he had not carried out full psychometric testing of Mr Seu’s cognitive and adaptive skills. He agreed that the test that he administered was a screening one, and not definitive. He also agreed that he did not test whether Mr Seu’s low intellectual functioning diagnosis fitted in with the way Mr Seu had behaved in his adult life. He was unaware that Mr Seu’s mother and siblings and his teenage sons were very supportive of him. He had been told that Mr Seu had lost touch with his family.
[34]	With regard to the question of verification of Mr Seu’s account from independent sources, Mr Shirley said that, in an ideal world, he would have spent more time perusing corroborative information, but he did not perceive that as being his role. Even having seen the material from the hospital and from the prison records, he said that he was still of the firm belief that Mr Seu has PTSD based on the way in which Mr Seu described a complex of symptoms. In his view, the most important factors had been those that occurred in Samoa. Subsequent altercations may well have exacerbated or maintained the PTSD. He said that it was impossible to corroborate Mr Seu’s story about childhood sexual abuse or the violence from his father.
[35]	Mr Shirley agreed that it was improper to make a diagnosis of PTSD without first ruling out malingering. He was aware of the possibility of inventing symptoms but said that he had relied on his 25 years of clinical experience to determine whether an individual was providing him with a story that had credibility. Mr Shirley agreed that the TSI was a well accepted and well validated psychological test routinely used in assessment of PTSD, but said that he did not have the TSI in his test library. He said some clinical psychologists would use it and certainly academic clinical psychologists would recommend it.
[36]	Mr Shirley agreed that it would be common for anyone to have a "flight or fight" reaction if punched and threatened with a garden fork, but PTSD gave a heightened sensitivity. He said that this would be different from other people’s reaction as Mr Seu would be more predisposed unconsciously towards holding his ground. He accepted that in his discussions with him Mr Seu had presented as having taken a rather passive stance in the previous altercations. There was a possibility that Mr Seu had, in addition to the PTSD, anger about the previous abuses and fantasies about getting back at previous perpetrators of abuse. It was possible therefore that in the incident with Mr Hopper, he reacted in a violent manner, displacing some of that anger on Mr Hopper.
[37]	When asked whether any of the discussion that they had had during cross-examination altered any of his conclusions, he said the discussion changed his view of Mr Seu’s intellectual capacity. As to Mr Seu’s reaction, he thought it was still possible that it was triggered by PTSD but he could not give an assessment of the strength or probability.

Sheet provided to the jury

[38]

We now turn to the Judge’s summing up and the written material provided to the jury, as aspects of that written material and the summing up are criticised by Mr Lithgow on behalf of Mr Seu. The Judge provided a sheet to the jury setting out a decision flow chart and possible verdicts. His summing up was directed to that sheet. The sheet is reproduced in the Appendix to this judgment. The jury was also given, in written form, the definitions in law of murder, self-defence and provocation.

Summing up

[39]	The Judge began the summing up with the standard directions on the role of the judge and jury, prejudice and sympathy, inferences and the burden and standard of proof. When talking of this the Judge mentioned self-defence and provocation. He said:

I have mentioned self-defence and provocation, and in the same way that the Crown must prove beyond reasonable doubt that this is murder, they must prove beyond reasonable doubt that it is not a case of self-defence and that they must prove beyond reasonable doubt that this is not a case of provocation.

[40]	The Judge then moved on to a discussion of the indictment. He began by discussing the legal ingredients of murder, highlighting that the real question in that regard was intent. The Judge explained the possible types of murderous intent and briefly discussed self-defence in the following terms:

Go back to the sheet. If you are satisfied either of these murderous intents were present, meaning to kill or the second one causing bodily injury and so on, if the answer there is "yes", then you go on to consider self-defence. And even if the answer if ‘no’ and that is the right-hand column, you still need to consider self-defence and that is for this reason. Self-defence is a complete defence. If the Crown cannot prove that the accused was not acting in self-defence then whatever – whether he had a murderous intention or not he will be not guilty of either murder or manslaughter. So if we just come back to that in just a moment.

[41]

The Judge then moved on to Mr Seu’s statement. He said that the view the jury took of that statement would have "a significant influence" on the jury’s approach to the case. He said that the statement was not sworn evidence and had not been subject to cross-examination, although that it was properly part of the material they had to consider. It was for the jury to assess its truthfulness, accuracy and weight. They were also told that they could accept parts of the statement, reject parts, accept all or reject all of it. The Judge then went on:

[26] Whether you need to consider self-defence or provocation in this case is going to depend upon the view of the facts you take and essentially the view of the accused’s statement. And I can illustrate this point to you quite quickly. The accused in his statement has said that he was punched and threatened by the deceased. He was, he said, punched to the ground and then threatened with a fork. If you accept that this is what happened, if you accept that on this point the accused’s statement is truthful, then you need to go on and consider self-defence and provocation. I stress "consider". I just want to explain to you why that is. If you accept that it was the deceased who threw the first punch then self-defence obviously arises for consideration because the accused says that he was responding in defence. I will deal with the detail of self-defence later but I wanted to explain to you why, if you accepted what the accused said in self-defence, then what he had said in defending himself then you would need to go on to consider self-defence. But if you reject the statement by the accused that the deceased punched him first and threatened him then of course self-defence would not arise because there would be no evidence he was defending himself. I add, you would need to be satisfied in that situation of course that the accused was the aggressor. So if the accused is the aggressor and you reject the proposition in the accused’s statement that he was punched first then self-defence does not arise and you do not need to consider it. If you accept what the accused says in his statement about being punched first and threatened, self-defence arises, you must consider it. We will get to that a little later.
[27] The second part of this proposition is provocation. The provocative acts relied upon were the punch and the threat. The first punch and the threat that the accused says occurred. And so you will immediately see how a determination of whether what the accused says in this statement is true or not is going to decide whether you need to deal with provocation at all. If you accept what the accused says in his statement is true, that he was punched and threatened, then you do need to consider provocation. But if you reject what he says, if you are not satisfied that it is truthful, that he was not punched and that he was not threatened, then there would be no provocative act. And so you would not need to consider provocation at all.
[28] That is why I wanted to talk to you briefly about the accused’s statement right now because a determination of that is going to guide you very much on where you go from the stage of deciding whether there is a murderous intent. You do need to consider self-defence and provocation if in self-defence you accept the statement of the accused, you do need to consider provocation if you accept the statement of the accused. But in self-defence if you think that the accused was the aggressor and you reject what he says about the punch and the threat you do not need to consider self-defence because it is not a self-defence case. And the same with provocation. If there is no provocative act, if you reject what the accused says about the punch and the threat, no provocative act, no provocation.

[42]	The Judge then discussed the elements of self-defence. We have emphasised the passages dealing with the onus on the Crown to exclude any reasonable possibility Mr Seu was acting in self-defence. He said:

[30] Now let us go back to where we were. We have done the ingredients of murder and we have got to whether or not you have decided whether the accused meant to kill, and you have decided alternatively whether the accused has caused bodily injury and so you are now moving your way down to the question of self-defence. And you are considering self-defence only if the circumstances are such as I have mentioned to you and I will not repeat it again. So what is the situation with self-defence. Keeping in mind whether you are satisfied the murderous intent was present or not, self-defence is there. Two important preliminary propositions for self-defence:

(1) It is an absolute defence. So it justifies killing someone. So if someone acts in self-defence they are not guilty of murder or not guilty of manslaughter.
(2) Although it is called a defence the Crown must disprove self-defence applies beyond reasonable doubt.

[31] So what are the elements of self-defence? Flip over to p4 there is the definition of self-defence there:

Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

[32] There are three elements to self-defence that you need to focus on. The first is you need to decide what the circumstances the accused believed there were at the time. That is what is called a subjective part and it is really just explained in this way. You have got to consider what the position was from the position of Mr Seu, what did he believe was happening at the time of the confrontation between him and Mr Hopper. What did he think was the nature of the attack and the threat of bodily harm at the time. And you will assess that by taking account of all of the evidence. That is the first thing you have got to do, decide what he thought the circumstances were from his point of view. The second, bearing in mind what he thought was happening at the time was he acting to defend himself from harm or the threat of harm. Again, to be considered from his point of view. So was he acting to defend himself. Did he believe that he was in danger of bodily harm, was he using force to defend himself against that danger. Assess it by taking account of all of the evidence. If you are satisfied beyond reasonable doubt that he did not believe he was in that sort of danger then of course it would not be self-defence. In that situation the Crown would have satisfied you that self-defence is not a reasonable possibility. But keep in mind it is part of the concept of self-defence that the accused acted to meet what he believed was an existing threat. The law does not protect people from revenge or retribution. So if you think for example that any threat there was has passed, and Mr Seu was simply retaliating in this situation then of course that would not be self-defence. But if you think it a reasonable possibility that he believed he was in danger of bodily harm and he was defending himself against that then go on to the third step. The third step was this, was the force he used reasonable given what he believed was happening at the time. Whether he thought the force used was reasonable is not the point. This is objective. The question is whether you as the jury, given the circumstances that he believed it to be, whether you as the jury think it was reasonable, his reaction, in the force he used. So keep in mind of course incidents happen at the heat of the moment. You cannot expect, therefore, to weigh up precisely the degree of force required to respond. But on the other hand if the response is outside, given that bit of leeway, outside of the threat, outside of the circumstances that he believed them to be, if the reaction is unreasonable or disproportionate then it would not be self-defence. So those are the elements of self-defence.
[33] Predictably so much depends on what facts you consider are correct in this place. What facts are the truth here. If you accept the accused’s statement that the deceased attacked him by punching him and held the fork over him threatening him, then as I have said obviously self-defence arises. And it seems to me in that situation in considering self-defence there are really two important questions for you to consider keeping in mind the Crown must disprove it, self-defence. Consider the accused’s statement and the forensic evidence from the pathologist of at least four severe strikes to the accused’s head. Consider the accused’s statement that he struck the deceased when he was on the ground. You will take those facts obviously into account in deciding whether or not the accused was defending himself at the time, or whether he had gone beyond defence. In considering that you will take account of what threat the accused thought that he was facing at the time. So if you think, however, that the accused went beyond defence in what he did then of course he would not be acting in self-defence.
[34] The second issue I think that is vital here is this. Was the force used reasonable given what the accused thought was happening. In this account, take into account that the accused said that the deceased was on the ground for part of the time that he struck him. The severity of the striking is illustrated by the fractured skull and illustrated by the fork in the neck. Do you consider, are you satisfied beyond reasonable doubt that this was not reasonable force given the circumstances the accused believed that he faced. Keep in mind again it is for the Crown to prove that in the circumstances the force was not reasonable. So was there a reasonable balance between what the accused believed he was facing and what he did, his reaction. If it is disproportionate, if it is proved to be not reasonable, then self-defence would not apply.
[35] In this case deciding what the accused believed the circumstances were, what was happening at the time of the incident, you are entitled to take into account, if you accept it, Mr Shirley’s evidence, that the accused was especially fearful of physical aggression and might see an incident such as this perhaps more seriously than it really was. You are concerned, firstly as I have said, to judge the circumstances that the accused believed them to be is the first part of the test. So if you accept Mr Shirley’s evidence, if you are satisfied that Mr Seu did or may have seen this as a more serious attack than an ordinary person might, then this is the level of seriousness that you must consider in deciding whether objectively there is a balance or a reasonableness between his threat as he believed it to be, and his response.
[36] Now return to the chart. You will see the two boxes of self-defence and we have considered whether it is self-defence or not. If it is self-defence as the chart says, in other words if the Crown has not proved beyond reasonable doubt that self-defence does not apply then he is not guilty and you will see the two "not guilty" in the middle of the chart there. So whether he had a murderous intent or not you need to consider self-defence, the answer to self-defence is the Crown have not disproved it, i.e. yes he is not guilty of murder and not guilty of manslaughter and that would be of course the end of your consideration. If, however, you say yes, we are satisfied the Crown has disproved self-defence then on the left-hand side, which is the murderous intent established side on the form, you go on to consider provocation. If, however, you have concluded the Crown had not proved murderous intent but had disproved self-defence then the accused would be guilty of manslaughter and you could stop there. So just to go through that again. Go back to the second box on page 1. Was the killing with murderous intent. If the answer is "yes", that is the left-hand column, has self-defence been disproved? If it has not, "not guilty". On the other side, "no", go onto consider provocation. The right-hand side, "Was the killing with murderous intent?" The Crown cannot prove that. If the Crown disproved self-defence, in other words did self-defence apply? "No" then he is guilty of manslaughter, because what you have then is an unlawful killing which is not excused by self-defence, so you stop there. [Emphasis added].

[43]	The Judge then went on to discuss provocation but we do not set out these passages as there is no challenge to the directions on provocation.
[44]	As to the hearsay material put to Mr Shirley in cross-examination, the Judge said:

[42] So I want to talk to you briefly about Mr Shirley’s evidence because there was quite some evidence there and may have some importance and I also just want to get a focus for you because it would be easy to be slightly misled about it all...
[45] Mr Shirley’s opinion, and I now just want to turn to the way you might approach his evidence and think about it. His evidence was really that Mr Seu suffered from Post Traumatic Stress Disorder, he had an intellectual impairment and he had some organic brain damage. These conclusions seem to me to be really based on essentially on three things. One was reading the accused’s interview with the police which he was given beforehand. Secondly, Mr Shirley’s interview with him, and finally some psychometric testing, and you will remember the tests that were done. Now you have heard quite a lot of cross-examination in this case about what was in prison files and what was in other files and so on. Now there is just some really important rules about this that you need to keep in the back of your mind. None of what was put to Mr Shirley about what was in the files was done to establish what the truth of what was in the files. I will give you an example and I hope this helps you understand. For example it was put to him that there was some reports from police officers about an incident in a prison when a violent incident occurred and it was put to him from the file that these things may [not] have occurred. Well, you cannot reach a conclusion about whether or not these things in fact did happen in the prison or not. We do not have the police officer who saw or heard what went on. All we have is a report from a police officer in a prison file which may have said something. So we are not concerned with in fact whether these events occurred. Where it is relevant and where it is important, and this is really the purpose of this cross-examination, is really to say to Mr Shirley, don’t you think you needed to look at this material and consider it before you could reach a proper conclusion about Mr Seu. And that is really the relevance of all of this material because it was material about Mr Seu and so the point that was being made in cross-examination was exactly that. Should you have seen it? Don’t you really need to get a far more comprehensive understanding of Mr Seu before you can reach the conclusions you did? But not that Mr Seu did do these things or did not do these things in prison. So I hope you understand by that, that the truth of what is in these files is not for you to worry about. The people are not here to be questioned about it. But what is in the files may be the private material that you think or do not think that Mr Shirley should have taken into account. So it is just material for you to say, well, should he have had it, would it have changed his mind, how relevant is it, as against no I am satisfied that what he said was fine and I can rely upon it. I am not expressing any view either way to you, I am simply trying to point out to you the limited way in which it could be used by you.
[46] The second point is, some of the material heard could be seen as critical of Mr Seu alleging that he might have been involved in fights in prison or other incidents. Again, the material firstly is not tendered to prove that and indeed for the purpose of any prejudice against Mr Seu for the reasons I have already given you, you have got to ignore that. Whether Mr Seu behaved well or badly in prison has got nothing to do with this case so please do not let that influence you at all. If you do it would be prejudicial. So I just wanted to make it fairly clear where the line was in terms of the way in which you can use that evidence because I do accept and understand that it is a slightly unusual situation, if you like.

[45]

The Judge also gave a lies direction. First, Ronald Young J categorised the lies said to have been told by Mr Seu. The first category was the report of the sexual abuse. Mr Shirley said that Mr Seu had told him that he had not told anyone else about the sexual abuse. The Judge said in summing up that it appeared from the cross-examination that Mr Seu had told someone else about that previously, and so what Mr Seu had told Mr Shirley may not have been true. The second category of alleged lies related to matters in Mr Seu’s statement. In this category, the Judge included the suggestion in Mr Seu’s statement to police that he had no problem with not being lent tools, the question of the number of discussions held with Mr Hopper, whether the discussion was inside or outside the hut and whether Mr Hopper fell on his back or on his face.

[46]

The Judge then gave a direction to the jury that, if they were satisfied that Mr Seu did lie on some or all of these situations, then this was relevant only in a very limited way, in assessing the credibility and reliability of Mr Seu’s statement. The Judge emphasised that a finding that Mr Seu did lie did not necessarily mean that he was guilty. The Judge said:

You must not say simply because Mr Seu may have lied – you have got to be satisfied he did lie, you must not reach that connection [sic]. Lies do not equal guilt. They are a factor to take into account in assessing whether you believe his statement, whether it is credible, but only one factor of course, it does not determine it, it is only one factor. So that was the lies section I wanted to talk to you about.

[47]	On the defence case and the continued reliance on Mr Shirley’s evidence, the Judge said:

[53] For the accused, Mr Hampton said that two preliminary matters relating really to Mr Shirley. He accepted, and has said they pointed out, Mr Shirley was reliant upon Mr Seu’s account but he asked the question, "Can you exclude Mr Seu’s account as a reasonable possibility" and he said the answer to that was no. He said that Mr Shirley’s evidence did help you. Mr Seu’s history and background meant when he was confronted with the punch and the threat, given his lowered threshold and accelerated response he was more likely to fight in those circumstances.

[48]	After the jury retired, there was discussion between the Judge and counsel. As a result, further directions were given, including the following:

[112] The second point, when I got to the stage on this form at the end of the first series of boxes where you had reached a conclusion about whether there was murderous intent or not and you were turning to consider the statement of the accused, and you will recall I said to you how important the statement of the accused was in this case. And I may have used the words about whether you were satisfied this statement was true. What I want to stress is you don’t have to be satisfied this statement is true in the sense that there is no onus on the accused to prove anything. It’s for the Crown to prove everything. So there’s no onus on the accused to prove this statement’s true at all. You do need to decide and work your way through what view you take of the statement of the accused and I have said to you already its very important. But there’s not suggestion that there is any onus that you have to be satisfied, or that the accused has to prove or satisfy you that the statement is true.
[113] The third point is this. It relates to the evidence of Mr Shirley, you will recall that I said to you that the statements and the various prison reports and so on weren’t evidence of the truth of what was in them but just that there had been material relevant to Mr Seu on prison files. In the same way of course when you are assessing Mr Shirley’s evidence it is proper you take into account that what he says is reliant to a significant degree, not wholly because of the testing but partly on what Mr Seu has said to him. And so you would need to assess and decide whether you accept what Mr Seu has told Mr Shirley. If you concluded what Mr Seu had said to Mr Seu was untrue then Mr Shirley’s report wouldn’t be worth anything for obvious reasons other than the psychometric testing. But I think Mr Shirley accepted that much of his conclusions were based on what Mr Seu has told him so you have got to take that into account.

[49]	The Judge also gave a further lies direction. He said:

Firstly, you recall a direction I gave you about lies and how I said to you that, firstly, you would need to be satisfied before you could take a lie into account that the accused had lied and then I stressed to you how important it was that you only took lies into account in assessing the credibility of the accused’s statement. What I also just wanted to add to you was this. And this is in the context of stressing that you must not connect lies with guilt because of course people in these circumstances lie for all sorts of reasons and it is very important that you not equate lies with guilt. [emphasis added]

Mr Seu’s submissions

[50]

Mr Lithgow, for Mr Seu, concentrated his submissions on three areas. The first was alleged difficulties with the Judge’s treatment of self-defence, the second related to the lies direction and the inclusion of hearsay evidence in that direction. The third was the treatment of Mr Shirley and the alleged failure to disclose Professor Ogloff’s report in a timely manner. There was a supplementary matter dealt with by Mr Lithgow relating to a letter from a juror.

The summing up

[51]	Mr Lithgow made a number of criticisms of the summing up. First, he submitted that the Judge’s directions as to self-defence were in error, both in the oral summing up and in the flow chart prepared for the jury. In Mr Lithgow’s submission, the flow chart started with the incorrect premise that the defence accepted that Mr Seu killed Mr Hopper by an unlawful act. If an act meets the legal test of self-defence as set out in s 48 of the Crimes Act 1961, then the act is justified. It is not an unlawful act. Further, the order of the possible verdicts in the flow chart provided to the jury placed self-defence as something to be considered last. Mr Lithgow submitted that logically, self-defence should have been considered first, and the jury should then have moved on to consider the question of culpable homicide only if it found that self-defence was absent.
[52]	Mr Lithgow pointed to two other concerns with the summing up. The most important was that the Judge had erred in his treatment of Mr Seu’s statement. His submission, relying on R v Kingi CA122/05 10 August 2005, was that some of the Judge’s directions suggested to the jury that their task was to make a simple choice between the Crown and the defence contentions (see the relevant parts of the summing up set out above at [41]).
[53]	Mr Lithgow submitted that the Judge, in his summing up, also suggested that self-defence could not apply unless Mr Hopper was the aggressor (see above at [41]). In his submission, this was wrong because it is irrelevant who hits or starts the aggression first. The relevant question is whether, in fact, Mr Seu was defending himself. Mr Lithgow submitted that the law, as simplified in 1981, allows any person to defend himself or herself even against a person he or she has attacked.

Hearsay and lies

[54]	Mr Lithgow submitted that the treatment of hearsay evidence at trial was wrong. In his submission, Mr Seu’s statement to the police was used by the defence as a foundation for the defences of self-defence and provocation. The Crown wrongly sought to use the statement as a basis for alleging lies, and had also purported to use in a similar manner the matters Mr Seu had told Mr Shirley (set out above at [16] - [17]). These concerned Mr Seu’s childhood history, including allegations of physical and sexual abuse and a limited education. Mr Seu had also claimed to have been subject to physical assaults, both inside and outside prison. These were said to have contributed to his heightened sense of fight or flight reaction.
[55]	Mr Lithgow submitted that the Crown had wrongly used medical records and prison reports to contradict Mr Seu’s attributed version of events and to undermine the value of the psychological assessment. He submitted that this created an obvious danger that the Crown case could be wrongly advanced and the defence case wrongly diminished. The Crown claimed that this material was elicited solely for the purpose of impeaching the strength of the psychologist’s conclusions by demonstrating that the factual foundations of the diagnosis of PTSD were uncertain. However, Mr Lithgow submitted that what was really being said was that Mr Seu had lied to the psychologist for his own advantage. Although the ostensible purpose of this was to show that the psychologist did not have a solid foundation from which to make a diagnosis, it had the effect of undermining the credibility of Mr Seu himself.
[56]	Mr Lithgow took issue with the lies direction given by Ronald Young J in this regard. Mr Lithgow submitted that the "lies" in Mr Seu’s statement that the Judge included in the second category were really just Crown submissions about inconsistencies, rather than "lies". Further, he submitted that the supposed lie about sexual abuse was seriously damaging and it allowed the Crown, whilst assuring the Court that was not the intention, to have Mr Seu’s statement explicitly undermined by collateral attack.
[57]	Finally, Mr Lithgow submitted that the re-direction as to lies, after discussion with counsel, made matters worse. Counsel submitted that the re-direction conveyed the opposite of what was intended to be given in such a direction and carried the proposition that people in Mr Seu’s position would obviously lie.

Disclosure issues

[58]	Mr Lithgow’s next submission was that the Crown’s conduct in relation to the evidence of Mr Shirley amounted to an ambush, which had the effect of undermining the credibility not only of Mr Shirley, but also of Mr Seu. In Mr Lithgow’s submission, the Crown’s conduct was unfair. The defence should have been told that a report had been commissioned from Professor Ogloff and been given a copy immediately when it arrived, rather than over the luncheon adjournment.
[59]	Mr Lithgow submitted that the Crown’s conduct was in breach of the Code of Conduct for expert witnesses in the Fourth Schedule of the High Court Rules. He submitted that the purpose of expert witnesses is to assist Judges and juries to understand material which is outside ordinary general knowledge. The expert witness has an overriding duty to the court. It is not intended that expert evidence be used as tactical ammunition to score points off the other side. Mr Lithgow pointed out that the critique of Mr Shirley’s evidence simply undermined Mr Shirley’s methodology and conclusions. No attempt to reconcile the evidence of Mr Shirley and Professor Ogloff was made prior to trial.
[60]	Mr Lithgow also made submissions as to the Crown’s duty to disclose material. That issue had been considered by the House of Lords in R v Brown [1997] 3 All ER 769, with regard to the interviewing of alibi witnesses and the House of Lords’ approach in that regard had been endorsed by this Court in R v Shaqlane CA341/00 5 March 2001. Mr Lithgow submitted, however, that we should prefer the Supreme Court of Canada’s approach in R v Stinchcombe (1991) 68 CCC (3rd) 1.

The juror’s letter

[61]

A juror wrote a letter to the Court between verdict and sentence. She was concerned that certain jurors had made disparaging remarks about one of the defence counsel based on a magazine article. The juror was concerned that that attitude may have undermined the force of the arguments made for the defence, and by implication, increased the pressure on four jurors ultimately to lend their vote to unanimity.

[62]

Mr Lithgow acknowledged that New Zealand law does not permit further inquiry into the issues raised in the letter. He noted that the House of Lords recently considered the issue, but decided to retain the existing position: R v Connor; R v Mirza [2004] 2 WLR 201. He accepted that the facts of this case and the juror’s concerns would not be a likely springboard for an exception or a change to the existing position. Mr Lithgow then said, however:

Having acknowledged that, the control of juries and jurors is quintessentially a matter for the Court and therefore, if further enquiries were considered appropriate that is obviously available to the Court.

Submissions of the Crown

The summing up

[63]	Mr Pike, for the Crown, first responded to Mr Lithgow’s submission that, because the flow chart commenced with a flawed proposition, the whole of the summing up was irretrievably skewed. Mr Pike submitted that, at the trial, it was understood by all counsel and the jury that the comment in the first box in the jury handout was conditional. The defence, subject to the asserted complete defence of self-defence, accepted that in killing the victim Mr Seu had committed culpable homicide.
[64]	Mr Pike also rejected the criticism made by Mr Lithgow that the Judge had wrongly asserted that Mr Hopper had to be the aggressor. He submitted that the Judge was giving directions in a way that fitted the evidence at trial. In the circumstances of the case, if the jury rejected Mr Seu’s assertion in his statement that Mr Hopper was the aggressor, the issue of self-defence was robbed of its only evidential foundation because Mr Seu’s statement was the only eye witness account of the events.
[65]	As to the directions on Mr Seu’s statement, Mr Pike submitted that there was nothing wrong with those directions when looked at in the context of the summing up as a whole. The summing made it clear that the onus to exclude self-defence as a reasonably possibility was on the Crown. In his submission, R v Kingi can be distinguished from this case.

Hearsay and lies

[66]

Next, Mr Pike responded to the allegation that, because the prosecutor was able to undermine the expert evidence of Mr Shirley, he in effect was able to use hearsay evidence to undermine the credibility of Mr Seu’s statement. Mr Pike pointed out that Mr Lithgow failed to advance any legal principle or authority to validate the implicit proposition in this submission that this is a mistrial point. In his submission, the hearsay was used to negate self-defence and provocation. That hearsay evidence is admissible if it went to state of mind, which clearly it did here. Mr Pike submitted that the prosecution asserted nothing beyond the proposition that Mr Shirley’s evidence should be discounted because Mr Shirley had not considered relevant material. Further, Mr Pike argued that is an inevitable by-product of R v Smith [1989] 3 NZLR 405 that the examination of an expert’s opinion will involve an examination of the factual underpinnings for the expert’s opinion.

Disclosure issues

[67]

Mr Pike also responded to Mr Lithgow’s submission that, because the defence disclosed Mr Shirley’s brief before the trial, the Crown should have disclosed their commissioned critique of that evidence. By failing to do so, Mr Lithgow argued, the Crown has breached the Code of Conduct as to expert witnesses. Mr Pike pointed out that the Code applies to civil trials only. He said that the purpose of the Code is to try to ensure that any conflicts between experts are real, understandable and resolved to the extent possible by pre-trial consultation. Here, Mr Pike said, Professor Ogloff was not a witness and he did not provide an admissible opinion. Professor Ogloff merely suggested areas validated by literature where Mr Shirley’s evidence could be tested as wanting. The Crown submitted that there could have been no areas of agreement pre-trial because the gist of the advice was that Mr Shirley had failed properly to consider and evaluate all of the necessary indicia of sound diagnosis.

The juror’s letter

[68]

In relation to the issue of the juror’s letter, Mr Pike submitted that Mr Lithgow appears to accept that it does not give rise to a justiciable issue on appeal. Mr Pike submitted that the communication plainly falls into that class of case in which such material will not be acted on by an appellate court.

Discussion

The summing up

[69]	We accept Mr Lithgow’s submission that the flow chart started with an incorrect premise. It is true that Mr Seu accepted that he had killed Mr Hopper but he did not accept that the act which caused the death was unlawful. Mr Seu asserted that he had acted in self-defence and therefore was justified in acting as he did. We also accept that the order of the possible verdicts provided on the flow chart to the jury was unfortunate in that it suggested that self-defence was a matter that was to be considered last rather than at the outset. Ideally, the jury should have considered self-defence before it considered the question of intent. Whether a person is acting in self-defence or not affects whether it is in fact culpable homicide. If an act is done in self-defence then it is not an unlawful act and the only possible verdict is not guilty.
[70]	Having said this we do not consider in this case that the ordering caused any difficulties. It was made quite clear by the Judge that self-defence was a complete answer to the charges (see above at [40]). Experienced defence counsel had taken no issue with the flow chart and we accept the Crown submission that it was quite obvious to the jury that the statement at the top of the flow chart was qualified by the later reference to self-defence. It was also made quite clear to the jury that self-defence was a complete answer.
[71]	Mr Lithgow took issue with the summing up in two other respects. The first was the direction relating to whether Mr Seu or Mr Hopper was the aggressor. It is true, as Mr Lithgow pointed out, that it is irrelevant who is the initial aggressor. The relevant question is whether in fact Mr Seu was defending himself. However, in the circumstances of this case, the only basis for an argument of self-defence was Mr Seu’s assertion that Mr Hopper was the aggressor. As the Crown pointed out, the summing up was thus tailored to the facts of the case rather than to abstract legal propositions.
[72]	The other aspect of the summing up Mr Lithgow challenged was the treatment of Mr Seu’s statement. In Mr Lithgow’s submission, the Judge’s direction suggested to the jury that their task was to make a simple choice between either accepting the statement or rejecting it. However, as Mr Lithgow conceded, the Judge’s directions on the elements of both self-defence and provocation and the onus of proof in relation to those were later very clearly set out, as can be seen from the passages of the summing up that we have set out above at [42]. Further, in his additional directions the Judge made it very clear that it was for the Crown to disprove the contentions that were made in Mr Seu’s statement and therefore that it was not a simple choice between either accepting or rejecting it.
[73]	The situation is quite different from the situation pertaining in R v Kingi where, in the course of relating the legal directions to the facts, misdirections occurred that not only suggested that there was a simple choice between the defence and the Crown’s contentions as to self-defence, but also suggested that the onus was on the accused to prove that he was not acting in self-defence. Unlike in this case, these comments were uncorrected by anything said afterwards.
[74]	We mention a further point. Looked at in isolation, the flow chart is also incorrect in that it suggests that there is a simple choice between accepting the defence contention that Mr Seu was acting in of self-defence or accepting the Crown case that he was not acting in self-defence. There is no box in the flow chart indicating what the jury were to do if they were unsure. We consider it strongly advisable that the jury be reminded in any written material that the onus of proof is on the Crown. In our view, it should have been made clear on the flow chart what the jury were to do if they were unsure both as to the elements of the offence and as to whether the Crown had disproved the defences. In the course of summing up, however, the Judge specifically referred to the use of the chart and made it absolutely clear in his oral directions that it was for the Crown to prove the absence of self-defence and the absence of provocation. We thus do not consider that there could have been any misunderstanding on the part of the jury. For a discussion on the effectiveness of jury instructions, see R v Taylor [2005] NZCA 93; (2005) 21 CRNZ 1035 at [128] - [147].

Hearsay and lies

[75]	Under this head Mr Lithgow had a number of complaints. The first was the use of hearsay material to throw doubt on the basis of Mr Shirley’s diagnosis of PTSD. As indicated above, Mr Shirley’s diagnosis rested partly on Mr Seu’s disclosures of various attacks. These disclosures did not appear to be consistent with the hospital and prison records, which, according to Professor Ogloff, Mr Shirley should have reviewed. Mr Lithgow submitted that the putting of those records to Mr Shirley created a danger that the Crown case could be wrongly advanced and the defence case wrongly diminished by means of collateral attack on Mr Seu’s credibility. In our view, it was clearly legitimate for the Crown to point to these records, especially as Mr Shirley should have reviewed them in any event in order to verify as far as possible Mr Seu’s disclosures. Any danger of the jury using the material in the wrong manner was avoided through the clear directions given on the use of the material - see [44] above.
[76]	Mr Lithgow’s next complaint was with regard to the lies direction. It is unfortunate that the direction included a direction in relation to the alleged lie as to sexual abuse, as the allegation that this was a lie depended on hearsay and its only legitimate use was to challenge Mr Shirley’s evidence. It would not have been legitimate for the jury to take it into account in assessing Mr Seu’s credibility. However, even though the Judge’s direction was incorrect, we do not think that it risked causing a miscarriage of justice. The lie, if it was indeed a lie, was of a relatively trivial nature. In addition, whether or not it was the first time that he had disclosed sexual abuse when he was talking to Mr Shirley was totally unrelated to Mr Seu’s version of the altercation with Mr Hopper and it is highly unlikely that the jury would have accorded it significance in their assessment of Mr Seu’s version of events.
[77]	Mr Lithgow also took issue with the lies direction more generally. In our view, it was proper to give a lies direction in relation to Mr Seu’s out of court statement where the Crown was wishing to use what it asserted were clear lies in the statement to impugn the rest of that statement. With regard to the re-direction on lies after discussion with counsel, it would of course have been better if the Judge had not said that people naturally lie in these circumstances. However, in this case, it was clear that there were matters in the statement that were untrue, such as Mr Seu’s assertion that he had hit Mr Hopper only once relatively lightly with the fork before stabbing him with it. That was clearly inconsistent with the extent of Mr Hopper’s injuries. No doubt the direction was intended to ameliorate the position from the point of view of Mr Seu. In these circumstances we do not consider that the jury would have taken the Judge’s comment as directing that they should not believe any of Mr Seu’s statement. The Judge had made it clear that all decisions on the facts were for them.

Disclosure issues

[78]	The Crown has an obligation of disclosure with regard to evidence to be called by the Crown and any other material that has been gathered in the course of the investigation which may be helpful to the defence. This includes relevant information gleaned even from those not to be called as witnesses. The Crown does not, however, have an obligation to make the defence case. Thus it has no obligation to disclose evaluative material – see R v Taylor CA130/02 17 December 2003 at [27]. Nor does it have an obligation to disclose investigations with regard to alibi witnesses insofar as they affect the witnesses’ credibility only - see Brown which was followed by this Court in Shaqlane (both cited at [60] above). The exact ambit of the rule relating to the non-disclosure of material relating solely to credibility remains to be determined. We consider, however, that it likely applies only to material relating to the credibility of possible defence witnesses gained after an intimation from the defence that the witnesses may be called, and not to information as to credibility that arises in the general course of the investigation. Couched in these terms, it is a narrow exception to the disclosure obligation.
[79]	These exclusions are contained in the Criminal Procedure Bill currently before Parliament – see cls 31(1)(c)(iii) and 31(1)(o)(i). As this matter is before Parliament, this is not the time for this Court to review Shaqlane as we were asked to do by Mr Lithgow, even if it were otherwise appropriate to do so in terms of the principles reiterated recently by this Court in R v Chilton; R v Archbold CA333/04 and CA335/04 1 December 2005.
[80]	By analogy to Taylor and Shaqlane, we consider that there was no disclosure obligation in this case. The report of Professor Ogloff was not a report that contained any new information. He did not purport to make any diagnosis of Mr Seu’s condition. Nor was he going to be called as a witness. His report was sought in the course of the prosecutor’s preparation for trial and merely commented on the methodology of a defence expert on the basis of the literature. It therefore related to Mr Shirley’s credibility and reliability and was evaluative in nature. It was information that conceivably could have been gleaned from library materials or be within the knowledge of a prosecutor versed in forensic psychology. It could not seriously be suggested that any notes made by the prosecutor from his own knowledge or from library research for the purposes of cross-examination should be made available to the defence. Despite disclosure obligations our system remains an adversarial one. We do not see Professor Ogloff’s report as being in a different category.
[81]	Mr Lithgow also submitted that Professor Ogloff should have complied with the Code of Conduct for expert witnesses and that it was therefore incumbent on Professor Ogloff to iron out any differences between his views and those of Mr Shirley’s. We do not accept this submission. First, the Code is applicable only in civil cases. Secondly, Professor Ogloff was not to be called as a witness. Thirdly, there is, in any event, no such obligation even under the Code, in the absence of a court direction to that effect.
[82]	In any event in this case the above discussion is academic as Professor Ogloff’s report was in fact disclosed to the defence. It also seems to us that it was disclosed at the earliest reasonable time. The material was received just before Court began. It is not to be expected it would be disclosed without being read by the prosecutor. It was disclosed before the end of the examination in chief and there would have been an opportunity for Mr Shirley to withdraw aspects of his evidence after having read the report. In fact, however, Mr Shirley did not do so. Instead, he insisted in cross-examination that he had relied on his clinical experience in order to rule out malingering. Even though he was forced to admit that there had been material that he could have reviewed and had not, such as the prison and hospital records, he said that he was relying more on the experiences in Samoa which would have been impossible to verify (see above at [[34]). Equally, although he recognised that the TSI test may have been useful test, he said that it was mainly recommended by academic psychologists (above at [35]).
[83]	When asked what the effect would have been had the report been disclosed earlier, Mr Lithgow submitted that it would have given the defence an opportunity not to call Mr Shirley. The defence could, we suppose, also have asked for an adjournment so that Mr Shirley could attempt to rectify the defects in his methodology. There is nothing from Mr Seu’s former counsel or from Mr Seu to indicate that the defence would have taken either course. In any event, as indicated above, the defence still had the opportunity, at the time of the disclosure of the report, to withdraw or modify Mr Shirley’s evidence but that opportunity was not taken. We are not surprised. It seems to us, from a review of the evidence, that both for the defence of self-defence and for the defence of provocation, the PTSD diagnosis and the alleged tendency to fight rather than to flee was vital.
[84]	In terms of self-defence it was necessary to heighten the sense of the threat and therefore the proportionality of the response, which must have been a major issue on the basis of the pathology evidence. We note too that Mr Seu in his statement (although on a version of the facts that did not accord with the pathology evidence) effectively admitted that he could have walked away and that he used the garden fork "too hard" (see above at [13]).
[85]	In terms of provocation, Mr Shirley’s evidence was necessary to give Mr Seu a characteristic that strengthened his perception of the provocation. This was of particular moment if the jury concluded that the provocation consisted solely of an insult and a punch, held in R v Tuese CA503/04 14 June 2005 not to provide any evidential foundation for the proposition that an ordinary person could lose his or her power of self-control in such circumstances.
[86]	In our view, a miscarriage of justice has not been made out. Disclosure was not strictly required but, in any event, took place at the earliest reasonable opportunity. In addition, even if earlier disclosure had been possible, this would have made no difference to the way the defence ran the trial. Mr Shirley’s evidence (or evidence like it) was vital to Mr Seu’s case and the defence still relied in closing on Mr Shirley’s evidence, despite the difficulties exposed in cross-examination.

Juror’s letter

[87]

As accepted by Mr Lithgow, the juror’s letter relates to the jury’s deliberations and is a matter that the courts will not inquire into. The majority of the House of Lords recently held in R v Connor; R v Mirza [2004] 2 WLR 201 that the courts (except in very exceptional circumstances) cannot investigate or receive evidence about anything said in the course of a jury’s deliberations. To do so would be a disproportionate encroachment of the independence and impartiality of the jury, the duty of jury confidentiality and the need for finality.

Result

[88]	None of the grounds of appeal having succeeded, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

APPENDIX

The defence accept that the accused Mr Seu killed the
deceased by an unlawful act.

Was the killing with murderous intent?

That is did the accused mean to kill the victim?

or

When the accused caused bodily injury did he know it was likely
to cause death and was reckless whether death ensued or not?

If the answer is

Yes
No

Self defence?
Self defence?

Yes
Yes
No
No

Guilty
Manslaughter
Provocation?
Not Guilty
Not Guilty

No
Yes

Guilty
Manslaughter
Guilty
Murder

POSSIBLE VERDICTS

If either murderous intent proved and self-defence and provocation disproved

Guilty - Murder

If either murderous intent not proved or if murder intent is proved but provocation not disproved

Guilty - Manslaughter

If self-defence
Not Guilty of Murder or Manslaughter