Te Tomo v R [2017] NZCA 338 (8 August 2017)

Last Updated: 16 August 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA455/2016 [2017] NZCA 338
BETWEEN	TYSON-TAINUI RUKUWAI TE TOMO Appellant
AND	THE QUEEN Respondent

Hearing:	27 July 2017
Court:	Winkelmann, Brewer and Peters JJ
Counsel:	W C Pyke for Appellant M J Lillico for Respondent
Judgment:	8 August 2017 at 10.30 am

JUDGMENT OF THE COURT

1. An extension of time to appeal is granted.
2. The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

[1] The appellant, Mr Te Tomo, was convicted following a trial at the High Court at Hamilton before Hinton J and a jury on one charge of murder. He appeals against his conviction on the grounds that the issue of self-defence was not put to the jury and a miscarriage of justice has therefore occurred.
[2] Mr Te Tomo requires an extension of time to appeal. His delay in filing his notice of appeal has been adequately explained and the Crown does not oppose an extension. In these circumstances an extension is granted.

Factual background

[3] In the late afternoon of 20 February 2015 the 17-year-old Mr Te Tomo and his associate, Mr Williams, were at an address in Hamilton. The victim Mr Thompson, then in his late 20s, and his friend, Mr Apanui, were visiting the nextdoor property. Mr Te Tomo and Mr Williams were affiliated to the Mongrel Mob gang, Mr Thompson and Mr Apanui to the Black Power gang.
[4] We take the narrative that follows from Mr Te Tomo’s evidence. Mr Te Tomo was inside his home packing to go to a tangi when he looked out the window and saw Mr Williams talking to Mr Thompson and Mr Apanui. He heard yelling and went outside. Mr Apanui and Mr Thompson were sitting in Mr Apanui’s car. Mr Te Tomo saw Mr Thompson trying to reach out, grab and punch Mr Williams. The car window smashed, and Mr Apanui and Mr Thompson jumped out of the car. Mr Thompson was aggressive, saying “You fucking smash my window you cunt, now you’re going to get it”. Mr Te Tomo saw that both men were very big in their build and older than he and his friend Mr Williams. Because the men were screaming that they were going to “fuck us up”, Mr Te Tomo thought he would go inside and get a weapon to try and scare them off.
[5] Mr Te Tomo went back inside and grabbed Mr Williams’ unloaded sawn-off slug gun. He took it outside intending to use it to chase the two men off the property. He said “I actually thought in my head that maybe [Mr Thompson] would, he would you know just get in his car and go. We were only fuckin little kids, what are they doing?” Mr Te Tomo pulled his bandanna up over his lip to make himself look more intimidating and less boyish. He shouted at the men that they had to go, trying to do so in an intimidating manner. Mr Thompson responded “[f]ucking shoot me? You haven’t got the balls.” Mr Te Tomo approached Mr Thompson and tried to poke him with the gun. Mr Thompson grabbed the unloaded gun, pointed it at Mr Te Tomo and pulled the trigger. There is no suggestion that Mr Thompson knew it was unloaded. Mr Te Tomo says he was very scared at this time.
[6] At that point Mr Te Tomo and Mr Williams ran back inside the house. As they entered the house they turned into Mr Williams’ bedroom and grabbed a ceremonial sword each.
[7] Mr Thompson followed them a few steps into the house. When the young men told him there were kids in the house, Mr Thompson said he didn’t care and said “I’ll fucking burn this house down with them in it”. Mr Te Tomo confirmed in evidence that by that time there were no children in the house, but that he was saying there were children to make the men go.
[8] At that point Mr Williams chased Mr Thompson outside, threatening him with a sword. Both Mr Williams and Mr Te Tomo followed Mr Thompson out of the house. Mr Williams tried to scare Mr Thompson by swinging his sword, but Mr Thompson took the sword off him. Mr Te Tomo then dropped his sword, and both men again went back inside the house. When Mr Te Tomo got into the house he locked the door. He heard something big hit the door. He observed that Mr Williams was bleeding out of his head and that he looked dazed and sleepy.
[9] Mr Te Tomo’s female friend, Fairlaine, told him that Mr Apanui was on the phone. Mr Thompson was also shouting “[f]ucking the Blacks are on their way”. Mr Te Tomo put these things together and concluded Mr Apanui had called for reinforcements from the Black Power gang.
[10] Another female friend, Raewyn, was outside trying to get Mr Thompson and Mr Apanui to move back, yelling at them to “fuck off”. Mr Te Tomo looked out the window and thought the men looked like they wanted to hit her. He said the men were smashing up their cars and yelling out “all this shit”.
[11] At this point Mr Williams walked back out of the house. Mr Te Tomo was worried about him and so went into Mr Williams’ bedroom and grabbed a gun from under his bed. This was a .22 calibre. He said that his intention was to try and get the driver, Mr Apanui, to his car, because if he was in the car “then [Mr Thompson] will jump in the car and then they’ll just leave”.
[12] Mr Te Tomo walked out of the house with the loaded gun and fired a shot into the air. Mr Apanui turned around and looked to Mr Thompson. Mr Te Tomo thought Mr Apanui looked surprised or shocked. The two men looked at Mr Te Tomo as if to say “[y]ou haven’t got the balls to shoot us”.
[13] Mr Te Tomo tried to reload the gun but the reloading mechanism was jammed. Mr Apanui could see he was having trouble with the gun and he started to chase Mr Te Tomo. Mr Te Tomo ran back inside. Mr Apanui stopped well short of the door. This is evident from the fact that when Mr Te Tomo reached the inside and turned around there was no one there.
[14] When back inside Mr Te Tomo reloaded the gun and then ran outside again. No one was being beaten up or hit with anything, but Mr Te Tomo was thinking “[f]uck, I would, um, [Mr Thompson’s] the ringleader and if I get him in the car then, then they’re all going to go”. He said that he walked back outside with the firearm carried at chest level. Mr Thompson was on the street edge of the section behind a large power box.
[15] As he was walking towards Mr Thompson, Mr Te Tomo was telling him to “fuck off, get, get back in the car”. Mr Thompson was still verbally challenging Mr Te Tomo, although he was shielding himself behind the power box. Mr Te Tomo was walking with his finger on the trigger but had no intention to pull it. The gun just went off and Mr Thompson collapsed. At that point Mr Te Tomo ran back inside the house.

Trial

[16] There had been only limited reference to self-defence during the course of the trial. Anticipating that the defence might be at issue, in opening Crown counsel Mr Douch referred to self-defence as a possible justification or excuse for Mr Te Tomo’s conduct, but said on the facts there was no element of self-defence. Mr Te Tomo defended the charge on the basis that he did not intend to discharge the gun and that he shot Mr Thompson by accident — self-defence was expressly disavowed. In closing, Mr Te Tomo’s counsel said “the defence case is not about self-defence. It’s not been suggested, and I don’t believe I have suggested it at any stage ... that what happened was done because it was a matter of life and death”.
[17] After evidence concluded, counsel and the trial Judge discussed whether selfdefence ought to be the subject of directions. In the course of a chambers discussion, Hinton J concluded there was no credible narrative to support the defence and made clear she would not direct on the defence.

Argument on appeal

[18] For Mr Te Tomo, Mr Pyke argues that there was a credible narrative of facts on the basis of which the jury could have thought that Mr Te Tomo acted in selfdefence when he discharged the firearm, causing Mr Thompson’s death. The Judge should therefore have directed the jury as to the elements of self-defence. She should have identified the relevant evidence and directed the jury that the onus of disproving that defence lay with the Crown.
[19] Mr Pyke submits that there was a clear and plausible narrative that Mr Te Tomo was entitled to defend himself and his friend and the other occupants of the Hamilton address from further attacks and threats from Mr Thompson and Mr Apanui. They refused to leave. Mr Te Tomo did not start the altercation and he was not obliged to leave his home to avoid the threat.
[20] Mr Pyke argues that Mr Te Tomo’s decision to use a loaded firearm did not exclude the availability of the defence; it was not unreasonable in the whole of the circumstances, including the risk to his friends as he perceived it to exist. He was confronted by two older, more powerful men. Mr Thompson was a patched member of a notoriously violent criminal gang. The men were physically menacing. Mr Te Tomo also believed that they were calling for additional gang support.

Relevant principles

[21] Section 48 of the Crimes Act 1961 provides:

48 Self-defence and defence of another

Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.

[22] It is well established that a three-stage test applies:^[1]

• (a) What were the circumstances as the defendant honestly believed them to be?
• (b) In those circumstances was the defendant acting in the defence of himself or another?
• (c) Was the force used reasonable in the circumstances as the defendant believed them to be?

[23] The first issue focuses upon the defendant’s actual beliefs — it is a subjective inquiry. The second limb is a question of fact — was the defendant acting in the defence of himself or another? The third issue requires an assessment of whether the force used was reasonable in the circumstances as the defendant believed them to be — that assessment is to be made on an objective basis.^[2]
[24] It is clear that in certain circumstances self-defence may be available when the defendant takes pre-emptive action to defend himself or another from a perceived threat.^[3] However, as this Court made clear in R v Wang, s 48 has its origin in what has been called “necessity — that is, there was legal justification for repelling force with force”.^[4] For that reason this Court said in Wang:^[5]

... what is reasonable under the second limb of s 48 and having regard to society’s concern for the sanctity of human life requires, where there has not been an assault but a threatened assault, that there must be immediacy of life-threatening violence to justify killing in self-defence or the defence of another.

[25] In R v Terewi this Court said:^[6]

A threat which does not involve a present danger can normally be answered by retreating or some other method of avoiding the future danger.

[26] That takes us to the issue of the circumstances in which a Judge is required to direct a jury in relation to self-defence.
[27] Whether self-defence should be left to the jury is a question of law to be determined by the Judge. It is for the Judge to decide whether there is a credible or plausible narrative which might lead the jury to entertain the reasonable possibility of self-defence.^[7] The fact that a defence is not advanced on behalf of the defendant does not of itself absolve the judge of a duty to put the defence. As this Court said in R v Tavete:^[8]

The failure to press such a defence is usually for tactical reasons; it would weaken, perhaps destroy, the main defence relied on. This does not in our judgment exonerate the Judge from directing on such matters if there is a sufficient evidential foundation.

[28] But a Judge is not required to direct the jury in relation to self-defence on the basis of “every facile mouthing of some easy phrase of excuse that can amount to an explanation”.^[9] Therefore if the Judge is satisfied that the facts in law are not capable of giving rise to a possible defence of self-defence, the matter need not be put to the jury.
[29] Finally, we note that there was some suggestion by Mr Pyke in argument that the justification of self-defence may have been available to Mr Te Tomo even if he had discharged the firearm accidentally (the main defence run at trial). That cannot be so. Section 48 clearly contemplates an intentional use of force. Adams on Criminal Law states that the defence “only becomes relevant once a prima facie case involving proof of the relevant mens rea has been made out against the defendant”.^[10] As this Court said in Fairburn v R:^[11]

Section 48 requires the use of “such force” as is reasonable in the circumstances as the accused believes them to be. Deliberate force is one thing; accidental force is another. If there is no deliberate force, s 48 cannot apply.

Analysis

[30] We accept that the fact Mr Te Tomo claimed the gun went off accidentally is not in itself fatal to his argument on appeal. The jury might have rejected that evidence, but if there was otherwise a credible narrative to support self-defence, then the jury should have been directed on it.
[31] The difficulty for Mr Te Tomo is that there was no such narrative. As to the first element, the circumstances he believed them to be, the overall circumstances as described by Mr Te Tomo do not provide a credible narrative that he believed there was an imminent threat to his life. While it was true that these two large and threatening men would not leave the property, on Mr Te Tomo’s account most of the physical aggression seems to have come from Mr Te Tomo’s friend, Mr Williams, and to a lesser extent Mr Te Tomo himself. Apart from one minor incursion into the house, the two older men made no effort to enter. Mr Te Tomo’s evidence also made clear that the house was a safe haven for him and Mr Williams. Mr Te Tomo and Mr Williams could lock the door to keep the men out.
[32] At times Mr Te Tomo talks about threats to his friends, but he does not articulate any imminent threat to any of his friends outside the house. It is also notable that as Mr Te Tomo advances on Mr Thompson with his gun, Mr Te Tomo confirms no one was being beaten up or hit, and that Mr Thompson was shielding himself behind the power box.
[33] Mr Te Tomo did not give evidence that he was acting to defend himself or his friends against a fear of imminent violence, evidence relevant to the second inquiry — whether the defendant was acting in self-defence. Mr Te Tomo’s evidence was that he was acting to try and drive Mr Thompson into the car, which would then cause the two men to leave the property. There is no narrative available on the evidence that Mr Te Tomo believed he had to shoot Mr Thompson to prevent him hurting Mr Te Tomo or others.
[34] Mr Te Tomo did say that he was “fearing for all of us ... for all our lives”. But when asked to clarify that he said “Well if he gets it off me [the .22 gun] maybe he’ll probably shoot me, you know, that’s my threat and, you know, his mates are coming around, fuck they’re not going to just slap us in the face, they’re going to do more than that”. His fear therefore was that if he went out with the gun, it could be used against him. The obvious solution to that was to not take the gun out of the house.
[35] So to this point, we have identified that the factual narrative supports neither the existence of an imminent threat to life (Mr Te Tomo’s or his friends’), nor a connection between any perceived acts and Mr Te Tomo’s use of the firearm.
[36] Against this background it is perhaps artificial to continue to consider whether the force used was reasonable in those circumstances. However, we do observe that Mr Thompson was unarmed at the time he was shot. He was not advancing on Mr Te Tomo. He was not issuing threats to Mr Te Tomo.
[37] As to alternative courses of action, Mr Te Tomo could have called for his friends to return to the house and then locked the door. Mr Pyke submitted as a legal proposition that Mr Te Tomo was entitled to stand his ground in his house and that the principle we have identified above, that alternative action to the use of force should be followed if available, did not require him to “run away”. That submission does not, however, assist Mr Pyke because the point was that Mr Te Tomo simply had to retire to the house, lock the door and stay in it.
[38] For these reasons we are satisfied that the Judge was correct not to direct the jury in relation to the defence of self-defence. There was no credible narrative that Mr Te Tomo had acted in defence of himself or another within the terms of s 48.

Result

[39] An extension of time to appeal is granted but the appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Bridger [2003] 1 NZLR 636 (CA) at [18].

^[2] R v Wang [1990] 2 NZLR 529 (CA) at 534.

^[3] At 535–536. Note that Wang proceeds on the basis that a two-stage test applies, comprising points (a) and (c) at [22] above. It is now orthodox to apply a three-stage test as we have set out.

^[4] At 539.

^[5] At 539.

^[6] R v Terewi (1985) 1 CRNZ 623 (CA) at 625.

^[7] R v Kerr [1976] 1 NZLR 335 (CA) at 340; and R v Tavete [1988] 1 NZLR 428 (CA) at 430.

^[8] R v Tavete, above n 7, at 431.

^[9] Bratty v Attorney-General for Northern Ireland [1963] AC 386 (HL) at 417.

^[10] Simon France (ed) Adams on Criminal Law (looseleaf ed, Thomson Reuters) at [CA48.02].

^[11] Fairburn v R [2010] NZCA 44 at [46].