OSBORNE v R [2020] NZCA 192

OSBORNE v R [2020] NZCA 192 [28 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA179/2008[2020] NZCA 192BETWEEN RATIMA JOSEPH OSBORNEApplicantAND THE QUEENRespondentHearing: 30 April 2020Court: Kós P, Miller and Collins JJCounsel: V C Nisbet and S W O Campbell for ApplicantK S Grau for RespondentJudgment: 28 May 2020 at 2.30 pmJUDGMENT OF THE COURTThe application for recall of judgment Osborne v R [2010] NZCA 372 is declined.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 27 May 2002, Mr Osborne, who at the time was 17 years old, pleaded guiltyto having murdered Mr Johnson on 9 July 2001. He was sentenced by Potter J to lifeimprisonment immediately after he entered his guilty plea. It appears the Crown didnot seek a minimum period of imprisonment (MPI) greater than the statutory minimumof 10 years.11 Criminal Justice Act 1985, s 80.[2] On 16 August 2010, this Court dismissed Mr Osborne's appeal againstconviction.2 It did so after being satisfied no miscarriage of justice arose throughMr Osborne having pleaded guilty to murder. Two grounds were relied upon insupport of the appeal:3(a) His trial lawyer, Mr Fairbrother, gave wrong advice to Mr Osborne toplead guilty. This argument was founded on the proposition that thepartial defence of provocation was available to Mr Osborne and that hecould also have relied upon the defence that he lacked murderousintent.4(b) Mr Osborne did not understand what he was doing when he pleadedguilty.[3] Mr Osborne then sought leave to appeal to the Supreme Court. He acted forhimself when he made that application. In the Supreme Court Mr Osborne disavowedany reliance on the partial defence of provocation. Instead, he raised an alibiargument. The application for leave to appeal to the Supreme Court was dismissed on10 November 2010, with the Supreme Court finding that no miscarriage of justicearose from Mr Osborne's guilty plea and that his proposed appeal had no prospects ofsuccess.5[4] Mr Osborne now applies to have this Court exercise its inherent power to recallits judgment of 16 August 2010. In exceptional cases this Court may revisit itsdetermination of a criminal appeal. The scope of this jurisdiction, however, is verylimited and requires Mr Osborne to satisfy three criteria:62 Osborne v R [2010] NZCA 372.3 R v Le Page [2005] 2 NZLR 845 (CA) at [16], citing R v Stretch [1982] 1 NZLR 225 (CA); andR v Ripia [1985] 1 NZLR 122 (CA). See also Whichman v R [2018] NZCA 519 at [35]; and Millsv R [2020] NZCA 88 at [22].4 Crimes Act 1961, s 169. This defence was repealed on 8 December 2009 by s 4 of the Crimes(Provocation Repeal) Amendment Act 2009.5 Osborne v R [2010] NZSC 134.6 R v Smith [2003] 3 NZLR 617 (CA) at [36]; Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at[27]; and McMaster v R [2016] NZCA 612 at [62].(a) that there was a "fundamental error in procedure" that causedsomething to go "seriously wrong with the appeal process"; and(b) a substantial miscarriage of justice would result if the error is notcorrected; and(c) there is no alternative remedy available.[5] Mr Osborne argues that an error of procedure occurred when this Courtdetermined his appeal against conviction. It is argued this Court:(a) failed to evaluate evidence that supported the argument Mr Osbornecould have relied on the partial defence of provocation had he stoodtrial; and(b) failed to take into account evidence of Mr Osborne's inability tounderstand what he was doing when he pleaded guilty. Support for thisargument is said to be contained in a psychiatric report fromDr McCormick prepared in 2009, which was provided to this Courtwhen it heard Mr Osborne's appeal, and in a further psychiatric reportprepared by Dr Judson on 14 October 2019.It is contended that either or both of these scenarios led to a substantial miscarriage ofjustice.BackgroundThe offending[6] The Crown case is that on the day he was killed Mr Johnson was hitchhikingnear Taupō. He was picked up by Mr Osborne, who drove to a secluded spot on thebanks of Lake Whakamaru, which forms part of the Waikato River. There,Mr Osborne attacked Mr Johnson, ran over his body with his vehicle and then threwMr Johnson's dead body into the river. The next day Mr Osborne and his father setfire to Mr Osborne's car in an effort to destroy evidence of the homicide.Mr Osborne's father pleaded guilty to being an accessory after the fact. That plea wasentered on the same day Mr Osborne pleaded guilty to murder.[7] The forensic evidence suggested Mr Johnson had been subjected to aprolonged and brutal attack. His physical injuries included extensive scalp lacerationsand deep wounds to the back of his head. Mr Johnson also suffered extensive injuriesto his face, arms, back and legs. He had a burn wound over his right thigh and buttockconsistent with injuries caused by him having been run over by a vehicle and draggedsome distance. The scene of the homicide included two distinct pools of congealedblood. The pathologist who conducted the post-mortem concluded Mr Johnson haddied from "hypovolemic shock" arising from extensive bleeding from his scalp andhead injuries. He concluded the injuries were inflicted over a two to four-hour periodprior to death. Another pathologist reasoned that the time from the assault to deathwas likely to have been three to four hours.Statements made by Mr Osborne[8] On 13 July 2001, the police arrested Mr Osborne in relation to an aggravatedrobbery that had occurred on the same day as Mr Johnson was killed. During thecourse of investigating that robbery the police started to suspect Mr Osborne may havekilled Mr Johnson. He was interviewed and made three contradictory statements tothe police.[9] In his first statement made on 27 July 2001, Mr Osborne said that two men,Mr Rapatini and Mr Ratima, had borrowed Mr Osborne's car and killed Mr Johnsonbefore returning the bloodstained vehicle to him. Mr Osborne maintained he was notpresent when Mr Johnson was killed.[10] In his second statement, Mr Osborne said he was present with Mr Rapatini andMr Ratima when they assaulted Mr Johnson. Mr Osborne said he drove his car intoMr Johnson after receiving an inducement from Mr Rapatini to be "patched up" if heran over Mr Johnson. We understand this was an offer for Mr Osborne to become afull member of the Mongrel Mob if he did as he was told.[11] Mr Osborne's third statement to the police was relatively brief. Before theinterview recording system started, Mr Osborne told the interviewing officer that hewas solely responsible for Mr Johnson's death. Once the video recording started,however, Mr Osborne recanted his admission.[12] Mr Osborne was arrested and charged with murder on 30 July 2001. Soonthereafter Mr Fairbrother was instructed to represent Mr Osborne. While he was onremand, Mr Osborne made a statement to a fellow prisoner in which he said that whenhe was driving Mr Johnson north of Taupō, the deceased placed his hand onMr Osborne's thigh. Mr Osborne interpreted this as an unwanted sexual advance byMr Johnson. There was some support for this account, as there was evidence thatMr Johnson had made advances to other men in Taupō on the day he was killed.[13] Mr Fairbrother considered this account may provide a basis for the partialdefence of provocation. Three questions relevant to this defence were:7(a) whether the provocation did cause Mr Osborne to lose the power ofself-control; and, if so,(b) did that lead to him killing Mr Johnson; and(c) whether the provocation relied on was sufficient to deprive an ordinaryperson with Mr Osborne's characteristics of the power of self-control.[14] Mr Fairbrother arranged for Mr Osborne to be interviewed by another barrister,Mr Farquhar. That interview occurred on 31 October 2001. In that statement,Mr Osborne said he picked Mr Johnson up in Taupō and drove him north. Soon afterMr Johnson got into the car he placed his hand on Mr Osborne's thigh. Mr Osbornestopped his car and told Mr Johnson to get out. Mr Johnson continued to makeadvances towards Mr Osborne. Mr Osborne responded by striking Mr Johnson on thenose. Mr Johnson got out of the car and opened the driver's door. A fight then ensuedduring which Mr Johnson called Mr Osborne "boy" and told him that he was "goingto get it". At one point, Mr Osborne said he put on a pair of steel-capped boots and7 R v Timoti [2005] NZSC 37, [2006] 1 NZLR 323 at [33].kicked Mr Johnson several times. Mr Osborne then said he forced Mr Johnson, whowas still conscious, to the side of the lake and pushed him in. Mr Osborne claimed hethen drove off leaving Mr Johnson standing in the lake and remonstrating. In thisstatement, Mr Osborne said that he had "lost it" and "started freaking out" because ofMr Johnson's sexual advances and that he had no intention of killing the deceased.[15] Mr Fairbrother sought a quote from a psychiatrist who may have been able toprovide a report on whether or not Mr Osborne had special characteristics, whichwould have made him more likely to lose self-control when faced with an unwantedsexual advance from another man. He thought that Mr Osborne might be diagnosedwith post-traumatic stress disorder. Ultimately, Mr Fairbrother did not pursue theoption of obtaining a psychiatric report prior to trial, as he did not understand thatMr Osborne's statement would support it. The statement spoke more of controlledanger than provocation. He did not believe there was sufficient material to justifyasking legal aid authorities to fund a psychiatric report.Circumstances of the guilty plea[16] During the days leading up to the scheduled commencement of the trial,Mr Fairbrother reviewed the evidence and concluded it would be in Mr Osborne's bestinterests to plead guilty to murder. Three factors underpinned this change of approach:(a) Mr Osborne would need to give evidence in order to establish thefactual foundations for the partial defence of provocation.Mr Fairbrother appreciated that Mr Osborne would be a poor witnessand that giving evidence was likely to further harm his position.(b) Mr Osborne's statement to Mr Farquhar was difficult to reconcile withthe forensic evidence, which showed Mr Johnson had died from aprolonged and vicious beating and that he had received injuriesconsistent with having been run over by a vehicle. The forensicevidence also conflicted with Mr Osborne's statement that Mr Johnsonwas conscious and was left standing in the waters of Lake Whakamaruwhen Mr Osborne left the scene.(c) There was a realistic possibility that by pleading guilty Mr Osbornecould avoid the imposition of an MPI greater than ten years.[17] On the morning the trial was scheduled to start, Mr Fairbrother met withMr Osborne to discuss a change of plea. Mr Fairbrother sought the assistance ofMs Cooper, his junior, to speak to his client. Mr Fairbrother thought that as Ms Cooperis Māori, she may have more easily related to Mr Osborne, who is also Māori.[18] Mr Osborne Snr, who was a member of the Mongrel Mob, also spoke to hisson about pleading guilty. He did so after Mr Fairbrother had taken instructions,though there is evidence that he had access to his son when they were on remand inthe same prison. Mr Nisbet characterised the involvement of Mr Osborne Snr in theplea as extremely irregular. It would cause concern if there were any suggestion thatMr Osborne Snr placed undue pressure on his son to plead guilty to murder, perhapsto protect other members of the Mongrel Mob. That possibility concerned Ms Cooperwhen she advised him. It was noted by this Court in its 2010 decision when it wassaid there had been references to a gang-related motive. This Court also noted that intwo of his statements Mr Osborne had named two other men who he claimed hadborrowed his car to murder Mr Johnson, only to later take sole responsibility.Mr Osborne does not say that he acted out of pressure from his father or the gang, orthat he has "taken the rap" for anyone else. He has never made that claim in any ofhis appeals.[19] All acknowledge the circumstances surrounding the change of plea were farfrom ideal. Mr Osborne was a young man with limited intellectual abilities, who hada very troubled upbringing which included alcohol, drug and sexual abuse.Mr Osborne went to Court on the morning his trial was to start, expecting to defendthe murder charge. The Judge did not place Mr Fairbrother under pressure of time.After empanelling the jury she sent the jury away for the morning and she allowedMr Fairbrother use of the courtroom. He deposed that she gave him "all the time [he]needed". But it must nonetheless have been a challenging experience for Mr Osborneto come to terms with the advice that he received from Mr Fairbrother and Ms Cooper,who deposed that he was shaking and began to cry during their interview. Mr Osbornedid, however, accept the advice that he was given. He signed an acknowledgementand pleaded guilty.2010 appeal[20] In April 2008 Mr Osborne filed an appeal against his conviction. In 2009 hewas granted an extension of time to pursue an appeal out of time.8 Ms Dyhrberg wasappointed to assist Mr Osborne in advancing his appeal.[21] An examination of Ms Dyhrberg's submissions reveal that the focus of theappeal was on the appropriateness of Mr Fairbrother's advice to Mr Osborne to pleadguilty. The essence of the arguments put forward by Ms Dyhrberg were:(a) Mr Johnson had engaged in two sexual advances on other men on theday he was killed. This evidence had been disclosed by the police andwas candidly acknowledged by the Crown.(b) Mr Osborne lost his self-control when Mr Johnson touched his thigh,and that loss of self-control led to him killing Mr Johnson. It was alsoargued, however, Mr Johnson lacked murderous intent.(c) Mr Osborne had special characteristics and that an ordinary person withhis characteristics would also have lost their power of self-control inthe circumstances that Mr Osborne found himself in.[22] The evidence of Mr Osborne having special characteristics was substantiallycontained in a psychiatric report prepared by Dr McCormick on 28 June 2009.Dr McCormick said Mr Osborne's description of events to Mr Farquhar was consistentwith a form of "dissociative state" that might be linked to Mr Osborne's childhoodexperiences of sexual abuse. Dr McCormick said:It is possible, therefore, that when the victim made homosexual advancestowards Osborne that he entered in to a flashback situation, Osborneexperiencing the man's homosexual advances as analogous to his own pastexperience(s) At some point he may well have been triggered in tomemories and feelings that had been repressed following his earlier abuse and8 Osborne v R [2009] NZCA 168.at some point he may have entered into a dissociative state. There is evidenceto suggest in Osborne's own statement that he began to experience a "rage"reaction which is suggestive of loss of control and may explain why theinjuries that he inflicted on the victim were so extensive.[23] While Ms Dyhrberg's submissions refer to there being a concern about whetherMr Fairbrother's advice was properly understood by Mr Osborne in circumstanceswhere the advice was given for the first time on the morning of trial, no attempt wasmade to argue that Mr Osborne lacked the requisite competence to plead guilty.[24] Mr Osborne and Mr Fairbrother gave evidence during the hearing of theappeal. This Court concluded:(a) Mr Osborne was not a truthful witness.9 He lied to the police multipletimes and he changed his version of events in this Court. Mr Osborne'sinability to give an accurate account of what happened would seriouslycompromise his ability to lay a factual foundation for the partialdefence of provocation.(b) The account Mr Osborne gave to Mr Farquhar was the most favourablestatement he made. It was, however, significantly at odds with thedetailed forensic evidence concerning the circumstances under whichMr Johnson was killed.10(c) The advice given by Mr Fairbrother was rational and did not amount totrial counsel error.11(d) Mr Osborne knew what he was doing when he entered his plea ofguilty.129 Osborne v R, above n 2, at [35].10 At [17]–[18].11 At [22]–[26].12 At [36]–[39].Recall application: additional evidence[25] Dr Judson's report contains information that was not before this Court in 2010.The key points that can be taken from Dr Judson's 2019 report are:(a) Mr Osborne had limited intellectual capacity. An Intelligence Quotient(IQ) assessment that was undertaken in February 2014 placedMr Osborne's IQ score at 70, which is on the border betweenintellectual disability and borderline intellectual functioning. It islikely, however, that his cognitive capacity was a little higher beforethe onset of schizophrenia, which was first diagnosed in 2011.(b) Psychiatric assessments of Mr Osborne in 2001 and 2002 led to adiagnosis of anti-social personality but no psychotic illness.(c) Evidence of psychotic illness in Mr Osborne began to emerge in 2006.He has been treated as a special patient since 2013, after he wasdiagnosed as suffering from schizophrenia.(d) Mr Osborne was probably suffering from a degree of intellectualimpairment at the time he entered his plea. He also had thedisadvantages of having been brought up in a neglectful familyenvironment that involved him having suffered sexual abuse.Mr Osborne became immersed in drugs and criminal offending at anearly age.(e) Mr Osborne's history of sexual abuse was summarised in the followingway by Dr Judson:It is reported on files that he had been sexually abused by amale cousin when he was 7 or 8 and subsequently by a femalecousin in his teens, and he has also spoken about beingsexually abused when in CYFS care [A]t the age of 14,when he made a suicide attempt by hanging, he had problemswith flashbacks of past [sexual] abuse.(f) Significantly, Dr Judson concluded that "[o]n balance" he was "notconvinced that [Mr Osborne's] capacity at the time of his trial wouldhave been sufficiently impaired to render him unfit to enter a plea".AnalysisWas there a "fundamental error in procedure?"[26] As this Court noted in Lyon v R,13 there are differences of view about the scopeof the requirement that there be a "fundamental error in procedure" as a preconditionto recalling a judgment. For present purposes, we proceed on the basis that afundamental error in a trial that was not addressed on appeal may engage the"fundamental error in procedure" precondition but without deciding the point.[27] Mr Osborne's application for recall is predicated on the argument that afundamental error of procedure occurred when this Court failed to mentionDr McCormick's 2009 report in its judgment. It is said that there was evidence thedeceased had made unwanted sexual advances on other men and that Dr McCormickand Dr Judson's reports lend weight to the claim that Mr Osborne may have beenprovoked at the time he killed Mr Johnson.[28] The difficulty which Mr Osborne's submissions fail to adequately address isthat this Court carefully assessed Mr Osborne's argument that the defence ofprovocation was available to him and concluded that the chances of provocationsucceeding were "remote".14 That conclusion was reached after this Court:(a) observed Mr Osborne give evidence. He was a poor witness, whoseaccounts of the circumstances surrounding Mr Johnson's death variedmarkedly. Mr Osborne's evolving explanations were highly unlikelyto provide a satisfactory platform for a provocation defence. They didnot indicate that he lost control; for example, he explained in hisstatement to Mr Farquhar that he had gone and put on his steel-capped13 Lyon v R, above n 6, at [28]–[29].14 Osborne v R, above n 2, at [21].boots during the assault. The evidence also suggested the assault onMr Johnson took place over a lengthy period of time;(b) concluded the most favourable narrative advanced by Mr Osborne wasseriously at odds with the detailed forensic evidence concerning thecircumstances of Mr Johnson's death; and(c) assessed Mr Fairbrother's explanation for deciding there was littleprospect of provocation succeeding. This Court agreed withMr Fairbrother's analysis.[29] This Court was confident there was not a sufficient factual basis to supportprovocation. Absent a realistic factual foundation for the defence it was not necessaryfor this Court to explore the special characteristics evidence set out in Dr McCormick'sevidence.[30] Mr Nisbet was very critical of the Court for what he characterised as a graveomission by failing to explore the question of special characteristics. However, sightshould not be lost of the fact that the appeal in 2010 was almost entirely focused uponwhether or not Mr Fairbrother erred when he concluded provocation was not a viableoption in Mr Osborne's case. Once the Court concluded there was no sound factualfoundation for provocation, the argument Mr Fairbrother had misled his client intopleading guilty evaporated. The new evidence from Dr Judson does not alter thatconclusion.[31] The argument that there was a fundamental error of procedure is also nowbased on the contention that this Court failed to give proper consideration to whetheror not Mr Osborne properly understood the advice that he was given and whether hehad the capacity to enter a guilty plea. As noted above, the written submissions ofcounsel at the 2010 hearing raised the possibility that Mr Osborne did not understandthe advice he was given but it was not suggested that he lacked competence to plead.[32] The difficulty with this argument is that although it is clear that Mr Osborneexperiences deficits in intellectual functioning and was intellectually impaired at thetime of his plea, there is still no evidence that he lacked capacity to plead. Dr Judson'sreport provides further details about Mr Osborne's limited intellectual capacity.Ultimately, however, Dr Judson thought it likely Mr Osborne had the requisite capacitywhen he entered his guilty plea in 2002. There is no doubt Mr Osborne was in aseriously disadvantaged position, but considerable care was taken by Mr Fairbrotherand Ms Cooper to explain the circumstances to him. Dr Judson's report stronglysupports the decision made by Ms Dyhrberg in 2010.[33] There is, therefore, no basis upon which we could conclude there was afundamental error of procedure in the 2010 appeal.Would a substantial miscarriage of justice arise if the application to recall is declined?[34] There are two limbs to this part of Mr Osborne's application. It is contended asubstantial miscarriage will arise because:(a) the provocation defence will not be able to be properly tested at trial;and(b) Mr Osborne lacked a proper understanding of what he was doing whenhe pleaded guilty.[35] We have already addressed these arguments when concluding there was not afundamental error of procedure. We accept that the circumstances surrounding theentry of the guilty plea are of concern, but the Court appreciated that in 2010. It heardevidence on the point. It then focused on the central question whether there was adefence. The difficulty that Mr Osborne faced then, and still faces, is that there is noclear narrative for provocation and none has been offered that can accommodate theforensic evidence. That being so, we are not satisfied that a miscarriage of justiceoccurred when Mr Osborne was persuaded there was no merit to pursuing aprovocation defence. Nor did any miscarriage of justice arise in relation to the wayMr Osborne changed his plea.Is there an alternative remedy available?[36] Mr Osborne's counsel accepts that an application to the Governor-General toexercise her prerogative of mercy powers is available but has not been pursued. It isalso possible Mr Osborne may be able to apply to the Criminal Cases ReviewCommission when it comes into being on 1 July 2020. There are, therefore, alternativeremedies available to a recall of this Court's 2010 judgment.[37] Mr Osborne's difficulties in pursuing a recall application are furthercompounded by the fact the Supreme Court has already determined no miscarriage ofjustice arose from the 2010 appeal. Absent any new evidence that might establish adefence, it is difficult to see how this Court can effectively overturn theSupreme Court's decision through the recall procedure. It will be for Mr Osborne andhis legal advisors to decide whether there is any merit in pursuing a further applicationfor leave to appeal to the Supreme Court.Result[38] None of the criteria required for a recall of this Court's judgment have beenestablished.[39] The application for recall of judgment Osborne v R [2010] NZCA 372 isdeclined.Solicitors:Crown Law Office, Wellington for Respondent