Ji v The Queen
[2004] NZCA 314
•15 December 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA381/03
THE QUEEN
v
KAI JI
Hearing:17 & 19 August 2004
Court:Anderson P, Baragwanath and Ronald Young JJ
Appearances: P H B Hall for Appellant
B M Stanaway and C J Lange for Crown
Judgment:15 December 2004
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS
Anderson P and Ronald Young J [1]
Baragwanath J [10]
ANDERSON P AND RONALD YOUNG J
(Given by Anderson P)
[1] This is an appeal against conviction for murder following the appellant’s trial by jury in the High Court at Christchurch. The appellant caused the death of his estranged girlfriend by driving over her with a car in the Port Hills. His case was put at trial on the basis that there was no intent to kill and the jury was asked to acquit on that basis. An issue raised on the appeal was whether the Judge erred in not directing the jury to consider an alternative verdict of manslaughter on the basis that although an unlawful act of the appellant had caused the death of the deceased such act may not have been accompanied by murderous intent.
[2] We have had the advantage of considering in draft the reasons for judgment prepared by Baragwanath J who concludes that the Judge did err in not putting the possibility of manslaughter but that the appeal against conviction should nevertheless be dismissed because, in terms of the proviso to s 385(1) Crimes Act 1961, no substantial miscarriage of justice has been occasioned.
[3] We concur with Baragwanath J’s conclusion that the appeal ought be dismissed so that the Court is unanimous on that issue. We are also generally in agreement with Baragwanath J’s identification of the relevant facts and his analysis of them. In our opinion, however, the Judge (John Hansen J), was not obliged to put to the jury the issue of manslaughter in terms of killing by an unlawful act without murderous intent.
[4] The seminal issue in the case was whether the killing was intentional or unintentional. The case was put to the jury by counsel and the Judge on the basis that if the killing occurred with murderous intent the appellant should be convicted but absent murderous intent he should be acquitted. The approach taken by Baragwanath J appears to assume a real risk that the jury would deliberately ignore the way the case had been put and the Judge’s directions thereon and convict of murder even though unpersuaded that the killing occurred with murderous intent. That is, although they may have thought that the appellant caused the death of the deceased by simply careless conduct, albeit with elements of recklessness falling short of the mental states envisaged by s 167(b) and (d) of the Crimes Act 1961, they would be faithless to their duty and convict of murder. In our view, with respect, that is a speculation without any adequate basis. In fact there was no credible evidential basis for a verdict of manslaughter, as the analysis near the end of the reasons of Baragwanath J shows. We entirely agree with that analysis. The act which caused death could not possibly have been mere carelessness, but must have been murder in terms of s 167(b). If there is no evidential basis the Judge could not have been in error in not putting it; nor could counsel have been radically wrong not to raise it.
[5] It is the case that in R v Maxwell [1980] 1 All ER 801, 806-7, the House of Lords cited with approval the dictum of the Court of Appeal in the same matter, with specific reference to the hypothesis of a murder trial where manslaughter is raised as an issue. But here the Crown and the defence put the issues in a particular way and we do not think it is open to the appellant, having adopted one tactic unsuccessfully at trial, to urge on appeal an argument calculated to allow a different tactic to be run on a retrial.
[6] This is not like cases where the Judge has failed to put manslaughter, by reason of provocation, to a jury. In those cases, an accused may have been wrongly deprived of a palliative defence which is founded on facts extraneous to those justifying conviction or acquittal on a count of murder. In the present case there is no palliative defence to what would otherwise be murder; there would only be a jeopardy of conviction, unsought by the defence, on facts which the parties and the Judge have put to the jury as justifying acquittal.
[7] There is no analogue in cases of provocation or self-defence but there would be an analogue in a case where, for example, an accused charged with sexual violation by rape has run his defence on the basis of absence of penetration and subsequently contends, following conviction, that there has been a miscarriage of justice because the Judge did not of his or her own motion amend the indictment to include an alternative lesser count or failed to direct the jury that it could return a verdict of guilty of an attempt.
[8] In this case there cannot have been a wrong decision on a question of law nor a miscarriage of justice by reason of the Judge not putting manslaughter in the absence of a credible narrative supporting it; nor by reason of counsel having failed to raise the issue since, in terms of Baragwanath J’s analysis it was bound to fail on the facts.
[9] In our opinion it is not a case for the proviso; there simply has been no wrong decision on a question of law nor for any other reason a miscarriage of justice.
BARAGWANATH J
Table of Contents Paragraph
NumberIntroduction [10] Background to appeal [11] Explanation to ambulance staff
Explanation to the Police
The defence election to disclaim manslaughter[17]
[18]
[21]Submissions on appeal [23] Discussion [27] The Crown’s case at trial [28] The defence case [32] The omission of a direction as to manslaughter [38] Principle [41] Practicality [43] Authority [46] The limits of this decision [54] This case [55] The appellant’s account at trial [58] The cross-examination on his statement [62] The cross-examination in the Crown theory [64] The allegation that the appellant was asked to change his evidence to coincide with that of Professor Raine [65]
The appellant’s instructions of 12 August 2003 [68] The appellant’s instructions of 4 September 2003 [70] The final pre-trial version [73] The evidence in this Court [75] Analysis [82] Conclusion [86]
Introduction
[10] Mr Kai Ji appeals against his conviction in the High Court at Christchurch on 19 September 2003 on a count of murder of Zhi Ping You on the Port Hills near Christchurch on or about 23 September 2002. The grounds of appeal are that there were radical errors by defence counsel; and alleged material non-direction in the summing up in that manslaughter was not left as an available verdict and the jury were required either to acquit or to convict of murder.
Background to appeal
[11] The appellant who was born in 1980 is a Chinese national. His first language is Mandarin. At the end of 2001 he came to New Zealand to study English at a Christchurch college where a young Chinese woman, Zhi Ping You, was also a student. They formed a relationship which was complicated by the appellant’s gambling habits and lack of commitment to his studies.
[12] The appellant returned to New Zealand in August 2002 after a visit to China. He found that in exasperation at his behaviour Ms You had formed another relationship of which he became aware about four weeks before 23 September 2002. He was deeply upset.
[13] At about 7 pm on 23 September 2002 the appellant visited Ms You’s flat and persuaded her to go back with him to his flat to collect her laptop computer. He then drove her in her car to Summit Road on the Port Hills above Christchurch.
[14] At about 9 pm a passing motorist found Ms You’s handbag in the middle of the carriageway of Summit Road. One of her shoes was found nearby on the verge of the roadway.
[15] At about 11 pm the appellant was found by motorists wandering in a dishevelled and somewhat incoherent state. He said there had been an accident and the car he was driving had gone off the road. The road there runs uphill in a westerly direction with a steep slope running down towards the Canterbury plains. The vehicle was located off the road some 110 m down the slope below the point where it had penetrated the fence not far from a parking area. The car’s keys were in the ignition which was turned on. The automatic car lever was in the “star” position that permits rapid acceleration. The handbrake was off. Paper debris and an extinguished match were found inside the pipe leading into the petrol tank from which the cap had been removed. The bonnet was slightly dented. A broken off part of the moulded plastic fresh air intake grille from just below the windscreen was found on the grass verge beside the road.
[16] Emergency services found Ms You’s body in a paddock some 24 m from the roadway. The pathology evidence established that she had been run over while lying on her back and died after a period of three hours after having dragged herself around the contour of the hill in freezing conditions. A strand of her hair was found in a broken off piece of the plastic air intake grille. Her blood was present on a lower air intake grille in front of the bottom of the radiator. Her handbag was found on the road and an earring and one of her shoes on the road or at the roadside. A second shoe was found on the hillside some 15 m above the road.
Explanation to ambulance staff
[17] The appellant told ambulance staff that he had “run the girl over”. He was taken to Christchurch Hospital and seen at about 2.30 am by the emergency Registrar who noted lacerations to his forehead and right wrist which appear to have been self‑inflicted by the appellant on a barbed wire fence. A Mandarin speaking house surgeon was called to translate communications between the appellant and medical personnel. The appellant kept asking someone to look for “a girl he hit”. A detective who was present asked him whether she was inside or outside the car before the accident. He responded that it was only himself in the car, that he did not switch on the car lights and did not see the girl in his way.
Explanation to the Police
[18] The following morning Detective Bettridge commenced an interview which is the subject of the judgment of this Court reported at [2004] 1 NZLR 59. The appellant’s account was that he had lived in New Zealand for ten months with flatmates. He had arrived back in New Zealand on 12 September 2002 after a 25 day visit to China. On his third day back he visited Ms You’s flat and saw the boyfriend on her bed and a fight took place. He said that the sexual relationship with Ms You had resumed after his return to New Zealand.
[19] On the night of 23 September he arrived at her flat at about 10 past 7 and her boyfriend was there and another girl. He said that while he was in China Ms You had rung him many times but had lied to him about her devotion to him when she had the new boyfriend. He said that he gave her a backhand slap on the side of her face. When they left the flat in her car he told her about driving up the Port Hills. She initially did not want to go because she did not know the road but he said that he knew the way and she agreed.
[20] He said it was dark and very windy. They stopped at the side of the road where they looked at the scenery and had a kiss and a chat. She said that she had separated from the new boyfriend who needed a place to stay and had replaced one of the girls who had left the flat. The appellant had noticed two pillows beside hers and a pillow and toilet paper on the floor and was satisfied that she was sleeping with the new man when the appellant arrived at the flat. He was angry at her lying to him again. He said that she got out of the car, slammed the door and went in the direction of her home. He said that he wanted to apologise to her but she disappeared. He said he was worrying and started the car and tried to catch her, travelling on the wrong side of the road for that purpose. He said that he did not have his lights on and he could not see her. The car struck her. He tried to turn to the right and the car “fall over”. He said that he did not know his speed when the front of the car struck Ms You. He said she probably rolled on to the bonnet.
The defence election to disclaim manslaughter
[21] Defence counsel advised the Judge that he proposed that there be left to the jury the single issue whether the case was one of murder or accident justifying acquittal. The defence disclaimed reliance on an alternative manslaughter option.
[22] The learned Judge acted on this intimation. He directed the jury that the count required proof of the three elements of homicide, culpability and murderous intent. He directed that the latter exists if the accused meant to kill the victim and if he meant to cause bodily injury which he knew to be likely to cause death and was reckless whether death ensued or not. He suggested that the real focus in the case was whether the appellant deliberately ran down Ms You. In that event the appellant was guilty of murder. If not, he was entitled to acquittal. The jury selected the former option.
Submissions on appeal
[23] Mr Hall, instructed on the appeal, submitted that the Judge had erred in failing to leave as an option manslaughter on the basis of a killing by an unlawful act or neglect or legal duty by reason of failing to turn on his headlights and maintain a proper lookout, so that in terms of s 150A neglect was a major departure from the standard of care expected from a reasonable driver in the circumstances. So manslaughter on the basis of lack of intent ought to have been left. He initially further submitted that there was a credible narrative of events suggestive of provocation which also ought to have been left by the Judge but abandoned that submission in the course of oral argument.
[24] He further submitted that trial counsel had committed radical error by failing to take instructions upon and by disavowing to the Judge the manslaughter option.
[25] Other radical errors initially alleged included the decision to call the appellant and an expert witness, Mr Goy, for the defence; to obtain a psychiatric report to ascertain whether it might support a defence of insanity, provocation or lack of mens rea and to explain what Mr Hall described as bizarre suicidal behaviours of the appellant; alleged failure to follow instructions as to the appellant’s representation; failure to seek exclusion of photographs of the deceased; and failure to challenge the whole of the statement made to the police. Each was ultimately abandoned in argument.
[26] Mr Stanaway submitted that in the circumstances of the case the instructions of the appellant to his counsel and the evidence at trial the only two realistic options available to the jury were verdicts of guilty or not guilty of murder. He submitted that the evidence justified the Judge in not directing on a third option of not guilty of murder to guilty of manslaughter on the basis of lack of proved murderous intent. He submitted that the allegations of radical error by counsel were not established.
Discussion
[27] The Crown contended at trial that Ms You must have been struck twice – an initial collision throwing her over the roof of the car and a later episode when she was run over. The defence contended for a single continuum of events – the initial collision followed immediately by the running over. But the appellant gave a variety of accounts, one of them consistent with a two-collision theory. Since I am satisfied that there was error of law in the failure to leave manslaughter for the jury’s consideration the result of the appeal turns on whether, in terms of the proviso to s 385(1) of the Crimes Act 1961, each of the versions advanced by the appellant can be safely rejected.
The Crown’s case at trial
[28] The Crown case emphasised the evidence of Professor Raine, professor in mechanical engineering at the University of Canterbury and an expert in crash reconstruction calculations, that the car struck Ms You at least twice. He concluded that Ms You was struck while walking or standing on Summit Road in a position between facing away from the vehicle to side on at a speed of around or just below 30 kilometres per hour and probably at a constant speed rather than decelerating. As a result she was thrown up on to the bonnet of the car where her head struck and fractured the plastic air intake grille just below the windscreen in the broken part of which the hair from her head was later found. The momentum of the car must have carried it forward so that she fell behind it. At that stage, according to the pathologist’s evidence, she would have suffered minor injuries to her head but not the fatal crushing injuries that caused her death. They resulted from a second and subsequent episode when Ms You was run over at least once while lying on her back, the vehicle passing over her in a direction from her feet towards her head.
[29] The hair could not have got lodged in the air vent by acceleration from a standing start with the vehicle angled across the narrow road sufficiently to be able to penetrate the fence and travel down the hill to the point where it was discovered. For that to happen the car’s speed must have been about 30 kph rather than the 8‑12 kph it could have attained. While there was a high wind which might have moved light articles, the broken part of the air vent, Ms You’s handbag, an earring and one of her shoes were all found on the road or at the roadside. Her blood was found on the broken fence wire; luminol testing was positive for blood on the grass beside the road near where the car penetrated the fence.
[30] The topic of one or two episodes was the subject of evidence from the Crown pathologist. In chief she referred to injuries on the right and left sides of the body and said that she preferred the view that there had been more than one event because the injuries appeared to have different axes of causation. She acknowledged the possibility that all the injuries could have been caused in a single run over event. But that would have required Ms You to be lying flat on the ground throughout the causation of all injuries. She preferred the two episode reconstruction of some injuries being caused while Ms You was standing and the major fatal injury especially to the pelvis having occurred separately.
[31] The Crown submitted to the jury that to strike Ms You and then run her over on one or more occasions required the appellant to have moved her body from its initial position following the initial impact, positioning her at right angles to the road on the grass verge or just over the edge of the bank, in which position the vehicle was driven over her at least once from feet to head before it ran down the steep hillside and her body was later moved to the position where it was later found. It was the Crown case that if its reconstruction was accepted no question of unintentional homicide could arise as the two stage collision is consistent only with a deliberate killing.
The defence case
[32] The version advanced by the defence at trial was supported in chief by Mr Goy, the final defence witness, who had experience as a traffic officer and later sergeant of police, and who had completed crash analysis courses and attended hundreds of accident scenes. Defence counsel put to Mr Goy
…the precise scenario that the defence have put to Professor Raine. That is the scenario whereby Ms You is struck by the vehicle on or near the verge of the road and in one continuum then run over by the vehicle in a direction from her feet to her head while she is on her back.
[33] Invited to comment Mr Goy responded that that scenario was possible. He said
…there is no requirement that Ms You lay for any length of time on her back before being run over by the vehicle. It can be as simple as her simply falling forward of it and just ahead of it as it runs down the slope… it is not unreasonable for Ms You to be run over by the car before the fence line or at the fence line. We are not really talking about a big distance.
[34] On that analysis the issue for the jury was one of fact: whether to accept the Crown reconstruction of the two stage killing or whether to accept as a reasonable possibility the defence proposition of a single episode with the collision being followed immediately by the car continuing, accidentally, from the top of Ms You.
[35] In cross-examination however Mr Goy did not persist in the single continuum version. Asked (231)
You are not challenging Professor Raine’s rejection of the defence scenario are you?
He responded “No.”
[36] Until the cross-examination of Mr Goy, who was the final witness in the case, the claim of single continuum was what in R v Anderson [1965] NZLR 29 was termed a “creditable narrative” supporting a defence of accident which, if not excluded, would require acquittal. Since the prospect of such result would be more attractive to the appellant than any other verdict the tactical focus upon it by defence counsel, to the exclusion of manslaughter, was intelligible.
[37] Mr Hall was critical of the decision of trial counsel to call Mr Goy, whose concession had undercut the defence at the very end of the evidence. He submitted that, when the single continuum defence was effectively rejected by Mr Goy, without the option of manslaughter the jury were left with two choices: of an outright acquittal, with its evidentiary basis removed, or of conviction, it was inevitable that they would select the latter. Although Mr Goy had previously expressed the single continuum theory I do not accept the submission that to call him in accordance with the appellant’s instructions constituted radical error. Had he been able to sustain in cross-examination the position he took in chief the defence would have been greatly advantaged. That an apparently plausible argument for acquittal was exposed as specious by competent Crown cross‑examination suggests not injustice but the reverse.
The omission of a direction as to manslaughter
[38] With the instruction of new counsel the appellant now seeks to put his case in a fundamentally different way, Mr Hall submitting that because manslaughter was not left to the jury as a possible verdict there has been a miscarriage of justice.
[39] Further, trial counsel acknowledged before us that the election notified to the Judge was made without consultation with or express instructions from the appellant. Mr Hall submits that to do so constituted radical error.
[40] Both submissions require careful consideration. Normally an appellant is bound by the course elected at trial. But it is counsel’s duty to take his or her client’s instructions on an issue of such importance if alternative courses are open. Further, it is the obligation of the Judge in summing-up in a murder trial to direct the jury on any view of the evidence which might in law reduce the crime to manslaughter; Mancini v DPP [1942] AC 1. That is so even if for tactical reasons the defence have not advanced the argument supporting that verdict and even if, as here, the defence informed the Judge that the accused did not want the issue to be left to the jury. The public interest in finality of justice can be outweighed by the risk of injustice – that a man has been convicted of an offence to which he can show a plausible defence that was never considered.
Principle
[41] In Brennan v The King (1936) 55 CLR 253 Dixon and Evatt JJ gave reasons for allowing a lookout’s appeal against conviction as party to manslaughter committed by principal offenders. The Judge had directed that his verdict must follow the verdict received in respect of the co-accused. The joint judgment stated at p 266
Such a direction cannot, in our opinion, be supported. It withdraws from the consideration of the jury a question of fact upon which the guilt of the applicant depended. It does not follow as a matter of law that, if the applicant aided and abetted the shop-breaking by keeping watch outside, he was criminally responsible for the homicide committed by his confederates within. Whether it followed from the facts was a question for the jury depending on the conclusion they drew as to the nature of the plan to which he lent his aid and as to his knowledge of his confederates’ intentions.
Dwyer J., in the judgment which he delivered on behalf of the Supreme Court, adopted the view that the inference was inevitable that a common intention existed to use such violence upon the caretaker as might be necessary to carry out the crime of shop-breaking. But that is a question upon which the applicant was entitled to the opinion of the jury. It is the constitutional tribunal which alone can find an issue of fact against a prisoner and this particular issue was never submitted to the jury for its decision. We are, therefore, of opinion that the Supreme Court, sitting as a court of criminal appeal, ought not to have allowed the applicant’s conviction to stand. The error is of a sufficiently serious character to call upon this Court to intervene by granting special leave to appeal.
[42] That a Judge may not assume the jury prerogative of fact-finding was also the ratio of DPP v Stonehouse [1978] AC 55. The dissentients in that case, including Lord Diplock, considered that the Crown’s case of fraud against a former politician was so powerful that the trial Judge’s direction to convict could be sustained. The majority, in my firm opinion correctly, disagreed and upheld the conviction only by application of the proviso. Stonehouse has been followed by this Court: R v Craig CA142/02, 11 December 2002.
Practicality
[43] The criminal law is concerned to reduce as far as practicable the heavy pressures on the twelve citizens who are called on to perform jury service in a difficult case. In some circumstances there will be a change of venue; improperly prejudicial evidence will be withheld; juror details are kept confidential to reduce risk of interference or retaliation. Among the protections both of jurors and of the interests of avoiding miscarriage is the principle that, within certain limits, a jury should not be forced to elect between the extremes of acquittal and of conviction for a greater offence than they may consider the case warrants. R v Maxwell (1990) 91 Cr App R 61, [1990] 1 All ER 801 (HL) concerned the question whether a Judge should leave a count of intermediate seriousness in order to spare the jury from the dilemma of acquitting an obvious offender and convicting him on a count of greater seriousness than the evidence (or their conclusions upon it) warranted. The House of Lords decided (at 68, 807) that there are some
…cases where the principal offence is so grave and the alternative offence relatively so trifling that the judge is entitled to take the view that he ought not to distract the jury by forcing them to consider something which is remote from the real point of the case.
[44] But (citing at 67, 806 R v Parrott (1913) 8 Cr App R 186, 193 per Phillimore J) there are others
…where… the interests of justice are not met unless it is pointed out to the jury that they may acquit of a lesser offence, or, thinking it a case of ‘neck or nothing,’ they may acquit altogether.
[45] The principle in Maxwell is that it is for the jury to determine both the facts and the verdicts free of unnecessary pressure as to what those should be. That principle was endorsed by the late Professor Sir John Smith in a comment which I reproduce at para [50].
Authority
[46] In Mancini v DPP at p 12 the House of Lords denied that the principle in Woolmington v DPP [1935] AC 462, settling the law as to onus and standard of proof, requires that
in every charge of murder, whatever the circumstances, the judge ought to devote part of his summing-up to directing the jury on the question of manslaughter or that the jury ought to consider it. If the evidence before the jury at the end of the case does not contain material on which a reasonable man could find a verdict of manslaughter instead of murder, it is no defect in the summing-up that manslaughter is not dealt with.
The example given was however of a case where, there being no issue as to other elements of murder, there is no evidence of provocation, the defence advanced by Mancini. Advancing a provocation defence usually entails an implicit admission of all elements of murder.
[47] In R v Malcolm [1951] NZLR 470, 485 the Full Court of Appeal applied Mancini and another provocation case R v Thorpe (1925) Cr App R 189 and a circuit ruling in R v French (1879) 14 Cox CC 328 in support of the proposition that
…at common law a jury should not be directed that it has power to return a verdict of manslaughter where the evidence, if accepted, proves murder or nothing.
That decision was in response to a submission, supported by some dicta, that a jury always has the right
…notwithstanding that [they] are satisfied beyond reasonable doubt that the accused is guilty of murder… to be false to their judicial oaths [and] to] acquit him of murder, and to find him guilty of manslaughter instead…
The Court was not presented with the present point and its decision is therefore no authority against it. The same is the case with R v Garmonsway CA141/94, 14 November 1994, which followed Malcolm.
[48] Two recent cases, one of the English Court of Appeal and the other of the Privy Council on appeal from Hong Kong, run counter to my view. In R v Kearney (1989) 88 Cr App R 380; [1988] Crim LR 530 the appellant had been convicted of murder of a jeweller by use of a revolver. His major defence was that the shot had been fired by an accomplice and that he had picked up the weapon at a later stage. In his closing speech defence counsel invited the jury to consider the reasonable possibility of accident and a verdict of manslaughter. The trial Judge declined to leave manslaughter as a possible verdict, directing that the possible verdicts were murder or acquittal. The Court of Appeal held that it would not have been wrong to leave the option of manslaughter, but because the appellant had pleaded guilty to related counts of robbery and possession of a firearm with intent to commit an indictable offence, the Judge was entitled to conclude that it would add unnecessary complexity to direct the jury as to when a killing in the course of a criminal enterprise could amount to manslaughter.
[49] And in Fazal Mohammed v The State [1990] 2 AC 320 where the medical evidence established that the injury to the throat of the deceased could not have been caused accidentally and the issue at trial was identity, the Privy Council held that the Court of Appeal of Trinidad and Tobago had erred in considering that manslaughter, raised by the appellant’s statement, should have been left to the jury.
[50] In commenting on Kearney ([1988] Crim LR 530, 531) Sir John Smith wrote
…The appellant’s argument had to assume that a jury might act perversely; that, although not satisfied that the appellant intended to kill or cause serious bodily harm, they might convict of murder, contrary to the judge’s direction, rather than acquit entirely a man whom they were satisfied had killed in the course of an armed robbery. Even if not consciously perverse, a jury might more readily persuade themselves that they were satisfied of the defendant’s intention than would be the case if the alternative of manslaughter were open to them. The argument, therefore, has some force.
There is, moreover, something unsatisfactory about a decision which approves the misdirection of a jury–for it was a misdirection to tell them that, if the gun went off accidentally, the appellant must be acquitted entirely on the murder count. On the facts, such a killing was almost bound to be manslaughter. It seems that the judge assumed that the jury were not to be trusted with the whole law. Given the opportunity of convicting of manslaughter, they might have done so in the circumstances described in the previous paragraph. The Court of Appeal approves of the course taken by the judge but it is submitted, with respect, that it is wrong in principle. If we are to have a jury system–and most judges are loud in its praise–then we must trust the jury to apply the whole of the relevant law. It seems that the jury was not so trusted in the present case.
[51] Each decision entails a factual determination of the Judge as to an essential element of the offence. But a Judge has no jurisdiction to make such determinations. Only the Court of Appeal or the Supreme Court may do so, and then only within the narrow limits of the proviso to s 385(1) of the Crimes Act. In my respectful view the issue in Fazal Mohammed should have been dealt with via the proviso, as it was by the Court of Appeal in that case.
[52] Like the common law’s requirements as to onus and standard of proof, the principle that the jury alone is responsible for finding each factual element alleged requires that it receive an appropriate direction on each and an appreciation of the legal consequences as each is or is not established: here of acquittal, of manslaughter, and of murder. Here the Judge gave a direction as to each element. But the omission to inform the jury of the consequences of their finding culpable homicide alone, without the third element of intent, left them undirected as to an important dimension of the law they were required to apply.
[53] As will appear, I am satisfied that the proviso is to be applied. It does not however follow that, because this Court with its proviso jurisdiction may find there was no miscarriage, it is simply unnecessary in a clear case for the trial Judge to require the issue of manslaughter to be left to the jury. The point is one not of efficiency but of jurisdiction, which trial judges do not possess. Where I respectfully part company with the approach of my brethren is that it assumes that because only acquittal and murder were left to the jury, the Court is entitled to conclude that had manslaughter been left the jury must have rejected it; it would be a palliative defence to what would otherwise be murder. My view is that it was not open to the High Court to make such assumption. Manslaughter is not a “palliative defence”; by s 160 it adds to the first element of homicide (defined in s 158) that of culpability, each of which, like the third element of murderous intent (here expressed in s 167) is for the jury and not the Judge to determine. Absence of a “credible narrative” to support the second element no more justifies the Judge’s removing it from the jury than absence of such narrative in relation to the first and third elements. The Maxwell point (the fear that a jury might be untrue to its oath by wrongly acquitting or, worse, convicting where a lesser charge is not included) is distinct from, although on the present facts supportive of, the present jurisdictional point for which Brennan and Stonehouse provide authority.
The limits of this decision
[54] My decision is confined to the simple spectrum of non-culpable homicide/culpable homicide/murder. There is abundant authority that in cases where an affirmative defence, such as self-defence or the difficult partial defence of provocation, is asserted it is a proper judicial function to consider whether there is evidence on which it may be left to the jury. See R v Wang [1990] 2 NZLR 529 (discussed New Zealand Law Commission Report 73 Some Criminal Defences with Particular Reference to Battered Defendants paras 33-42); R v Anderson (supra). Nor have I suggested that the simple principles are of general application in other contexts which I have not considered. The criminal law concerns the collision of major competing values, which include the need to avoid unnecessary complexity in the law to be administered by jurors. I offer no comment on whether in other contexts the practical need for simplicity may outweigh the considerations that are decisive in the present case.
This case
[55] It follows that I am satisfied that counsel erred in inviting the Judge not to leave manslaughter for the jury’s consideration and that it ought to have been left. It is accordingly necessary for me to return in some detail to the facts to consider the application of the proviso.
[56] Its principles are stated in R v McI [1998] 1 NZLR 696, 711-2. The question is whether the Court is sure that the jury would without doubt have convicted had the error not occurred. To avoid any possibility of injustice I have sought to identify and consider each of the options advanced. The mere fact of inconsistency among them is of itself of no moment; if any of them is consistent with manslaughter rather than murder it is for a jury to appraise it.
[57] It was undisputed that at the point the vehicle left the road it was so narrow that it was impossible to leave it, as it did, at right angles to the carriage-way except by stopping and manoeuvring at least once backwards to take up the necessary alignment.
The appellant’s account at trial
[58] The appellant elected to give evidence. He described returning from overseas on 12 September 2003 and having lost all his money. He spoke of attempting to kill himself by swallowing a bottle of sleeping pills. On coming to he went to Ms You’s place where he encountered the new boyfriend and assaulted him. He said that on the night of 19 September he had driven up to the Port Hills and stopped the car in a parking area. He described a discussion about his gambling and whether she would have him back. He said that she received a call on her cellphone and got out of the car to answer it and then returned to him. After a further five minutes she said she wished to go home. He said he did not want her to go so soon. She responded that if he drank a lot he would be unable to drive. He said
Then I was a little bit unhappy and said ‘Oh well in that case I don’t want to take you home and you can go home by yourself’… She opened the car door and then she walked out of the car… She started to walk away. I did not stop her immediately because I was smoking in the car at that time… It suddenly occurred to me I am in the wrong so therefore I must look for her to apologise. After she walked away a bit she back tracked for a few more steps back towards the car again. I got out of the car and then I held her and kissed her, not on her mouth but on her cheek. I apologised…, said sorry and after that I got out of the car… I just felt I didn’t want to live anymore so I told her… at that time I just felt I didn’t have anything to look forward to in life… I have left my family and I don’t have any girlfriend anymore. Prior to that I have already committed suicide twice… I really felt I had let me family down very badly and that I don’t have anymore money to pay for my school fees anymore. She held on to me… she used her hand to pat my back and then she said ‘Think about your family and think about your future.’ I said to her ‘This is the last goodbye’… I push her away from me. I then went back into the car. When I opened the car I just backed the car, reversed the car. When I reversed the car I was intending to go straight away going down the hill.
[59] Asked where did he intend going to he replied
Wasn’t too sure where I backed to but was just backing.
When you finished backing the car where was the car facing ?… It was facing the slope of the hill.
Before you backed the car where was Zhi Ping You ?… She should be on the right side and should be on the grass but I wanted to make clear it was a very short time I did not exactly see where she was on the grass.
After she embraced you and you pushed her away did you see her again ?… No.
So after you had reversed the car backed up the car the car was facing off the hill ?… Correct.
What did you do then ?… I was still wanting to drive down the car immediately. But when I put my foot on the pedal straight away then the car actually did not move and then I changed gear. I didn’t know which gear it was in. Then I put my foot on the pedal again and then the car shook suddenly and then surged forward. At the time I was very frightened because I knew in front of me was a very steep downhill slope… When I put the pedal on the second time the car shook and then the car surged forward and then just went downhill.
Asked
Do you remember if Zhi Ping You called out to you or do you remember hearing anything from her… when you were going off the road?
He responded
There seemed to me – could be someone calling me but it’s such a short period… I just dropped the car shook and rocked and later on I have slept… when I woke up I was very surprised I was still alive… I thought I would light the car then the car would explode and I would die. I found two packets of matches in my pocket so I lit the matches and put it in the petrol tank.
[60] He said he then tried to kill himself by cutting his wrist and face and removing clothing so as to freeze to death in the extreme conditions.
[61] This account of the collision between his car and Ms You was thus of a single event at the beginning of which the car was positioned to cross the roadway and go over the edge. But that is impossible for the reasons given at para 20.
The cross-examination on his statement
[62] The appellant was cross-examined by the Crown on his statement. It included the passage
Q.She must have been upset to get out of the car?
A.I don’t know. She just slammed the door and go.
Q.Did you try to stop her?
A.I want to apologise to her. I did not stop her immediately but she disappeared. I was worried and tried to apologise to her. Then I started my car and tried to catch her. I did not have my lights on. It was windy and dusty. I could not see her. My car hit her. I tried to turn right so my car fall over. I lost my consciousness…
Q. How far did you drive looking for her?
A. I couldn’t judge how far.
Q. How long were you driving for?
A. I cannot tell you.
Q. Were the vehicle’s lights turned off?
A. Yes.
Q. And it was very windy and dusty?
A. Yes it was very dark…
Q. Could you see very well while you were driving?
A. No – not very clear.
Q. Why didn’t you have your headlights on?
A. I was too worried to turn lights on.
B.But it is pitch black out there at night time, the most common-sense thing to do is to turn your lights on?
A.I was too worried and forgot to turn lights on…
Q.What part of the car did you hit her with?
A.The front of the car.
Q.Did she roll on to the bonnet and windscreen?
A.Probably on to the bonnet.
Q.Do you remember her doing that or are you guessing?
A.When the car hit her it was by the light and then over onto the bonnet.
Q.The left hand side of the vehicle or the right side of the car?
A.Probably right.
Q.So she was walking in the middle of the road when the car struck her?
A.No on the side of the road.
Q.Were you travelling on the wrong side of the road?
A.Yes because I drive on purpose to catch her.
[63] The version contained in the statement, of the car’s striking Ms You as the appellant tried to follow her, obviously on the roadway, and then went over the edge was therefore fundamentally different from what was advanced at trial – that he spoke with Ms You while stationary immediately before he reversed and then went forward over the edge. It also is impossible, as depending on a single continuum.
The cross-examination in the Crown theory
[64] The Crown’s version was put in cross-examination
What happened is you took her up on the hill because you were angry with her ?… No.
The relationship was over and you wanted her back ?… Of course I was wanting her to come back but I already accept that she was leaving me because I already wrote a letter to her.
While in the car the new boyfriend rang, Foster, didn’t he ?… I didn’t know who rang her when the telephone rang she got out of the car before she answered it.
You were angry with her and you slapped her ?… She was out on the outside of the car. How could I hit her from inside? After she finished the phone call she came back to the car.
After you slapped her she gets out of the car, picks up her bag and starts walking home ?… You tell him that I have not hit her in the car.
She gets out, slams the door and starts walking home ?… She shut the door and then she start walking. It was because I let her go out because she ask me to go home then and I said when I finish drinking the beer we will go home.
So your evidence is up on the Port Hills a gale nor-wester, quite cold isn’t it ?… Very cold.
This girl who you say has just promised to get back with you if you pass your exams, this person that you love gets out of the car and starts walking home just because you want to have a beer ?… No. Because she wanted to go home. I said to her we’ll finish the beer before we go home.
She got out of the car because she was scared ?… What was she scared of?
You ?… What was she scared of me for?
You are angry and you run her down in the car ?… Can you say it again?
You run her down in the car ?… I did not.
Trying to get away from you she lost one of her shoes didn’t she ?… I didn’t know about her shoe. I did not take her shoe.
She drops her bag ?… I did not notice whether she took the handbag or not.
She hits your windscreen and goes forward ?… If you could tell the complete like story. I could not quite comprehend what you said.
You have been sitting in this trial for nearly two weeks, you don’t understand what I am saying ?… Because what you said I didn’t do then how could I understand.
She was lying there unconscious wasn’t she, semi-conscious ?… When I stopped the car she even embraced me.
You have then backed the car up ?… Reversed.
And you have moved her semi-conscious to a position more or less parallel to the road, at right angles ?… I did not do that type of thing.
In doing that she was bleeding at the time wasn’t she ?… I have not seen this.
You get the remaining shoe and throw it away up the hill where it ends up ?… I did not. I can swear that I did not touch the shoe and especially not touch her at all.
We know the shoe can’t have got up there as a result of the accident don’t we ?… Yeah.
Hasn’t been suggested in this trial that any of the police, ambulance or firemen put it up there ?… I would not know what people have done. I was in the ambulance. What other people did I would not know.
If they didn’t do it. It only leaves one person doesn’t it, you ?… Yes.
Having moved the body you then get back in the car and you accelerate, correct ?… What you said what happened I have never done that. I just wanted to tell what I wanted to say. What after she embraced me and when I push her away. I went back to my car. I reversed the car. I was wanting to go down the hill, have the car fallen down the hill. When I put the foot on the pedal the car did not move the first time. Then after I did not even know where the gears were and then I shifted and then I put my foot on the pedal again and the car shook and then the car rushing down the hill.
You deliberately ran over her body ?… I did not.
You wanted to kill her didn’t you ?… I did not. I was wanting to kill myself. That was real.
The allegation that the appellant was asked to change his evidence to coincide with that of Professor Raine
[65] In support of the appeal the appellant deposed
(18)In July 2003 Mr Iosefa gave me a copy of the Review of Fatal Vehicle – Pedestrian Collision – Summit Road Christchurch. I spent days translating the report into Chinese so I could understand it. A copy of that report is annexed and marked with the letter “G”.
He claimed
(19)The next time I saw Mr Iosefa Ms Lily Wilson was acting as interpreter and Ms Ayrey was also present. Mr Iosefa was insistent that my story should coincide with [Professor Raine’s] report... I did not remember the incident happening in this way but I agreed to go along with that scenario because Mr Iosefa said I should and because our expert Mr Goy agreed with it. I was also worried about giving a different account to that of the accident experts.
He asserted that in these circumstances he did not want to give evidence.
[66] Mr Iosefa of counsel, who gave evidence before this Court following waiver of privilege, flatly denied
…any suggestion that I may have insisted the Appellant change his story to coincide with the Raine report. This is simply a lie by the Appellant. The Appellant had changed his instructions on a number of occasions throughout my dealings with him. I was constantly having to attend with the Appellant in order to clarify his instructions.
He said
33. FROM the earliest opportunity, the Appellant wanted to “tell his story”. My main difficulty with the Appellant was his constant change of “stories” and therefore was always concern about whether he should eventually give evidence at his trial. I advised him on a number of occasions that he should not give evidence at his trial. In my letter dated 21 August 2003, I outlined to the Appellant the dangers in his giving evidence and made it clear that I was not supportive of his giving evidence at his trial.
[67] Having heard both the appellant and Mr Iosefa cross-examined in this Court I have no doubt that that the latter’s account represents the truth.
The appellant’s instructions of 12 August 2003
[68] On 21 August 2003 Mr Iosefa wrote to the appellant recording his understanding of the appellant’s instructions. He said
YOUR INSTRUCTIONS TO US is that you did not intend to hit Ms You with the car, and therefore did not intend to kill her.
Where difficulties may arise as to your defence is that the law in New Zealand also states that if you were reckless as to whether your actions could cause Ms You’s death then that is sufficient to satisfy the requirement of intent to commit murder. What this means is that, if it can be show that, in driving the car off the Summit Road (the unlawful act being dangerous driving) you were reckless as to whether you caused Ms You’s death then you would be guilty of murder.
What this means is that, if you were aware that you had already hit Ms You with your car and should have known that she may have been lying injured on the roadway (or close to where you had hit her) but you drove off the road anyway without exercising due care to avoid her then your actions were reckless as to whether you might cause her death.
Based on your instructions to us it is apparent that you did not know Ms You was in front of the car when you drove off the road and down the hillside. You may have a sound defence if you can show that you had a good reason for believing that she was not on the road or if she was not at risk of being hit by the car.
Please bear in mind that what you now tell us as to what happened is quite different to the various versions of events outlined by you in your statement to Police on 24 September 2002. It also differs in part to the instructions you first gave to us in September/October 2002. The difficulty which exists for your Defence team is to satisfy the jury that the various versions given in your statement to Police of 24 September 2002 was unreliable and full of lies. BUT the version you now propose to give at trial is the one the jury should rely on.
2. Your instructions of 12 August 2003:
We confirm that your instructions to us, based on our recent meeting, are as follows:
(a)You hit Ms You with the car on the road;
(b)You felt the impact of the car with Ms You;
(c)You believed that you had injured or killed Ms You, and that is why you wanted to kill yourself;
(d)You did not get out of the car after you hit Ms You;
(e)After you struck Ms You with the car on the road, you did not see her again;
(f)You reversed the car to a point across the road whereby you were at a 90 degree angle to the road;
(g)You remained stationary on the road for about 20 seconds before you accelerated the car off the road down the hillside. Your intention in doing this was to kill yourself.
3.Professor John Raine’s report
The report by Professor Raine (received earlier today) in essence considers a number of scenarios for what may have happened when your car struck Ms You. The conclusions of this report are based on an assessment of the evidence of the various witnesses, physical evidence at the scene, consideration of your statement to Police, the injuries suffered by Ms You and other evidence produced at the depositions hearing.
The report of Professor Raine agrees with what you say about striking Ms You with your car while the car was travel[l]ing uphill on the road. The report concludes that Ms You most likely ended up lying on the grass verge beside the road but did not fall down the hill at that stage. The report then confirms that Ms You must have been run over whilst she was lying down. In many respects the conclusions reached in the report support your recent instructions as to what happened.
A number of scenarios are then discussed but there is some speculation as to how Ms You could have ended up underneath the car. You will recall your comment to us in this regard that you have no knowledge as to how Ms You could have got under the car. Once you had initially struck her on the road you did not see her again. You did not get out of the car to check where she was.
4.Defence Collision expert – Steve Goy:
Steve Goy has had a close look at the report of Professor Raine. Mr Goy is not able to dispute the conclusions reached in such report.
[69] The instructions of 12 August, given before receipt of Professor Raine’s report on 21 August 2003, contain an account of two collisions, one on the road followed by the appellant’s decision to kill himself, at which point he reversed the car so as to be at right angles to the road from where he accelerated the car down the hillside. There could be a theoretical speculation that in the course of that episode there was the further fatal collision. But the appellant disavowed the 12 August version and cannot now rely on it.
The appellant’s instructions of 4 September 2003
[70] In his affidavit in reply to the affidavits of Mr Iosefa and of a witness to the appellant’s instructions to Mr Iosefa, the appellant asserted that he instructed his counsel that the translation of the original police statement was not accurate and did not record everything that he had said. He gave the following account
(6)… I accept that the Raine report caused me real concern because I understood from Mr Iosefa that all the experts agreed with the two event run down / over events involving Ms You. I knew that to be incorrect and my instructions had always been that there was one incident only when I drove off the road at right angles to the road intending to commit suicide when I accept that Ms You must have been struck. At the time I was given the report Mr Iosefa told me that the experts were in agreement and this was likely to be the story with which we would have to go with at trial. It may be that I misunderstood exactly what Mr Iosefa was saying because of my difficulties with the English language, but I came away with the impression that he was telling me that it was the story that I would have to go with because the experts were in agreement. In error, at that time I believed Professor Raine was working for the defence. I was in a panic because I knew this version of events was wrong and I did not know how to cope. I made a decision, which was stupid in hindsight, to go with the Professor Raine scenario and gave instructions along those lines on the 12th of August 2003. This was the only time that I gave instructions to this effect that I can remember and I do not recall signing a statement or the instructions at the time. Nor do I recall saying that I wished to give evidence to this effect. The question of whether or not to give evidence was not a matter of discussion on the 12th of August to my recollection.
[71] He appended a subsequent account given to his counsel on 4 September 2003. Counsel’s note reads
Attendance Kai Ji
Changed his story [because of] Raine’s report.
Want to tell us that changed story 2 weeks ago.
[Because] you described police’s story – I thought you would use that story to try [and] defend me.
Then I changed [my] story [because] I thought that story [was] disadvantageous to me.
I’ve already told you for a long time what [the] story is.
Final story.
I want you to understand not many experts can help me anymore – no time anymore.
…
Steve [Goy] – does he work for police[?] – No.
…
Why Steve came to see you was [because] you changed your story. Because when you change your story all of the experts have to change their reports.
Before you changed your story we were defending you on basis that you hit her when driving off hill.
That makes it a car accident.
Only change story [because] of police report.
Wants us to tell him what we know about what happened.
…you are the only people who can save your case.
Experts guessing.
…
I’m frightened to speak up in court.
…If I don’t know what your story is I can’t ask the right questions.
…
When we got to the hill we parked at the carpark.
Then we were talking for a while.
Then she went out because she got a phone call.
I was smoking in the car.
Before the phone call we were talking about her and me, study and our futures, my main idea, was if she could come back to me. She said she would once I finished my IELTS exams and passed and she said I must give up gambling.
Talked about all sorts of things.
She only spoke a couple of sentences and then came back to the car. Then she got back into car.
We spoke for 2 minutes and then I got angry because I thought it must have been her boyfriend who rang her
Then I said to her – well, we might as well go home. At that time I was angry
Then she got out of the car again – I was angry, I told her she could walk home.
Didn’t notice whether she took her bag or not.
Car was full of smoke.
Then she walked up along side of road…
Then I backed my car and went to catch up with her wanting to apologise to her.
I stopped my car – I was talking to her for a few sentences.
I told her I want to kill myself. I told her I was going to drive the car over the hill.
She said – what about your parents. She said I was crazy.
I got out of the car – I kissed her and then I went back to the car.
Then I backed the car up.
I saw her – I saw her wave with her hand. I couldn’t tell how far away she was.
At that stage I wanted to put my foot on accelerator.
Then suddenly I felt that my car was already going down hill.
The car was only backed up for about ½ a second.
When I was parked up beside her, she was beside the driver’s window.
But when the car was backed up I did not know where she was because the hill was steep, I was scared too.
I did not look down hill.
At the time I knew I was going to die from falling down the hill. I definitely closed my eyes and had my head down.
…
I have got no idea how I hit her I have no idea how her head hit the windscreen.
[72] That statement was signed by the appellant and translated by an interpreter who endorsed it accordingly. It is broadly consistent with the version advanced at trial. But in expressing the single continuum theory it is impossible.
The final pre-trial version
[73] The last pre-trial version was the appellant’s typed brief of evidence he was to give at trial. In that his account was that
Around about 6.00 pm I arrived at Jinni’s Madras Street address. I went to Jinni’s house on my bicycle. We walked together for some time and then left her house together in her car. I drove the car.
We drove to my address at Hagley Avenue. I went inside my house to pick up Jinni’s laptop which I had been using. Dorothy was the only one at home.
Jinni and I then decided we would drive up the hills so that we could talk and drink some beers.
This was the place where we both felt love for each other at the beginning.
When we got up to the Port Hills, I parked the car in a car park.
We sat in the car for a while just talking. We talked about our future.
A few days earlier, I had asked Jinni about what it would take for her to have me back as her boyfriend. She told me that we could be together again if I finished my course and passed my IELTS exams. She told me that on the hill as well.
She also wanted me to stop gambling.
We talked about a lot of things, but mainly about what I was going to do about having lost all of my parents money at the casino.
Jinni was angry with me about having lost all this money and I talked to her about how ashamed and sad I felt, and that I felt that I had lost everything.
After talking and having a smoke in the car for some time, Jinni got a call on her cell phone. She got out of the car to talk on her phone. She was not on the phone for very long. She then came back and sat in the car.
We talked briefly. She told me she wanted to go home.
I was unhappy. I wanted to keep on talking to her. I didn’t want her to go so I told her she can walk home. She then got out of the car and walked off.
I sat in the car for a short time so that I could finish my cigarette. I sat in the car thinking about how bad my life had become because of my gambling and how I was not doing well at school. I was very sad about how I was letting down my parents because I had lost all of their money which had been saved for me. I thought about how I had also lost my girlfriend.
I realized that I needed to catch up with Jinni. I then reversed out of where I was parked and drove up the road towards where I believed that Jinni had walked to.
I drove the car up to where she was walking up the road. She was walking along the grass area beside the road. I stopped the car beside her.
I then got out of the car and spoke to Jinni. I told her that I was sorry. I said I was very sad and that I was going to kill myself by driving the car off the hill.
Jinni told me not to be so stupid, she told me to think about my parents and pleaded with me not to be so stupid.
I walked up to Jinni and then kissed her on the cheek hugged.
I do not recall where Jinni’s bag was.
I got back into the car. I turned the car on reversed 180º and let the brake off. The car moved back and I lined up the car so that the car was across the road facing towards the city and down the hill.
I didn’t know where Jinni was when I did this. I assumed that she was still up the road a little bit where she was standing when I kissed her goodbye.
I closed my eyes and put my head down. I felt very scared.
I then put my foot on the accelerator of the car. I was committed to driving off the road. I really wanted to die. The car did not move far before it fell off the side of the road.
I did not see Jinni.
I do not remember if Jinni called out to me. I do not remember hearing anything.
The car rolled down the hill. I was thrown around inside the car. The car just went by itself. I had no control of the car at all. I tired to grab the steering wheel of the car but could not hold on to it.
I cannot remember when the car stopped. I cannot remember how long I was sitting in the car before I woke up. Many parts of my body was hurting. I was very surprised that I was still alive. I was also very sad that I was still alive.
I somehow made my way out of the driver’s door of the car. I still wanted to die. I called out Jinni’s name but she did not answer me. I assumed she had got a ride or simply left without me. I then realized that I had some packets of Casino matches. I opened the cover to the petrol cap of the car. I unscrewed the cap to the petrol tank. I then lit the matches and threw them in to the petrol tank. I thought the car would blow up in flames so that I would be killed but nothing happened.
I then walked away from the car. I thought I was walking up the hill. After a long time I came across a fence. I walked along the fence line.
I think that I called out to Jinni but I did not hear anything.
[74] This is again broadly consistent with the single episode version advanced at trial and is impossible.
The evidence in this Court
[75] In his evidence in this Court the appellant maintained that with a single exception he had advanced a consistent account of a single collision. The exception was what he said was in hindsight a stupid decision to change his story on 12 August to a two-impact version, He said that he had previously received Professor Raine’s report
[76] Mr Iosefa summarised the instructions given to him. The first was given on the night of 24 September 2004 when Mr Iosefa called in an interpreter. That version was a brief exchange in the carpark, Ms You’s walking away leaving the appellant in the vehicle for a short period, his contemplating the situation and wanting to apologise, driving up the hill towards Cashmere on the wrong side of the road, the vehicle somehow veering to its right and going downhill without the appellant’s having seen Ms You on the road at all.
[77] The second version was his having travelled up the road on the right hand side and stopped the vehicle, a brief discussion between the appellant and Ms You followed by a longer discussion when the appellant indicated he wanted to kill himself, and the appellant pushing Ms You away, getting into the vehicle, reversing to a point where he is at right angles to the hill and then driving off down the hill, he not recalling seeing Ms You in front of the car.
[78] A third version had the variation of his seeing Ms You just below the front rear vision mirror.
[79] In early August Mr Iosefa attended the appellant with an interpreter and was surprised that he now had a further version strictly in line with what Professor Raine had indicated of a running over on at least two occasions. That prompted Mr Iosefa’s letter of 21 August.
[80] Although Mr Iosefa described a variety of accounts of the appellant’s instructions given to him as trial counsel, with the exception of the account of 12 August, which the appellant later disavowed, each version was that a single continuous piece of driving rather than two separate episodes must have caused the injuries.
[81] Mr Hall invited us to accept that the appellant maintained essentially a consistent account save for the occasion of 12 August. Other variations he submitted should be regarded either as part of a bona fide attempt to get the facts straight or the appellant’s lack of facility with English.
Analysis
[82] There is an unresolved question of fact whether the appellant chased Ms You and struck her deliberately on his wrong side of the road; or whether, as he finally asserted, in a state of anxiety he drove in search of her with his lights off and struck her accidentally. But it is common ground that that episode did not cause her death, which resulted from being crushed under the car in a second impact.
[83] I have noted that the ultimate agreement of Mr Goy with Professor Raine’s opinion, supported by the pathologist, made untenable the single continuum theory of her being struck and immediately run over. There must have been an initial collision between the appellant’s vehicle and Ms You which threw her up on to the bonnet of the car where her hair was caught in the plastic grille which was broken by her head, and a second impact in which the vehicle ran over her from feet to head.
[84] It is logically possible, even if wholly improbable, that the first impact was the result of driving carelessly without lights with a mental element lower than that short of that required by s 150A. Had that been a possible cause of death I would have allowed the appeal and directed a retrial which would have left that issue to the jury.
[85] But the evidence was unchallenged that it was the second impact which caused the crushing injuries that resulted in Ms You’s death. The logical options are that, with Ms You lying on the road behind him the appellant reversed over her; and that having struck her once the appellant’s vehicle then moved forward over her. The appellant must have been fully aware of the initial impact. An act of driving over her after that, in a separate backwards manoeuvre, is impossible to reconcile with an absence of the murderous intent required for a verdict of murder. So too are the alternatives of positioning the vehicle in line with Ms You’s body, or positioning Ms You’s body in line with the vehicle and driving forward over her.
Conclusion
[86] I am satisfied that the verdict of murder was inevitable and both trial counsel and the learned Judge were right in their assessment of the facts and issues, even though I have taken a different approach to the law. The appeal should be dismissed.
Solicitors:
Crown Law Office, Wellington
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