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Court of Appeal of New Zealand |
Last Updated: 15 March 2011
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CA117/2010
[2011] NZCA NO 63 |
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BETWEEN TONY ALLAN WORRELL
Appellant |
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AND THE QUEEN
Respondent |
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Hearing: 7 October 2010
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Court: O'Regan P, Hammond and Heath JJ
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Counsel: H D M Lawry, M E Goodwin and J R Smith for Appellant
J C Pike for Respondent |
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Judgment: 10 March 2011 at 3 pm
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JUDGMENT OF THE COURT
_______________________________________________________________
REASONS OF THE COURT
(Given by O’Regan P)
Table of Contents
Para No
Introduction [1]
Issues on appeal [4]
Facts [9]
Evidence of the effect of
alcohol and diazepam on
Mr Worrell’s mental state [23]
Proposed evidence of Dr
Goodwin [29]
Evidence at
trial [33]
Fresh
evidence application [36]
Letter from juror [45]
Prosecutor’s closing
address: inconsistency with opening [53]
Prosecutor’s closing
address: misrepresentation of evidence [60]
Summing up on issue of
murderous intent [72]
Evidence of Dr Maharaj [76]
Majority verdict [79]
Result: conviction
appeal [80]
Sentence
appeal [81]
Result: sentence
appeal [93]
Disposition [94]
Introduction
[1] Mr Worrell faced six charges, including one of murder, arising from an incident in which the car he was driving collided with a number of vehicles travelling in the opposite direction near Karaka on 3 June 2008. He was charged with four counts of attempting to intentionally destroy or damage property knowing that danger to life was likely to result, one count of causing grievous bodily harm with intent to do so and one count of murder. He was convicted on two of the intentional damage counts, the grievous bodily harm count and the count of murder after a jury trial in the High Court in Auckland presided over by Andrews J. The convictions in each case were by a majority (11:1) verdict.
[2] Andrews J sentenced him to life imprisonment with a minimum period of imprisonment of 14 years on the murder charge, and concurrent sentences of seven years imprisonment for the grievous bodily harm charge and 18 months imprisonment for each of the intentional damage charges.
[3] Mr Worrell appeals against both conviction and sentence.
Issues on appeal
[4] The issues on appeal are:
(a) Whether a miscarriage occurred because the jury did not hear evidence from a specialist psychiatrist as to Mr Worrell’s mental state, and the impact of that mental state on his intent during the driving incident. The impact of alcohol and the drug diazepam on Mr Worrell’s mental state is highlighted in this proposed evidence. In order to pursue this aspect of the appeal counsel for Mr Worrell, Mr Lawry, sought leave to adduce evidence in this Court that was not before the jury, namely an affidavit from Dr Ian Goodwin, a psychiatrist from Auckland. So we must determine whether that evidence is admissible and, if so, whether its absence from the trial led to a miscarriage.
(b) After the verdicts one of the jurors wrote to one of Mr Worrell’s trial counsel, Mr Goodwin, raising issues about the jury’s deliberations. The issue before us is whether the circumstances are “exceptional” in terms of s 76 of the Evidence Act 2006, such that the Court should allow evidence to be given about what occurred during the jury’s deliberation. If so, there is a question whether the evidence renders the jury verdict unsafe and what further investigations might be required.
(c) Whether the prosecutor’s reliance on s 167(c) in his closing address had been adequately foreshadowed in the Crown opening and, if not, whether a miscarriage resulted.
(d) Whether the prosecutor misrepresented the nature of some of the evidence in his closing address and, if so, whether this led to a miscarriage.
(e) Whether the Judge correctly summed up on murderous intent and intoxication. In the latter case, the contention is that if the evidence which Mr Worrell now seeks to adduce in this Court had been heard by the jury, a different direction on intoxication would have been required.
(f) Whether a reference by a medical witness, Dr Maharaj, to the fact that Mr Worrell had earlier been caught for drunken driving caused a risk of a miscarriage.
[5] In addition the Court raised with counsel the question as to the appropriateness of the Judge’s directions to the jury in relation to majority verdicts.
[6] It will be noted that the psychiatrist who has sworn an affidavit in support of the appeal and Mr Worrell’s trial counsel (and junior counsel for the present appeal) share the surname “Goodwin”. We will refer to the former as Dr Goodwin and the latter as Mr Goodwin.
[7] The sentence appeal is advanced on the basis that the 14 year minimum period of imprisonment was manifestly excessive because the Judge failed to take into account the special features of the case and the narrow margin between murder and manslaughter on the facts of the case, wrongly took into account aggravating features, failed to take into account mitigating features and incorrectly assessed the seriousness of the case in comparison with other cases.
[8] We will deal with the issues in the order set out above. Before doing so we will summarise the factual background.
Facts
[9] This summary is based on that appearing in the Judge’s sentencing notes.
[10] Mr Worrell has suffered from type one diabetes for many years, and has a long history of alcoholism. He had been admitted to Waitakere hospital on 30 May 2008 after mixing diazepam and alcohol. He was discharged on 3 June 2008, late in the morning. His wife took him home and he had lunch. His wife left the home early in the afternoon.
[11] A short time later, Mr Worrell left the house and went to a liquor store where he bought three bottles of beer. That was at 2.30 pm. Then at 3.40 pm he went back to the liquor store and bought another bottle of beer and a premix gin and tonic. When his wife came home at 4.45 pm, she noticed that Mr Worrell was swaying. It was obvious to her that he had been drinking. That led to an argument between them, because she had had enough of Mr Worrell’s drinking. She told him to leave. She asked him to move out by the next Friday, but he told her that he would leave that afternoon. He packed his belongings into his car. As he left the house, his wife told him that he should not drive because he had been drinking. Mr Worrell replied that she would be better off without him.
[12] Mr Worrell then drove to the liquor store again and bought a six-pack of beer. This occurred at about 3.50 pm. While he was there he rang his wife and asked if she had packed his insulin. She said she had. At the end of the call Mr Worrell said to his wife something to the effect of “I’m looking for a big semi, goodbye”. Mrs Worrell assumed he meant a big semi-trailer.
[13] When Mr Worrell left the liquor store he drove to Karaka in South Auckland. At about 6.30 pm he went into a service station on Karaka Road and bought $50 worth of petrol. His behaviour there was of such concern to the service station employees that they rang the police to report that he was intoxicated and driving. He first headed back towards the Southern motorway, but then changed direction. That had tragic consequences. Had he continued towards the Southern motorway it may be that the police would have been able to stop him before the incident which followed occurred. Tragically, the police were directed to the wrong area of road.
[14] Mr Worrell then went to Linwood Road and stopped at the corner of Blackbridge Road, at the Karaka Hall. A man came over to him to ask him if he was lost or needed help. He opened the front passenger door of the car and immediately smelt alcohol. He described Mr Worrell as being agitated and appearing to be angry. He said that he heard Mr Worrell say that he was going to “fuck someone up”. He was so concerned about this that he rang 111. That occurred at 6.55 pm. Mr Worrell then pulled to the left in Blackbridge Road, stopped in the middle of the road and drove off in a westerly direction along Linwood Road.
[15] Somewhere in the area of Taihehe School, Mr Worrell did a U-turn and headed back along Linwood Road.
[16] At about 7.10 pm, Mr Gudgeon was heading west along Linwood Road. Just after he had crossed Glassons Bridge, Mr Worrell’s car appeared in front of him with its headlights on full beam. The car was on Mr Gudgeon’s side of the road. Mr Gudgeon just managed to divert his car to the left and that took him on to the gravel verge. He had no time to brake. In evidence in the High Court he said that he just waited for the impact, and he was amazed that Mr Worrell’s car just skimmed past him. He estimated that Mr Worrell’s car was coming towards him at more than 120 kilometres per hour.
[17] Mr Erceg was also heading home, west along Linwood Road. Just after he had crossed Glassons Bridge he saw the headlights of Mr Worrell’s car coming towards him. He said that Mr Worrell’s car had to be on his (Mr Erceg’s) side of the road. Mr Erceg managed to avoid a collision. Just after Mr Worrell’s car had gone past, he saw the flash of an impact. He assumed that Mr Worrell’s car had hit something. He continued up the rise after Glassons Bridge until he found a driveway where he could turn around and come back to the bridge.
[18] Mr Robinson was also headed west along Linwood Road, with his two sons. Just as he was at the western edge of the bridge he noticed the car in front of him swerved severely to the left, then he saw the headlights of Mr Worrell’s car coming straight at him, on his (Mr Robinson’s) side of the road. He swerved to the left but he was not able avoid a crash. His car rolled and ended up on its driver’s side. Fire and ambulance services had to cut through the roof of his car to get him out. Mr Robinson was badly injured.
[19] Mrs Powles was just behind Mr Robinson. Mr Robinson had seen her silhouette in the car behind him when they had stopped at the lights earlier on. Very shortly after the impact with Mr Robinson’s car, Mr Worrell’s car collided with Mrs Powles’ car. Mrs Powles suffered severe injuries and died a few hours later.
[20] Two crash experts agreed as to their conclusions concerning the crashes. They concluded that the right front of Mr Worrell’s car collided with the right front corner of Mr Robinson’s car. Mr Worrell’s car then travelled about 22 metres before having what they described as an offset head on collision with Mrs Powles’ car. The experts found no evidence that Mr Worrell had braked or attempted to avoid a collision. They found there was no pre-existing steering fault, no evidence that any of Mr Worrell’s tyres had deflated because of the collision with Mr Robinson’s car and no vehicle faults that could have contributed to the crashes. The road was dry and the surface was in a good condition. The experts concluded that Mr Worrell’s driving on the wrong side of the road was the primary causative factor of the crashes.
[21] Mr Worrell was found unconscious, but alive, in his car. He was seriously injured, including a significant brain injury and a back injury. His blood alcohol level was tested when he was admitted to hospital and found to be about twice the legal limit.
[22] The Judge summarised the outcome of the trial as follows in her sentencing notes:
[16] The jury accepted that you drove drunk, at speed and on the wrong side of the road. The jury also accepted that you deliberately drove into the path of Mr Gudgeon’s, Mr Erceg’s and Mr Robinson’s cars. In finding you guilty, the jury accepted that you intended to cause damage to the first two cars, knowing that danger to life was likely, and that you caused grievous bodily harm to Mr Robinson, intending to do so. In finding you guilty of the murder of Mrs Powles, the jury accepted either that you intended to cause her death or bodily injury, or were reckless as to whether death occurred, or that you did an unlawful act that you knew was likely to cause death and thereby killed Mrs Powles, even though you may not have intended to kill her. Each of those alternatives is murder.
Evidence of the effect of alcohol and diazepam on Mr Worrell’s mental state
[23] Ms Poulsen, an ESR forensic toxicologist, gave evidence in the High Court that the analysis of the blood sample taken from Mr Worrell at 11.14 pm on the night of the incident indicated a blood alcohol level of 160mg per 100ml of blood (twice the legal limit). She also confirmed that diazepam was detected in the blood at a level of 0.3mg per litre of blood, which is within the normal therapeutic range for diazepam of 0.1mg and 1mg. She gave a brief description of the effects of diazepam as including sleepiness, drowsiness, confusion and intoxication similar to that of alcohol. She also said that these effects could be enhanced by alcohol. Mr Worrell had been given 10mg of diazepam at the hospital at 9 pm on the night before.
[24] Dr Goodwin did not give evidence at the trial. He was not approached until afterwards. We were presented with a memorandum from trial counsel explaining the position. We note in passing that this should have been in affidavit form, but there was no objection to our accepting it in the form it was presented and we did so. However, as Mr Goodwin was also appearing as counsel in support of the appeal, we were effectively in the position of hearing evidence from counsel. That was inappropriate and should not have occurred. Mr Goodwin explained that he had made inquiries in May 2009 about the availability of a pharmacological expert who could comment on Ms Poulsen’s report. Those he approached were unavailable, and ultimately he instructed an addiction medicine specialist, Dr Robinson.
[25] In September 2009, Dr Robinson provided a report concluding that there would not be any clinically significant synergistic effects of diazepam and alcohol at the level of 0.3mg per litre of blood. Another medical specialist, Dr Seeman had expressed concern that Mr Worrell might have been affected by the combination of diazepam and alcohol, but did not consider he had sufficient experience to comment further.
[26] Given Dr Robinson’s opinion, Mr Goodwin decided not to raise the issue at trial. In fact, the principal plank of the defence case at trial was that Mr Worrell, who suffers from diabetes, may have been hypoglycaemic at the time at which the collisions occurred. Although Mr Worrell’s blood sugar level was within the normal range when tested at the hospital some time after the collisions, the defence case was that the Crown could not rule out the possibility that he had been hypoglycaemic at the relevant time.
[27] Dr Goodwin was instructed to comment on issues relating to Mr Worrell’s appeal against sentence. In September 2010 he provided a draft report that raised for the first time the issue of the effects of combining diazepam and alcohol.
[28] The reason for now seeking to adduce evidence from Dr Goodwin in this Court is that it is contended that the potential impact of the combination of diazepam and alcohol on impulsivity had not been put before the jury. Counsel said that if he had been aware of this before the trial, he would have called Dr Goodwin as a defence witness in support of the proposition that Mr Worrell lacked murderous intent.
Proposed evidence of Dr Goodwin
[29] Dr Goodwin was initially asked to prepare a report to be used for Mr Worrell’s appeal against sentence. He was asked to comment on the following issues:
(a) Whether Mr Worrell’s offending could be classified as “premeditated” when he was in a suicidal state and affected by the consumption of alcohol and diazepam;
(b) The extent to which Mr Worrell’s suicidal ideation would have prevailed over consideration for the safety of others; and
(c) Whether Mr Worrell’s decision making could be described as “callous” in light of his state of mind.
[30] Dr Goodwin noted that the level of diazepam in Mr Worrell’s blood was consistent with the amount he had been administered in hospital, and that there would have been a slightly higher amount at the time of the crash. He noted that Ms Poulsen was correct in stating that alcohol and diazepam are mutually enhancing. He then stated:
Alcohol and diazepam are mutually synergistic. What this means is that both enhance the effects of each other giving a particularly potent intoxicant effect. The behavioural and cognitive effects of combining diazepam with alcohol can be extremely unpredictable and people who have taken such combinations frequently can fluctuate between states of agitation and drowsiness over relatively short periods of time. Aggression is not uncommon.
Diazepam also has significant effects upon short-term memory, particularly when combined with alcohol. It has a significant impairing effect upon short-term memory and also tends to make people significantly impulsive. Again, impulsivity is a common feature of alcohol intoxication also. People who have consumed both drugs are therefore often significantly impulsive with an impaired short-term memory and they can be aggressive and irritable towards others without any apparent obvious motivation.
[31] In relation to the three issues, Dr Goodwin concluded that:
(a) Substances that decrease inhibitions and increase impulsivity can contribute significantly to potentially suicidal acts. Mr Worrell might not have known that he still had a “therapeutic” level of this drug in his blood when he started drinking on 3 June 2008, and may have been rendered considerably more impulsive at that time by the combination of diazepam and alcohol. Mr Worrell’s behaviours are stated to be “entirely consistent with a combination of alcohol and diazepam”, and the evidence “points more to Mr Worrell’s actions as being impulsive rather than premeditated”.
(b) There must be “considerable doubt as to whether he was truly suicidal at the time”, although one cannot rule out Mr Worrell forming some impulsive suicidal intent while under the influence of alcohol and diazepam.
(c) It is “extremely doubtful that Mr Worrell undertook any significant decision making process”.
[32] Dr Goodwin stated also that he was “concerned at the paucity of psychiatric expert evidence offered to the Court”, and that the Court did not hear significant evidence about the behavioural and cognitive effects of a combination of diazepam and alcohol, such evidence only being given from a toxicology perspective.
Evidence at trial
[33] The effect of the interaction between diazepam and alcohol was alluded to in Ms Poulsen’s evidence at trial in Mr Goodwin’s cross-examination:
Q. Can you confirm that diazepam can interact with alcohol?
A. That’s correct.
Q. And what sort of effects are we talking about?
Q. And did those effects include say confusion?
A. That could be included yes.
[34] In re-examination, Mr Raftery focused on the calming and drowsiness effects that diazepam could have.
[35] The jury also heard from a defence witness, Dr Wolley, that diazepam had been administered to Mr Worrell while he was in hospital in the days leading up to the date of the offending. However, Dr Wolley’s evidence focused more on the possibility of hypoglycaemia.
Fresh evidence application
[36] The test for the admission of fresh evidence in support of appeal is set out in this Court’s decision in R v Bain.[1] The evidence must be sufficiently fresh and sufficiently credible. Evidence that could, with reasonable diligence, have been called at trial is not “fresh”. Trial counsel has explained why the proposed evidence of Dr Goodwin was not called. We consider that the evidence could, with reasonable diligence, have been called at trial. So it does not meet the Bain test of being fresh. However, the argument in this Court was based on the importance of the evidence, relying on the comment made by Tipping J in this Court’s judgment in Bain that the stronger the new evidence is from the appellant’s point of view and thus the greater the risk of miscarriage of justice if it is not admitted, the more the Court may be inclined to allow its admission on appeal even though it is not fresh.[2] In Bain, this Court ruled that, if new evidence qualifies for admission on the freshness and credibility criteria, the Court must then consider whether the existence of the new evidence demonstrates that there is a real risk that a miscarriage of justice occurred.[3] It said such a real risk exists if the new evidence, when considered alongside the evidence given at trial, might reasonably have led the jury to return a verdict of not guilty.
[37] Mr Lawry relied in particular on the decision of this Court in R v Oliver[4] where evidence of a medical expert casting doubt on the complainant’s account in a case of sexual assault was admitted, notwithstanding that it could, with reasonable diligence, have been led at trial. In that case trial counsel explained that she had approached another doctor whose views accorded with those of the Crown’s expert. Both the Crown expert and the doctor who had been approached were members of Doctors for Sexual Abuse Care (DSAC). It was only after trial that she decided to approach a doctor not affiliated with DSAC. The doctor instructed for the appeal gave evidence which strongly contradicted the evidence given by the Crown expert at trial and expressed the view that the sexual assault described by the complainant could not have occurred without significantly more physical damage having been inflicted on her than was the case. In Oliver, this Court accepted that the Crown case depended largely on the credibility of the complainant’s account and that evidence that so strongly contradicted that account could have had a material impact on the outcome. It therefore admitted the evidence despite it not being fresh in the Bain sense and, having done so, concluded that a miscarriage had occurred because the jury had not heard the evidence. A new trial was ordered.
[38] In order to assess the similarity of this case with Oliver, it is necessary for us to consider the impact that Dr Goodwin’s evidence would have had if it had been led at the trial. That must be considered in light of the main angle of the defence case at trial, which focused on hypoglycaemia rather than advanced intoxication. The key point of Dr Goodwin’s evidence was the effect of the combination of diazepam and alcohol, a matter which Ms Poulson dealt with in her evidence in a way which is broadly consistent with what Dr Goodwin says. Dr Goodwin feels able to draw a conclusion from it that Mr Worrell’s behaviour was more likely to be impulsive than premeditated or callous. But his evidence is still that diazepam enhances alcohol intoxication, rather than having a substantially different impact. It does not contradict what was available at trial, and does not undermine the credibility of any Crown witness as was the case in Oliver.
[39] Mr Lawry said it was significant that Dr Goodwin considered that the combination of diazepam and alcohol could lead to sudden fluctuations. The Crown case was based at least in part on Mr Worrell’s references to “looking for a semi” and his intention to “fuck someone up” and it may be that the jury would have been persuaded that these sentiments had changed by the time of the collisions, and that by that time Mr Worrell was acting impulsively. However, it was not the Crown case at trial that Mr Worrell acted with premeditation dating back to the time of the “semi” comment: rather the Crown suggested that Mr Worrell’s actions at the time of the offending were deliberate.
[40] We do not consider this case is in the same category as Oliver. While the proposed evidence is credible, in the sense that it is given by a duly qualified expert, we do not consider it is sufficiently cogent to justify its admission on appeal in circumstances where it is not fresh in the sense described in Bain. We do not consider that the additional emphasis Dr Goodwin could have placed on the combined effect of diazepam and alcohol could have had a significant effect on the trial, given that the jury were already apprised of that fact. Dr Goodwin did not say, and could not have said at trial, what effect diazepam and alcohol actually had on Mr Worrell, just as Ms Poulson could not do so. We do not consider that his evidence could have had the sort of impact that the fresh evidence could have had in Oliver. In those circumstances, we do not consider that there is a risk of miscarriage of the kind described in Bain justifying the admission of the new evidence.[5]
[41] We have also considered whether the evidence should be treated as fresh on the basis outlined in the decision of the Supreme Court in Fairburn v R,[6] which was delivered after the hearing in the present case. In that case expert evidence was not called at trial because trial counsel made a serious error in pursuing one defence and overlooking the need to call expert opinion to support a different defence that was not pursued at trial. In one respect the expert evidence corrected erroneous information about the collision that was the focus of the case. The Supreme Court said, given the error by counsel, it would treat the expert evidence submitted in support of the appeal as fresh, even though it could have, with reasonable diligence, been called at trial. We do not see the present case as in the same category: there was no serious error by trial counsel and the expert evidence in this case does not involve the introduction of entirely new information not already before the jury or the correction of incorrect information that was before the jury.
[42] In the present case, the issue of intoxication was already before the jury. The Judge directed the jury in summing up that the evidence of drunkenness (and of the possible low blood sugar) was relevant to the question of whether the accused had one of the required intentions for s 167. She said:
Intoxication and the effects of a medical condition or of medication relating to that condition, is not in and of itself a defence to any charge. However it may be relevant in your consideration of whether the Crown has proved the necessary intent, and that is for each of the 6 charges.
[43] The Judge set out the defence argument that Mr Worrell was in such a state of drunkenness or hypoglycaemia that he was unable to form an intention. The jury would have understood that the diazepam might have accentuated the effect of the alcohol on Mr Worrell and that his ability to form an intention might have been impaired.
[44] In the circumstances we decline to admit this evidence. The appeal point based on the proposed evidence therefore fails.
Letter from juror
[45] After the trial one of the jurors wrote to Mr Goodwin, expressing concerns about the jury process. The letter was unsigned but there is no reason to doubt its authenticity. It is clear that the juror concerned was the minority juror who disagreed with the majority verdict. She expresses the view that the charges were not proven beyond reasonable doubt, concern that there was confusion over legal terms and definitions and misunderstanding of the Judge’s directions on intent, and concern that she considered that other jurors had a presumption of guilt. She refers to some jurors being unhappy about being sequestered and wanting a swift resolution of the matter and suggests that some jurors (she does not appear to include herself in their number) felt intimidated by the vigilante nature of both the families of the victims and the media coverage. She says that jurors were shocked by the level of emotion shown by the families and the level of remorse shown by Mr Worrell as the verdicts were read.
[46] On behalf of Mr Worrell, Mr Lawry sought directions for a senior counsel to make inquiries of the juror and, if there remains further concern, with the jury. That course is opposed by the Crown.
[47] The starting point for consideration of this request is s 76(1) of the Evidence Act 2006, which provides that a person must not give evidence about the deliberations of a jury. However, this general prohibition is subject to an exception expressed in s 76(3) and (4), which provide:
(3) Subsection (1) does not prevent a person from giving evidence about the deliberations of a jury if the Judge is satisfied that the particular circumstances are so exceptional that there is a sufficiently compelling reason to allow that evidence to be given.
(4) In determining, under subsection (3), whether to allow evidence to be given in any proceedings, the Judge must weigh—
(a) the public interest in protecting the confidentiality of jury deliberations generally;
(b) the public interest ensuring that justice is done in those proceedings.
[48] The concern to avoid intruding into the deliberations of the jury is a long standing one, both here and in other common law jurisdictions.[7] Two recent decisions of this Court have confirmed the exacting test required to bring a case within the exception in s 76(3). In Neale v R the exception in s 76(3) was described as a “very narrow escape hatch” through which exceptional cases might squeeze.[8] In that case a letter written by a juror claiming she had been bullied by one juror in particular and had not had an opportunity to explain her doubts as to whether the accused was guilty was found to come nowhere near the standard required by s 76(3).
[49] In an earlier case, Tainui v R[9] the Court refused to order an investigation after a juror wrote a letter indicating pressure from other jurors.
[50] Neale and Tainui were cases of unanimous verdicts, in contrast to the present case. We endorse the observation made by Lord Judge CJ in R v Thompson[10]:
Jurors now have the opportunity to dissent and a verdict of a statutory minimum number of jurors may be accepted. We acknowledge the danger that a juror who is in a minority may be disturbed at his or her failure to persuade the other jurors to his or her point of view, and where the majority has convicted, to the sensitivity of a dissenting juror that an injustice may have been done. There are occasions when it is difficult to avoid the conclusion that a post-trial letter to the Judge complaining about different aspects of the process of deliberation is no more than a protest at the verdict.
[51] Our reluctance to order an investigation is also fortified by our concern as to what would now be investigated. The dissenting juror who wrote the letter could be asked to give precise examples of the incidents giving rise to her general concerns, and the jurors said to be involved. But if that happened, and further investigations occurred, the investigator would be delving into the very process which s 76 protects in circumstances where none of those who reached the verdict has expressed any concern. We considered whether an investigator could simply be asked to check with each juror that the verdict did, in fact, represent his or her views (effectively taking a poll after the event). In our view, that would be undesirable because what is of interest is the views of the jurors at the time they reached the verdict, not their views a considerable time later, after they had seen and heard more information about the offending and the sentence imposed on the offender as a result of the verdict.[11]
[52] Having carefully considered the matters raised we have reached the conclusion that this case falls short of the exceptional standard required by s 76(3). We do not purport to define the circumstances in which the “exceptional” threshold will be crossed: in our view this is an area of the law where each case must be carefully considered on its merits, balancing the undoubted (and now legislatively endorsed) concern to protect the confidentiality of jury deliberations against the necessity to ensure that miscarriages of justice are not allowed to occur. In our view the balancing of those factors comes down firmly against any investigation which could lead to the giving of evidence about the jury’s deliberations in this case.
Prosecutor’s closing address: inconsistency with opening
[53] Mr Lawry argued that the Crown prosecutor at the trial, Mr Raftery, had closed the case on a basis which was at odds with the opening address by his junior, Ms Gray. In her opening, Ms Gray had relied on paragraphs (a), (b) and (d) of s 167 of the Crimes Act 1961. She put the Crown case this way:
Finally, count six in the indictment is the count of murder and that relates to Mrs Katie Powells. Now in relation to murder where through some fault on your part you kill someone that will be murder in a number of different ways. The first of those is perhaps the most obvious that it will be murder if you intend to kill someone so if Mr Worrell drove his car into the path of Mr Robinson’s car saying I want to kill the driver that will be murder because the accused intended to kill Mr Robinson, so that’s the first way, if you intend to kill someone. The second is that it will equally be murder if the accused drove his car into the path of Mr Robinson saying I don’t want to kill the driver I just want to cause him some serious injury, some serious injury which I know could kill him even though I don’t actually want him to die. So that too would be murder. The third way he could be guilty of murder is that we know in the circumstances of this case don’t we that the accused has made several attempts that night to drive into the path of oncoming vehicles. As I’ve said in relation to those earlier vehicles the charges attempted intentional damage. The accused of course did not hit those vehicles but you can also be guilty of murder if you intend to cause some damage that you know to be likely to cause someone’s death and you do in fact kill someone, even if you didn’t want to, that’s just as much murder as the other examples that I’ve given you, even if you’d hoped your damage to the oncoming vehicle would occur without killing anyone. Now of course Mr Worrell may have had other objects in mind as well but that doesn’t matter. Those are the different ways in which somebody can be found guilty of murder.
[54] In his closing, Mr Raftery relied on s 167(c). He said:
As I think Ms Gray told you in opening, in effect if obviously I intend to kill someone so I wanted to kill you madame foreman so I shoot you but I am a bad shot and I get the man behind him [sic]. I didn’t intend him any harm at all, I wanted to kill you but I missed and I killed him, I am as guilty of murdering him as I would’ve been murdering you if I had succeeded. There’s an obvious logic in that isn’t there members of the jury you can’t have someone sort of say well I intend to kill that person and sorry I missed therefore it’s no murder at all. It is murder just as much as if I intend to kill you and kill someone else so that’s something important to remember in the context of this case that I’ll come to later when we talk about his driving in respect of Mr Robinson and Mrs Powles.
[55] The Crown case was that one basis on which Mr Worrell could have been found guilty of murder was that he intended to cause bodily harm to Mr Robinson by driving into Mr Robinson’s vehicle, but had killed Mrs Powles instead.
[56] Trial counsel, Mr Goodwin, referred to the Crown’s position in his closing address in these terms: “The goal posts have shifted”. He then dealt with each of the alternative bases of the Crown case, under paragraphs (a), (b), (c) and (d) of s 167. In relation to s 167(c), he said that the Crown could not prove that Mr Worrell intended to cause bodily injury to Mr Robinson specifically.
[57] Mr Lawry tried to draw a parallel between the situation which arose in this case and that described in this Court’s decision in R v Shaw[12], in which this Court was very critical of the Crown prosecutor for apparently changing the basis of the Crown case between opening and closing. (Subsequent investigations in that case showed that the position was not as stark as the Court had thought, and the Court recalled its judgment).
[58] We do not see any similarity between the situation described in R v Shaw and the present case. In R v Shaw, the Court’s concern was that the Crown had opened on the basis that Mr Shaw was the principal offender, whereas in closing the Crown case was also that he may have been a party. The Court saw this akin to the amendment of the indictment, for which leave would have been required, and in that case leave had not been sought. A similar situation arose in a more recent case, R v Fraser.[13]
[59] In the present case, however, the reliance on s 167(c) did not involve the Crown in a change of course of the same magnitude as Shaw and Fraser. In both of those cases, the defence was left with the need to answer a case which was quite different from that outlined in the opening. In the present case, the charge was murder and any of the bases outlined in s 167 could be relied on. It is true that the Crown opening did not specifically deal with the fact that the appellant could be guilty of murder if he had the intent described in s 167(b), but in respect of a different person. However, there was no difficulty for Mr Goodwin in dealing with this in his closing, as he did capably. There was no question in this case of the Crown needing consent to amend the indictment. In short, we are satisfied that no miscarriage arose from what appears to have been an oversight by the prosecutor in her opening.
Prosecutor’s closing address: misrepresentation of evidence
[60] Mr Goodwin, who had the carriage of the appellant’s case on this point, argued that the prosecutor had misrepresented some important evidence in the course of his closing address. The evidence to which this ground of appeal relates is that of a witness Mr Blakely. Mr Blakely gave evidence that he was in a motor vehicle at the intersection of Linwood Road and Urquhart Road when a vehicle sped past on Linwood Road travelling at a speed that he estimated to be over 100 kilometres per hour. He did not see the vehicle when he turned on to Linwood Road but as he rounded a bend in the road about 300 metres from the intersection he saw “a ball of flames” in front of him.
[61] Mr Blakely did not specify which side of the road the vehicle was on. He was not asked to do so either by the Crown in examination in chief nor by the defence in cross-examination.
[62] Another Crown witness, Ms Cappel gave evidence that, when she was driving west bound along Linwood Road, in the opposite direction to Mr Worrell, she had seen his vehicle approaching hers at high speed with his lights on full beam. She said that once his vehicle passed hers, she saw in her rear vision mirror that Mr Worrell’s vehicle had crossed the centre line and disappeared over the brow of the hill behind her on the wrong side of the road.
[63] As Mr Blakely had seen Mr Worrell’s car after it had gone over the brow of the hill described by Ms Cappel, there was an obvious interest in knowing whether Mr Worrell’s vehicle remained on the wrong side of the road when Mr Blakely saw it.
[64] In his closing address, Crown counsel referred to the evidence of Ms Cappel that Mr Worrell’s car had crossed the centre line on to the wrong side of the road. He then referred to Mr Blakely’s evidence describing Mr Worrell’s car travelling at speed. He added:
He doesn’t actually mention what lane he was in, all he knows it was just a fast flash past but no suggestion in the evidence from him that it was on his side of the road or for that matter on the other side of the road.
We have no evidence from any eye witness who sees him go back on to the correct side of the road after he’s gone on to the incorrect side of the road straight after Mrs Cappel.
If that’s correct members of the jury then he has driven a long way on the wrong side of the road from before that junction there of Langs and Charles all the way along here before the crash at Glassons, near Glassons bridge.
[65] The prosecutor later referred to “constant, continual control of that vehicle on the wrong side of the road” and made other comments about Mr Worrell deliberately driving on the wrong side of the road.
[66] Mr Goodwin described this as a “misrepresentation of the evidence”. He accepted that the prosecutor had acknowledged in his closing address that Mr Blakely had not said whether the car was on the right side of the road or the wrong side of the road, but said that what followed was inconsistent with that acknowledgement. Later he described the prosecutor as having “distorted the evidence in order to support the Crown’s theory of the case”.
[67] Mr Worrell’s trial counsel set out the position clearly for the jury (Mr Goodwin referred to this as “correcting a mistake” but said that this was undone because the trial Judge repeated the Crown’s “misrepresentation” in his summing up). Mr Goodwin accepted that the Judge had also referred to what the defence counsel had said on the point, but said that “the Judge did not seek to correct the misrepresentation made by the Crown”.
[68] Mr Goodwin’s submission was that, as evidence had been “misrepresented”, it was the Judge’s duty to correct the matter in order to ensure a fair trial. He accepted that neither he nor the other defence counsel for Mr Worrell had raised the issue with the Judge after her summing up, but said this did not absolve the Judge of the duty to correct the matter.
[69] Mr Pike for the Crown was critical of Mr Goodwin’s use of the term “misrepresentation”. He said it was not the product of a mature reflection that should be deployed where misconduct by trial counsel is alleged. He emphasised that neither of the experienced counsel representing Mr Worrell at the trial raised the matter at the time.
[70] We have to say we agree that the use of the term “misrepresentation” is extravagant in the circumstances. The fact is that the prosecutor made it clear that Mr Blakely had not given evidence on the point and just as the defence counsel made the best of this in his closing address, so did Crown counsel. The Judge’s summing up correctly and accurately summarised each counsel’s address on the point. Trial counsel made no complaint at the trial, nor did he ask the Judge to make any further reference to Mr Blakely’s evidence when the customary request was made at the end of the summing up for any comments or corrections.
[71] In the circumstances we think that the significance of the matter has been overstated. We are satisfied that no issue of miscarriage arises.
Summing up on issue of murderous intent
[72] Mr Lawry took issue with one aspect of the Judge’s summing up: that relating to the intent required under s 167(d). The Judge’s direction was:
[58] The fourth alternative d) involves four elements. You can find Mr Worrell guilty of murder if you are satisfied that the Crown has proved beyond reasonable doubt that:
a) First, Mr Worrell had an unlawful objective in mind;
b) Second, for the purposes of achieving that objective, he did an act;
c) Third, he knew that the act was likely to cause death; and
d) Fourth, he thereby killed Mrs Powles even though he may have wanted to achieve that objective without hurting anyone.
[59] In the present case, to apply that to this case, if you are satisfied that Mr Worrell intended to destroy or damage Mrs Powles’ car, or Mr Robinson’s car, you could find him guilty of murder even though he might have wanted to achieve that objective without hurting Mrs Powles or indeed, anybody else.
[73] Mr Lawry accepted that the direction in [58] was correct, but said that this was undone by what was said in [59], because it omitted to mention the need for a conscious appreciation that the act carried out was likely to cause death.
[74] It is true that this element should have been referred to in [59] of the summing up. But the jury had just been told of the requirement that the act was likely to cause death (in [58](c)). Further, the jury was given the correct instruction in the written materials the Judge provided for the purpose of deliberations. We think when the summing up is read as a whole, as must be the case, there is no genuine risk that the jury would have been misled by this slip on the Judge’s part.
[75] Mr Lawry also argued that, if this Court allowed the proposed evidence of Dr Goodwin to be adduced, the ground of appeal based on that evidence would be supplemented by an argument that the jury did not have a specific direction on the combined effects of diazepam and alcohol, and that this would have been required if Dr Goodwin’s evidence had been available at trial. Our decision not to admit the evidence of Dr Goodwin makes it unnecessary for us to consider this aspect of the appeal.
Evidence of Dr Maharaj
[76] Dr Maharaj, who had treated Mr Worrell in 2007 for diabetes, gave evidence about that topic. He was a Crown witness. During the course of his examination in chief, the following exchange took place:
Q: Did he say how he felt, did he express himself in any way do you remember?
A: No, I don’t remember what he said but what I did glean from history there and from the notes is that the patient had a history that he had two days earlier been caught for drunken driving.
[77] Mr Goodwin said that Dr Maharaj should have been told prior to giving evidence that he should not refer to drink driving. We agree. However, we doubt that the comment caused any particular prejudice in the context of the trial. Mr Goodwin said that hearing the doctor mention drink driving in the course of giving evidence about previous suicide attempts and episodes of self harm by Mr Worrell was seriously prejudicial. However, as Mr Pike correctly pointed out, there was a wealth of evidence before the jury about Mr Worrell’s previous history drunkenness, suicidal ideation and self harm. While it would obviously have been preferable if Dr Maharaj had not mentioned the episode of drunk driving, we do not consider that it was of great significance in the overall context of the trial.
[78] We therefore reject this ground of appeal.
Majority verdict
[79] At the hearing there were questions from the Bench as to the procedure adopted by the Judge in relation to the taking of majority verdicts. Since the hearing we have obtained transcripts of the discussions between the Judge and counsel and the Judge’s directions to the jury. It is clear from that material that counsel were consulted and agreed on the course adopted by the Judge. We are satisfied that the directions were satisfactory in the circumstances and that no further investigation of them is required.
Result: conviction appeal
[80] For the above reasons the appeal against conviction is dismissed.
Sentence appeal
[81] Mr Worrell was sentenced to life imprisonment.[14] There is no dispute about that sentence. The Judge imposed a minimum period of imprisonment of 14 years. The sentence appeal relates to the minimum term.
[82] Mr Goodwin argued that 14 years was excessive because:
(a) the Judge failed to take into account the special features of the case, particularly the “narrow margin between murder and manslaughter in the particular case”;
(b) the Judge wrongly took into account premeditation, callousness/brutality and victim vulnerability as aggravating features;
(c) the Judge’s assessment of the seriousness of the present case was out of line with comparable authorities;
(d) the Judge failed to take into account any mitigating factors whatsoever.
[83] In the written submissions filed on behalf of Mr Worrell, it was argued that there was no justification to depart from the standard ten year minimum period of imprisonment provided for in s 103 of the Sentencing Act 2002. However, in the course of oral argument counsel modified his position and argued that a minimum period of imprisonment of 11 or 12 years imprisonment ought to have been imposed.
[84] We turn now to the ground raised in support of the sentence appeal.
[85] We do not see that this case necessarily represents a case akin to manslaughter, or that there is a narrow margin between the two offences on the facts of this case. Mr Worrell was found guilty of murder, and although we do not know the precise basis for that finding, we know that an alternative verdict of manslaughter was rejected. The fact that his conduct appeared to exhibit recklessness as to the consequences for other road users, rather than a deliberate intention to kill others, does not mean it does not fit squarely within the definition of murder. We do not see this submission as taking the case very far.
[86] Mr Goodwin said that although the Judge at one point in her sentencing notes referred to premeditation and callousness/brutality, she also referred to Mr Worrell’s behaviour as being “more akin to a drunken reckless act than full scale logical planning”. He sought to rely on the evidence of Dr Goodwin, in which Dr Goodwin expressed the view that Mr Worrell’s actions were more impulsive than premeditated. The Judge did find that “some premeditation may have been involved” before qualifying that with the reference to a “drunken reckless act” noted above. She made no finding of callousness or brutality. We see no error in this regard.
[87] We do not consider that it added much to describe the victims as vulnerable. Undoubtedly they were victims of Mr Worrell’s appalling conduct but they were not vulnerable in the sense that that term is usually used in the context of sentencing, in referring to those subjected to violence or sexual assault who are particularly young or particularly elderly, or have a disability.
[88] Mr Goodwin referred us to a number of cases where lengthy minimum terms of imprisonment were imposed, and argued that this case was out of line. The facts of those cases are, however, so different from the facts of the present case that we do not derive any particular assistance from what is a relatively artificial comparison exercise.
[89] Mr Goodwin said that a number of mitigating factors were not recognised by the Judge in determining the length of the minimum period of imprisonment. In particular he referred to the following:
(a) Mr Worrell’s sincere and genuine remorse;
(b) Mr Worrell’s mental health issues, as they were already known to the Court;
(c) the fact that Mr Worrell had himself been seriously injured in the crash;
(d) the additional hardship for Mr Worrell of serving a term of imprisonment in New Zealand, given that he has no family in this country (they reside in Australia).
[90] The Judge accepted that Mr Worrell’s remorse was genuine and had been sincerely expressed, but said that the decision of this Court in R v Hessell[15] prevented her from taking this into account in the absence of a guilty plea. With respect to the Judge that was a misinterpretation of this Court’s decision in Hessell which, of course, has since been reversed by the Supreme Court.[16]
[91] As Mr Goodwin rightly pointed out s 9(2)(f) of the Sentencing Act specifically refers to remorse as a mitigating feature. This was emphasised by the Supreme Court in Hessell.[17]
[92] We are satisfied that in the absence of any finding of brutality and callousness and factoring in appropriate credit for the mitigating features described by Mr Goodwin the minimum period of imprisonment of 14 years is manifestly excessive. In our view, a minimum period of imprisonment of 12 years better reflects the gravity of the offending and the mitigating factors that should be taken into account.
Result: sentence appeal
[93] We therefore allow the sentence appeal and adjust the minimum period of imprisonment accordingly.
Disposition
[94] We dismiss the appeal against conviction but allow the appeal against sentence, with the result that the minimum period of imprisonment imposed by the Judge is reduced from 14 years to 12 years.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v Bain
[2004] 1 NZLR 638 (CA) at [22]–[27], approved by the Privy Council in
Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at
[34].
[2] At
[22].
[3] At
[24].
[4] R v
Oliver [2007] NZCA
326.
[5] At
[22]
[6] Fairburn
v R [2010] NZSC 159.
[7] See for example
the recent decision of the England and Wales Court of Appeal in R v
Thompson [2011] 1 WLR 200 for a discussion of the English
authorities.
[8]
Neale v R [2010] NZCA 167 at
[12].
[9] Tainui
v R [2008] NZCA 119; leave to appeal refused by Supreme Court: [2008] NZSC
59.
[10] At
[9].
[11] This can be
contrasted with the polling of a jury before verdict, as to which see R v
Butler [2007] NZCA 127 at
[26]–[31].
[12]
R v Shaw CA159/05, 22 November
2005.
[13] R v
Fraser [2009] NZCA 520 at
[31]–[34].
[14]
R v Worrell HC Auckland CRI-2008-092-9884, 15 February
2010.
[15] R v
Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
[16] R v
Hessell [2010] NZSC 135, (2010) 24 CRNZ
966.
[17] At
[64].
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