The Queen v Frost [2008] NZCA 406 (6 October 2008)

Last Updated: 15 October 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA272/2008

[2008] NZCA 406

THE QUEEN

v

DUNCAN CONRAD MURRAY FROST

Hearing: 17 September 2008

Court: Robertson, Wild and Cooper JJ

Counsel: S W Hughes QC and K M Marriner for Appellant
A Markham for Crown

Judgment: 6 October 2008 at 4 pm

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

B The appeal against sentence is also dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1] The appellant was tried for the murder of Angela Deane at New Plymouth on 1 February 2007. His defence was provocation. The jury found him guilty of murder. Heath J considered the appellant had murdered Ms Deane with a high level of brutality and callousness. Accordingly, when sentencing him to life imprisonment, the Judge directed that the appellant was to serve a minimum of 17 years in prison.
[2] Mr Frost appeals against both his conviction and sentence. He challenges his conviction on two grounds:

(a) The Judge erred in ruling inadmissible parts of the evidence of Dr Tapsell. Dr Tapsell is a forensic psychiatrist called by the defence to give evidence that the appellant suffered from a psychiatric condition that the defence contended was a special characteristic for the purposes of the provocation defence.

(b) The Judge misdirected the jury that the Crown must exclude “the reasonable possibility” that the appellant was provoked into killing Ms Deane. The Judge was required to direct the jury that the prosecution must prove, beyond reasonable doubt, that this was an unprovoked killing.

[3] The basis for the sentence appeal is that this was not a murder engaging s 104(e) Sentencing Act 2002. The correct sentence is life imprisonment with the minimum of ten years’ imprisonment specified by s 103(2).

The conviction appeal

Misdirection on standard and onus of proof

[4] We dispose immediately of the second ground of appeal, because it lacks any merit.
[5] “To exclude the reasonable possibility” and “to prove beyond reasonable doubt” are equally acceptable formulations of the criminal standard of proof. R v Wanhalla [2007] 2 NZLR 573 (CA) endorses the former at [50]-[51] and [116].
[6] Heath J gave a clear direction that the onus of excluding provocation was on the Crown, in fact he gave that direction several times, for example at [47] and [67] of his summing up. The Judge’s jury questionnaire was equally clear:

The Crown must exclude the reasonable possibility that provocation exists. If provocation is not excluded your verdict will be not guilty of murder but guilty of manslaughter.

...

NB: At all stages of the provocation inquiry it is for the Crown to exclude the reasonable possibility that the accused killed in response to provocation from Ms Deane.

There is no problem with the means of expression employed by Heath J.

Wrongful exclusion of part of Dr Tapsell’s evidence

[7] Dr Tapsell’s proposed statement of evidence covered a number of topics and included sections headed:

• Events leading up to the death of Ms Deane (paras 18-24).
• Ms Deane’s death (para 25).

[8] The second of these sections outlined events said to have occurred during the period the appellant was with Ms Deane at her home until he murdered her. In that section Dr Tapsell recounts what the accused had told him about these events.
[9] The Judge ruled out both these sections of Dr Tapsell’s evidence. His reasons were:

[54] The proposed evidence about events leading up to and surrounding Ms Deane’s death have already been the subject of Police interviews captured on videotape. The jury has before it Mr Frost’s contemporaneous explanations on those issues and the evidence of those whom he encountered around the time of the killing who speak of his manner, mood and demeanour. That evidence is the primary material on this topic. It can be put to Mr Tapsell to determine what opinion he can form as a result of it.

[55] I regard the statements reported to Dr Tapsell on these topics as not being sufficiently reliable to pass the s 18(1)(a) threshold. There is a real potential for such statements to be self-serving. It is preferable that Dr Tapsell be asked about the evidence actually given rather than unchallenged statements made out of Court to him on which his diagnosis presently appears to have been based.

[10] The appellant’s account of events preceding the killing was very much in issue. The account reiterated by Dr Tapsell in his evidence contains what Ms Markham categorised as “some significant self-serving embellishments on the appellant’s statement to the police”. Among the examples Ms Markham gave are:

• That Ms Deane was “manipulative and playing with my head”.

...

• That he had an “overwhelming sense of rage”, that he “lost it” and “something snapped in my head”.

The evidence was properly excluded as unreliable under s 18.

[11] It was in any event inadmissible under s 21(1) Evidence Act 2006:

21 [Accused] who does not give evidence in criminal proceeding may not offer own statement

(1) If [an accused] in a criminal proceeding does not give evidence, the [accused] may not offer his...own hearsay statement in evidence in the proceeding.

The appellant did not give evidence.

[12] The Judge considered s 21 did not apply:

[38] ...because the ability to allow hearsay evidence under s 18 of the 2006 Act is subject only to ss 20 and 22. It is not subject to either s 21 or s 25. See s 18(2) of the Act.

We do not agree.

[13] Section 21 is the provision specifically and directly applying when, as here, an accused seeks to introduce evidence through another witness, in this case his expert witness Dr Tapsell, i.e. to “offer his...own hearsay statement in evidence”.
[14] Section 21 is not expressed as being subject to s 18 because it does not need to be. The specific s 21 comes after the general s 18, taking away part of its subject-matter and dealing with it specially. It creates an exception to the generality of s 18. The applicable principle of statutory interpretation is described in Burrows’ Statute Law in New Zealand (3ed 2003) 317.
[15] To interpret s 21(1) as subject to s 18 deprives s 21 of effect. Section 18 is not expressed to be subject to the general exclusion in s 8. Yet it cannot have been intended that highly prejudicial, but minimally probative, hearsay evidence is admissible because it qualifies under s 18.
[16] If, contrary to our reading of the sections, there could be doubt as to which of s 18 and s 21 prevails, the legislative history resolves any doubt in favour of s 21. Ms Markham’s submissions succinctly outlined the history:

39. Section 21 was inserted as a result of a Cabinet paper. According to Mahoney and others The Evidence Act 2006: Act and Analysis (EV21.01), the Law Commission had originally intended that self-serving or repetitive hearsay statements by a defendant could be adequately controlled by the reliability filter in s 18, as well as by s 8(1)(b) (i.e. in other words, an approach similar to that adopted in Rongonui). But s 21 rejects that approach. The Cabinet paper records:

“[A] defendant who elects not to give evidence will not be permitted to offer his or her own hearsay statement as evidence in a criminal proceeding....as a defendant is not, in reality, ‘unavailable’ to him or herself. This departs from the Law Commission recommendation.”

...

42. It is noted that what are now ss 18(1) and 21 were originally part of the same draft section in the Bill (ss18(1) and (3) respectively). Section 18(4) of the draft Bill expressly provided that subsection (1) was subject to subsection (3). During the Justice and Law Reform Committee stage, the provisions became separated, but the “subject to” provision wasn’t carried through, presumably as a result of oversight. At the same time, however, the heading of s 18 changed, from “admissibility of hearsay” in the original draft, to “general admissibility of hearsay”. It is submitted that s 21, as a specific provision excluding hearsay statements offered by a defendant who does not give evidence, was plainly intended to prevail over the “general” admissibility provision in s 18.

We doubt there was any “oversight”. It was simply that, as a result of the altered placement of the rule in its own section (s 21), it was unnecessary to make s 18(1) subject to it.

[17] Ms Hughes submitted that exclusion of the parts of Dr Tapsell’s evidence “impossibly compromised the accused’s ability to advance his defence of provocation”. She went as far as contending that it breached the fair trial rights guaranteed by s 25 New Zealand Bill of Rights Act 1990. We reject this. It cannot be a breach of s 25 for the trial Judge to rule out inadmissible evidence. Quite the converse. In addition to testing the evidence of the prosecution’s witnesses by cross-examination, the accused’s right to defend himself is by giving or calling relevant and admissible evidence, if he so elects.
[18] Ms Hughes sought to carve, out of s 21(1), a specific exception for psychiatrists. She argued that psychiatrists must rely on hearsay, and should be permitted to repeat it in Court because they are professionally trained to assess it. We do not accept that. No such exception, express or implied, is open upon the wording of s 21(1).
[19] Lastly, Ms Hughes submitted that this Court’s decision in R v Rongonui [2000] 2 NZLR 385 supports the admission of paras 18-25 of Dr Tapsell’s evidence, accompanied by an appropriate direction from the Judge as to the weight which the jury could properly attach to it.
[20] Assuming, without deciding, that those parts of Rongonui which deal with the admission of hearsay survive the Evidence Act 2006, Rongonui does not assist the appellant. Paragraph [62] of Rongonui, upon which Ms Hughes concentrated, permits a psychiatrist giving evidence in relation to a provocation defence, to give hearsay evidence of the accused’s past history or background i.e. so-called “diagnostic facts”. The paragraph also permits the psychiatrist to give evidence of what the accused said to the psychiatrist as to the events immediately preceding the crime, if that account “does not go beyond the statements introduced by the Crown as part of its evidence”.
[21] But Rongonui excludes hearsay evidence from a psychiatrist about critical events preceding the crime unless and until “a proper evidential foundation for the defence [of provocation] has been laid”. Absent such a proper foundation, the accused’s hearsay account via the psychiatrist is “self-serving hearsay not admissible as evidence of the truth of what happened”. Those citations come from [53] in Rongonui.
[22] We dismiss this first and primary ground of appeal against conviction.
[23] Even if these legal impediments did not stand in the appellant’s way, his challenge to conviction demonstrates no miscarriage of justice. Dr Tapsell was able to give his opinion. Indeed, his assessment that the appellant suffered a recognised psychiatric condition, and his summary of the “characteristics” of that condition, was not challenged by the Crown once the Judge ruled it admissible.
[24] Dr Tapsell’s evidence about the appellant’s background was supported by the evidence of other witnesses, and the jury had the appellant’s (videotaped) account to the police of events preceding his murdering Ms Deane. Unlike the position in Rongonui, Heath J did not exclude the expert’s opinion on the grounds that it was founded on hearsay.
[25] There is no basis to interfere with the conviction.

Sentence

[26] Ms Marriner argued the appeal against sentence. She submitted Heath J erred in holding that the appellant’s murder of Ms Deane was caught by s 104(e) Sentencing Act 2002, a murder:

... committed with a high degree of brutality, cruelty, depravity or callousness.

[27] Heath J found this was a brutal and callous murder. Brutal, in that it was senseless, callous because of the appellant’s want of feeling – his insensibility about murdering Ms Deane.
[28] The appellant arrived at Ms Deane’s house sometime on the morning of 1 February 2007. Earlier that day he had asked for a lift into New Plymouth from the farm on which he had the use of a cottage. He was taking his chainsaws to sell, and his tools to give to his son. It seems that the appellant’s life was at some sort of a watershed.
[29] After being dropped at Ms Deane’s home around mid-morning, the appellant spent the rest of the day with her, drinking and smoking. He went off at one stage to make amends with a neighbour of Ms Deane.
[30] A friend of Ms Deane’s, who called in at her house, gave evidence that Ms Deane and the appellant appeared to be relaxed and enjoying each other’s company.
[31] The appellant said he and Ms Deane had sexual intercourse early in the evening.
[32] Later, as Ms Deane was preparing to cook a meal, the appellant approached her from behind in the kitchen and slit her throat from ear to ear with a hunting knife he had brought with him. He then stabbed her through the back, his knife going through her heart.
[33] Ms Deane was found a few days later lying in a pool of blood on her kitchen floor, still clutching in her right hand the tongs she was about to use to cook dinner.
[34] Having murdered her, the appellant took food from her fridge and drove off in her car.
[35] The following day, the appellant visited another woman friend. This is the description Heath J gave, when sentencing the appellant, of what occurred:

[22] ... What I find most chilling about your conduct is what you said to [Ms X] the day after you killed Ms Deane. I do not accept Ms Hughes’ submission that this was grandiosity. This was a full and frank acknowledgment of what you did, what you intended to do and how much you enjoyed it, made to someone you knew shortly after it occurred.

[23] [Ms X] inquired about purchasing the car you had with you. You told her you could not sell the car to her because you cut someone’s throat for it the previous night. You also said that you would send photographs to a picture phone of the next person’s murder so “we could feel and witness what” would happen at the time and that those present could “get rich off such stuff if we sent to the magazines”.

[24] You looked at [Ms X], tilted your head to one side and said something to the effect that you liked the killing and realised you were “quite good at it”. [Ms X] described your mood as quiet, when you made that statement. She added that she would never forget those words. [Ms X] said that when you spoke to her you told her that you liked “watching all the blood come out”.

[36] In his sentencing remarks the Judge referred to this Court’s guidance in R v Williams [2005] 2 NZLR 506 and R v Parsons [1996] 3 NZLR 129 at 131, and to the dictionary definitions of “brutality” and “callousness”. He categorised what the appellant had done as “cold bloodedness of the highest rank ... committed by someone who can aptly be described as having a ‘numbed soul’”. The Judge held that this brought the murder within s 104.
[37] We see no error in the Judge’s analysis. Ms Marriner’s thorough submissions sought to distinguish this case from brutal murders involving multiple blows inflicting injuries over an extended period, with the victim often dying slowly and in agony. We agree that this case is not in that category.
[38] Ms Marriner then submitted that the “efficient” way in which the appellant killed Ms Deane did not demonstrate callousness “which in this context imagines a prolonged assault and cruelty”. Indeed, Ms Marriner pointed to the appellant’s explanation that he had stabbed Ms Deane through the heart to end her suffering.
[39] That submission conflates and confuses callousness and cruelty. While the latter may not have been a feature of this “efficient” murder, the Judge was entitled to find the former was.
[40] Lastly, Ms Marriner submitted that the appellant’s conduct following the murder could not be used in assessing whether the murder came within s 104(e). We reject that. For the appellant to help himself to the contents of the refrigerator of the person he has just murdered, and then drive off in her car, is hardly the spontaneous outpouring of remorse that might point away from callousness.
[41] What the appellant recounted to his woman friend the next day described his emotions at the time he was murdering Ms Deane. It is not subsequent and unrelated conduct.
[42] We also dismiss the appeal against sentence.

Solicitors:
Till Henderson, Stratford for Appellant
Crown Law Office, Wellington