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The Queen v Rajamani [2006] NZCA 367 (20 December 2006)

Last Updated: 30 January 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA140/06

THE QUEEN

v

LAXMAN RAJAMANI

Hearing: 18 October 2006

Court: Arnold, Randerson and Ronald Young JJ

Counsel: G King and T J Darby for Appellant
J C Pike and J Dixon for Crown

Judgment: 20 December 2006 at 10 am

Reissued: 21 December 2006

Effective Date of Judgement: 20 December 2006

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1] At a trial before Venning J a jury convicted the appellant of the murder of his wife. The defence accepted that the appellant had killed his wife in Auckland on 14 January 2005. The appellant claimed at trial that the Crown could not prove either the necessary intention for murder or that he had not acted under provocation.
[2] On appeal, the appellant says:

(1) There was a miscarriage of justice when the Judge proceeded with the trial to verdict with only 10 jurors.
(2) The Judge failed to properly sum up to the jury on the defence of provocation.
(3) Counsel for the appellant at trial did not competently or properly question the Crown witness Glen Handley nor did the Judge adequately detail the defence reply to Mr Handley’s evidence.
(4) The Judge improperly admitted hearsay evidence of the deceased’s statements and misdirected the jury as to the use of such statements.

[3] The appellant expressly abandoned those appeal grounds which alleged the verdict was unreasonable and could not be supported having regard to the evidence and that certain statements made by the appellant to the police were improperly admitted at trial.

Background facts

[4] The appellant and the deceased were married in 2002 in India. It was an arranged marriage. The appellant had already been in New Zealand and the deceased joined him there in late 2003. It seems common ground this was not a happy marriage.
[5] On 14 January 2005 the appellant rang the police and told them he had killed his wife. At interview with the police the appellant claimed that he and the deceased had been in the kitchen/laundry area of their flat on the morning of 13 January. The appellant was cleaning the top of the refrigerator. He was holding a large brick that was used to break coconuts. As he did so he lost his balance falling towards the deceased and hitting her on the head with the brick. The appellant claimed that the deceased then said he was trying to kill her and that she was going to call the police. She walked towards the phone. He said that he followed her and pulled her to the ground. She was lying on her back and he was straddling her. The appellant said he then picked up the knife and slit her throat killing her. Later he said he dragged the deceased’s body from the lounge to the master bedroom, placed her on the bed and covered her. He told the police he had considered setting fire to the unit and had obtained 70 litres of petrol but decided not to do so. He then made travel arrangements to return to India. However, the next day when he spoke to his family and told them what had happened they persuaded him to hand himself over to the police. The appellant said he killed his wife because he did not want her to call the police.
[6] In evidence at trial a mutual friend of the couple, Mr Hattangdi, gave evidence that the deceased had asked him to speak with the appellant and to tell him she was not happy with the marriage, although stressing she did not want a divorce. In fact it seems clear the deceased was planning to move out of the house. Mr Hattangdi spoke to the appellant the day before the murder. His evidence was that the appellant said he was keen to try and make the marriage work and asked Mr Hattangdi to tell his wife that they should try and work matters out between them. The appellant’s evidence was somewhat different from Mr Hattangdi’s. The appellant claimed that this mutual friend had told him on the night before the killing that his wife wanted a divorce.
[7] The appellant said in evidence, the next morning, he and his wife had an argument about the proper Indian way in which to separate. At that stage he said his wife told him she was moving in with a Pakistani colleague of hers. The appellant said he became very angry at this statement and his wife, on seeing this, threatened to ring the police. The appellant said he left the house "enraged" at the thought the victim was going to live with a Pakistani man. He said this was the last thing an Indian man would wish to hear. The appellant said as he was making his way down the road from his house he was in shock. He saw two bricks on the street which he picked up and returned to his house. He said he attacked the deceased with the bricks knocking her to the ground. When she crawled into the lounge he saw a knife on the dining room table which he picked up. The victim was lying on her back and the appellant said he was standing over her with the knife when he cut her throat. He said that he lost his self control when he was told of his wife’s intention to leave him to live with this Pakistani man.
[8] We now turn to the four discrete grounds of appeal.

Ten jurors

Introduction

[9] The trial commenced on 13 February 2006. On the morning of 15 February a juror became unwell and was identified by a doctor as suffering from anxiety attacks related to the performance of her function as a juror. The Judge ruled that the juror was incapable of continuing to perform her duty and accordingly discharged her.
[10] On Monday 20 February one of the jurors failed to attend Court and the trial was adjourned to the next day. The Judge directed enquiries be made as to his whereabouts. On Tuesday 21 February the juror again failed to attend. As it turned out, that juror’s house had been burgled over the previous weekend. The juror and his girlfriend had been the subject of serious threats (not associated with this case). The Judge said in his decision to discharge that juror that it was clear he could not continue as a juror given the upheaval in his personal life.
[11] The Judge then went on to consider whether, pursuant to s 374(4A) of the Crimes Act 1961, he should proceed with 10 jurors. He decided that, having regard to what he identified were exceptional circumstances relating to the trial and to the interests of justice, he should proceed with 10 jurors despite opposition by the appellant. He identified the following factors as relevant to both exceptional circumstances and the interests of justice test.

(a) This was a serious charge being murder and the evidence clearly established the appellant had killed the victim, the defence being lack of murderous intent and provocation.
(b) This was a two week trial, the first week having been completed including almost all of the Crown case.
(c) The Crown had called 37 witnesses including at least one from overseas (Australia) who was an important witness.
(d) It would be difficult to reschedule a two week trial within a reasonable time.

Appellant’s and respondent’s submissions

[12] The appellant first considered the effect of s 374(4A) of the Crimes Act, and then subs (8). This section relevantly provides:

374 Discharge of jury

(4A) The Court must not proceed with fewer than 11 jurors except in the following cases:

(a) If the prosecutor and the accused consent:

(b) If the Court considers that, because of exceptional circumstances relating to the trial (including, without limitation, the length or expected length of the trial), and having regard to the interests of justice, the Court should proceed with fewer than 11 jurors; and in that case--

(i) The Court may proceed with 10 jurors whether or not the prosecutor and the accused consent:

(ii) The Court may proceed with fewer than 10 jurors only if the prosecutor and the accused consent.

. . .
(8) No Court may review the exercise of any discretion under this section.

[13] The appellant submitted, however, that the unavailability of review in subs (8) did not mean that if the Court found a miscarriage of justice (s 385(1)(c) of the Crimes Act) the Court could not allow the appeal. The appellant submitted that in such cases as R v Henare CA187/00 26 July 2000, R v Wilson CA17/03 29 September 2003 and R v Marshall [2004] 1 NZLR 793 this Court made it clear that the discretion given in s 374(4A) could not be exercised until the two jurisdictional preconditions of exceptional circumstances and interests of justice had been met. The appellant claimed that neither of these preconditions had been met in this case. The appellant therefore submitted that an examination of the exceptional circumstances identified by the Judge would illustrate that there were no such circumstances in this case. Nor, the appellant claimed, did the Judge consider the interests of justice test at all.
[14] The appellant stressed that, having as near as possible a full complement of jurors in a case where the jury would be required to consider whether there was a loss of self control was especially important. Finally, the appellant claimed the Judge confused the reasons for the discharge of the second juror with the exceptional circumstances relating to the trial under the s 374(4A) test.
[15] The Crown says that the appellant’s submissions are an attempt to subvert subs (8) and to have the Court review the Judge’s decision to proceed with 10 jurors. The Crown submits that any miscarriage of justice allegation must, therefore, arise from the decision to proceed with 10 jurors and not be, as here, an attack on the basis of the exercise of the s 374(4A) discretion.
[16] In any event, the Crown says the Judge properly exercised the discretion and the factors identified by the Judge were clearly relevant to a decision as to whether there were exceptional circumstances and whether it was in the interests of justice to proceed with 10 jurors.

Discussion

[17] We agree with the Crown submissions. It is clear that s 374(4A) gives the trial Judge a wide discretion. Subsection (8) does not allow a reconsideration by an appellate Court of the grounds upon which the Judge reached his or her decision (see R v Ross CA268/00 21 November 2000). To allow this would be to ignore the plain words of the section. However, subs (8) does not "trump" the power of this Court to allow an appeal based on a substantial miscarriage of justice (see R v Coombs [1985] 1 NZLR 318 (CA)).
[18] A substantial miscarriage of justice could occur if a trial proceeded with less than 11 jurors when there were clearly no exceptional circumstances. This would be a high threshold essentially requiring an appellant to establish no Judge could have rationally concluded exceptional circumstances existed. In such a case, there would be no jurisdiction to make the order to proceed with only 10 jurors since a fact essential to jurisdiction would be absent.
[19] The appellant’s case here does not meet this high threshold. More importantly it is, in our view, a direct attack on the merits of the decision itself. The Judge, when considering both exceptional circumstances and interests of justice, took into account the seriousness of the offence, the live issues at trial, the opportunity for retrial, the length of trial, the stage the trial had reached, the number of witnesses heard and the difficulty in having witnesses return to give evidence. These are all clearly relevant to whether there were exceptional circumstances and where the balance of the interests of justice lay.
[20] The appellant’s real complaint is that he is not satisfied with where the balance was struck by the Judge. This is, in our view, directly within the Judge’s discretion in subs (4A) and is an attempt to review the Judge’s decision in breach of subs (8). We are satisfied that what the appellant seeks to convince this Court to do is exactly what is prohibited by subs (8). The Judge took into account relevant factors in reaching his decision. He considered these circumstances constituted exceptional circumstances and that it was in the interests of justice to proceed. It was open to him to reach this conclusion. No miscarriage of justice has been identified. This ground of appeal therefore fails.

Provocation

[21] While some attempt was made to raise a lack of proof of murderous intent in this case, it is clear that the only real "defence" was provocation. Given that the appellant admitted he deliberately cut the victim’s throat, lack of murderous intent seemed unlikely to succeed.
[22] The trial Judge accepted that the appellant had a special characteristic said to be the fact that he was from a traditional Indian Hindu family with traditional religious family values, particularly in relation to marriage, and a strong dislike of Pakistani Muslims.
[23] The provocative acts said to have occurred were identified by the Judge as:
 In the months before her death, did the deceased behave in a belittling way towards the accused in the company of their friends and/or when they were alone?
 Did the deceased have their friend Satyen Hattangdi tell the accused on the evening of 12 January that she did not want to be in the marriage?
 Did the deceased tell the accused on the morning of 13 January that she wanted to separate from him and to have a live-in relationship with a Pakistani colleague?
[24] It could be said that the identification of the first two acts as provocative was generous to the appellant. He did not suggest in his statement or in evidence that either of those acts provoked a loss of self control causing him to kill the deceased.
[25] The appellant challenges that part of the Judge’s summing up relating to what it means to be deprived of the power of self control both in relation to whether the appellant was in fact deprived of the power of self control and whether a person having the power of self control of an ordinary person, but otherwise with Mr Rajamani’s characteristics, would have lost self control in the circumstances and killed the deceased.
[26] The Judge was effectively required to deliver his direction to the jury on provocation twice. The jury retired at 12.25 pm after the Judge’s summing up. At 3.05 pm the Judge answered a jury question, "Could we have a transcript of what the Judge said, the part where he spoke about provocation", by essentially repeating his earlier direction to the jury about provocation.
[27] In his summing up to the jury the Judge had prepared two summaries, which he provided to the jury, which covered what was required by the prosecution to prove murder and absence of provocation. During the course of his description of the elements of murder, the Judge said to the jury, when considering whether the appellant killed the deceased by an unlawful act, they should consider whether the use of the knife "was intentionally done, that he deliberately used the knife to slit her throat, in other words that it was not an accidental act". In his handout to the jury, on the same topic, he said, when referring to the question whether the appellant killed the deceased by an unlawful act, the jury needed to consider "did Mr Rajamani do so intentionally or deliberately rather than accidentally". The Judge therefore used "deliberately" as a synonym for "intentionally" in the context of the definition of murder, and by those words he meant to distinguish between a deliberate action and an accident.
[28] When the Judge came to discuss provocation with the jury and in particular in considering self control he said:

[54] The law requires all of us to exercise a reasonable degree of self control or restraint over our emotions. However, in certain circumstances it makes allowances for the frailties of human nature. It recognises that conduct, whether words or acts by one or more people, may provoke another person to lose his self control to the point where he is no longer able to restrain himself with the result that he kills that other person. Now provocation at law is not provocation in the ordinary every day sense that we might use the word. Most murders could be said to be provoked in that every day sense in that the person who commits the murder may well feel a sense of grievance against the victim, but provocation in law requires more than that.
[55] To amount to evidence of provocation at law the conduct must lead to a sudden and temporary loss of self control. It must cause the person who kills to lose their ability to reason. He must be in a state where he is no longer the master of his own mind. He must act instinctively and in an uncontrolled fashion. That loss of self control must continue from the time of provocation to the time of killing. Provocation is not available to a person who is motivated by anger or who acts out of revenge or in a deliberate, calculated or reasoned way. The loss of self control does not have to follow immediately the provocative act or acts but depending on the circumstances a delay between the provoking conduct and the killing may negate evidence of provocation. [Emphasis added]

[29] The Judge therefore used the word "deliberate" along with words such as "calculated" or "reasoned way" to denote a degree of premeditation or consideration.
[30] The Judge returned to the question of self control at [59] when he said:

[59] If the Crown has not been able to exclude all of those acts then you would go on to consider the second question and that is, whether the Crown can exclude the possibility that whatever of those act or acts that you find did occur, whether those acts deprived Mr Rajamani of his power of self control and thereby caused him to kill the deceased on 13 January 2005. That is a factual inquiry for you. It is for you whether you find that the acts which the Crown have not proved did not occur deprived Mr Rajamani of his power of self control and caused him to kill the deceased.

[31] And further:

[60] Is it reasonably possible that one or more of the acts that you find have occurred as a matter of fact could have caused him to lose his power of self control? Could the effect have been to bring him to a state that he ceased to act rationally and ceased to be the master of his own mind and conduct? That is an extreme state. To lose the power of self control is much greater than merely getting angry, even very angry.
[61] There is a related issue. Did the accused kill the deceased as a result of loss of self control caused by the provocative acts on which he relies? If there was some other reason which did not entail this self control such as feelings of frustration or despair, then he could not rely on the provocation defence unless the frustration or despair emanated from the acts that are referred to. The key is the loss of self control. It must be that loss of the power of self control that caused the killing.
[62] It follows that if the accused deliberately decided to kill the deceased and acted on that intention it could not be said her death was provoked by loss of self control or, if there was some act of provocation which resulted in a loss of self control, but enough time had passed for instance for that to be replaced by considered hatred, resentment or frustration then there would not be provocation either because the accused would have regained his power of self control. In this case the Crown say that while the deceased did argue with and perhaps belittled the accused in public in the middle of 2004, by December she was trying to keep the situation calm – so the Crown say her earlier conduct could not have provoked the accused on 13 January. Similarly the Crown say that the accused found out on the night of 12 January from Mr Hattangdi that the deceased regarded the marriage as over but the accused did nothing about it that night. The Crown say that is significant. It is a matter of fact for you whether you find the accused lost his power of self control as referred to in step 2. [Emphasis added].

[32] Again at paragraph 62 the Judge used the word "deliberately" and said that if the accused deliberately decided to kill the deceased and acted on that intention then it could not be said her death was provoked by a loss of his self control.
[33] In answering the jury question the Judge essentially repeated his summing up on provocation and the passages we have mentioned and highlighted were repeated by the Judge.

Counsel’s submissions

[34] The appellant submits that these directions were wrong because:

 The net effect of the directions is to place the threshold for what it means to have lost self-control too high. The state of being deprived of self-control is effectively deemed to be an 'extreme state' akin to automatism.

 The directions given of what it means to be deprived of the power of self control are entirely inconsistent with the fact that the jury only get to the point of considering the partial defence of provocation if they were satisfied that the accused acted with a murderous intention (i.e. deliberately) in the first place.

 As directed, the concept of loss of self-control excludes a state where an accused is no longer able to restrain himself or is compelled to act by irresistible (or uncontrollable) impulse.

 Over defining the concept of loss of self control is inconsistent with the historical rationale of provocation being a concession to the frailties of human nature and the recognition that conduct, whether words or acts by one or more people, may provoke another person to lose his self control to the point where he is no longer able to restrain himself with the result that he kills that other person.

 The maxims used to define what it means to have lost the power of self-control are confusing, imprecise, often contradictory and based on outdated norms. It is enough to say that the accused acted in the heat of the moment and was not able to control his or her reaction.

 The learned Judge failed to direct the jury that the directions he gave them defining what it means to have lost the power of self-control were not 'legal tests for provocation'. It is submitted that His Honour 'elevated into a matter of law' rather than fact what it means to have lost the power of self-control.

 Whether an accused has lost his or her power of self-control is a question of fact for the jury and the judiciary should avoid over defining (and over complicating) the issue, or elevating the definitions to matters of law. It should be for the jury to decide what 'loss of self-control' actually means in a given case. A comparison in this regard can be made with the deprecated attempts by some in the judiciary to define what is meant by 'reasonable doubt'.

 'Flood gate' arguments around a lowering the bar can be countered by the final qualitative criteria for a defence of provocation to succeed. The provocation must have been sufficient for an ordinary person in the circumstances to have been deprived of the power of self-control.
[35] The appellant says the Judge, by using such words as "ceasing to act rationally", "ceasing to be a master of his mind and conduct", and saying that loss of self control was an extreme state, elevated these phrases essentially to legal requirements which the jury were obliged to apply to the facts of the case. The appellant submits that whether an accused person has lost the power of self control is a factual enquiry and what a loss of self control constitutes is for the jury to decide.
[36] The appellant submits the use of such phrases, in any event, set the bar too high for provocation, equating it to a state of automatism.
[37] Secondly, the appellant says that the Judge told the jury that if they believed the appellant intentionally or deliberately killed the deceased then provocation was not available. The appellant submits this is clearly wrong in law. He says before provocation is even considered by the jury the Crown must establish a murderous intent, that is a deliberate or intentional killing. Far from preventing such a defence being raised, a deliberate or intentional killing is a pre-requisite to it being able to be raised. Only after murderous intent is established can the jury consider provocation.
[38] The Crown submits the Judge did not elevate what it means to have lost the power of self control to a legal test. The Crown says the Judge made it clear that the question of whether the appellant was deprived of the power of self control was a factual enquiry for the jury.
[39] Secondly, the Crown submits the Judge did not blur the boundary between provocation and automatism. They stress that since R v McCarthy [1992] 2 NZLR 550 (CA) and more recently R v Rongonui [2000] 2 NZLR 385 (CA), the question of loss of self control is typically the central trial issue where provocation is raised. The Crown says the Judge’s use of phrases such as "not a master of his own mind" and "ceased to function as a rational human-being" and that "loss of self control is an extreme state beyond angry or very angry" was far from inappropriate. The Crown claims that this direction is well short of suggesting that the loss of self control requires "action without conscious volition (automatism)".
[40] Finally, the Crown submits that the Judge did not suggest that if the appellant acted with murderous intent then the defence of provocation is not open. The Crown says the Judge made it clear that the defence of provocation was available only if they were satisfied the appellant had committed murder. The Crown says that the Judge’s comment, that if the appellant deliberately decided to kill the deceased and acted on that intention it could not be said her death was provoked, was consistent with the jury only considering provocation if murderous intent was established. It says this comment by the Judge relates to the "immediacy requirement – that the provocation must be the operative cause of the murderous intention". Thus the Crown says the Judge was distinguishing between a deliberate decision to kill (considered) as opposed to a provoked state where there is a loss of self control and therefore a deliberate decision to kill was not made. They say the Judge’s comments about a deliberate decision must refer to the delay between the deceased revealing her intention to leave the appellant for a Pakistani man and the appellant killing her, which occurred 10 to 15 minutes later only after he had left the house, walked down the road picked up the bricks and returned. This delay is relevant, the Crown says, to whether the appellant’s loss of self control had passed and whether he had regained control but had decided (deliberately) to kill her out of revenge or anger.

Discussion

[41] Turning therefore to the appellant’s first complaint, that the Judge elevated what it means to have lost the power of self control into a legal test. We see nothing wrong with the use of the phrases mentioned in [35]. In various forms, they are all an attempt to illustrate that loss of self control in the context of provocation involves a very serious state. The Judge was trying to illustrate the point that loss of self control could not be equated with, for example, anger or strong anger. This was an appropriate attempt by the Judge to give the jury a context to consider this vital issue. Such phrases have been approved by this Court in for example R v McGregor [1962] NZLR 1069 where this Court said at 1079:

In our opinion, then, the learned trial Judge was fully entitled to tell the jury, as he did, that it was of the essence of provocation that it should cause a sudden and temporary loss of self-control rendering the accused so subject to passion as to make him for the moment not master of his mind.

See also Schuster v R CA544/93 30 June 1994. The phrases used by the Judge did not suggest that the appellant had to be acting in a state of automatism in order for provocation to be established.

[42] The emphasis the Judge placed on these phrases in the context of this case was appropriate. The jury would obviously need to take into account the delay between the alleged provocative act and the appellant’s response to it. This would require consideration of whether the appellant was no longer master of his own mind when he killed the deceased. The Judge made it clear throughout his summing up that this was a factual enquiry for the jury. Whether the alleged provocative acts had in fact deprived the appellant of his self control thus resulting in the killing was that factual enquiry. We see nothing objectionable in the Judge making it clear what loss of self control means. As we have said the Judge simply stressed that this was a very serious state well beyond anger. Given this guidance by the Judge it was appropriate for the Judge to invite the jury, as he did, to consider the facts of this case and decide whether there was a loss of self control leading to the killing.
[43] The appellant argues that the Judge’s use of the term "deliberate" in the course of his summing up suggested to the jury that provocation was not available if the appellant had deliberately or intentionally killed the victim. The Judge used the word "deliberate" in two contexts relating to provocation.
[44] First, the Judge’s use of the term "deliberate" in [55] must be understood in context. This section of the summing up dealt with the significance of the delay between the provocative act and the killing. The Judge told the jury that delay between the provocative conduct and the killing can negate "evidence of provocation" (essentially negate loss of self control). The Judge then equated deliberateness with premeditation in this context. The thrust of this part of the direction to the jury was therefore focused on the time between the provocative act and the killing and whether the appellant was still acting under provocation, whether he had still lost his self-control, or whether the appellant had regained his self control and decided in a premeditated, deliberate way, to kill the deceased. If the latter, then he could not avail himself of provocation. As we note at [48] below, we think it preferable to avoid in this context the use of the word "deliberate". However, given the context, the Judge’s comments about "deliberate" or "reasoned action" were unobjectionable, and we are satisfied the jury would have understood them in the sense we have just outlined.
[45] The second occasion in which he used "deliberate" appears in [62]. To understand what is being referred to in [62] (which begins with the words "It follows that") it is necessary to consider [60] and [61] of the summing up.
[46] In [60] the Judge stressed the need for a loss of self control. In [61] he emphasised that it must be the loss of self control rather than any other reason that caused the killing. In [62] the Judge explained to the jury that two possible situations could arise with respect to loss of self control. The jury might conclude this was a planned killing where there was no loss of self control. In the alternative the jury might conclude there was a provocative act which caused a loss of self control but time had passed and that loss of self control was replaced by "considered hatred, resentment or frustration". In either case, if established by the Crown, provocation would not apply.
[47] We are satisfied that the jury therefore would have understood that the word "deliberate" in [62] of the summing up was being used as a synonym for "planned" or "premeditated". The Judge, later in the summing up, in summarising the Crown case, used the word "deliberately" as meaning "planned" or "premeditated". In summarising the case for the appellant the Judge stressed that the jury had to be satisfied murderous intent was established before they considered provocation. In the jury material provided by the Judge relating to provocation and in other parts of his summing up the Judge made it clear the Crown first had to establish the appellant had a murderous intent before provocation could be considered by the jury.
[48] The use of the word "deliberate" in the context of provocation and as a synonym for a planned or premeditated action can be confusing and is best avoided. However, we consider that the jury would have understood that at [62] when the Judge used the word "deliberate" he was referring to a planned or predetermined action. We are satisfied that there has been no miscarriage of justice.

Glen Handley’s evidence

Introduction

[49] Mr Glen Handley had been a friend of the appellant. He came from Sydney to give evidence at the trial. His evidence primarily focused on what the appellant had told him and what he observed of the appellant’s relationship and marriage with the deceased. At the end of evidence in chief he was asked if the appellant had ever told him his wife was having an affair. He said no. This question led to a series of questions about when Mr Handley learned of the affair the deceased was having and when the appellant appeared to first find out. We reproduce the questions and answers from the notes of evidence in full:

Did you ever learn from any source that Chitra was having an affair?....Afterwards.
After?....After when Laxman was in remand.
And how did you learn it when Laxman was in remand?......When I was visiting Sachin I was talking to Sachin outside and he mentioned the fact
You learnt it from somebody else?....Yes.
Did you learn anything directly from the accused in the remand area?.....I asked Laxman about it in the remand centre.
What did you ask him and what did he say?.....He was just devastated.
What did you ask him do you recall?......I asked him what was going on about this and how he found out and Laxman told me he had read the statement and he just couldn’t believe it.
When you say he’d read the statement what do you mean by the statement?.....He’d read the guy she was having an affair with, statement.
His statement to the police?.....Yeah.
Did Laxman say did you form the view that is when Laxman had found out about the affair?......Yeah yeah.
From reading the statement?.....Yeah.

[50] These questions and answers were not part of the witness’s brief and were not expected by appellant’s counsel. In cross-examination the witness agreed he had never mentioned this evidence to the police before. Counsel did not ask any other questions of Mr Handley regarding this particular aspect of his evidence.
[51] The appellant said in evidence if Glen Handley’s evidence was that he (the appellant) first learnt of his wife’s affair with a Pakistani man from a police statement after his arrest for murder then this was untrue. The appellant said that his wife had told him on the morning of the killing she was shifting in with her Pakistani colleague. However, when he read the police statements after the murder he then, for the first time, knew the extent of the affair and the name of the Pakistani man. The appellant said that these further details had been extremely upsetting for him and that was what Mr Glen Handley had observed at the prison and what he told Mr Handley.

Counsel’s submissions

[52] The appellant says his account that he was told on the morning of the killing that his wife was having an affair with a Pakistani man was the critical plank of the defence case. If indeed the appellant had told Glen Handley that he only found out about his wife’s involvement with Mr Rabbani after the killing then this significantly undermined the appellant’s case that this was a provoked killing.
[53] The appellant does not criticise trial counsel for inadequate cross-examination of Mr Handley but points out his evidence was hardly challenged. The appellant says, in any event, Mr Handley’s evidence did not clearly establish the appellant said he did not know about the Pakistani man until after the killing. The appellant says this evidence of Mr Handley was "too vague and imprecise" to be relied upon to contradict the appellant’s evidence.
[54] The final complaint by the appellant relates to the way in which Mr Handley’s evidence was dealt with by the Judge. The appellant says that while the Judge mentioned Mr Handley’s evidence in the context of the Crown case he neglected to identify the appellant’s response to Mr Handley.
[55] During the course of oral submissions we asked trial counsel, Mr Darby, who was junior counsel in this appeal, whether he had mentioned Mr Handley’s evidence in his final address to the jury. He responded, to the best of his recollection, he had not mentioned Mr Handley’s evidence but had concentrated on what the appellant had said.
[56] The Crown says what must be kept in mind is that when Mr Handley gave evidence the appellant had not claimed he knew about his wife’s involvement with a Pakistani man. This was not mentioned in the appellant’s interview with the police and it was first raised in the appellant’s evidence at trial after Mr Handley’s evidence.
[57] The Crown says the evidence from Mr Handley was not vague and the Crown was entitled to invite the jury to conclude that the appellant did not know about Mr Rabbani until after the killing. The Crown says the appellant’s counsel did not mention Mr Handley’s evidence in his final address and there was no reason for the Judge himself to do so.
[58] Finally, the Crown says Mr Handley’s evidence is consistent with other Crown evidence which illustrates it was unlikely the deceased would have told the appellant of her involvement with Mr Rabbani on the morning of the killing.

Discussion

[59] The Judge mentioned Mr Handley’s evidence on two occasions in his summing up. When dealing with provocation, having detailed the ingredients required to be proved by the Crown he said:

[58] Now the onus is on the Crown to exclude those acts. If the Crown excludes those acts to your satisfaction, in other words if you don’t consider they occurred, then the defence would fail at this first step. In this case the Crown say that the accused is simply lying when he says that the deceased told him on the morning of 13 January that she was leaving him for a live-in relationship with a Pakistani colleague. The Crown says that was something the accused did not learn until after his arrest and he has simply taken advantage of it. The Crown points to the evidence of Mr Handley about his discussion with the accused in the remand centre and the accused’s reaction at that time. Well members of the jury it is for you to determine whether that act occurred as the Defence say but it is for the Crown to satisfy you beyond reasonable doubt that it didn’t and similarly in relation to the other acts relied on. You have heard the evidence about the Rotorua trip for example and you have also heard from Mr Hattangdi. You may well accept that those incidents did occur.

[60] And further, when summarising the Crown case he said:

[68] . . . The Crown say the deceased had no reason to tell the accused on 13 January that she was leaving him for a live-in relationship with a Pakistani and would certainly not have done so. The Crown point to a number of factors that it says should lead you to conclude the deceased would simply not have told the accused that.

[61] When covering the appellant’s case the Judge said:

[79] Mr Darby submitted the key question for you would be what did the deceased tell the accused on the morning of 13 January. He submitted you should accept the accused’s evidence about that.

[62] We are satisfied in the circumstances that there has been no miscarriage of justice based on this ground of appeal. First, it is clear, the questions and answers of Mr Handley, relating to his discussion with the appellant about Mr Rabbani, came as a surprise to both counsel. However, at this stage it was not clear that the appellant would say his wife told him about Mr Rabbani before he killed her.
[63] Senior counsel at trial (not Mr Darby) could have elected to challenge Mr Handley’s evidence more fully. He could have asked for a short trial adjournment to consider his cross-examination given the surprising development. We do not know why he did not do so. He chose not to challenge Mr Handley’s evidence on this point strongly. This could be seen as a legitimate trial tactic to avoid highlighting evidence unhelpful to the defence. The appellant gave an explanation for Mr Handley’s evidence which the jury could have accepted, essentially, that Mr Handley had misunderstood the appellant’s reaction.
[64] The Judge pointed out that it was open for the jury to accept the appellant’s evidence and if they did he was entitled to an acquittal for murder. We accept that when dealing with provocation the Judge would have been better to have mentioned the appellant’s evidence, denying he had learnt of his wife’s involvement with Mr Rabbani after the murder, to balance his comments about the Crown suggestion that if they accepted Mr Handley’s evidence there was no provocative act. It is common ground that trial counsel for the appellant did not raise this alleged inadequacy at any time with the trial Judge. The Judge, however, did make it clear that it was the appellant’s case that they should accept his evidence as truthful as to what happened at the house on the day of the murder. If they did so then they would, of necessity, have rejected Mr Handley’s evidence as either unreliable or untrue on this point.
[65] We consider Mr Handley’s evidence was capable of being understood as saying the appellant first knew of his wife’s involvement with Mr Rabbani after the killing. The tenor of Mr Handley’s evidence on this point clearly conveys the impression that the appellant first found out about his wife’s conduct from a police statement.
[66] We are satisfied that it would have been abundantly clear to the jury, given it was fundamental to the appellant’s case, that he claimed he had been told of his wife’s involvement with Mr Rabbani on the morning he killed her.
[67] We are therefore satisfied that no miscarriage of justice occurred here.

Deceased’s hearsay evidence

Introduction

[68] The prosecution called evidence from witnesses who knew the deceased about what she had said regarding the appellant a few days before she was killed. The appellant submits these statements should not have been admitted in evidence because they were inadmissible hearsay. The appellant says in the alternative, if the statements were admissible then the Judge erred in directing the jury as to the use to which the statements could be put.
[69] While several witnesses, including the parties’ mutual friend Mr Hattangdi, some of the deceased’s friends and work colleagues and her solicitor, gave such hearsay evidence, the appellant took particular exception to the evidence of Mr Roger Long and Ms Jennifer Barnes (nee Burrett). Mr Long and Ms Barnes were property managers at Century 21 real estate. In mid 2003 - 2004 the deceased saw Ms Barnes regarding a place to live. Eventually a property was leased by the deceased and the appellant. The deceased and Ms Barnes became friendly and the deceased told her about the unhappy state of her marriage.
[70] In January 2005 the deceased again contacted Ms Barnes. The deceased spoke to Ms Barnes and left messages on her answerphone. One of the messages left on 10 January 2005 said the deceased needed a place to rent urgently and that her husband was going to kill her and the police were involved. Later that day Ms Barnes saw the deceased who was distressed.
[71] Mr Long spoke to the deceased on Friday 7 January regarding a rental property. He said in evidence:

. . . she basically intimated that her life was threatened and she needed somewhere (sic) to find a one bedroom unit or flat somewhere in a hurry.

[72] On Monday 10 January, Mr Long said the deceased rang again and spoke to him and said that:

. . . Laxman had threatened to kill her and she needed somewhere to go urgently and secretly.

Counsel’s submissions

[73] The appellant submits this evidence was led by the Crown, first, to rebut the appellant’s claim that the deceased had told him about Mr Rabbani on the morning of the killing. The Crown case was that it was highly improbable that a woman concerned for her safety would put her safety in jeopardy further by revealing her involvement with Mr Rabbani to the appellant. The second reason the appellant says this evidence was led was to establish it was unlikely the appellant had lost his self control and killed the deceased on the 13 January when a few days before he was threatening to kill her.
[74] The appellant submits, therefore:

(i) This evidence should not have been led because it was hearsay and did not qualify under this Court’s judgment of R v Manase [2001] 2 NZLR 197 as admissible.
(ii) If the evidence was admissible then the jury should have been told it could only be relevant in assisting them in deciding whether the deceased had told the appellant on the morning of the murder of her involvement with Mr Rabbani.
(iii) That the evidence of what was said by the deceased to Ms Barnes and Mr Long could not be used to establish the truth of what the appellant had said to the deceased. And thus it could not be used to establish the appellant’s state of mind and could not be used to show that he in fact intended to kill her when he threatened her a few days before the murder. It was therefore irrelevant to the likelihood that he had lost self control on 13 January.

[75] The appellant says the Judge effectively invited the jury to use the evidence in an illegitimate way when he said to them at [21]:

That hearsay evidence has been permitted as it is relevant to your consideration of the background circumstances to the parties’ relationship and it is also relevant to the accused’s state of mind at the relevant times and the defence of provocation.

[76] The Crown says that the Judge was correct when he admitted the evidence. The evidence was, the Crown submits, highly relevant to understanding the parties’ relationship and what had happened in the few days before the murder. The Crown also submits that the evidence of Ms Barnes and Mr Long was helpful to the defence case because it seemed to support the proposition that a few days before her death the complainant was trying to find a new flat to shift into. The Crown says the defence wanted this evidence to be given but could hardly have only part of the relevant evidence and seek to exclude the other part.
[77] The Crown also points out that no objection was made to the admissibility of this evidence before or during the trial. The Crown points to the Judge’s remarks to the jurors when he reminded them that even if they accepted the deceased’s claim that the appellant said he was going to kill her that did not make him guilty of murder. They say, therefore, the Crown was properly entitled to use the evidence of Ms Barnes and Mr Long as they did, in supporting the proposition that the deceased would not have told the appellant about the Pakistani man and to support the Crown case the appellant did not lose the power of self control on the morning he killed her.

Discussion

[78] We have no doubt the evidence was admissible to establish the deceased’s state of mind. Such evidence has long been recognised as admissible if the deceased’s state of mind is relevant. (See Subramaniam v Public Prosecutor [1956] 1 WLR 965 (PC), R v Howse [2003] NZCA 178; (2003) 20 CRNZ 826 (CA); R v Baker [1989] 1 NZLR 738 (CA); R v Butler HC ROT T 105-97 23 March 1998 Randerson J).
[79] The state of mind of the deceased was undoubtedly relevant. Whether the deceased told the appellant she was leaving him for a Pakistani work colleague was fundamental to whether there was a provocative act. If the jury rejected the appellant’s claim that he had been told about the Pakistani work colleague on the morning of the killing, then provocation was hardly available. This evidence was relevant to the likelihood, therefore, of the deceased telling the appellant about her Pakistani work colleague on the day of the murder. If the deceased was seriously scared of the appellant, then this reduced the likelihood that she would have risked further upsetting him by telling him about Mr Rabbani.
[80] We think the Judge, therefore, was correct to allow the evidence of Ms Barnes and Mr Long to be given in evidence for this limited purpose. Its probative value was high in relation to the state of mind of the deceased and the Judge gave a detailed and appropriate direction to the jury to approach this evidence with caution.
[81] However, the evidence of Ms Barnes and Mr Long was hearsay evidence where given to prove the appellant’s state of mind (see R v Gilfoyle [1996] 1 Cr App R 302 at 322-333) and, other than in limited circumstances, is not admissible for this purpose.
[82] We consider, therefore, the Judge should not have told the jury in his summing up that the deceased’s statements to Ms Barnes and Mr Long were relevant to the appellant’s "state of mind at the relevant times and the defence of provocation". However, we are not satisfied this error gives rise to a real risk of a miscarriage of justice.
[83] The Judge in his summing up did not repeat nor expand upon the use of the evidence as relevant to the appellant’s state of mind. The Judge warned the jury about the use to which these statements could be put. He focused on the reliability of the statement solely from the deceased’s perspective. He warned the jury that, even if the statements accurately reflected what the deceased thought, they should not leap from her concern to a finding of guilt of the appellant. Secondly, the Judge’s summing up of the Crown case makes it clear the Crown did not invite the jury to use the evidence of Ms Barnes and Mr Long to assist them in assessing the appellant’s state of mind. Finally, both the defence and Crown wanted evidence regarding the past relationship of the appellant and the deceased before the jury. The Crown’s case was that the appellant was violent and controlling. The appellant’s case was that the deceased was manipulative and deceitful. This evidence was therefore part of that essential background to inform the jury’s deliberations. The Judge in his summing up dealt with previous incidents involving the appellant’s conduct. He told the jury it was a part of the "background picture of the relationship between the deceased and the accused". He warned the jury, however, not to leap to the conclusion that because they may have had a tempestuous relationship that the appellant was guilty of murder and that he could not have been provoked on the day of the killing.
[84] We are satisfied, therefore, that, as this use of the evidence had little prominence in the summing up, was never part of the Crown case and the jury were warned about impermissible assumptions of guilt from the appellant’s conduct, there was no real risk of a miscarriage of justice here.
[85] None of the grounds of appeal against conviction are therefore established and the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

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URL: http://www.nzlii.org/nz/cases/NZCA/2006/367.html

[1]	At a trial before Venning J a jury convicted the appellant of the murder of his wife. The defence accepted that the appellant had killed his wife in Auckland on 14 January 2005. The appellant claimed at trial that the Crown could not prove either the necessary intention for murder or that he had not acted under provocation.
[2]	On appeal, the appellant says:

[4]	The appellant and the deceased were married in 2002 in India. It was an arranged marriage. The appellant had already been in New Zealand and the deceased joined him there in late 2003. It seems common ground this was not a happy marriage.
[5]	On 14 January 2005 the appellant rang the police and told them he had killed his wife. At interview with the police the appellant claimed that he and the deceased had been in the kitchen/laundry area of their flat on the morning of 13 January. The appellant was cleaning the top of the refrigerator. He was holding a large brick that was used to break coconuts. As he did so he lost his balance falling towards the deceased and hitting her on the head with the brick. The appellant claimed that the deceased then said he was trying to kill her and that she was going to call the police. She walked towards the phone. He said that he followed her and pulled her to the ground. She was lying on her back and he was straddling her. The appellant said he then picked up the knife and slit her throat killing her. Later he said he dragged the deceased’s body from the lounge to the master bedroom, placed her on the bed and covered her. He told the police he had considered setting fire to the unit and had obtained 70 litres of petrol but decided not to do so. He then made travel arrangements to return to India. However, the next day when he spoke to his family and told them what had happened they persuaded him to hand himself over to the police. The appellant said he killed his wife because he did not want her to call the police.
[6]	In evidence at trial a mutual friend of the couple, Mr Hattangdi, gave evidence that the deceased had asked him to speak with the appellant and to tell him she was not happy with the marriage, although stressing she did not want a divorce. In fact it seems clear the deceased was planning to move out of the house. Mr Hattangdi spoke to the appellant the day before the murder. His evidence was that the appellant said he was keen to try and make the marriage work and asked Mr Hattangdi to tell his wife that they should try and work matters out between them. The appellant’s evidence was somewhat different from Mr Hattangdi’s. The appellant claimed that this mutual friend had told him on the night before the killing that his wife wanted a divorce.
[7]	The appellant said in evidence, the next morning, he and his wife had an argument about the proper Indian way in which to separate. At that stage he said his wife told him she was moving in with a Pakistani colleague of hers. The appellant said he became very angry at this statement and his wife, on seeing this, threatened to ring the police. The appellant said he left the house "enraged" at the thought the victim was going to live with a Pakistani man. He said this was the last thing an Indian man would wish to hear. The appellant said as he was making his way down the road from his house he was in shock. He saw two bricks on the street which he picked up and returned to his house. He said he attacked the deceased with the bricks knocking her to the ground. When she crawled into the lounge he saw a knife on the dining room table which he picked up. The victim was lying on her back and the appellant said he was standing over her with the knife when he cut her throat. He said that he lost his self control when he was told of his wife’s intention to leave him to live with this Pakistani man.
[8]	We now turn to the four discrete grounds of appeal.

[9]	The trial commenced on 13 February 2006. On the morning of 15 February a juror became unwell and was identified by a doctor as suffering from anxiety attacks related to the performance of her function as a juror. The Judge ruled that the juror was incapable of continuing to perform her duty and accordingly discharged her.
[10]	On Monday 20 February one of the jurors failed to attend Court and the trial was adjourned to the next day. The Judge directed enquiries be made as to his whereabouts. On Tuesday 21 February the juror again failed to attend. As it turned out, that juror’s house had been burgled over the previous weekend. The juror and his girlfriend had been the subject of serious threats (not associated with this case). The Judge said in his decision to discharge that juror that it was clear he could not continue as a juror given the upheaval in his personal life.
[11]	The Judge then went on to consider whether, pursuant to s 374(4A) of the Crimes Act 1961, he should proceed with 10 jurors. He decided that, having regard to what he identified were exceptional circumstances relating to the trial and to the interests of justice, he should proceed with 10 jurors despite opposition by the appellant. He identified the following factors as relevant to both exceptional circumstances and the interests of justice test.

[13]	The appellant submitted, however, that the unavailability of review in subs (8) did not mean that if the Court found a miscarriage of justice (s 385(1)(c) of the Crimes Act) the Court could not allow the appeal. The appellant submitted that in such cases as R v Henare CA187/00 26 July 2000, R v Wilson CA17/03 29 September 2003 and R v Marshall [2004] 1 NZLR 793 this Court made it clear that the discretion given in s 374(4A) could not be exercised until the two jurisdictional preconditions of exceptional circumstances and interests of justice had been met. The appellant claimed that neither of these preconditions had been met in this case. The appellant therefore submitted that an examination of the exceptional circumstances identified by the Judge would illustrate that there were no such circumstances in this case. Nor, the appellant claimed, did the Judge consider the interests of justice test at all.
[14]	The appellant stressed that, having as near as possible a full complement of jurors in a case where the jury would be required to consider whether there was a loss of self control was especially important. Finally, the appellant claimed the Judge confused the reasons for the discharge of the second juror with the exceptional circumstances relating to the trial under the s 374(4A) test.
[15]	The Crown says that the appellant’s submissions are an attempt to subvert subs (8) and to have the Court review the Judge’s decision to proceed with 10 jurors. The Crown submits that any miscarriage of justice allegation must, therefore, arise from the decision to proceed with 10 jurors and not be, as here, an attack on the basis of the exercise of the s 374(4A) discretion.
[16]	In any event, the Crown says the Judge properly exercised the discretion and the factors identified by the Judge were clearly relevant to a decision as to whether there were exceptional circumstances and whether it was in the interests of justice to proceed with 10 jurors.

[17]	We agree with the Crown submissions. It is clear that s 374(4A) gives the trial Judge a wide discretion. Subsection (8) does not allow a reconsideration by an appellate Court of the grounds upon which the Judge reached his or her decision (see R v Ross CA268/00 21 November 2000). To allow this would be to ignore the plain words of the section. However, subs (8) does not "trump" the power of this Court to allow an appeal based on a substantial miscarriage of justice (see R v Coombs [1985] 1 NZLR 318 (CA)).
[18]	A substantial miscarriage of justice could occur if a trial proceeded with less than 11 jurors when there were clearly no exceptional circumstances. This would be a high threshold essentially requiring an appellant to establish no Judge could have rationally concluded exceptional circumstances existed. In such a case, there would be no jurisdiction to make the order to proceed with only 10 jurors since a fact essential to jurisdiction would be absent.
[19]	The appellant’s case here does not meet this high threshold. More importantly it is, in our view, a direct attack on the merits of the decision itself. The Judge, when considering both exceptional circumstances and interests of justice, took into account the seriousness of the offence, the live issues at trial, the opportunity for retrial, the length of trial, the stage the trial had reached, the number of witnesses heard and the difficulty in having witnesses return to give evidence. These are all clearly relevant to whether there were exceptional circumstances and where the balance of the interests of justice lay.
[20]	The appellant’s real complaint is that he is not satisfied with where the balance was struck by the Judge. This is, in our view, directly within the Judge’s discretion in subs (4A) and is an attempt to review the Judge’s decision in breach of subs (8). We are satisfied that what the appellant seeks to convince this Court to do is exactly what is prohibited by subs (8). The Judge took into account relevant factors in reaching his decision. He considered these circumstances constituted exceptional circumstances and that it was in the interests of justice to proceed. It was open to him to reach this conclusion. No miscarriage of justice has been identified. This ground of appeal therefore fails.

[21]	While some attempt was made to raise a lack of proof of murderous intent in this case, it is clear that the only real "defence" was provocation. Given that the appellant admitted he deliberately cut the victim’s throat, lack of murderous intent seemed unlikely to succeed.
[22]	The trial Judge accepted that the appellant had a special characteristic said to be the fact that he was from a traditional Indian Hindu family with traditional religious family values, particularly in relation to marriage, and a strong dislike of Pakistani Muslims.
[23]	The provocative acts said to have occurred were identified by the Judge as:
	In the months before her death, did the deceased behave in a belittling way towards the accused in the company of their friends and/or when they were alone?
	Did the deceased have their friend Satyen Hattangdi tell the accused on the evening of 12 January that she did not want to be in the marriage?
	Did the deceased tell the accused on the morning of 13 January that she wanted to separate from him and to have a live-in relationship with a Pakistani colleague?
[24]	It could be said that the identification of the first two acts as provocative was generous to the appellant. He did not suggest in his statement or in evidence that either of those acts provoked a loss of self control causing him to kill the deceased.
[25]	The appellant challenges that part of the Judge’s summing up relating to what it means to be deprived of the power of self control both in relation to whether the appellant was in fact deprived of the power of self control and whether a person having the power of self control of an ordinary person, but otherwise with Mr Rajamani’s characteristics, would have lost self control in the circumstances and killed the deceased.
[26]	The Judge was effectively required to deliver his direction to the jury on provocation twice. The jury retired at 12.25 pm after the Judge’s summing up. At 3.05 pm the Judge answered a jury question, "Could we have a transcript of what the Judge said, the part where he spoke about provocation", by essentially repeating his earlier direction to the jury about provocation.
[27]	In his summing up to the jury the Judge had prepared two summaries, which he provided to the jury, which covered what was required by the prosecution to prove murder and absence of provocation. During the course of his description of the elements of murder, the Judge said to the jury, when considering whether the appellant killed the deceased by an unlawful act, they should consider whether the use of the knife "was intentionally done, that he deliberately used the knife to slit her throat, in other words that it was not an accidental act". In his handout to the jury, on the same topic, he said, when referring to the question whether the appellant killed the deceased by an unlawful act, the jury needed to consider "did Mr Rajamani do so intentionally or deliberately rather than accidentally". The Judge therefore used "deliberately" as a synonym for "intentionally" in the context of the definition of murder, and by those words he meant to distinguish between a deliberate action and an accident.
[28]	When the Judge came to discuss provocation with the jury and in particular in considering self control he said:

[29]	The Judge therefore used the word "deliberate" along with words such as "calculated" or "reasoned way" to denote a degree of premeditation or consideration.
[30]	The Judge returned to the question of self control at [59] when he said:

[32]	Again at paragraph 62 the Judge used the word "deliberately" and said that if the accused deliberately decided to kill the deceased and acted on that intention then it could not be said her death was provoked by a loss of his self control.
[33]	In answering the jury question the Judge essentially repeated his summing up on provocation and the passages we have mentioned and highlighted were repeated by the Judge.

	'Flood gate' arguments around a lowering the bar can be countered by the final qualitative criteria for a defence of provocation to succeed. The provocation must have been sufficient for an ordinary person in the circumstances to have been deprived of the power of self-control.
[35]	The appellant says the Judge, by using such words as "ceasing to act rationally", "ceasing to be a master of his mind and conduct", and saying that loss of self control was an extreme state, elevated these phrases essentially to legal requirements which the jury were obliged to apply to the facts of the case. The appellant submits that whether an accused person has lost the power of self control is a factual enquiry and what a loss of self control constitutes is for the jury to decide.
[36]	The appellant submits the use of such phrases, in any event, set the bar too high for provocation, equating it to a state of automatism.
[37]	Secondly, the appellant says that the Judge told the jury that if they believed the appellant intentionally or deliberately killed the deceased then provocation was not available. The appellant submits this is clearly wrong in law. He says before provocation is even considered by the jury the Crown must establish a murderous intent, that is a deliberate or intentional killing. Far from preventing such a defence being raised, a deliberate or intentional killing is a pre-requisite to it being able to be raised. Only after murderous intent is established can the jury consider provocation.
[38]	The Crown submits the Judge did not elevate what it means to have lost the power of self control to a legal test. The Crown says the Judge made it clear that the question of whether the appellant was deprived of the power of self control was a factual enquiry for the jury.
[39]	Secondly, the Crown submits the Judge did not blur the boundary between provocation and automatism. They stress that since R v McCarthy [1992] 2 NZLR 550 (CA) and more recently R v Rongonui [2000] 2 NZLR 385 (CA), the question of loss of self control is typically the central trial issue where provocation is raised. The Crown says the Judge’s use of phrases such as "not a master of his own mind" and "ceased to function as a rational human-being" and that "loss of self control is an extreme state beyond angry or very angry" was far from inappropriate. The Crown claims that this direction is well short of suggesting that the loss of self control requires "action without conscious volition (automatism)".
[40]	Finally, the Crown submits that the Judge did not suggest that if the appellant acted with murderous intent then the defence of provocation is not open. The Crown says the Judge made it clear that the defence of provocation was available only if they were satisfied the appellant had committed murder. The Crown says that the Judge’s comment, that if the appellant deliberately decided to kill the deceased and acted on that intention it could not be said her death was provoked, was consistent with the jury only considering provocation if murderous intent was established. It says this comment by the Judge relates to the "immediacy requirement – that the provocation must be the operative cause of the murderous intention". Thus the Crown says the Judge was distinguishing between a deliberate decision to kill (considered) as opposed to a provoked state where there is a loss of self control and therefore a deliberate decision to kill was not made. They say the Judge’s comments about a deliberate decision must refer to the delay between the deceased revealing her intention to leave the appellant for a Pakistani man and the appellant killing her, which occurred 10 to 15 minutes later only after he had left the house, walked down the road picked up the bricks and returned. This delay is relevant, the Crown says, to whether the appellant’s loss of self control had passed and whether he had regained control but had decided (deliberately) to kill her out of revenge or anger.

[42]	The emphasis the Judge placed on these phrases in the context of this case was appropriate. The jury would obviously need to take into account the delay between the alleged provocative act and the appellant’s response to it. This would require consideration of whether the appellant was no longer master of his own mind when he killed the deceased. The Judge made it clear throughout his summing up that this was a factual enquiry for the jury. Whether the alleged provocative acts had in fact deprived the appellant of his self control thus resulting in the killing was that factual enquiry. We see nothing objectionable in the Judge making it clear what loss of self control means. As we have said the Judge simply stressed that this was a very serious state well beyond anger. Given this guidance by the Judge it was appropriate for the Judge to invite the jury, as he did, to consider the facts of this case and decide whether there was a loss of self control leading to the killing.
[43]	The appellant argues that the Judge’s use of the term "deliberate" in the course of his summing up suggested to the jury that provocation was not available if the appellant had deliberately or intentionally killed the victim. The Judge used the word "deliberate" in two contexts relating to provocation.
[44]	First, the Judge’s use of the term "deliberate" in [55] must be understood in context. This section of the summing up dealt with the significance of the delay between the provocative act and the killing. The Judge told the jury that delay between the provocative conduct and the killing can negate "evidence of provocation" (essentially negate loss of self control). The Judge then equated deliberateness with premeditation in this context. The thrust of this part of the direction to the jury was therefore focused on the time between the provocative act and the killing and whether the appellant was still acting under provocation, whether he had still lost his self-control, or whether the appellant had regained his self control and decided in a premeditated, deliberate way, to kill the deceased. If the latter, then he could not avail himself of provocation. As we note at [48] below, we think it preferable to avoid in this context the use of the word "deliberate". However, given the context, the Judge’s comments about "deliberate" or "reasoned action" were unobjectionable, and we are satisfied the jury would have understood them in the sense we have just outlined.
[45]	The second occasion in which he used "deliberate" appears in [62]. To understand what is being referred to in [62] (which begins with the words "It follows that") it is necessary to consider [60] and [61] of the summing up.
[46]	In [60] the Judge stressed the need for a loss of self control. In [61] he emphasised that it must be the loss of self control rather than any other reason that caused the killing. In [62] the Judge explained to the jury that two possible situations could arise with respect to loss of self control. The jury might conclude this was a planned killing where there was no loss of self control. In the alternative the jury might conclude there was a provocative act which caused a loss of self control but time had passed and that loss of self control was replaced by "considered hatred, resentment or frustration". In either case, if established by the Crown, provocation would not apply.
[47]	We are satisfied that the jury therefore would have understood that the word "deliberate" in [62] of the summing up was being used as a synonym for "planned" or "premeditated". The Judge, later in the summing up, in summarising the Crown case, used the word "deliberately" as meaning "planned" or "premeditated". In summarising the case for the appellant the Judge stressed that the jury had to be satisfied murderous intent was established before they considered provocation. In the jury material provided by the Judge relating to provocation and in other parts of his summing up the Judge made it clear the Crown first had to establish the appellant had a murderous intent before provocation could be considered by the jury.
[48]	The use of the word "deliberate" in the context of provocation and as a synonym for a planned or premeditated action can be confusing and is best avoided. However, we consider that the jury would have understood that at [62] when the Judge used the word "deliberate" he was referring to a planned or predetermined action. We are satisfied that there has been no miscarriage of justice.

[52]	The appellant says his account that he was told on the morning of the killing that his wife was having an affair with a Pakistani man was the critical plank of the defence case. If indeed the appellant had told Glen Handley that he only found out about his wife’s involvement with Mr Rabbani after the killing then this significantly undermined the appellant’s case that this was a provoked killing.
[53]	The appellant does not criticise trial counsel for inadequate cross-examination of Mr Handley but points out his evidence was hardly challenged. The appellant says, in any event, Mr Handley’s evidence did not clearly establish the appellant said he did not know about the Pakistani man until after the killing. The appellant says this evidence of Mr Handley was "too vague and imprecise" to be relied upon to contradict the appellant’s evidence.
[54]	The final complaint by the appellant relates to the way in which Mr Handley’s evidence was dealt with by the Judge. The appellant says that while the Judge mentioned Mr Handley’s evidence in the context of the Crown case he neglected to identify the appellant’s response to Mr Handley.
[55]	During the course of oral submissions we asked trial counsel, Mr Darby, who was junior counsel in this appeal, whether he had mentioned Mr Handley’s evidence in his final address to the jury. He responded, to the best of his recollection, he had not mentioned Mr Handley’s evidence but had concentrated on what the appellant had said.
[56]	The Crown says what must be kept in mind is that when Mr Handley gave evidence the appellant had not claimed he knew about his wife’s involvement with a Pakistani man. This was not mentioned in the appellant’s interview with the police and it was first raised in the appellant’s evidence at trial after Mr Handley’s evidence.
[57]	The Crown says the evidence from Mr Handley was not vague and the Crown was entitled to invite the jury to conclude that the appellant did not know about Mr Rabbani until after the killing. The Crown says the appellant’s counsel did not mention Mr Handley’s evidence in his final address and there was no reason for the Judge himself to do so.
[58]	Finally, the Crown says Mr Handley’s evidence is consistent with other Crown evidence which illustrates it was unlikely the deceased would have told the appellant of her involvement with Mr Rabbani on the morning of the killing.

[62]	We are satisfied in the circumstances that there has been no miscarriage of justice based on this ground of appeal. First, it is clear, the questions and answers of Mr Handley, relating to his discussion with the appellant about Mr Rabbani, came as a surprise to both counsel. However, at this stage it was not clear that the appellant would say his wife told him about Mr Rabbani before he killed her.
[63]	Senior counsel at trial (not Mr Darby) could have elected to challenge Mr Handley’s evidence more fully. He could have asked for a short trial adjournment to consider his cross-examination given the surprising development. We do not know why he did not do so. He chose not to challenge Mr Handley’s evidence on this point strongly. This could be seen as a legitimate trial tactic to avoid highlighting evidence unhelpful to the defence. The appellant gave an explanation for Mr Handley’s evidence which the jury could have accepted, essentially, that Mr Handley had misunderstood the appellant’s reaction.
[64]	The Judge pointed out that it was open for the jury to accept the appellant’s evidence and if they did he was entitled to an acquittal for murder. We accept that when dealing with provocation the Judge would have been better to have mentioned the appellant’s evidence, denying he had learnt of his wife’s involvement with Mr Rabbani after the murder, to balance his comments about the Crown suggestion that if they accepted Mr Handley’s evidence there was no provocative act. It is common ground that trial counsel for the appellant did not raise this alleged inadequacy at any time with the trial Judge. The Judge, however, did make it clear that it was the appellant’s case that they should accept his evidence as truthful as to what happened at the house on the day of the murder. If they did so then they would, of necessity, have rejected Mr Handley’s evidence as either unreliable or untrue on this point.
[65]	We consider Mr Handley’s evidence was capable of being understood as saying the appellant first knew of his wife’s involvement with Mr Rabbani after the killing. The tenor of Mr Handley’s evidence on this point clearly conveys the impression that the appellant first found out about his wife’s conduct from a police statement.
[66]	We are satisfied that it would have been abundantly clear to the jury, given it was fundamental to the appellant’s case, that he claimed he had been told of his wife’s involvement with Mr Rabbani on the morning he killed her.
[67]	We are therefore satisfied that no miscarriage of justice occurred here.

[68]	The prosecution called evidence from witnesses who knew the deceased about what she had said regarding the appellant a few days before she was killed. The appellant submits these statements should not have been admitted in evidence because they were inadmissible hearsay. The appellant says in the alternative, if the statements were admissible then the Judge erred in directing the jury as to the use to which the statements could be put.
[69]	While several witnesses, including the parties’ mutual friend Mr Hattangdi, some of the deceased’s friends and work colleagues and her solicitor, gave such hearsay evidence, the appellant took particular exception to the evidence of Mr Roger Long and Ms Jennifer Barnes (nee Burrett). Mr Long and Ms Barnes were property managers at Century 21 real estate. In mid 2003 - 2004 the deceased saw Ms Barnes regarding a place to live. Eventually a property was leased by the deceased and the appellant. The deceased and Ms Barnes became friendly and the deceased told her about the unhappy state of her marriage.
[70]	In January 2005 the deceased again contacted Ms Barnes. The deceased spoke to Ms Barnes and left messages on her answerphone. One of the messages left on 10 January 2005 said the deceased needed a place to rent urgently and that her husband was going to kill her and the police were involved. Later that day Ms Barnes saw the deceased who was distressed.
[71]	Mr Long spoke to the deceased on Friday 7 January regarding a rental property. He said in evidence:

[78]	We have no doubt the evidence was admissible to establish the deceased’s state of mind. Such evidence has long been recognised as admissible if the deceased’s state of mind is relevant. (See Subramaniam v Public Prosecutor [1956] 1 WLR 965 (PC), R v Howse [2003] NZCA 178; (2003) 20 CRNZ 826 (CA); R v Baker [1989] 1 NZLR 738 (CA); R v Butler HC ROT T 105-97 23 March 1998 Randerson J).
[79]	The state of mind of the deceased was undoubtedly relevant. Whether the deceased told the appellant she was leaving him for a Pakistani work colleague was fundamental to whether there was a provocative act. If the jury rejected the appellant’s claim that he had been told about the Pakistani work colleague on the morning of the killing, then provocation was hardly available. This evidence was relevant to the likelihood, therefore, of the deceased telling the appellant about her Pakistani work colleague on the day of the murder. If the deceased was seriously scared of the appellant, then this reduced the likelihood that she would have risked further upsetting him by telling him about Mr Rabbani.
[80]	We think the Judge, therefore, was correct to allow the evidence of Ms Barnes and Mr Long to be given in evidence for this limited purpose. Its probative value was high in relation to the state of mind of the deceased and the Judge gave a detailed and appropriate direction to the jury to approach this evidence with caution.
[81]	However, the evidence of Ms Barnes and Mr Long was hearsay evidence where given to prove the appellant’s state of mind (see R v Gilfoyle [1996] 1 Cr App R 302 at 322-333) and, other than in limited circumstances, is not admissible for this purpose.
[82]	We consider, therefore, the Judge should not have told the jury in his summing up that the deceased’s statements to Ms Barnes and Mr Long were relevant to the appellant’s "state of mind at the relevant times and the defence of provocation". However, we are not satisfied this error gives rise to a real risk of a miscarriage of justice.
[83]	The Judge in his summing up did not repeat nor expand upon the use of the evidence as relevant to the appellant’s state of mind. The Judge warned the jury about the use to which these statements could be put. He focused on the reliability of the statement solely from the deceased’s perspective. He warned the jury that, even if the statements accurately reflected what the deceased thought, they should not leap from her concern to a finding of guilt of the appellant. Secondly, the Judge’s summing up of the Crown case makes it clear the Crown did not invite the jury to use the evidence of Ms Barnes and Mr Long to assist them in assessing the appellant’s state of mind. Finally, both the defence and Crown wanted evidence regarding the past relationship of the appellant and the deceased before the jury. The Crown’s case was that the appellant was violent and controlling. The appellant’s case was that the deceased was manipulative and deceitful. This evidence was therefore part of that essential background to inform the jury’s deliberations. The Judge in his summing up dealt with previous incidents involving the appellant’s conduct. He told the jury it was a part of the "background picture of the relationship between the deceased and the accused". He warned the jury, however, not to leap to the conclusion that because they may have had a tempestuous relationship that the appellant was guilty of murder and that he could not have been provoked on the day of the killing.
[84]	We are satisfied, therefore, that, as this use of the evidence had little prominence in the summing up, was never part of the Crown case and the jury were warned about impermissible assumptions of guilt from the appellant’s conduct, there was no real risk of a miscarriage of justice here.
[85]	None of the grounds of appeal against conviction are therefore established and the appeal is dismissed.