John Grant Cuthers v The Queen

IN THE SUPREME COURT OF NEW ZEALAND

SC 99/2015
[2016] NZSC 109

BETWEEN	JOHN GRANT CUTHERS Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, Arnold and Ellen France JJ
Counsel:	Applicant in person P D Marshall for Respondent
Judgment:	22 August 2016

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

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REASONS

The applicant and an associate were convicted of murder. The Crown case was that they went to the victim’s home intending to steal from him and left sometime later with a substantial quantity of his property. In the course of carrying out the theft, the applicant’s associate severely beat the victim, inflicting injuries from which he ultimately died.
Both the applicant and his associate appealed unsuccessfully to the Court of Appeal.[1] One of the issues raised in the applicant’s appeal arose from Lang J’s direction on s 167(b) and s 168(1)(a) of the Crimes Act 1961. The jury was asked to determine first whether they were sure that that the applicant had intentionally assisted or encouraged his associate to inflict the injuries that caused the victim’s death. If the jury were so satisfied and had found the associate guilty of murder, the jury were directed to consider whether they were sure that when providing that assistance or encouragement, the applicant knew that (i) the associate intended to cause the victim injury that the associate knew was likely to cause the victim’s death (s 167(b)); or (ii) the associate intended to cause the victim really serious injury for the purpose of enabling the associate and/or the applicant to steal the victim’s property (s 168(1)(a)). The Judge then told the jury that they did not have to reach a unanimous view on which of the two alternatives applied. Rather, it was sufficient that they all agreed that one or other of them applied – some might think (i) applied and the remainder that (ii) applied. The applicant argued that the jury had to be unanimous as to which of the alternatives applied. The Court of Appeal rejected this ground of appeal.[2]
[1]Nicholson v R [2015] NZCA 366 (Wild, Clifford and Dobson JJ).
[2]At [54].
The applicant now seeks leave to appeal to this Court on this ground, and on a further ground not raised in the Court of Appeal. That ground is that the Judge was required to explain to the jury the difference between an intention to inflict “bodily injury likely to cause death” and an intention to inflict “serious bodily injury” and to make it clear that doubt about either of these two elements would likely mean doubt about the other.
The applicant has asked for numerous extensions of time to file submissions in support of his leave application, which have been granted. The applicant applied for the extensions to enable him to obtain legal assistance. He has had legal assistance but the lawyers involved have sought leave to withdraw. In these circumstances, we ultimately gave the applicant a timetable with a deadline by which to provide submissions, and invited the Crown to provide submissions in accordance with the timetable whether or not the applicant provided any. In the event, the applicant has not provided any submissions.
As to the first proposed ground of appeal, we do not consider that it raises any issue of general or public importance given the judgments of this Court in Ashin v R.[3] Nor do we consider that there is any risk of a substantial miscarriage of justice. Each of the two alternatives identified in [2] above required that the applicant know that his associate intended to cause serious bodily injury to the victim. While there is a difference between the alternatives in terms of the applicant’s knowledge of his associate’s purpose, the alternatives are simply different possible ways in which the applicant was involved in the victim’s homicide. They are not separate transactions and do not involve any inherent inconsistency, so that no unanimity direction was required.
[3]Ashin v R [2014] NZSC 153, [2015] 1 NZLR 493.
As to the second ground, it was not raised in the Court of Appeal. As the Court has said previously, leave will rarely be given to pursue points not taken before the Court of Appeal.[4] In any event, no question of general or public importance is raised, nor is there any risk of a substantial miscarriage of justice. The material provided to the jury and the Judge’s summing up correctly identified the requirements of s 167(b) and s 168(1)(a) as to intention. No further explication was required.
[4]See, for example, LM v R [2014] NZSC 9, (2014) 26 CRNZ 643 at [2].
The application for leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

In this case, John Grant Cuthers sought leave to appeal against his conviction for murder. He and an associate were convicted of murder, with the Crown alleging that they intended to steal from the victim and, in the course of the theft, the associate inflicted injuries from which the victim died. Both Cuthers and his associate had appealed their convictions unsuccessfully in the Court of Appeal. Cuthers now sought leave to appeal to the Supreme Court of New Zealand on the grounds that the jury did not have to be unanimous as to which of two alternatives applied and that the judge failed to adequately explain the difference between certain types of intent. The Supreme Court considered these grounds but found that neither raised an issue of general or public importance nor was there a risk of a substantial miscarriage of justice. Accordingly, the application for leave to appeal was dismissed.

The central legal issues before the Supreme Court were whether the jury needed to be unanimous as to which of the two alternatives applied in order to find Cuthers guilty of murder and whether the trial judge was required to further explain the difference between certain types of intent. Cuthers argued that the jury had to be unanimous as to which of the alternatives applied. The Court of Appeal had previously rejected this ground of appeal, and the Supreme Court agreed, finding that the alternatives were not separate transactions and did not involve any inherent inconsistency, so that no unanimity direction was required. As to the second issue, Cuthers argued that the judge was required to explain the difference between an intention to inflict "bodily injury likely to cause death" and an intention to inflict "serious bodily injury". The Supreme Court found that the material provided to the jury and the judge's summing up correctly identified the requirements of the relevant sections of the Crimes Act 1961, and no further explication was required.

The Supreme Court dismissed the application for leave to appeal. It found that the first ground of appeal did not raise an issue of general or public importance and that there was no risk of a substantial miscarriage of justice. The Court also found that the second ground of appeal was not raised in the Court of Appeal and that it did not raise an issue of general or public importance nor was there a risk of a substantial miscarriage of justice. The Supreme Court concluded that the material provided to the jury and the judge's summing up correctly identified the requirements of the relevant sections of the Crimes Act 1961, and no further explication was required. The Supreme Court did not grant leave to appeal, and the convictions stand.

No further orders were made by the Supreme Court. The dismissal of the application for leave to appeal means that Cuthers' convictions for murder remain in place. The Supreme Court's decision confirms that the jury did not need to be unanimous as to which of the two alternatives applied and that the trial judge's summing up was sufficient.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established