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Court of Appeal of New Zealand |
Last Updated: 12 July 2013
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
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Court: |
Randerson, Courtney and Dobson JJ |
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Counsel: |
J J Corby for Appellant
M D Downs for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dobson J)
[1] In May 2012, the appellant (Mr Aiono) was convicted of murder following a jury trial in the High Court at Auckland. He has subsequently appealed against that conviction.
[2] In early February 2009, Mr Aiono had left Auckland for Samoa, to deal with family matters. He left behind his wife (Tausilia) and their young son.
[3] Mr Aiono returned to Auckland earlier than planned on 24 February 2009, because of their son’s ill health. Mr Aiono and Tausilia spent the night of 24 February 2009 in Middlemore Hospital, monitoring their son’s condition. During the night, or very early the next morning, Tausilia told Mr Aiono that she had had sex with a very close friend of his (Mose) during Mr Aiono’s absence in Samoa. Mr and Mrs Aiono discussed the matter later that day, and Mr Aiono was in touch with Mose by text.
[4] At about 7pm that evening, 25 February 2009, Mr Aiono was driven to a residential address in south Auckland by his brother, with the apparent intention of talking to Mose about what had occurred. Mr Aiono’s brother confirmed that he was calm during the journey to the address.
[5] Mr Aiono confronted Mose in the garage at the address. A fight ensued involving Mr Aiono knocking Mose to the ground, in the course of which it appears that Mose hit the back of his head on a concrete path. He was punched further by Mr Aiono and Mr Aiono also stomped on Mose’s head. Mose died very shortly thereafter.
[6] At trial, Mr Aiono admitted the assaults that killed Mose and was therefore prepared to plead to manslaughter. However, he denied murderous intent and in the alternative contended that the partial defence of provocation applied to reduce what would otherwise be murder to manslaughter.[1]
[7] A first trial commenced in June 2010 but was aborted during its second week because new, potentially material, evidence became available to counsel. Then a second trial was conducted in late October and early November 2011, at the end of which the jury could not reach a verdict. The third trial was held in May 2012.
[8] Mr Aiono’s appeal against conviction was advanced on five grounds.
First ground of appeal: manner of jury selection
[9] After the jury had been sworn and selected a foreperson, but had not heard the Crown opening, it was sent away until the afternoon adjournment for the trial Judge, Peters J, to hear legal argument in their absence. On their return, Peters J learned that one of the jurors had researched the case on the internet and told four other jurors about the findings, and she accordingly discharged the five of them. The Judge directed the Registrar to contact as many of the original panel who had appeared that morning for the empanelling, but who had then been dismissed, to return to court on the second day. Thirty six jury panellists appeared, of whom five were discharged because they, too, had researched the case on the internet. The Judge empanelled five new jurors to make up the 12.
[10] Mr Corby’s written submissions raised, as a first issue potentially jeopardising Mr Aiono’s right to a fair trial, the manner in which Peters J had dealt with the replacement of the five jurors who were discharged
[11] Peters J considered that there were three options available to her:[2]
- (a) delaying the start of the trial by one week, and selecting a jury from a new panel summonsed that week;
- (b) discharging the seven remaining jury members and selecting a new jury from the existing panel; or
- (c) selecting five replacement jurors from the panel to replace those that had been discharged.
[12] Defence counsel favoured postponing the start of the trial, to alleviate any risk that the seven members of the jury and the remainder of the panel might have researched the case in the time that had elapsed. Peters J chose to proceed with the third option, and there can be no issue with her power to do so, as explicitly provided for in ss 22 and 22A of the Juries Act 1981.
[13] Nor can there be any criticism of the Judge’s reasons for adopting that course of action in the circumstances as they arose. Whilst we accept that replacing five jurors might be unusual,[3] the Judge considered that the interests of justice would not be adversely affected.[4] She took adequate precautions to ensure that the remaining jury members and panel members had not searched the internet for background to the case or talked to anyone who had. She interviewed the seven original jury members to ensure they knew nothing about the case, and impressed upon them not to conduct their own research. She was also satisfied that upon reconvening the panel, the jury officer had eliminated any panel member that had conducted internet searches.
[14] The Judge distinguished the present case from R v Smail, where the risk that members of the jury panel had conducted internet searches into the background of the case meant that a trial could not safely proceed with jurors from the original panel summonsed for that week.[5] In Smail, the defendant had previously pleaded guilty to murder and subsequently vacated his plea. The prospect of members of the jury panel becoming aware of that detail through internet research posed a much greater risk to the fairness of the trial than in the present case, where the jury were going to be told of Mr Aiono’s earlier trials. We agree that the impact of potential research on the jury here does not give rise to the same concerns as in Smail. The unusual history of that case gave rise to dangers of contamination which were in a different category to those which would normally exist.[6] The risk to the fairness of Mr Aiono’s trial could be adequately managed by the trial Judge’s precautions, referred to at [13].
[15] At the hearing of the appeal, Mr Corby acknowledged that having considered the detailed minute issued by Peters J setting out reasons for proceeding in the way that she did, the most that could be made of the point was that it appeared the trial proceeded with a “reluctant jury”. We are not satisfied that this was the case or that there was any risk of a miscarriage of justice on that basis.
Second ground of appeal: jury unaware of additional ground for challenging Mrs Aiono’s veracity
[16] Tausilia’s veracity was strongly challenged at each of the trials. At the first trial, she had given evidence that before her husband’s confrontation with Mose, she had told him that she had been raped by Mose, whereas (according to her evidence at that stage) she had actually had consensual sex with him whilst Mr Aiono was in Samoa.
[17] Between the first and second trials, Tausilia recanted on this aspect of her evidence, stating instead that she had told her husband from the outset that the sexual intercourse with Mose was consensual. She stated that she and her husband had agreed, after Mose was killed, that she would say that she had lied by telling him that she had been raped. Their intention was to portray the circumstances in which Mr Aiono attacked Mose in a better light.
[18] At the third trial, Tausilia admitted that she had lied on oath in relation to the point.[7] She said that she had first told her husband that Mose had raped her but then told him while having lunch at McDonalds some hours before the attack on Mose that she had had consensual sex with Mose.
[19] Mr Corby submitted there was a further, but related, issue on which the jury ought to have been better informed. There was a suggestion that Tausilia had entered into a form of unofficial marriage ceremony with another partner in Samoa in 2011. Because of the prospect that answers to questions posed to her on this topic might incriminate her in the offence of bigamy, the trial Judge gave Tausilia a warning about self-incrimination in the absence of the jury.
[20] When the same point had been reached in the second trial, an equivalent warning against self-incrimination had been given, but in the presence of the jury.
[21] Mr Corby argued that the opportunities for the defence to address matters adverse to Tausilia’s credibility were unfairly hampered because the jury was unaware of the warning against self-incrimination given in relation to any potential bigamy.
[22] In the third trial, when the jury returned after the warning given in their absence, crossexamination on the topic continued and Tausilia denied that she had had an unofficial marriage in Samoa the previous year. She also denied variations on that proposition. When she was being pressed on the point, the Judge indicated in the presence of the jury:
You’re not required to answer these questions if you don’t wish to.
[23] During closing addresses, the jury was given thorough warnings about the need for caution in accepting Tausilia’s evidence. In addition to an attack on her credibility in the defence closing, the Judge’s summing up included the following:[8]
Then we come to Tausilia’s evidence. She has given two very different accounts of what she told Mr Aiono in the 24 hours prior to the assault. Given those different accounts, I must warn you of the need for caution in deciding whether to accept her evidence at this trial and the weight you should give it, if you accept it.
[24] Shortly thereafter, in commenting on the defence attitude to her evidence, the Judge observed:[9]
As Ms Pecotic points out, the defence is under no obligation to explain why Tausilia might now be lying. In assessing Tausilia’s evidence, the defence asks you to bear in mind Tausilia’s established tendency to engage in fantasy or to lie and to do so for no apparent reason.
[25] We are satisfied that the delivery of the Judge’s caution against selfincrimination in relation to bigamy in the absence of the jury had no material effect on the conduct of an effective defence on Mr Aiono’s behalf.
Third ground of appeal: mode of presentation of evidence of a child witness
[26] Shortly after the offending, a boy who was present at the site and witnessed part of the attack was the subject of an evidential interview recorded on DVD. He was aged seven at the time. The DVD recording of that interview constituted his evidence-in-chief at earlier trials and he was then cross-examined on it, relevantly at the second trial.
[27] By the time of the third trial, the boy had no independent recollection of the events that he had described in the evidential interview. Counsel agreed between themselves that the preferable course in these circumstances would be to show the DVD of the interview as the evidence-in-chief and then have the cross-examination of the witness from the second trial read to the jury. The Judge also agreed to that course and it was followed.
[28] Mr Corby’s written submissions criticised the apparent prejudice to the defence caused by not being able to mount an effective cross-examination within the context of the third trial. Mr Corby’s concern focused on the boy’s evidence as the only evidence that Mr Aiono had hit Mose with a rock or a piece of concrete.
[29] It appears that the trial Judge was very conscious of this point because, having earlier in her summing up explained the unusual circumstances in which the evidence had been placed before the jury in the form it had, the Judge explicitly warned the jury against taking more than might be justified from the boy’s evidence on this topic.[10]
[30] The Judge’s observations included it not being clear from the evidence that the boy was saying Mr Aiono had hit Mose with the rock, and that at no point had the boy said Mr Aiono hit Mose on the head with a rock. Rather, it was the interviewer that had made a statement to that effect and the Judge cautioned that the interviewer’s statement may have involved her jumping to that conclusion. More generally, the Judge cautioned the jury about the reliance that could be placed on evidence when not tested by cross-examination in the usual way.
[31] Having reviewed the relevant parts of the Judge’s summing up with counsel, Mr Corby acknowledged that Mr Aiono could not have expected the point to be addressed in the Judge’s summing up any more favourably to the defence than occurred.
[32] We are satisfied that there was no element of prejudice to Mr Aiono’s defence in the way this point was handled.
Fourth ground of appeal: manner of inferring whether Mr Aiono appreciated the risk of death from injuries inflicted
[33] One of the main issues in dispute at trial was whether Mr Aiono had murderous intent, and more specifically whether he had a conscious appreciation that the injuries he inflicted on Mose were likely to cause death. Mr Corby criticised the terms of the Judge’s summing up as lacking balance, in addressing how the jury might assess what Mr Aiono knew as to the likely consequences of injuries of the type he inflicted on Mose.
[34] In the summing up, the Judge listed a range of factors that might count against inferring the requisite knowledge:[11]
... There does appear to be genuine astonishment that Mose has died – the surprise at the Police tape, the nature of the discussion with the accused’s wife, and the candid interview with the Police. All of these matters, I suppose, could bring a different perspective to bear on the events. I think the other thing possibly to bear in mind here is that these things do tend to happen in a rush.
[35] Mr Corby argued that the repeated use of qualifiers in the words we have highlighted in italics was inappropriate, and was likely to convey to reasonable jurors that the Judge treated the factors listed as being insufficient to counter other indications of the level of knowledge that could be attributed to Mr Aiono.
[36] What is criticised here is an individual manner of speech. The criticism is not justified once the passage is assessed more generally in light of the tone and content of the summing up, which we consider was appropriately balanced.
[37] We are not satisfied that there was any prejudice caused to the defence by a lack of balance in the way this point was addressed by the Judge.
Fifth ground of appeal: jury direction on provocation
[38] Mr Corby raised two concerns in relation to the partial defence of provocation which was still available at the date of the offending. First, a general complaint that by the time of the trial in 2012, the New Zealand public had become irrationally disposed against provocation because of a perception that it had been inappropriately invoked in the defence of Mr Weatherston in a murder trial in Christchurch. Mr Corby submitted that the jury could not approach an analysis of provocation with an open mind. Mr Corby was not explicit as to the consequences he suggested should follow from acceptance of this point. Presumably, the most he could seek was a finding that the Judge ought to have withdrawn the issue of provocation from the jury, implicitly on the basis that the Judge ought to have decided the issue herself, favourably to Mr Aiono.
[39] In the introductory comments at the beginning of her summing up, Peters J explained the part played by the partial defence of provocation, indicating to the jury that if they were to find the Crown had proved murder, but had not disproved provocation, then the jury would return a verdict of manslaughter.[12] Shortly after that point, her Honour commented:[13]
... I know that some of you will be aware that the defence, or partial defence, of provocation is no longer part of our law. That, from memory was a result of what occurred in Clayton Weatherston’s trial, it created something of ... and the law was repealed. But we are applying the law as it stood at 25 February 2009 and as at that date this defence applied and it is for the Crown, in this case, to disprove it, assuming it has proved its case of murder.
[40] Subsequently, when dealing with the issue of provocation as it affected a question trail the Judge was providing to the jurors, she acknowledged that the terms of s 169(1) said that murder may be reduced to manslaughter, but commented that the “may” was quite misleading and that the charge must be reduced.[14]
[41] There is no empirical justification for the concern Mr Corby raised, nor do we accept that the Judge’s direction on provocation created a tendency for the jury to consider it with less than open minds. The Judge was explicit that if the jury found the elements of provocation existed, then it was mandatory for them to reduce the conviction from murder to manslaughter. There is nothing to suggest that the usual confidence in the ability of juries to follow directions of this type would not have applied with the jury in this case.
[42] The second aspect of the challenge in relation to provocation was that the Judge ought to have recognised an aspect of Samoan culture as influencing the extent of provocation operating on Mr Aiono. This was claimed to be relevant to a component of the definition of what may constitute provocation, from s 169(2) of the Crimes Act 1961. That subsection provided:
169 Provocation
...
(2) Anything done or said may be provocation if—
(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and
(b) It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide.
...
[43] The elements of provocation, and how a jury might analyse them for the purposes of s 169(2), were the subject of ongoing debate. Shortly after introduction of the provision in 1961, the Court of Appeal considered the approach to s 169(2) in R v McGregor.[15] The Court observed in that case:[16]
The offender must be presumed to possess in general the power of selfcontrol of the ordinary man, save insofar as his power of self-control is weakened because of some particular characteristic possessed by him.
[44] That approach was the subject of criticism.[17]
[45] More recently, the Supreme Court in Timoti v R[18] confirmed the somewhat earlier formulation of the test for provocation by the Court of Appeal in R v Rongonui,[19] which required the jury to consider two questions where provocation was raised:
- (a) whether the provocation caused the accused to lose the power of selfcontrol, and as a result commit the act of homicide (a question of fact); and
- (b) whether the provocation relied on was sufficient to deprive an ordinary person with the accused’s characteristics, if they are relevant, of the power of selfcontrol (an evaluative question, albeit also one of fact).
[46] The Court of Appeal in Timoti was critical of the statutory conception of provocation, commenting:[20]
How juries are meant to acquire a practical comprehension of the hypothetical constructs on which they might be directed is a matter of speculation.
[47] An aspect of the analysis from McGregor that does appear to have survived is that any requisite characteristic must be clearly defined and identified:[21]
The characteristic must be something definite and of sufficient significance to make the offender a different person from the ordinary run of mankind, and have also a sufficient degree of permanence to warrant its being regarded as something constituting part of the individual’s character or personality.
[48] Mr Corby argued that there is a relevant belief in Samoan culture to the effect that if one spouse is unfaithful, the infidelity can cause illness in a child of the marriage. He argued that this was a characteristic of the offender relevant to what might cause him to lose self-control. In this case, the Aionos’ son had developed whooping cough and was in Middlemore Hospital. Mr Corby’s argument was that the Judge should have recognised in her summing up the prospect of Mr Aiono being provoked in a way that others would not be, by learning of his wife’s infidelity with Mose, because his cultural belief would lead him to attribute responsibility for his son’s illness to the infidelity.
[49] The point was not addressed in the Judge’s summing up.
[50] There are a number of difficulties with this argument. First, we doubt that it was adequately raised in any evidentiary sense during the trial. The nature of the cultural belief was mentioned briefly in Tausilia’s evidence-in-chief:[22]
Q. How did [your son] get mentioned?
[51] In the course of his DVD interview that was conducted the day after the killing, Mr Aiono did not claim that he was provoked in his attack on Mose by his cultural belief that the infidelity had caused his son’s illness. In that interview, Mr Aiono suggested that he had returned from Samoa because of his son’s illness. He also said that when he came and saw his son’s illness, he was very hurt and devastated because he suspected “something must have happened”. He asked his wife what had happened and she explained, and Mr Aiono said that he felt hurt. In another passage in the interview, Mr Aiono said:
There was a suspicion in our ... in our family that my son’s illness was because he was fretting for me because I spent more time with my son than my wife. That’s the position of how I noticed the big change in my son after my wife has explained to me what happened. ...
[52] In the closing address for the defence, Ms Pecotic put the possible relevance of the child’s illness somewhat differently:[23]
Now when Mr Aiono came back his son was indeed very sick. He spoke to his wife and asked her what she had done to have caused the illness to their son. Now Tausilia was too embarrassed to admit to Solofa that she had been having affairs on him, and so she lies. She tells Solofa that Mose had raped her and goes on to describe in detail how that happened. Mr Aiono’s emotions would have been high. Remember when he said he forgave Tausilia this was for cultural reasons, as there is a belief that if a parent sins or has done something wrong that that is visited on their child.
[53] The defence closing did not suggest that provocation had arisen from any belief on Mr Aiono’s part that his wife’s infidelity had caused his son’s illness. Rather, shortly after the passage cited in [52], Ms Pecotic pointed out to the jury that Mr Aiono was not angry when he left the hospital, and that he went to see Mose to get an apology from him. Ms Pecotic invited the jury to infer that Mose did something to cause Mr Aiono to lose his self-control and react in the way [24]at he did.24 The evidence from Mr Aiono’s brother, who drove him to see Mose, was that Mr Aiono was calm during the drive there.
[54] We are not satisfied that a sufficient evidentiary foundation had been laid for the proposition that a Samoan cultural belief affected the gravity of the provocation that may have been operating on Mr Aiono in a way which raised it as an issue that the Judge ought to have addressed the jury on. First, no specific cause of provocation that might arguably have operated on Mr Aiono sufficiently strongly to cause him to lose the power of self-control was raised in his interview. Secondly, if a specific characteristic with a sufficient degree of permanence was latent in Samoan men, it would be reasonable to expect some expert evidence, or at least corroborating factual evidence, about its existence and relatively how pervasive it was. There was nothing of that sort in the evidence in this case.
[55] A relevant Samoan cultural belief was not a part of the defence closing and no sufficient foundation for it had been laid in the evidence to require the Judge to review that prospect in her summing up. We are accordingly satisfied that there was no error in the way in which the possible partial defence of provocation was handled.
Result
[56] We are not persuaded that any of the grounds raised, whether considered singly or in combination, gave rise to any material risk of a miscarriage of justice. The appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington
for Respondent
[1] The offending occurred while s 169 of the Crimes Act 1961 was still in force. That section provided for the partial defence of provocation and had been repealed by the time of trial.
[2] R v Aiono HC Auckland CRI-2009-092-3238, 14 May 2012 (Minute No 1) at [8].
[3] At [21].
[4] At [25].
[5] R v Smail [2009] NZCA 143.
[6] At [36].
[7] Notes of Evidence at 199/9 and 10. She was convicted of perjury in respect of her evidence at the first trial.
[8] R v Aiono HC Auckland CRI-2009-092-3238, 23 May 2012 (Summing Up) at [124].
[9] At [127].
[10] Summing Up, above n 8, at [29], [69]–[74].
[11] Summing Up, above n 8, at [79] (emphasis added).
[12] Summing Up, above n 8, at [11].
[13] At [12].
[14] At [109].
[15] R v McGregor [1962] NZLR 1069 (CA).
[16] At 1081.
[17] See Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [CA169.11].
[18] Timoti v R [2005] NZSC 37, [2006] 1 NZLR 323 at [33].
[19] R v Rongonui [2000] 2 NZLR 385 (CA) at [234].
[20] R v Timoti [2005] 1 NZLR 466 (CA) at [47].
[21] R v McGregor, above n 15, at 1081.
[22] Notes of Evidence at 51/10–17.
[23] Case on Appeal, Volume 3 at 613.
[24] Case on Appeal, Volume 3 at 614.
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