Breach of Prosecution’s Duties: R v Roulston , Court of Appeal, Wellington (New Zealand)

Copyright 1976 New Zealand Council of Law Reporting
New Zealand Law Reports
R v Roulston
Court of Appeal, Wellington
[1976] 2 NZLR 644; 1976 NZLR LEXIS 692
8, 9, 10 June, 29 July 1976
DECIDED-DATE: 29 July 1976

Criminal law — Homicide — Murder — Accused under influence of drug — Evidence and proof — Defence of insanity must show probable evidence of disease of mind — Burden of proof lies on Crown to prove every essential element but may rely on presumption that every man has sufficient mental responsibility for his crimes — Judicial discretion to comment on accused’s failure to give evidence — Address by prosecution — What is permissible or impermissible.

The appellant whilst under the influence of the drug lysergide (LSD) shot and killed his friend at close range. There was no dispute that the appellant and fired the gun. The jury returned a verdict of guilty of murder. The appellant appealed on several grounds, the most important of which were that because of his condition he was not responsible for the actus reus part of an unlawful act, that even if he had been guilty of a technical assault he lacked any intent to kill or cause bodily injury, that he was insane, and that the learned judge had wrongly exercised his discretion to comment on the failure of the appellant to give evidence.

Held, dismissing the appeal:

1 It is not sufficient for a defence of insanity to provide [*2] evidence that merely indicated the presence of a disease of the mind of the accused; the evidence must show the probable presence of a diseased mind (see p 648 line 3).

Jayasena v The Queen [1970] AC 618, 624-628; [1970] 1 All ER 219, 221-224, referred to.

2 The ultimate burden of proving every element essential in the crime rests on the Crown which is entitled to rely on the presumption that every man has sufficient mental responsibility for his crimes. To rebut that presumption the defence must adduce evidence from which the contrary may be reasonably inferred (see p 648 line 19).

Bratty v Attormey-General for Northern Ireland [1963] AC 386, 413; [1961] 3 All ER 523, 534-535; R v Cottle [1958] NZLR 999, 1029, and R v Burr [1969] NZLR 736, 743, applied.

3 A judge has a discretion to comment upon the failure of the accused to give evidence, but if he exercises his discretion the comment should be fair and appropriate to the circumstances (see p 650 line 41).

R v Rhodes [1899] 1 QB 77, 83 and R v Bathurst [1968] 2 QB 99; [1968] 1 All ER 1175, referred [*3] to.

4 Whether self-induced intoxication is or is not a defence to crimes of basic intent in New Zealand was expressly left open by the court (see p 653 line 39).

R v Grice [1975] 1 NZLR 760 and R v Majewski [1976] 2 WLR 623; [1976] 2 All ER 142, referred to.

5 Crown counsel must not become an advocate fighting for conviction and it is quite impermissible for him to persuade a jury to a point of view by the introduction of factors of prejudice or emotion, but must present the case adequately having regard to all the circumstances of the case (see p 654 line 33).

Refer 4 Abridgement 351, 354, 207, 150, 148.

Other cases mentioned in judgment
Mancini v Director of Public Prosecutions [1942] AC 1; [1941] 3 All ER 272.
R v Mutch [1973] 1 All ER 178.
R v Ryan [1973] 2 NZLR 611.
R v Stuck [1949] NZLR 108.

This was an appeal against conviction for murder.

S G Erber and G F Orchard for the appellant.

Solicitor-General R C Savage QC, P W Graham and G E Langham for the Crown.

JUDGMENT-READ: Cur adv vult

JUDGES: Wild CJ, Richmond (P), Woodhouse and Cooke JJ


JUDGMENTS: WOODHOUSE J. (Delivered the judgment of the court). Robert Douglas Roulston was charged [*4] with the murder of one John Beamsley at Ashburton. He was found guilty and now appeals against conviction. The grounds of appeal are that the verdict could not reasonably have been arrived at by the jury; that Roper J had wrongly exercised his discretion to comment on the failure of the appellant to give evidence; that he had misdirected the jury in several respects; that the defence had not been put adequately to the jury in the summing up; and, finally, that there had been unfair conduct on the part of Crown counsel during his final address.

The deceased died when a shotgun was fired at almost point blank range. It is not in dispute that the appellant held and fired the weapon. His defence rested upon claims that at the time he was incapable of rational thought or action by reason of a pre-existing psychiatric disorder or by the ingestion of the drug lysergide (LSD) a few hours before the shooting took place or by both. The defence was put forward on three alternative bases. First, that because he had been in a condition akin to automatism he was not responsible for the actus reus part of any unlawful act and so was entitled to be acquitted. Second, that even if it could  [*5] be said that he had been guilty of a technical assault he had lacked any intent to kill or cause bodily injury known to him to be likely to cause death and so at worst could be guilty only of manslaughter. And, third, on his behalf the defence of insanity was advanced in terms of s 23 of the Crimes Act 1961.

The appellant is a young man who lived with a married sister at Ashburton. He had drifted into the habit of smoking cannabis and experimenting with LSD. Some of his associates were doing the same thing. At about midday on 25 April 1975 he went with Beamsley (the deceased) to join a number of them at a house at Walker Street. There was a supply of LSD on the premises and he took some of it as did another member of the {646} group. Beer was being consumed and cannabis smoked, probably by both Roulston and Beamsley as well as some of the others. There is evidence that on the previous night Beamsley had taken LSD but he did not do so on this occasion. However, he may have been affected to a degree by cannabis or alcohol and there is a suggestion in the evidence that being acquainted with the effects of LSD he made remarks or gestures which were intended to precipitate some [*6] frightening form of hallucination in Roulston’s mind. By mid-afternoon the group had begun to disperse and at about 4.00 pm Roulston returned to his sister’s home where he was seen standing outside the house by his younger brother who thought he was unusually quiet and withdrawn. The brother said in evidence that after a period of time Beamsley arrived looking for Roulston who had still not come inside. However, there is evidence that the two of them did meet there in the house and that Beamsley suggested to Roulston that they should return together to Walker Street. Roulston indicated that he did not wish to do this but at about 4.50 pm they went off together in a car driven by Beamsley. Before long Roulston returned to his sister’s home. She was not present and he went to find her at a neighbour’s place. They came back together and then he asked the younger brother to call a taxi. After making this request he left his brother for a short period, then went out onto the road and was driven away in the taxi which by then had arrived in answer to the call by telephone. The time was then about 5.30 pm.

In the meantime Beamsley had gone by car from the Walker Street house together [*7] with two companions named Perry and Steel. They returned to Walker Street in the car at about 5.50 pm by which time Roulston was standing near a gate at the entrance to the place. As Perry walked past him to go along the path to the house he noticed that Roulston was carrying a sawn-off shotgun. Like a good deal of evidence in this case his description of what he did or saw is rather uncertain because he had been using drugs of one sort or another but he said he thought he had called out some sort of warning concerning the gun and then made himself scarce at the rear of the premises and found his way through neighbouring properties and back onto Walker Street where he again saw Roulston who by this time was walking away from the house. By then Beamsley had approached the gate and had been shot by Roulston at a range of 6 to 12 feet. After falling to the ground he managed to get to the kitchen of the house where he collapsed. An hour later he died at the hospital to which he had been taken by ambulance.

Steel’s evidence is that as he started to walk up the path he heard a bang and turned round to see Beamsley lying on the ground. Beamsley then jumped up and ran towards the house.  [*8] The note of Steel’s evidence then reads:

Q Did you say anything to [Roulston]? A Yes I think I said, “You’ve shot him, what did you shoot him for,” or something like that. I could have said something more to him I can’t remember. I think I asked him why. I can’t remember what he said. He said something like, “Don’t worry Nev. I’m not going to shoot you”.

Q He said that quite clearly to you or was it hard to follow? A No quite clearly. I cxould have asked him why he had shot him I can’t remember. As to any discussion in the street about the events which happened in the kitchen, I think he said something about he was having a hard time.

Steel went on to say that he put out his hand to try to take the gun from Roulston who would not give it to him. Roulston then walked away down Walker Street.

{647} Not long after leaving Steel, Roulston appeared at the home of another friend named Edward and said “I think I’ve just shot Jug [Beamsley]”. Roulston was still carrying the shotgun and Edward took it and unloaded it without any resistance or comment by Roulston. According to Edward he then hid the weapon beneath the house and returned to Roulston who had been taken inside  [*9] by others. Edward said in evidence that he was uncertain whether to accept Roulston’s statement about Beamsley as true, that he felt shocked and wanted to think clearly what to do and in the end, for the next few hours, he and a companion drove Roulston to Christchurch looking for advice and help in regard to the matter. They finally returned Roulston to his home in Ashburton at about 11.30 pm and the police took him into custody three hours later. When interviewed by a detective sergeant Roulston answered questions about the shooting to the effect that he had walked to the gate where he saw Beamsley; that he thought he had to shoot or he would go mad and be shot; and “that it had to happen”.

The first ground of appeal is that the verdict was one that a reasonable jury, properly directed, could not have arrived at. The argument depends entirely upon an analysis of the considerable volume of psychiatric evidence given by five doctors (three called on behalf of the appellant and two by the Crown) because otherwise the facts surrounding the shooting would certainly prompt the clear inferece that Roulston intended to kill or to cause bodily injury known by him to be likely to cause [*10] death and in circumstances where he was reckless as to whether death ensued or not. The weapon used was a sawn-off shotgun. He had obtained it only a short time earlier from his home together with several rounds of ammunition. Then, at the critical time, he appears to have allowed Perry and Steel to go past him before using the weapon upon Beamsley who was shot at a range of 6 to 12 feet. He then made his way to the place occupied by his friend Edward within minutes of the shooting and said that he thought he had shot Beamsley. At 3.15 am after he had been taken into custody he gave explanations to the police which would enable the jury to conclude that nine hours earlier he had appreciated what he had been doing and that the shot had been fired not merely with deliberation but with a murderous intent.

The analysis of the medical evidence was undertaken on the appellant’s behalf in order to demonstrate that it must have raised a reasonable doubt as to whether he had been capable at the time of the shooting of forming any criminal intention. And the argument included a basic assumption that if by reason of some degree of a disease of the mind he may have been incapable of understanding [*11] the nature and quality of what he was doing then it followed automatically that the Crown had failed to discharge the onus of proving the essential ingredient of mens rea. The validity of that assumption depends upon the outcome of a separate ground of appeal which relates to the summing up — that is, that the judge was wrong in directing the jury that the onus of proof in relation to the defence of insanity lay upon the accused. It is convenient to deal with the issue at this point.

On the basis that the onus always rests upon the Crown to prove criminal intent counsel contended in effect that it was paradoxical and even incongruous that contemporaneously an accused person (in terms of what counsel described as the “orthodox” view) should be expected to demonstrate affirmatively that by reason of disease of the mind he had not been capable at the relevant time of understanding either the physical or moral quality of what he was doing. In his submission the situation created a logical difficulty which could not be resolved unless the onus upon the accused to answer the presumption of sanity referred to in s 23(1) of the {648} Crimes Act could be met simply by providing evidence [*12] of the existence of a disease of the mind; and without some further need to prove that the disease had produced an incapacity of the type and degree outlined in s 23(2). As a gloss upon the general submission he argued as well that it was not necessary for the accused to show the probable presence of a disease of the mind: it would be enough to provide evidence that merely indicated such a disease.

Firt, we do not accept the gloss. Counsel described it as an “evidential burden” upon the accused. It was, he said, a burden limited to the need to lay some foundation for the defence of insanity but when that had been done the general burden of proving the charge would require the Crown to exclude it beyond reasonable doubt. It is the sort of argument put forward (albeit in a different context) in Jayasena v The Queen [1970] AC 618; [1970] 1 All ER 219; and it was rejected for the reasons given by Lord Devlin (ibid, 624-626; 221-224) which are equally applicable and compelling in the present case.

The remaining part of the general submission is concerned with the apparent paradox that co-existent with the onus on the Crown to prove the criminal intent going [*13] with the actus reus the accused, relying on the insanity defence, must prove an incapacity to understand the nature and quality of the same act. It appears to be a variant of a submission advanced in Bratty v Attorney-General for Northern Ireland [1963] AC 386; [1961] 3 All ER 523, and was answered by Lord Denning in the following terms:

“. . . I think that the difficulty is to be resolved by remembering that, whilst the ultimate burden rests on the Crown of proving every element essential in the crime, nevertheless in order to prove that the act was a voluntary act, the Crown is entitled to rely on the presumption that every man has sufficient mental capacity to be responsible for his crime: and that if the defence wish to displace that presumption they must give some evidence from which the contrary may reasonably be inferred” (ibid, 413; 534-535).

The same point is referred to by North J in R v Cottle [1958] NZLR 999 where mixed questions arose as to insanity and automatism. He said:

“. . . I think the trial Judge was obliged also to deal with the case on the assumption that the jury might be of opinion that it had not been shown that the prisoner [*14] was suffering from a disease of the mind, for this in the final result is within the province of the jury. In the ordinary run of cases, no difficulty would be experienced for, if the jury rejected the defence of insanity, a verdict of guilty would be likely to be given. This for the reason that the jury would only go on to consider the special defence, if it were already convinced that the Crown had proved to its complete satisfaction that the act had been committed by the prisoner and — if he was same — in circumstances which compelled the conclusion that the act was deliberate and intentional” (ibid, 1029).

In the later case of R v Burr [1969] NZLR 736 he returned to the matter. He said:

“It is therefore desirable, I think, to begin by looking at the way the law views responsibility for crime in a general way. As I see the matter, in the interests of society, the law has found it necessary to adopt a pragmatic approach to responsibility for crime. Some doctors who no doubt have a far more intimate knowledge of the workings of the mind take a different and broader view, but our law proceeds on the basis that everyone is presumed to be sane until the contrary is shown and  [*15] accordingly a man is presumed to intend the natural and probable consequences of his acts. Now, in my opinion, it is only in that way that {649} the criminal law could ever be satisfactorily administered from the point of view of society” (ibid, 743).

It may well be that when the evidence in a case is considered as a whole the initial presumption of sanity will fail to lead to a clear inference of mens rea and in that event the Crown will have failed at that first stage to take the case to the point when consideration of the defence of insanity will need to arise. But once, sanity being presumed, the necessary intent is clearly to be inferred, then the second stage of the inquiry will be whether the accused has shown in terms of s 23(2) of the Crimes Act that by reason of disease of the mind he did not appreciate either the physical or the moral quality of his acts. If he fails to show that this is more likely than not then the provisional presumption of sanity will not have been displaced, nor the consequential inference of capacity and intention.

Before leaving the general submissions concerning insanity it is necessary to mention two minor matters. Roper J’s explanation of [*16] the law was introduced by a brief statement that at this point in the case the accused said in effect, “Well, I fired the gun that killed Beamsley, I acted intentionally but I was insane and therefore not accountable for my actions in law”. The objection is taken that no concession had been made at any stage of the case or for any purpose that the appellant had acted intentionally, and the statement by the judge was therefore misleading and contributed to a miscarriage of justice. We do not agree. It was obviously intended as a brief prefatory remark in order that the jury would better be able to understand what he was about to say concerning the law and we are satisfied that it would have been understood in that sense. The other point relates to examples given by the judge to the jury of persons affected by a disease of the mind in the sense outlined in s 23(2) of the Crimes Act. He was attempting to draw the jury’s attention to the distinction between an understanding of the nature and quality of one’s actions, on the one hand, and their moral quality, on the other. In essence the criticism is that the graphic manifestations of insanity in the examples provided by the judge [*17] were so far removed from the symptoms of insanity relied upon in the present case as to suggest there could be nothing in the defence. We are unable to accept this criticism. On the contrary, we think that Roper J gave a careful and completely lucid explanation of the separate limbs of s 23(2).

We return to the first ground of appeal and to the medical evidence. As to this evidence it is certainly clear enough that in the opinion of some of the doctors Roulston at the relevant times was insane in the sense defined by s 23; and there is other evidence that his perception and understanding were gravely distorted, either by a psychiatric disorder or by the LSD he had taken or both. But the evaluation of all the medical evidence was fairly and squarely within the province of the jury and the two doctors called in rebuttal by the Crown were of the opinion that he was not insane in the criminal sense. Accordingly, we are satisfied that the jury was justified in rejecting the defence of insanity.

There remains the issue as to whether the appellant was incapable of forming any criminal intent or whether what he did was done in a state of automatism. As to this there is nothing to suggest [*18] that the jury excluded any part of the medical evidence in considering the issues raised or that they failed to act upon the direction given them that, insanity apart, the onus lay upon the Crown to prove all the ingredients of the crime, including, of course, intent. In our view, the opinions expressed upon the point by Dr Savage and in particular by Dr Hewland justified the jury’s conclusion that the appellant at the time of the shooting knew what he was doing, that what he was doing was wrong and that he was acting with conscious volition. There {650} was some criticism of the opinions reached by these two doctors upon the basis that their examinations of Roulston had been somewhat limited. It was said, too, that certain evidence of the doctors called on his behalf had not been put to them in any direct way so that their own opinion could have been given upon it. But the significance to be attached to criticism of this sort is entirely for the jury. In our opinion, the verdict of murder was open on the evidence and this ground of appeal must fail.

The second ground of appeal is concerned with a brief comment made by Roper J concerning the fact that the appellant was not  [*19] called to give evidence on his own behalf. He said:

“. . . there is no onus on an accused to prove anything apart from the matter of insanity and there is certainly no obligation upon him to give evidence. However, I feel justified in this case in expressing the view that it might have been of assistance in your inquiry, which is primarily one into his state of mind at a particular time, if you had had the opportunity to see its workings at first hand. I stress, however, that an accused is perfectly entitled to sit silent and many accused persons do.”

Those three sentences appear at the end of a passage in the summing up where the judge had referred to the alternative verdicts that were open to the jury, including insanity and automatism, and the state of mind that was referable in each situation. Having done that the comment concerning the failure to give evidence was immediately prefaced by a statement:

“We are dealing here with an incident which involved two main participants, Beamsley and the accused Roulston. There is no dispute that Roulston’s hand held the gun when Beamsley was short. Beamsley is dead, and the whole of this case has developted into an inquiry as to Roulston’s [*20] state of mind at the time of that incident. Now his actions, words, thoughts on that fatal day have come to you through others, much of it in a sense filtered through a psychiatric screen.”

Concerning this part of the summing up it was argued that the inference that the jury would draw from the judge’s remarks was that there might not be any real substance in the defences of the accused referable to his state of mind; that it was unreasonable to expect an accused person to give evidence where a defence of insanity had been put forward; that the judge failed to advert to the reasons that could justify the failure to give evidence; and that no real explanation was given as to the use the jury could make of the failure to give evidence taking into account the various defences that had been put forward.

When the exercise of a judicial discretion is under review the issue is not, of course, whether one would necessarily have exercised the discretion in the same way or at all. And in cases where a comment by the judge upon a failure to give evidence is justified the general principle was laid down as long ago as 1898 by Lord Russell of Killowen C J in R v Rhodes [1899] 1 QB 77 [*21] when he said:

“The nature and degree of such comment must rest entirely in the discretion of the judge who tries the case; and it is impossible to lay down any rule as to the cases in which he ought or ought not to comment on the failure of the prisoner to give evidence, or as to what those comments should be” (ibid, 83).

Of course the comment should be fair and it should be appropriate to the circumstances of the case. In R v Bathurst [1968] 2 QB 99; [1968] 1 All ER 1175 (relied upon by the appellant) a defence of diminished responsibility was relied upon by the accused in order to reduce murder to manslaughter. A strong comment had been made by the judge concerning the failure of the accused to give evidence and Lord Parker C J drew attention to the obvious {651} absurdity of expecting that an accused person should give evidence in such a case in order to demonstrate that he was not altogether sane.

The situation here is very different. An important part of the defence was that the appellant acted automatically, in some sort of trance, and so had been unable to relate his mind to his actions. Moreover, his counsel tendered [*22] a great deal of hearsay evidence from the psychiatrists which dealt with the appellant’s descriptions to them of what had taken place at the time of the shooting, and why. Although this evidence was put forward in order to provide a foundation for their professional opinions about his state of mind it also amounted to an important exclupatory account by him of what happened, but provided at second hand through the doctors. In the circumstances it was not unreasonable for Roper J to conclude that the jury may have derived some assistance if they had been able to consider the material from Roulston’s own lips. The acceptance on the appellant’s behalf that he had shot Beamsley with a sawn-off shotgun at point black range followed by the medical evidence designed to show an absence of conscious volition comes close to the situation of “confession and avoidance”, mentioned by Lawton L J in R v Mutch [1973] 1 All ER 178, 181. The factual circumstances of what could be regarded as a deliberate shooting were not in question but the defence of automatism very much was; and the appellant’s explanations to the doctors were an essential part of that defence. Those [*23] explanations were used as a basis for professional opinions but a great deal of the material was susceptible of lay evaluation in a fair and balanced way by the jury and certainly it was likely to have some influence upon the decisions they had to make. Roper J seems to have considered that in the circumstances it deserved some sort of confirmation by teh appellant in evidence. We think that was a justified attitude and also that the jury was well able to appreciate that the comment he made was directed to the automatism defence. It is right to add that considered in terms of likely impact it would be difficult to find a comment upon the failure of an accused person to give evidence put so mildly or with such fair restraint.

The next general ground of appeal is that there was an inadequate direction in relation to manslaughter. It was accepted by counsel that the jury was properly directed concerning mansaughter resulting from an assault. He contende,d however, that it was necessary for the judge to go on to direct them that by reason of s 156 of the Crimes Act, or s 16 of the Arms Act 1958, the negligent use of a firearm could be unlawful and that if the death was caused by  [*24] such negligence that too would lead to a verdict of manslaughter. In this regard there was no suggestion that the weapon was fired accidentally. The argument rested on a theory that although Roulston intended to fire the shot he may not have intended to fire at Beamsley but merely to fire near to him. It was said that the failure to canvass this theory may have led the jury to ignore manslaughter as a genuine alternative to murder and that there was an obligation upon Roper J to open up this alternative version of what may have happened although counsel had not raised the question at any stage of the trial. We were referred to a number of cases including mancini v Director of Public Prosecutions [1942] AC 1, 8; [1941] 3 All ER 272, 276-277, and R v Stuck [1949] NZLR 108.

It is true, of course, that a judge is oblidged to deal with a defence which is properly open on the evidence although it may not have been referred to by counsel for the accused. But we are satisfied that the principle does not support the present submission in the circumstances of this case. The evidence does not readily lend itself to the rather strained inference that a shot fired [*25] with deliberation at a range of 6 to 12 feet was intended to pass by rather than hit the deceased. In any event, Roper J himself did not dismiss as {652} fanciful an inference that the weapon could have been fired intentionally at Beamsley yet without the added intention to kill. What he said upon the subject needs to be repeated. At the conclusion of a review of the medical evidence he interpreted the opinions of the two doctors called by the Crown on the basis that they thought Rouslton had possessed some ability to reason although not completely.

He then added:

“You might well conclude from teh combined evidence that they gave that their conclusion was that while the accused did not have the intent to kill because of his disordered mind, he did intend to shoot, that is the intentional application of force.”

Then, when dealing directly with manslaughter, he said:

“Now the next defence to be considered here is that while the accused may have acted voluntarily and his actions were subject to the exercise of his will, he was so affected by the drug LSD that he was incapable of forming the intents necessary for the crime of murder. Or that he did not in fact form them. That is,  [*26] the intent to kill and the intent to kill recklessly. He fired intentionally but because of the disordered state of his mind at that time he could not or did not form the necessary intent.

“. . . However, you could well have the situation where you were satisfied that an accused had killed by an unlawful act, that is the intentional application of force, intending to fire the gun, but he left in reasonable doubt on all the evidence, including the evidence of drug taking and its effects, that because of that he was incapable of forming the intent to kill or kill recklessly or did not in fact form either of those intentions.”

A little later in the summing up he referred to the apparent lack of motive for the shooting and after remarking that there was no obligation on the Crown to prove motive he added:

“. . . of course as a matter of common sense the apparent lack of it, if there is an apparent lack, must be a consideration to be taken into account particularly on this question of the intent to kill or kill recklessly.”

In this area of the summing up he concluded by saying:

“If you are satisfied beyond reasonable doubt that the accused, when he fired at Beamsley did so intentionally,  [*27] for whatever reason, but he did it intentionally, his will going to the act, doing it voluntarily whatever he may have intended by it, but are left with a reasonable doubt as to whether at that time he had the intent to kill or kill recklessly because of his state, your verdict would be not guilty of murder but guilty of manslaughter.”

It is perfectly plain from those extracts from the summing up that the issue of manslaughter in this case was left as wide open as it could possibly be. Furthermore, Roper J himself clearly regarded the defence as one that required and deserved careful consideration; and by summarising the medical evidence given for the Crown in the way that he did he came close to inviting the jury to regard the opinions of those two doctors as leading to a manslaughter verdict. It should be appreciated, we think, that a new trial was ordered in R v Stuck [1949] NZLR 108 because the hypothesis suggested in the summing up for a verdict of manslaughter was limited to provocation, something that was not suggested by the evidence, while some foundation in accused’s statement for the accidental firing of the weapon by reason of its negligent use was ignored as a basis [*28] for a manslaughter verdict. It is certainly unnecessary, and often it would be undesirable, for a judge who had carefully {653} explained some credible basis for a manslaughter verdict to then proceed to examine other speculative alternatives that had not been raised at any time during the trial. In the present case we are clearly of the opinion that Roper J was quite right to leave the matter where he did.

An associated criticism of the summing up was directed to an answer he gave to a question asked by the jury after they had retired to consider their verdict. The question reads:

“If he does not understand the implication of his actions due to the ingestion of LSD is this a defence against murder, that is, does it make it manslaughter?”

The judge confined his answer to a discussion of the intent needed to justify a verdict of murder and he did not repeat the explanations he had given earlier that if Roulston had been incapable of forming the necessary intent involved in the concept of assault that he would be entitled to an acquittal. The criticism is related to that last point and the short answer to it is that the jury could not have been misled because by their verdict  [*29] of murder it is clear that the question was directed to the issue as to whether they should reduce murder to manslaughter and not whether they could or should go to an acquittal.

There are two other minor criticisms of the directions given to the jury. They relate to the discussion of the defence of lack of voluntary action. On the one hand there is a complaint that Roper J failed to remind the jury sufficiently of the medical evidence in this part of the case. As to this he had discussed the various implications arising fromt eh evidence when dealing with insanity and, in our opinion, it was quite unnecessary and may have been confusing for him to reiterate what he had said to the jury so recently concerning these matters. The other point concerns the judge’s treatment of a contention that Roulston had been so affected by LSD as to regard himself as no more than a “spectator” of what occurred at the time of the shooting. We think there is nothing in this matter. Nor can we find any justification for a more general submission that there was a failure to put the defence adequately to teh jury. In this regard the judge must, of course, put the defence forward in a fair and balanced [*30] fashion but there is no need for him to refer to every fine facet of the case: see R v Ryan [1973] 2 NZLR 611. We are satisfied that here Roper J provided the jury with an admirably coherent and comprehensive survey of the various defences that had been raised on the appellant’s behalf and in no sense could anything further reasonably have been required of him.

Before leaving the summing up it is necessary to mention a matter raised on behalf of the Crown. In R v Grice [1975] 1 NZLR 760, this court, in the light of certain Australian decisions, left open the question whether (apart from teh defence of insanity) drunkenness or durg-taking can do more than reduce murder to manslaughter. Among other things it was indicated that criminal negligence had not been in issue at the trial in that case. Since then the House of Lords has held in R v Majewski [1976] 2 WLR 623; [1976] 2 All ER 142 that self-induced intoxication is not a defence to crimes of basic intent. In the present case Roper J took a different view. He directed the jury to the effect that even to prove manslaughter the Crown had to prove that the accused fired at  [*31] Beamsley intentonally; and that this burden would not be discharged if for any reason the jury were left in reasonable doubt about whether the accused’s action in firing was voluntary. That is to say, the summing up proceeded on the basis that self-induced intoxication could be a defence to manslaughter. On the argument of the appeal the Solicitor-General requested that this question and the whole question of the applicability or otherwise of Majewski’s case in New Zealand be kept open. By arrangement {654} between counsel no argument was submitted on these questions. They must still be regarded as open.

The final issue raises a different question. It involves a complaint that Crown counsel at the trial exceeded the bounds of propriety in his final address in that he did not put the case fairly or completely to the jury (cf R v Thomas (No 2) [1974] 1 NZLR 658); and in general that he used emotive and inflammatory language in order to persuade the jury to a point of view which was not justified by the evidence. It is a complaint that fortunately is rarely levelled at the conduct of prosecuting counsel in this country. In the Thomas case the Crown Prosecutor was criticised on [*32] the basis that he had made certain unreasonable submissions upon the evidence but, after pointing out that the interests of justice did not involve merely the interests of the accused concerned, this court stated that it was satisfied that nothing improper had taken place. On the other hand it has always been recognised that prosecuting counsel must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person. Naturally enough a proper balance needs to be maintained. The view expressed in 10 Halsbury’s Laws of England (3rd ed) para 761 that prosecuting counsel “should regard themselves as ministers of justice assisting in its administration” ought not to lead to the assumption of a role so emasculated as to merit Lord Devlin’s remarks in Trial by Jury (1966 ed) 122-123:

“. . . in some places the pendulum has swung so far, and the ministry has moved so close to the opposition, that the prosecution’s [*33] case is not adequatly presented, and counsel, frightened of being accused of an excess of fervour, tend to do little except talk of reasonable doubt and leave the final speech on the facts to the judge.”

The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial. With those considerations in mind we turn to the extracts from the agreed transcript of the address which are the subject-matter of the complaint. At an early stage of the address counsel said:

“Yet the defence says that Roulston should be completely acquitted, that is, to leave the court without [*34] conviction — a free man. Can society stand for that — for a man being shot in such brutality in such circumstances. That is one of the tests which you will have to apply when dealing with this case.”

Then, having referred to the appellant’s movements after leaving by taxi from his sister’s home he said:

“His [Roulston’s] movments for the next half hour or more are not covered by the evidence, but you may feel that it would be a fair inference to suggest that he remained at the back of 103 Walker Street until about five to six in ambush with his assassin’s short range gun and that he waited for his victim to come along.”

{655} A little later there are comments to the effect that Steel had spoken to the accused:

“. . . alleging that he said to the accused that the accused had shot Jug, why did he do it and that the accused said something to him quite clearly like ‘Don’t worry Nev I’m not going to shoot you'”, and that:

“. . . it is the Crown’s case that, on this evidence, you could conclude that the accused had deliberately and selectively with cold callous indifference shot and killed his friend Beamsley. . .”.

There is a further complaint that Crown counsel suggested to the [*35] jury that “when the local doctor examined [Roulston at the police station] he had not had time to concoct a story that might assist his defence later”, and that the jury:

“. . . should be on the lookout for a measure of cunning on the part of this accused, on his state of mind immediately after the shooting, before he had these many visitations by specialists and before he had had time to think and work out with the aid of matters he could recollect later some form of defence involving his mental state.”

A final complaint is that although Crown counsel knew that the judge had already ruled that the defence of lack of voluntary action or automatism consequent upon self-induced intoxication would be left to the jury (so as to permit the jury to return a verdict of “not guilty”) counsel said:

“The Crown submits that the mere taking of LSD should not be accepted as an absolute defence for murder nor for any other criminal offence . . . . If it were a complete defence, a man who had partaken of the drug could come out of a house, and say rape a woman, criminally assault a child or drive a car and in that way kill someone else and could escape scot-free. . . . Assuming that the driver [*36] of a car affected by LSD felt himself to be a pilot of a 747, tried to take off and crashed headlong into a vehicle approaching from the opposite direction, are these persons who voluntary [sic] take LSD to escape any penalty to go scot-free for the crimes that they commit while under the influenences of drugs.”

Those various remarks were made in the course of an address to the jury which covered a good deal of territory and no doubt occupied some significant period of time, so they need to be evaluated within that much wider context. That is what we have attempted to do. But having made all proper allowance for that factor we find it necessary to describe some of the language used and the general implication that can be drawn from some of those extracts as prejudicial and unfair. A sawn-off shotgun is likely to be regarded as a deadly enough weapon without describing it in terms of an assassin’s short range gun; and the degree of cold calculation by Roulston which the jury was invited to associate with his actions received no support even from the doctors called by the prosecution itself. And if the final comments were made with foreknowledge of the judge’s direction to the jury [*37] upon the point, they were inexcusable. Even in a civil action no counsel is entitled to attempt to mitigate in advance the effect of a direction in law that he knows will be given by the judge. His remedy lies elsewhere. Moreover, whatever counsel may have wished to convey to the jury the metaphorical licence he employed was far-fetched and remote from both the facts of this case and the law applicable to them.

In the circumstances it has been necessary to consider with particular care the possible effect of the remarks — Whether they may have improperly influenced the jury. Finally, after taking into account the rest of the address and the whole course of the trial we are left satisfied that in the end the real issues in the case were kept in balance. Our reasons are these:

First, the transcript of evidence demonstrates that despite the {656} extravagant language he employed at the end of the case counsel’s conduct during the trial itself was entirely fair.

Second, but for the extracts we have taken from the final address the address itself was a firm but reasoned and entirely professional review of the case — as we would have expected. It needs to be kept in mind as well [*38] that of necessity we have had to repeat in close sequence the various extracts from counsel’s address. In quite a long address they were, of course, isolated from one another. Set out seriatim as they appear in this judgment we are satisfied that they have much greater force and impact than could have been the case on the occasion.

Third, we were told by Mr Erber from the bar that during his own final address (which of course immediately followed upon that of prosecuting counsel) he did what he could in a positive way to redress the damage that he felt had been done to the appellant.

Fourth, there is the supervision of the trial that was exercised on the occasion by Roper J. Mr Erber submitted that the judge should have prevented prosecuting counsel from continuing to deal with the issues as he did and should have expressly told the jury in his summing up that they should not be influenced by the remarks we have quoted. The fact is the judge did not interrupt. He may have felt at the time that the matter had not been taken to a level that warranted action by him. It may be that he felt that what had been said could not be erased and might be given an undesirable emphasis were [*39] he to interfere. But what he did do was to provide for the jury a clear and dispassionate review of the whole case which we think at the very outset succeeded in bringing the jury to recognise the importance of putting aside any sort of moral judgment based upon emotional considerations. He then said:

“That brings me to one of the most important matters I must mention and both counsel have stressed it, that you must do your utmost not to be influenced by any feelings of disgust, sympathy, ill-will or abhorrence about the drug question. No emotion whatsoever whether directed to the accused or anyone else connected with this trial. You have to give the matter calm and fair-minded consideration.

“It is probably almost impossible for you to imagine yourself in the unfortunate position of this accused, but in the course of your deliberations it might not be a bad thing to consider yourself in that situation and then give the case the thoughtful and careful consideration you would want others to give your case.”

He added:

“I think there is a good deal of force in what Mr Erber said that we are dealing here with an alleged offence said to have been committed under the effect of an hallucinatory [*40] drug. . .”.

Earlier in this judgment we have referred to other passages from the summing up that were not unsympathetic to the arguments advanced on the appellant’s behalf and when it is read as a whole we feel satisfied that the remarks made by the Crown counsel were left in proper perspective.

In the result, although some of the remarks which we have quoted were unfair and objectionable when taken by themselves, we are satisfied nevertheless that there is no real risk that they wrongly influenced the verdict and for that reason they did not result in an unfair trial.

We have now dealt with the various matters raised in support of the appeal. For the reasons we have given the appeal is dismissed.

Appeal dismissed.

Solicitors for the Crown: Crown Law Office (Wellington). #020509M001USPENK#

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