IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA496/2023
 [2024] NZCA 484

	
BETWEEN	
MICHAEL ROY FILOA
Appellant	
	
AND	
THE KING
Respondent	

Hearing:	
30 July 2024	

Court:	
Courtney, Mander and Walker JJ	

Counsel:	
M J Dyhrberg KC and H G de Groot for Appellant
A J Ewing and J G Fenton for Respondent	

Judgment:	
26 September 2024 at 11 am	

JUDGMENT OF THE COURT

The application for an extension of time to appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Mander J)
[1]	Michael Filoa was convicted by a jury in the Auckland High Court of the murder of Clifford Umuhuri.  He was sentenced to life imprisonment with a minimum period of imprisonment of 10 years and six months by the trial Judge, Harvey J, on 27 September 2022, but did not file an appeal against his conviction and sentence until 29 August 2023.  He seeks an extension of approximately 11 months to file his appeal out of time.  The Crown opposes the application for an extension of time, which was directed to be heard separately from the proposed appeal.
Background
The homicide
[2]	The circumstances of Mr Umuhuri’s death arose out of a drug transaction that went awry.  The transaction was to take place in the rear of a vehicle.  Messrs Filoa and Umuhuri got into the backseat.  Witnesses observed the car rocking back and forth before Mr Filoa exited the rear door.  He drew a gun which he fired twice into the car at Mr Umuhuri who died from the resulting bullet wounds.  The location of those wounds suggested Mr Umuhuri was not facing Mr Filoa when he was shot.
[3]	At trial, Mr Filoa gave evidence claiming he acted in self-defence.  On his account, he had been repeatedly struck in the face with a hard object by Mr Umuhuri in the rear of the vehicle.  After being assisted out of the vehicle by his associate, two of Mr Umuhuri’s companions advanced on him.  His associate ran away and Mr Filoa was left in a dazed state, leaning on the car door for support.  
[4]	Mr Filoa’s evidence was that he believed Mr Umuhuri had a gun.  He heard the words “it’s jammed” followed by loud clicks which, as he told the pre-sentence report writer, “he distinctively knew [to be caused by] a firearm”.  He could not see Mr Umuhuri in the backseat or a gun but believed what he heard was an attempt to fire at him.  In fear of his life, he drew his firearm and fired two shots into the vehicle.  Mr Filoa maintained he only wanted to deter Mr Umuhuri from harming him and was not aiming at anything in particular.
The trial
[5]	The Judge directed the jury about self-defence and provided a question trail that both parties agree was orthodox in its structure.  After posing sequential questions regarding Mr Filoa’s involvement in the homicide which included whether the jury was sure he had intentionally shot Mr Umuhuri (question 8), they were asked to address the issue of self-defence:
9. 	What were the circumstances as Mr Filoa believed them to be at the time he fired the two shots at Mr Umuhuri?
Go to question 10.
10. 	Given those circumstances, are you sure that Mr Filoa was not acting in defence of himself when he fired the two shots at Mr Umuhuri?
If your answer to question 10 is:
• 	“Yes”, go to question 12.
• 	“No” (that is, if you think it is reasonably possible that Mr Filoa was acting in defence of himself at that time), go to question 11.
11. 	Are you sure that the force used by Mr Filoa against Mr Umuhuri was not reasonable in the circumstances as Mr Filoa believed them to be?
If your answer to question 11 is:
• 	“Yes”, go to question 12.
• 	“No”, your verdict is Not Guilty to both murder and manslaughter.  …
[6]	Depending on the jury’s answers to the questions concerning self-defence, the jury were then required to address a series of questions regarding whether Mr Filoa had committed a culpable homicide, being either murder or manslaughter.  In respect of the allegation of murder, that, obviously enough, required the jury to answer questions that addressed whether Mr Filoa had a murderous intent.  The question trail therefore, as originally drafted, required the jury to address self-defence before the issue of murderous intent.  Only once self-defence had been excluded was the jury required to consider the issue of Mr Filoa’s intention at the time of the homicide.
[7]	During the course of its deliberations, the jury communicated it had reached an impasse on question 11, which concerned whether the force used by Mr Filoa was reasonable in the circumstances as he believed them to be.  The jury asked whether they could move onto question 17 that addressed whether the jury could be sure Mr Filoa had a murderous intent.
[8]	The Judge directed the jury they could proceed to consider that issue provided they returned to consider the proportionality of the force used (question 11).  Relevantly, the Judge directed the jury:
… if your answer to either question 17 [whether Mr Filoa had murderous intent] or 18 [whether Mr Filoa’s actions amounted to manslaughter] is “yes”, then you must return to question 11.  It is important that, in considering question 11, that this question is determined from the circumstances as Mr Filoa believed them to be (as per your question 9). 
i. 	If your answers to questions 11 and 17 are “yes”, then your verdict is guilty of murder.
…
[9]	Mr Filoa was acquitted of a charge of aggravated robbery but found guilty of murder.  
Explanation for delay
[10]	Mr Filoa has filed an affirmation in support of his application for an extension of time.  He states he “always intended to appeal” his convictions and “possibly” his sentence depending on advice he received regarding whether the latter was open to challenge.  He says he wanted Ms Dyhrberg KC, who had represented Mr Filoa’s associate at the trial, to act for him.  “[S]ometime after sentencing”, he spoke with Ms Dyhrberg and asked her if she could consider an appeal on his behalf.  She requested he send some correspondence and material to her so she could consider appeal points.  
[11]	In March 2023, Mr Filoa signed an authority for Ms Dyhrberg to act on his behalf.  Mr Filoa cannot explain what occurred between sentencing in September 2022 and March 2023.  After contacting Ms Dyhrberg, he “just assumed the process was working through, and I was just to be patient”.
The proposed appeal
[12]	Mr de Groot, on behalf of Mr Filoa, submitted the 10-month delay was not excessive, that it had been partially explained and was primarily the fault of counsel.  Having regard to the seriousness of the conviction and the imposition of life imprisonment, it was argued that Mr Filoa should be afforded an opportunity to appeal.  
[13]	Mr de Groot argued the Judge had erred in permitting the jury to proceed to consider the mental elements of murder after they had reached an impasse on self‑defence.  It was further submitted that the Judge’s summing up omitted particular directions regarding self-defence and the issue of murderous intent which were necessary on the facts of this case.  In relation to the proposed sentence appeal, counsel submitted the imposition of life imprisonment, as it had been argued at sentencing, was manifestly unjust.  
Relevant principles
[14]	The touchstone for extending time to appeal is the interests of justice in the particular circumstances of the individual case.  Relevant considerations include the length of the delay and whether it has been adequately explained.  The court may also have regard to the seriousness of the charges and the strength of the proposed grounds of appeal.  Finality in litigation has been recognised as a “powerful consideration”, as well as the impact on affected parties and any prejudice to the Crown.
Discussion
Sequence of jury’s assessment of reasonable force
[15]	Mr Filoa’s application for an extension of time is largely premised on the submitted strength of his proposed ground of appeal, that the Judge erred in permitting the jury to decide whether he had a murderous intent before having first resolved the issue of the proportionality of the force he used in defence of himself.  Mr de Groot emphasised that, in order for the Crown to prove culpable homicide, it must first establish the defendant has committed an unlawful act that was causative of the deceased’s death.  If a person is found to have acted in self-defence, their actions are justified and they cannot, as a matter of law, be held criminally liable.  
[16]	We accept it is for that reason that the issue of self-defence is conventionally considered before the question of a defendant’s intent.  However, it has equally been recognised by this Court that approaching these issues in a different sequence will not result in a miscarriage of justice, provided the trial judge has made it clear to the jury that self-defence is a complete answer to the charge.  
[17]	Mr de Groot drew heavily on this Court’s decision in Tobin v R, where the trial Judge directed the jury to consider self-defence only after it had determined whether the elements of a charge of wounding with intent to cause grievous bodily harm had been proved by the Crown.  That ordering of the issues was held to have given rise to a real risk of a miscarriage of justice because it required the jury to have accepted the Crown’s narrative and rejected the appellant’s version of events as to how the complainant’s injuries had possibly been caused accidentally.  
[18]	In Tobin, the respective cases of the Crown and the defence were not reconcilable and the binary nature of the competing narratives to be addressed in assessing whether the Crown had proved the charge risked pre-determining or skewing the question of whether the jury could be sure the appellant had not been acting in self‑defence.  That defence may have been available on either case, or a variation of both, and was required to be assessed on the basis of the circumstances as the appellant may have believed them to be. 
[19]	In contrast to the contest in Tobin, which has been described by this Court as a “decision on its own facts”, the jury in the present case were required to be sure that Mr Filoa had intentionally shot Mr Umuhuri prior to assessing self-defence.  Moreover, the jury had already progressed to the stage of being satisfied it was reasonably possible Mr Filoa had been acting in defence of himself at the time he fired the two shots at Mr Umuhuri.  It only reached an impasse when considering whether it could be sure the force Mr Filoa used was not reasonable in the circumstances as he believed them to be.  
[20]	Mr de Groot argued that Mr Filoa’s intention to either kill Mr Umuhuri or to cause him grievous bodily harm, in the knowledge that death could result, should not have informed the issue of whether the force was proportionate.  We do not accept that submission.  While a jury addressing that issue is judging the force used and not its outcome, the defendant’s intention is unavoidably relevant to its proportionality in the circumstances as they were understood by that defendant at the time.  The observations of this Court in Stretch v R are apposite to the current case:
… proper consideration of self-defence will necessarily involve the jury in considering a defendant’s mental state both in terms of the perceived threat and the intended force used in response.  The need to consider the defendant’s subjective intentions are inherent in both self-defence and mens rea. It will seldom be the case that where a jury is properly directed on both aspects, a miscarriage of justice will emerge from the sequence in which the jury was invited to consider the issues.  We do not consider one to have arisen here.
[21]	As more recently recognised by this Court in Warren v R, a failure to direct on self-defence prior to the elements of the charge will not necessarily result in a miscarriage of justice or preclude a proper consideration of self-defence.  Unlike in Tobin, we do not consider the sequence in which the jury considered self-defence and the mental elements of the offending was material in this case.  The Judge’s direction that the jury must return to the question of the reasonableness of the force, and that they had already concluded it was reasonably possible Mr Filoa had been acting in self-defence, meant there was no real risk of the jury having erred in their consideration of that issue.
[22]	The jury, after being permitted to consider whether Mr Filoa had a murderous state of mind, were expressly directed that if they came to such a conclusion they must return to consider whether the force used was reasonable in the circumstances as he believed them to be.  That question of the proportionality of the force may potentially have been informed by an assessment of whether Mr Filoa fired the gun with the intention either to deliberately inflict fatal force to Mr Umuhuri, to cause serious harm that he knew could result in Mr Umuhuri’s death, or with the absence of any such state of mind.  
[23]	Depending on the jury’s assessment, the type of force intended could logically be relevant to the question of its proportionality, at least where its application has ultimately resulted in death.  Importantly, as we have noted, the jury were explicitly directed to return to this issue and we see no risk of self-defence having not been properly considered by the jury on the basis it was a complete defence to the charge.
[24]	Having come to this conclusion, we do not consider there is any realistic scope to argue that a potential miscarriage of justice has been occasioned by allowing the jury to address whether Mr Filoa had a murderous intent when acting in defence of himself, before considering whether the force he used was reasonable in the circumstances as he believed them to be.
Trial Judge’s other directions
[25]	Mr Filoa also sought leave to appeal out of time on the basis of alleged deficiencies in the Judge’s summing up on self-defence and a reckless murderous intent.  
[26]	First, it was argued the Judge failed to focus the jury on the fact Mr Filoa was acting in the heat of the moment and to direct the jury that a person defending themselves cannot “weigh to a nicety the exact measure of [their] necessary defensive actions”.  We do not consider the omission of such a direction is reasonably capable of giving rise to a miscarriage of justice.  The rapid sequence of events in and around the vehicle would have been readily apparent to the jury.  When combined with the Judge’s reiterated direction that the jury were to proceed on the basis of the circumstances as Mr Filoa believed them to be at the time he fired at Mr Umuhuri, we do not consider there is scope to argue the jury may have applied an unrealistic degree of precision when assessing whether the force used was reasonable.  
[27]	We are reinforced in that view by the fact that Mr Filoa’s resort to his firearm was a deliberate action that required him to extract a two-foot long weapon from his trouser leg, which he then presented and fired.  On his own account, he only did so after he believed Mr Umuhuri had attempted to shoot him and he feared for his life.  In the circumstances of this case, where the proportionality issue turned on the jury’s assessment of Mr Filoa’s perception of the threat he faced, we doubt such a direction would have been of any relevant assistance.
[28]	Secondly, it was argued the facts engaged “the logic of a pre-emptive strike” and that it would have been appropriate to have provided a direction that encompassed that form of self-defence.  Again, we do not consider the absence of such a direction is capable of being argued as potentially giving rise to a miscarriage of justice.  We doubt the circumstances as Mr Filoa believed them to be disclosed such a scenario.  His evidence was effectively that he was responding to Mr Umuhuri’s attempt to discharge a firearm at him , rather than pre-emptively acting before Mr Umuhuri could strike.  In any event, it is apparent from the jury having reached question 11 that they had accepted Mr Filoa was acting in self-defence when he discharged his firearm.  
[29]	We also reject a third proposed ground of appeal.  It was submitted the jury should have been directed that the circumstances as Mr Filoa believed them could encompass unreasonable, but honestly held, beliefs.  It was suggested that, because Mr Filoa’s evidence about his belief that Mr Umuhuri held a firearm was contested, the jury should have been told the absence of such a weapon or of clear indications of the presence of a firearm was non-determinative — regardless, Mr Filoa may have honestly, albeit unreasonably, believed there was a gun.  Again, we do not consider this is a feasible ground of appeal.  The Judge directed the jury to approach its assessment of the circumstances “through the eyes of the accused, Mr Filoa at that time”.  Any direction premised on Mr Filoa’s belief having been unreasonable but honest could have potentially undermined the credibility of Mr Filoa’s subjective understanding of the circumstances.
[30]	Fourthly, it was submitted the Judge’s summary of the defence case on self‑defence omitted mention of Mr Filoa having been advanced upon by multiple assailants.  The Judge’s summary of the defence case did not refer to Mr Umuhuri’s associates, but he did remind the jury of the need to focus on the actual circumstances as Mr Filoa saw them at the time he fired the two shots.  The Judge provided a summary of Mr Filoa’s narrative, which was centred on the fear he had for his life, and that Mr Filoa only resorted to his firearm and shot at Mr Umuhuri after he heard what he thought was a gun being readied and Mr Umuhuri shouting “it’s jammed”.  
[31]	The Judge prefaced his summaries of the respective Crown and defence cases, as presented by counsel, with the remark that the jury should consider the entirety of counsel’s addresses, and that his summaries were intended to only assist the jury “to begin to consider the relevant issues”.  He reiterated, “[i]t is their entire address that you must consider”.  It was also suggested the Judge had failed to refer to Mr Filoa at the time being “unsteady on his feet” and needing to hold onto the car door to support himself.  We do not consider that submission is sustainable.  The Judge referred to Mr Filoa at the time as being “[d]azed, unable to see properly … , unsteady on his feet and fearful for his safety”.
[32]	We do not consider these criticisms of the Judge’s summary of the defence case, either alone or in combination with other proposed grounds, could tenably provide the basis for a successful appeal.
[33]	Finally, it was argued the Judge should have directed the jury, when addressing the issue of a murderous or reckless intent, that Mr Filoa needed to have actually formed such an intent in the heat of the moment and that it was not enough to find that a reasonable person would have foreseen a risk of death.  We do not consider the Judge’s directions could have been misconstrued as requiring anything less than a subjective appreciation of a risk of death.  In the question trail, the Judge directed that the jury had to be sure that, when Mr Filoa shot Mr Umuhuri, he “[k]new his actions were likely to cause Mr Umuhuri’s death”.  The jury were provided with a written direction that the term “[k]new” required that Mr Filoa had an actual or conscious appreciation that death was likely.
Sentence appeal
[34]	In relation to the proposed sentence appeal, Mr de Groot argued that excessive self-defence can, in principle, support a finding that life imprisonment is manifestly unjust.  That question of whether the presumption in favour of life imprisonment for murder should be displaced was addressed by the Judge in response to a submission that Mr Filoa had been found guilty of a reckless murder and that he had acted in excessive self-defence.  However, the Judge distinguished the facts of this case from the exceptional circumstances, invariably involving mental health issues, cases where a defendant has been the subject of prolonged stress and abuse at the hands of the deceased, or other emotional challenges, that have provided the foundation for a finding of manifest injustice.  
[35]	The Judge found that Mr Umuhuri had been shot twice while sitting in a car, facing away from Mr Filoa, and that those facts were a decisive consideration when rejecting the argument that the imposition of life imprisonment would have been manifestly unjust.  We agree.  Accepting that the jury must have found the force Mr Filoa used was excessive, as indeed the Judge did, we do not consider that, in the circumstances of this case, the imposition of such a sentence is realistically capable of challenge.  Similarly, we are unable to discern how an appeal against the modest uplift of six months to the mandatory minimum period of imprisonment that would otherwise have applied has any tenable prospect of success.
Conclusion
[36]	The delay in seeking to bring an appeal largely remains unexplained.  However, because of the serious nature of Mr Filoa’s convictions and his sentence of life imprisonment, that factor is only of secondary importance when assessing whether an extension of time to appeal should be granted.  
[37]	For the purpose of the application to appeal out of time, we have focussed on the merits of the proposed grounds of appeal.  We do not consider they have any obvious merit or realistic likelihood of success.  In the absence of the application raising any viable concerns regarding either the verdict or the trial process, nor with the sentence imposed, we do not consider the interests of justice warrant granting leave to appeal.  The application for an extension of time is therefore declined.
Result
[38]	The application for an extension of time to appeal is declined.

Solicitors: 
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent