R v Storer CA368/05 [2006] NZCA 411 (17 May 2006)

Last Updated: 25 January 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA368/05

THE QUEEN

v

STEVEN RONALD STORER

Hearing: 5 April 2006

Court: O’Regan, John Hansen and Harrison JJ Counsel: S J Shamy for Appellant

A R Burns for Crown

Judgment: 17 May 2006

JUDGMENT OF THE COURT RECALLING JUDGMENT OF

_{2 MAY 2006}

The judgment delivered on 2 May 2006 is recalled and replaced with a judgment released on 17 May 2006.

REASONS

_{(Given by O’Regan J)}

R V STEVEN RONALD STORER CA CA368/05 17 May 2006

The judgment of the Court dated 2 May 2006 included some observations in [28]- [30] about the directions given on the elements of the arson charge at trial. It has come to our attention that the matters raised in those paragraphs were, in fact, dealt with at the trial itself and that these observations are therefore redundant. They are omitted from the re-issued judgment.

Solicitors:

Crown Law Office, Wellington

JUDGMENT AS REISSUED PURSUANT TO RECALL DECISION OF

17 MAY 2006

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN [28]) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DESPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW

_{DIGEST PERMITTED.}

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA368/05

THE QUEEN

v

STEVEN RONALD STORER

Hearing: 5 April 2006

Court: O’Regan, John Hansen and Harrison JJ Counsel: S J Shamy for Appellant

A R Burns for Crown

Judgment: 2 May 2006

_{JUDGMENT OF THE COURT}

A The appeal against conviction is allowed.

B Order prohibiting publication of the judgment and any part of the proceedings (except the result as set out in [28]) in news media or on Internet or other publicly available database until final disposition of trial. Publication in Law Report or Law Digest permitted.

REASONS

_{(Given by Harrison J)}

Introduction

[1] On 31 August 2005 following a trial in the District Court at Timaru a jury found the appellant, Mr Steven Storer, guilty on charges of arson, burglary and assaulting a female.

[2] On 8 September 2005 the trial Judge, Judge Michael Crosbie, convicted and sentenced Mr Storer to concurrent terms of three and a half years imprisonment for arson, two years for burglary, and one year for assault.

[3] Mr Storer now appeals against his conviction and sentence.

Appeal

[4] Mr Simon Shamy, who appeared for Mr Storer in this Court but not at trial, advances three grounds in support of his appeal against conviction. Two of the grounds, alleging the Judge’s failure to direct properly or adequately on inferences and the admission of evidence from a police officer about his previous dealings with Mr Storer, are plainly unsustainable and it is unnecessary to consider them further.

[5] Mr Shamy’s remaining ground, that the Judge failed to direct properly on the effects of intoxication, is more substantial. Its consideration requires some reference to the background facts.

Background Facts

[6] At about 8.30 p.m. on 1 March 2004 Mr Storer joined two women at a house in Oamaru. He took a cask of wine with him and later in the evening he bought an order of a bottle of tequila and half a dozen bottles of beer from a tavern. Over a period of four hours he drank at least one glass of wine and three shots of tequila.

[7] At about 12.30 a.m. the following morning, 2 March, Mr Storer disappeared to the bathroom for 15 minutes. One of the women, Ms Tina Ord, said that on his return he seemed:

... all of a sudden very intoxicated... He was falling over and he was slurring his speech and he just seemed very drunk. I put it down to being drunk.

[8] The two women decided to escort Mr Storer to a taxi stand about six blocks away. On the way out he fell, apparently hitting his head as he did so. Initially Mr Storer was co-operative and was able to walk without much assistance. But after the three reached a dairy, part way through the journey, he stopped walking and started to behave aggressively. Mr Storer pushed Ms Ord and hurt her ankle. Later, while sitting on a house fence, he fell backwards and Ms Ord helped him to recover. At about 2 a.m. a taxi driven by Mr Ross Wardle, whom Ms Ord knew, arrived.

[9] Mr Wardle recognised Mr Storer from an earlier fare the previous evening. Initially they drove towards Mr Storer’s house. But Mr Storer insisted that they return to the original collection point. Mr Wardle described Mr Storer’s appearance at that time as “very drunk” and observed that “balance was a problem for him”.

[10] Ms Ord was still there, sitting on the footpath. The taxi driver alighted from his car and talked to her. Mr Storer also left the vehicle. He attempted to punch the driver. Mr Storer then punched Ms Ord in the face when she intervened. She retaliated in kind, forcing Mr Storer to fall backwards into a gutter. Her friend then drove her to the police station.

[11] Shortly afterwards Mr Neville Cowles, who lived nearby, was awoken by the sounds of banging noises on his back porch. Mr Storer had arrived uninvited and

smashed four panes of glass in a laundry window. Mr Cowles barricaded himself into an internal room and called the police who arrived within a few minutes. Mr Storer then lit a fire in a rubbish bag and some egg cartons in the laundry. The first police officer to attend, Constable Sew Hoy, removed the burning items and extinguished the fire.

[12] A corner of the black plastic rubbish bag had been melted in a circular shape, consistent with fire, and some of its newsprint contents showed burnt signs. All of the egg cartons had been burned to varying degrees. Another police officer, Constable Duncan, described this fire damage as superficial. He confirmed there was no fire damage to the dwelling or any of its contents.

[13] The facts were not in material dispute at trial. Mr Storer’s counsel, Mr Michael Radford, raised automatism. Experts were called both for the prosecution and for Mr Storer. The jury’s verdicts of guilty are evidence of their rejection of automatism.

Submissions

[14] Mr Shamy acknowledges that self induced intoxication is not a defence. However, he submits that the Judge was required but failed to direct the jury properly or at all on the relevance of intoxication to formation of a criminal intent. He relies upon the authority of decisions in this Court of R v Kamipeli [1975]

2 NZLR 610 and R v Craig CA142/02 11 December 2002. Mr Ross Burns for the Crown submits that, while the Judge’s direction on intoxication was not extensive, it was sufficient in law.

Decision

[15] The fate of this appeal turns on the narrow point of whether the Judge gave adequate directions on the relationship between intoxication and criminal intent.

[16] We agree with Mr Shamy that the circumstances of this case called for a full direction on the relationship between intoxication and formation of criminal intent. The combined effect of the evidence from Ms Ord and Mr Wardle was that at relevant times Mr Storer was heavily intoxicated. The law requires a trial Judge, where drunkenness and its possible effect upon the accused’s mens rea is an issue, to give a direction to the jury (R v Sheehan [1975] 1 WLR 739 (CA) at 743, approved by this Court in Kamipeli at 619-620 and Craig at [31]):

... first, to warn them that the mere fact that the defendant’s mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. A drunken intent is nevertheless an intent. Secondly, and subject to this, the jury should merely be instructed to have regard to all the evidence, including that relating to drink, to draw such inferences as they think proper from the evidence, and on that basis to ask themselves whether they feel sure that at the material time the defendant had the requisite intent.

[17] Such a direction is necessary within the wider duty of directing the jury on the Crown’s burden of proving all elements of the charge including the mental element. The subject of the jury’s inquiry must be to the fact of rather than the capacity for intent (Kamipeli at 616). The question (R v Farrell [1964] NSWR 1143, approved in R v Gordon [1963] SR (NSW) 631 at 635-636 and in Kamipeli at 616) is:

... whether he had in fact formed the intent necessary to constitute the particular crime. If he was so drunk that he was incapable of forming or did not in fact form the intent required, he could not be convicted of a crime which is committed only if the intent is proved. The onus is upon the Crown to establish his guilt under these circumstances, it is not for the accused to prove that he lacked such an intent. Such is often wrongly referred to as a defence, but it does not mean that the drunkenness in itself is an excuse for the crime but that the state of drunkenness may be incompatible with the actual crime charged and may therefore negative the commission of that crime...

[18] In summing-up the Judge properly directed the jury on the burden of proving all necessary elements of the charges (at [12]-[13]). He also directed them properly on drawing inferences from proven facts for the purpose of establishing the requisite intent (at [7]). He referred specifically to the element of intention of the charges of arson (at [18]), assault (at [24]), and burglary (at [28]). He highlighted Mr Radford’s emphasis on proof of the element of intent for all three charges (at [29]-[30]).

^{[19] However, the Judge referred only twice to intoxication. First he said this:}

[30] So the issue of intention is the crux of this trial. You heard both counsel for the Crown and the accused close yesterday and both agree that the events are relatively clear. The Crown case is that the matter is a simple one and that the accused has tried to make it complicated by raising this issue of automatism. The Crown says the case is not about automatism at all but, rather, that it was a senseless act of drunkenness that put someone’s life at risk. The case the Crown says is not about automatism, but about drunkenness.

[20] Later the Judge said:

[36] Our law does not recognise any concept of diminished responsibility and nor is self induced intoxication a defence. Our law is that, if at the time of committing an offence those three capacities or abilities were present (however vague or clouded they might have been), then the offender is responsible for his actions.

[21] The Judge’s reference to the “three capacities or abilities” were to components of automatism, upon which he had directed the jury (at [31]-[35]) between his two references to drunkenness or intoxication.

[22] They were (at [33]):

... some awareness of what he was doing in a physical sense, had some capacity to make a conscious decision to do those actions, and had some capacity to form the intent which is an element of each charge ...

[23] The Judge then returned to the same subject (at [37]-[44]). He referred to a defence submission ‘... that drunks do not act rationally but nor do those with head injuries’ (at [45]). He then directed briefly on some miscellaneous issues.

[24] The Judge properly directed the jury that self inducted intoxication is not a defence. However, his statement was incomplete and, when read in context, suggests that the Crown had established the necessary elements of intent ‘... if at the time of committing an offence those three capacities or abilities were present (however vague or clouded they might have been) ...’ (at [36]). The capacities to which the Judge was referring were those relevant to automatism; they were immaterial to the separate issue of intoxication and formation of intent.

[25] We appreciate, as Mr Shamy accepts, that the whole thrust of Mr Storer’s defence at trial was directed towards his capacity to form a criminal intention in the automatism context. His trial counsel does not appear to have placed any emphasis upon the separate issue of whether or not Mr Storer in fact formed a criminal intent by virtue of his state of drunkenness. While Mr Radford cross-examined Ms Ord and Mr Wardle about Mr Storer’s intoxication, it was not apparently in sharp issue. The Judge would have given much more prominence to intoxication in the context of criminal intent if Mr Radford had relied upon it when addressing the jury. This is confirmed by counsel’s failure to raise it with the Judge at the end of his summing- up as a supplementary point for direction.

[26] Nevertheless, despite Mr Radford’s failure to identify the issue, we are satisfied that the Judge was bound to give a specific direction in any event. That is because, we repeat, drunkenness is not a defence as such but its existence goes to the critical question of whether or not the Crown has discharged its burden of proving the element of intent. While in Kamipeli (at 612) the accused expressly raised what the Court described as “the sole defence [of] absence of intent by reason of drunkenness”, McCarthy P stated (at 619) that the jury must be directed to decide whether intent has been established “... if drunkenness is truly raised by the evidence ...” (our emphasis). The same point was made later by this Court (R v Tavete [1988] 1 NZLR 428 at 431) as follows:

A trial according to law requires an adequate direction by the Judge to the jury of all matters, whether of fact or of law, which, upon the evidence, are reasonably open to the jury to consider in reaching their verdict. In a trial for murder this includes matters of defence such as self defence, provocation, manslaughter or accident, notwithstanding that such matters are not raised or are even expressly disavowed on behalf of the accused.

[Emphasis added]

[27] In our judgment there was on the prosecution evidence a sufficient factual foundation to require the Judge to leave the issue of intoxication to the jury when determining whether the Crown had discharged its burden of proving criminal intent (Craig at para [37]) and he erred in failing to give proper directions on the subject.

[28] Accordingly, we allow Mr Storer’s appeal, quash his conviction on all three charges, and direct a retrial.

^Sentence

[29] It is thus unnecessary for us to determine Mr Storer’s appeal against sentence. However, to meet the contingency that he is convicted at retrial, it is appropriate to record our view that the starting point adopted by the Judge of a sentence of four and a half years imprisonment imposed on the charge of arson was well outside the appropriate range for the offending in this case.

Solicitors:

Crown Law Office, Wellington