The Queen v MacDonald [2009] NZCA 428; (2009) 24 CRNZ 785 (23 September 2009)

Last Updated: 9 January 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA142/2009

[2009] NZCA 428

THE QUEEN

v

DAMIAN HARLEY MACDONALD

Hearing: 31 August 2009

Court: Glazebrook, Gendall and Asher JJ

Counsel: D L Stevens QC for Appellant
K J Beaton for Crown

Judgment: 23 September 2009 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

Para No
Introduction [1]
Background [3]
The Judge’s directions [12]
Submissions on behalf of Mr MacDonald [20]
Crown submissions [25]
Our assessment [30]
Result [36]

Introduction

[1] Mr MacDonald was convicted on one count of murder following a jury trial before Miller J in the High Court at Nelson. He appeals against his conviction on the sole ground that the trial Judge failed to give a tripartite direction in relation to evidence given by him at trial.
[2] The tripartite direction, as approved by the majority of this Court in R v McI [1998] 1 NZLR 696 at 708 (CA), is as follows:

[I]f you accept the accused’s evidence on the key issues, you should acquit; if you consider there is a reasonable possibility the accused’s evidence on the key issues might be true, you should acquit; if you reject the accused’s evidence on the key issues, you must not automatically conclude he is guilty, you must still examine all the evidence which you do accept and decide whether it establishes the accused’s guilt beyond reasonable doubt.

Background

[3] The evidence at trial of the events leading to the death of the victim (Mr Winter) was somewhat complicated. We summarise only the essential elements.
[4] Mr Winter lived in a flat on the top floor of a Nelson house with his partner and her two year old child. Mr MacDonald was, at the relevant time, living in a flat on the ground floor with a flatmate. Shortly after 11.00 pm on 18 March 2007, Mr Winter went downstairs to his car to retrieve a television set.
[5] The Crown contended that, while Mr Winter was carrying the television back towards the house, Mr MacDonald struck him to the ground with a large piece of “half round” fencing post. Once Mr Winter was incapacitated on the ground, it was the Crown case that Mr MacDonald struck him at least once more over the head. The expert evidence as to blood splatter was that Mr Winter’s head was very close to ground level at the time of the second blow.
[6] The blows caused complex skull fractures and the facial injuries Mr Winter suffered were described by the pathologist as being at the extreme end of such injuries. As a result of his injuries, Mr Winter’s airways were blocked by blood. The evidence was that he would have needed immediate expert medical intervention to have survived.
[7] The Crown case was that, in striking Mr Winter with the post, Mr MacDonald knew who he was assaulting and did so deliberately. It was argued that Mr MacDonald was behaving aggressively and therefore not acting in self-defence and that, even if he were acting to defend himself, the level of force used was grossly excessive. The Crown contended that he was acting with murderous intent.
[8] Mr MacDonald’s evidence was that he had mistaken Mr Winter for Mr Waho, a man with whom he had had an altercation earlier at a bar. He also said that Mr Winter was the aggressor and that it was Mr Winter who had tried to attack him with the post. A struggle had ensued and Mr MacDonald had managed to take the post from Mr Winter. Mr MacDonald had hit Mr Winter with the post to stop the attack and that he had then hit Mr Winter just once more as he came back up after the first blow. Mr MacDonald’s case was that he was acting in self-defence and had no murderous intent.
[9] Forensic testing had revealed the presence of methamphetamine in Mr Winter’s blood and the defence case was that this had disposed him to act aggressively. The defence contention was that Mr Winter had armed himself with the post because he had mistaken Mr MacDonald for his cousin, Mr Brookes, who had, a short time before the attack, dropped Mr MacDonald off at the address. There was bad blood between Mr Winter and Mr Brookes because Mr Winter had had a short relationship sometime previously with Mr Brookes’ girlfriend. By contrast, the Crown contention was that there was no evidential foundation for the proposition that Mr Winter was aware of Mr Brookes’ presence at the address on the evening in question.
[10] By way of further background, we note that Mr MacDonald and his flatmate had spent the afternoon and evening at a bar. Mr MacDonald had had several altercations in the course of their time at the bar, including with his flatmate. The last altercation had culminated in him hitting Mr Waho, who was described in evidence as a “powerful hard man” with a reputation for violence. As a result, Mr MacDonald’s evidence was that he thought Mr Waho would come looking for him and became “very scared”.
[11] Mr MacDonald had varying explanations for the incidents at the bar, including that the attack on Mr Waho was a pre-emptive strike. Mr MacDonald’s evidence was that he thought that the only way he could safely leave the bar “was to hit [Mr Waho] and run”. It was the Crown case that all of the attacks by Mr MacDonald at the bar were unprovoked.

The Judge’s directions

[12] In the course of his summing up, Miller J gave directions on the defences relied on by Mr MacDonald, self-defence and lack of murderous intent. Miller J also directed the jury on intoxication and the partial defence of provocation, as both were open on the factual narrative. Provocation was potentially available, if the jury considered that the Crown had proved that the force used was unreasonable but otherwise believed it possible that Mr Winter was the aggressor and that the other elements of provocation existed.
[13] These directions were discussed with counsel before the summing up. Counsel was also given the opportunity to comment on whether there were any other particular matters that should be included in the summing up. The question of giving a tripartite direction was not raised. Neither was the issue raised at the end of Miller J’s summing up.
[14] In addition, the Judge gave the jury a “Question Sheet” and a “Jury Memorandum”, which he took the jury through in the course of his summing up and which they kept during their deliberations.
[15] Counsel had the opportunity to comment on the Question Sheet and Jury Memorandum before they were distributed to the jury.
[16] The Question Sheet was organised under headings. It provided a list of the questions that the jury had to answer before they could find Mr MacDonald guilty of murder or manslaughter. For example, on self-defence, the Question Sheet said:

Self-defence

[3] Has the Crown excluded the reasonable possibility that Mr MacDonald acted in self-defence in the circumstances as he believed them to be?

If the answer is yes, go to [5] [the direction on murderous intent]. If the answer is no, go to [4].

[4] Has the Crown proved beyond reasonable doubt that the force used in self-defence was unreasonable in the circumstances as Mr MacDonald believed them to be?

If the answer is yes, go to [5] [the direction of murderous intent]. If the answer is no, he is not guilty of both murder and manslaughter and you need go no further.

[17] It is not contended by Mr MacDonald that there was an error in the approach taken in the Question Sheet. The Jury Memorandum outlined the elements of the crime of murder, explained the various defences and when a verdict of manslaughter should be returned. As well as setting out the legal position, the Jury Memorandum outlined the factual decisions that the jury had to make and summarised the evidence as to those factual decisions. As an example, on self-defence, the Jury Memorandum said:

Self-defence

[12] The law says that everyone is justified in using, in his own defence, such force as, in the circumstances as he believes them to be, it is reasonable to use.

[13] It is not for the accused to prove that he was acting in self-defence. If the issue of self-defence is raised it is for the Crown to prove beyond reasonable doubt that he was not acting in self-defence. It is an important issue in this case.

[14] Self-defence is available if the accused was acting to defend himself from an attack that he had brought on himself by annoying or provoking his assailant. So it would be available in law even if he thought that someone from the Castaway bar had come to exact retribution for his foolish or aggressive behaviour earlier that evening. In saying that the defence is available in law, I am not suggesting that the defence is available on the facts; that is for you to decide.

[15] Self-defence is also available if he mistook his assailant for someone else; that is, if he thought he was defending himself against someone from the bar but in fact Mr Winter was attacking him.

[16] You must consider three questions when you assess the evidence. First, what did Mr MacDonald believe the circumstances were at the time. You consider that from his point of view. What did he believe was happening at the time? Did he think he faced an attack; if so, what sort of attack; and what sort of harm did he think was he likely to suffer?

Intoxication should be taken into account when you consider what he believed the circumstances to be. That is, intoxication may have affected his understanding of what was happening. Whether it did, and if so in what way, is for you to assess after examining all of the evidence.

[17] Second, bearing in mind what Mr MacDonald believed was happening at the time, was he acting to defend himself from attack by Mr Winter when he inflicted the fatal blow or blows? Again, that is to be considered from his point of view. Did he honestly believe that Mr Winter or someone else was attacking him and that he was using force to defend himself? This is a significant issue in the case; the Crown says that he was not acting in self defence at all but rather attacked a man carrying a TV set; the defence says that he was confronted in the dark by a man with the post, and thought that Mr Waho or someone else from the Castaway Bar had come seeking retribution.

If you are satisfied beyond reasonable doubt that he did not believe he was in danger, then you need go no further. In that case the Crown has excluded self defence. Bear in mind that it is implicit in the idea of self defence that the accused acted to meet what he believed to be an existing threat. If you are satisfied that he was acting out of his own aggression or vindictiveness, for example, then that is not self defence. If, however, you think that it is at least a reasonable possibility that he believed he was in danger of bodily harm, and that he intended to act in self defence against that danger, then you go to the third step.

[18] The third step is this; was the force he used reasonable, given what he believed was happening at the time? Were there other options that he knew of, such as getting help or fleeing? Whether he thought the force he used reasonable is not the point. The question is whether you think it was a reasonable response to what he believed was happening at the time. We use that test because the law does not give people a blank cheque to defend themselves using as much force as they like. Of course these things happen in the heat of the moment, so you cannot expect him to weigh up his other options or the degree of force he used in a very exact way. But subject to that, the force used must be proportionate to the threat he believed he faced.

If the Crown has proved that the type or amount of force used was excessive, given what he believed at the time, then his actions will not be justified and the Crown will have excluded self-defence.

[19] Self-defence is a complete defence; that is, if you find that the Crown has not excluded self-defence then your verdict will be not guilty of murder and not guilty of manslaughter.

[18] In the course of his oral summing up the Judge went through the Jury Memorandum in some detail and also gave more details of the cases for the Crown and the defence and the contrasting factual contentions. For example, on self-defence he said:

[78] You will appreciate from these radically different narratives that it is very important for you to consider the circumstances as Mr MacDonald understood them to be. You must focus on what he understood and intended at the time he struck the fatal blows. ...

[79] So you must ask: did Mr MacDonald know he was dealing with Mr Winter, or did he mistake Mr Winter for Mr Waho or someone else from the bar? In either case the defence of self-defence is available in law, as I have explained. But the issue is important because it may be easier to conclude that he was acting in self-defence if he thought he was facing Mr Waho than if he believed it was Mr Winter. You should consider his intoxication and his reason to be concerned about Mr Waho, which may have affected his appreciation of the circumstances and the threat that faced. You should consider the sequence of events at the house. Did Mr Winter go out to get the TV, or to confront Mr Brookes? Did he mistake Mr MacDonald for Mr Brookes, and did Mr MacDonald mistake Mr Winter for Mr Waho? I have summarised what each side says about those matters.

[80] The next issue is whether Mr MacDonald was acting in self-defence in the circumstances as he understood them to be. This requires you to examine what happened when the two men met. Was Mr MacDonald the aggressor, or Mr Winter? Which of them had the post initially? Was there a fight, or was Mr Winter carrying the TV when he was first hit? How many blows were struck, and what was Mr Winter doing when they were struck?

[81] The Crown says that Mr MacDonald was not acting in self-defence, rather he knowingly attacked his neighbour. He was backing himself to deal with any possible threat, and was ready to attack anyone to whom he took exception. There is no reason to suppose that Mr Winter was behaving aggressively; he was not patrolling his house but had just gone to get the TV set. His behaviour towards Ms Hensley, for example, that evening was quite civil. He had no reason to go and get the post, and he was not carrying it when he was attacked. He had a very small quantity of methamphetamine in his system but it is pure speculation to suggest that he was subject to some of the more extreme effects of that drug. Nor is there any evidence that he was a dealer; the quantities and utensils in the flat were consistent with personal use. There are no defence wounds as one might expect had the men been fighting and had he been attacked with the post having lost it to Mr MacDonald; rather, the evidence suggests that he was attacked first and had no chance to defend himself.

[82] The defence says that Mr Winter had the post and sought to attack Mr MacDonald with it. That behaviour, the defence says, is not uncharacteristic of Mr Winter. He was a drug user and an aggressive personality. The defence points to the possibility that he had the post because he knew Mr Brookes was at the house and thought he must have returned after driving away. It emphasises that he was affected by methamphetamine and points to the evidence about the effects that drug can have, especially on heavy users who are withdrawing. The absence of marks on the ground consistent with a fight is consistent with Mr Winter not wearing footwear and the dry conditions; put another way, you cannot be sure that Mr MacDonald did not have to wrest the post from Mr Winter. Dr Sage accepted that a grappling sort of fight would not result in injuries to the hands and arms, so the defence says you cannot be sure there was no fight. When Mr Winter attacked him Mr MacDonald seized the post and lashed out in self-defence, reasonably so given the circumstances as he understood them to be; he had feared an attack and now one was happening. The defence says you cannot be sure he struck more than two blows, the second as Mr Winter tried to get up.

[19] The modern trend in jury directions is to keep generalised directions to a minimum and instead to ensure that the directions are tied to the evidence in the case so that the jury has as much assistance as possible in the factual decisions they must make. It is also a modern trend to give juries written material to refer to in the course of their deliberations. The Judge’s approach in this case is an excellent example of the modern approach.

Submissions on behalf of Mr MacDonald

[20] No issue is taken on behalf of Mr MacDonald with the contents of the Question Sheet, the Jury Memorandum or the summing up, apart from the absence of a tripartite direction. Mr Stevens QC, for Mr MacDonald, submits that a tripartite direction is mandatory, subject to four exceptions.
[21] Mr Stevens submits that the first exception is that such a direction is not required in a case where the accused does not give evidence, but relies instead on an out-of-court statement: R v T CA255/02 16 October 2002 at [41], R v H CA241/04 26 November 2005 at [30], R v G CA290/02 11 November 2002 at [22]. Secondly, such a direction will not necessarily be required in relation to the evidence of a defence witness, where the judge gave a tripartite direction concerning the evidence of the accused: R v Sturgeon CA364/05 10 November 2006 at [18] and [22]. Thirdly, a tripartite direction is not required in cases where rejection of the accused’s evidence would make it inevitable that the jury would convict, as was the case in Sturgeon. Finally, where “the trial issue is a straightforward contest over credibility” it may be unnecessary or even unhelpful for the jury to be given such a direction: R v Wira CA29/04 12 November 2004 at [20].
[22] In Mr Stevens’ submission, none of these exceptions apply to this case. In his submission, it is particularly important for a tripartite direction to be given where the rejection of the defence evidence does not of itself entail acceptance of the Crown case. He submits that this is such a case.
[23] Mr Stevens points out that the jury may have rejected Mr MacDonald’s evidence about the events that occurred immediately prior to the blows being struck. That would not, however, dispose of the defence of self-defence. The jury would still have to consider the circumstances as Mr MacDonald believed them to be and the question as to whether he thought that he faced an attack. They would have had to consider whether Mr MacDonald used force to defend himself and whether the force used was reasonable in the circumstances. It would only have been if the defences of self-defence and absence of murderous intent were rejected and, if the Crown negatived provocation, that it would have been inevitable that the jury would convict.
[24] Mr Stevens submits that the need for a tripartite direction was “particularly acute” in this case because the jury had to be warned to guard against the natural human tendency of assuming guilt from the rejection of Mr MacDonald’s account. In Mr Stevens’ submission, there was a real risk of such an unsound reasoning process being adopted by a lay jury. It was thus a matter of elementary fairness that a precise direction was given to avoid this risk. Mr Stevens submits that the full directions on the onus and standard of proof given by the Judge did not, on their own, afford sufficient protection.

Crown submissions

[25] Ms Beaton, for the Crown, submits that a tripartite direction is not mandatory, referring to R v Tuiloma CA222/99 8 December 1999 at [30] – [32], R v G at [22] and R v Sturgeon at [22]. In the Crown’s submission, the critical question is whether the trial Judge brought home to the jury the onus and standard of proof, so that it was clear to them that the benefit of any reasonable doubt was to go to Mr MacDonald.
[26] In this case, in the course of Miller J’s summing up, the jury were told repeatedly that the Crown had to prove the charge beyond reasonable doubt and that, if the Crown failed to prove an element of the charge, they must acquit. They were also told of the need to consider whether a defence contention was a reasonable possibility and that, if the Crown had failed to exclude it as a reasonable possibility, then they must acquit. They were also told repeatedly that Mr MacDonald did not need to prove anything.
[27] The Crown submits further that both the Question Sheet and the Jury Memorandum repeatedly referred the jury to the onus on the Crown to prove the elements of the charge and the onus to disprove or exclude the defences raised. In the Crown’s submission, the Judge gave the jury clear directions and assistance about how they were to assess each of the issues.
[28] It is submitted by the Crown that this is not a situation where, by omitting a tripartite direction, there was potential for the jury to have used an illegitimate reasoning process to reach the verdict they did. Rather, it was logically implicit in the Judge’s directions that, if they were unsure about Mr MacDonald’s evidence on an issue, then the Crown had not excluded his version as a reasonable possibility. In the Crown’s submission, a tripartite direction in this case would have added little more than additional complexity and the risk of confusion to a focused and helpful summing up. No issue of miscarriage of justice arises.
[29] As an example of the additional complexity or confusion that a tripartite direction could have added, the Crown points to the issue of intoxication. The Judge correctly directed the jury that there would be reasonable doubt about intent if they considered it a reasonable possibility that Mr MacDonald was so grossly intoxicated at the time he struck Mr Winter that he could not form any conscious intent at all. However, Mr MacDonald did not rely on intoxication in his defence. To the contrary, Mr MacDonald’s evidence was that he intended to hit Mr Winter with the post, but that he did so in self-defence. In the Crown’s submission, if the Judge had given a general tripartite direction, the jury would have been in the position where they were told to acquit Mr MacDonald, if they accepted his evidence. The Crown submits that such a direction would have been inappropriate in light of Mr MacDonald’s evidence that he was able to form an intent to strike Mr Winter and that he did deliberately strike Mr Winter with the post.

Our assessment

[30] A general tripartite direction will usually add little to a modern summing up (the approach discussed above at [19]), particularly where it is accompanied by written directions. The absence of a tripartite direction will only lead to a miscarriage of justice in circumstances where there is a real risk of inappropriate reasoning by the jury and it has not been adequately brought home to the jury that the accused bears no onus and that the Crown must prove the charges beyond reasonable doubt. It follows that we do not accept Mr Stevens’ submission that the tripartite direction is mandatory, except in the four defined circumstances he outlines at [21].
[31] In this case, the Judge’s directions were an exemplar of the modern approach. A tripartite direction would have added little to the very full directions. Further, we accept the Crown submission at [29] that there was a potential for confusion in this case with regard to intoxication if an unmodified tripartite direction had been given.
[32] More importantly, however, an unmodified tripartite direction, as outlined at [2], would, as Mr Stevens acknowledged in oral argument, have given the jury an erroneous view of the law as regards self-defence. If the jury had believed Mr MacDonald’s evidence or been unsure, then it did not follow that the proper course was one of acquittal (as the standard tripartite direction mandates, as discussed at [2]). There was a further element for the jury to consider: whether the Crown had proved that the force used was not reasonable in the circumstances as Mr MacDonald understood them to be. While we accept Mr Stevens’ submission that a rejection of Mr MacDonald’s assertion that Mr Winter was the initial aggressor did not dispose of self-defence, this was fully addressed by the Judge by the detailed factual directions in the Jury Memorandum and the oral summing up: at [16] – [18].
[33] It is clear that any tripartite direction in this case would have to have been tailored to each aspect of the case. If that had occurred, it would merely have been repetitive of the very detailed directions given by the Judge on each aspect of the case. It would also have been a generalised statement, unlike the Judge’s directions which were being tied to the facts of the case. It would thus have been of limited, if any, assistance.
[34] Nevertheless, Mr Stevens submits that some kind of general tripartite direction should have been given to counter the “natural tendency” to leap to a conclusion of guilt if they rejected Mr MacDonald’s evidence. We do not accept that submission. It presupposes that there was a risk that the jury would have totally ignored the Judge’s careful directions. In our experience, juries are conscientious and do try very hard to follow instructions. The New Zealand Law Commission has also made such findings. The Law Commission in Juries in Criminal Trials, Part Two (NZLC PP37 Vol 2 1999) noted that jury decision-making was characterised by a very high level of conscientiousness in following instructions. In this case, the jury not only had the oral summing up but also the Question Sheet and Jury Memorandum. If the jury had been so perverse as to ignore the Judge’s detailed instructions, then it is difficult to see why they would have taken any notice of a generalised direction that was isolated from the evidence they had heard. There is, however, nothing to suggest that the jury did ignore the Judge’s instructions.
[35] In summary, the giving of the standardised tripartite direction would have been wrong in law in this case, insofar as it related to self-defence, and it also had the potential to confuse the jury with regard to intoxication. Any tripartite direction would thus have to have been modified to relate to each aspect of the case. This would have added further complexity to an already complex case. In any event, if the direction had been modified and repeated, it would have added nothing to the very clear and full directions of the Judge. No possibility of a miscarriage of justice arises from its absence in this case.

Result

[36] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington