Liev v The Queen
[2017] NZHC 1663
•19 July 2017
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI-2016-092-5315
[2017] NZHC 1663
SENG LEK LIEV
APHICHART KORHOMKLANG LUIGI HAVEA
TAFITO MASI VAIFALE JOSEPH BENJAMIN HAURUA TEVITA MATANGI FANGUPO□
v
THE QUEEN
Hearing: 1 May to 12 July 2017 Appearances:
G R Kayes, L Radich and H Benson-Pope for Crown M W Ryan and J M Hudson for S L Liev
H B Leabourn and A M M Ives for A Korhomklang M Kan, F Pereira and J Yang for L Havea
J Munro, D S Niven and J N Olsen for T M Vaifale M S Gibson and I D Tucker for J B HauruaD M M Dickinson and S R Lack for T M Fangupo
Judgment:
19 July 2017
JUDGMENT NO 2 OF PALMER J
This judgment is delivered by me on 19 July 2017 at 12.30 pm pursuant to r 11.5 of the High Court Rules.
Counsel/Solicitors:
Kayes Fletcher Walker, Manukau
.....................................................
Registrar / Deputy Registrar
M W Ryan and J M Hudson, Barristers, Auckland and Manukau H B Leabourn and A M M Ives, Barristers, Auckland
Michael Kan Law Limited, Auckland
R v LIEV & ORS No 2 [2017] NZHC 1663 [19 July 2017]
J D Munro, D S Niven and D N Olsen, Barristers, Auckland M S Gibson, Barrister, Auckland and Tucker & Co, Auckland D M M Dickinson and S R Lack, Barristers, Auckland
Summary
[1] Five of the defendants in this trial were charged with manslaughter under s 160(2)(d) of the Crimes Act 1961: killing a person:
by causing that person by threats or fear of violence, or by deception, to do an act which causes his or her death
[2] During the trial I made decisions regarding three aspects of the elements of that offence. This judgment records my reasons for those decisions:
(a)To be convicted of manslaughter under s 160(2)(d), the mental element required is that a defendant needs to intend to threaten or put the deceased in fear of violence or needs to intend to deceive.
(b)What must be reasonably foreseeable by a person in the defendant’s shoes is not only someone in the deceased’s circumstances attempting the kind of action that led to his or her death but also he or she suffering some harm in doing so. Otherwise someone could be guilty of manslaughter when they could not reasonably have foreseen any harm to the deceased.
(c)Foreseeing a consequence as virtually certain does not amount to intention per se, but it can be taken into account by the jury as evidence of what the defendant intended, along with other evidence.
1 Mental element of s 160(2)(d)
Recklessness
[3] The trial started on 1 May 2017. On 19 June 2017 the Supreme Court issued its judgment in R v Cameron & Ors.1 The Supreme Court could there be taken to have decided recklessness would be sufficient to satisfy mens rea requirements as to
1 Cameron v R [2017] NZSC 89.
circumstance and result where an offence is not defined in terms which require actual knowledge or intention.2
[4] On 29 June 2017, before the parties made their closing addresses to the jury, I distributed to them a draft Question Trail. The draft did not contain a question about the mental element of the manslaughter offence under s 160(2)(d) of the Crimes Act 1961. I asked the Crown to indicate whether it had considered the implications of Supreme Court’s decision in R v Cameron. Mr Kayes, for the Crown, advised the Crown had not based its case on recklessness and did not intend to change its case to recklessness. Defence counsel did not propose anything different. We proceeded on that basis.
Case law on the mental element
[5] On 29 June 2017 I also advised counsel that, in my view, there was a lack of case authority about the mental element required in the offence of s 160(2)(d). The case law regarding this offence tends to focus on reasonable foreseeability rather than what a defendant is required to have known or intended.
[6] The seminal authority, the Court of Appeal’s judgment in R v Tomars, does not identify a requisite mental element of the offence.3 Neither did the Supreme Court of Victoria in R v Lam, in relation to an analogous offence.4 Neither did the High Court in R v Lucas, in identifying the elements the Crown is required to prove for the purposes of a s 147 application to discharge a defendant as a party on this charge.5 However, in declining the s 147 application Gendall J emphasised, on the evidence, the defendant “knew throughout that violence was likely to follow” and “intended to
… ‘scare’ the victim’”.6
2 At [73].
3 R v Tomars [1978] 2 NZLR 505 (CA).
4 R v Lam [2005] VSC 296, 164 A Crim R 445.
5 R v Lucas [2015] NZHC 2155 at [15] and [34].
6 At [50] and [62].
[7] The only authority for the mental element of s 160(2)(d) appeared to be in the judgment on Mr Luigi Havea’s s 147 application in this proceeding where Venning J stated:7
Where the charge is manslaughter under s 160(2)(d) this element and particularly the requirement for knowledge/intention must be considered in a nuanced way. Luigi Havea must have intended to assist Mr Sao in the continued detention of Ms Prutsiriporn in the boot of Mr Ing’s car and thereby have intended to cause her to fear violence.
[8] On 29 June 2017 I invited submissions as to what the mental element of the offence is. Mr Kayes, for the Crown, ventured that it centres on an intention to threaten violence or create the fear of violence. Other counsel preferred to consider the matter further but did not subsequently object to that sort of concept as the mental element.
[9] I considered, to be convicted of manslaughter under s 160(2)(d), a defendant needs to intend to threaten or put the deceased in fear of violence or needs to intend to deceive. That does not rise to the level of murder under s 167. But it does mean defendants would not be liable for manslaughter if they do not intend the objectionable aspect of causing the deceased to do an act causing death.
[10] The final version of the Question Trail included these formulations in respect of the defendants alleged to have been liable as a party (Mr Liev, Mr Korhomklang and Mr Havea):
Are you sure a person or person put Ms Prutsiriporn in fear of violence and
intended to do so?
AND are you sure [the defendant] knew the person(s) did and intended to do so?
AND are you sure [the defendant] aided or encouraged the person(s) to do so and intended to so aid, encourage or arrange?
[11] In respect of the defendants alleged to have been a principal or a party (Mr Vaifale and Mr Haurua) the formulation was:
Are you sure [the defendant] put Ms Prutsiriporn in fear of violence and
intended to do so?
7 R v Havea [2017] NZHC 580 at [41].
OR
Are you sure [the defendant] knew the person(s) did and intended to do so?
AND are you sure [the defendant] aided or encouraged the person(s) to do so and intended to so aid, encourage or arrange?
2 Some harm must be reasonably foreseeable under s 160(2)(d)
[12] In R v Tomars, the Court of Appeal formulated the issues that arose from a charge under s 160(2)(d) as follows:8
(1)Was the deceased Roger Kingham, at the time when he attempted to cross the road in the path of Mr Chapman’s car, in fear of violence from the appellants?
(2)If so, did such fear cause him to attempt to cross the road in the circumstances and manner in which he made such attempt. In this context we use the word “cause” in its ordinary legal sense of playing a not insignificant part.
(3)If so was the attempt made by the deceased to cross the road a natural consequence of the actions of the appellants in the sense that it was the kind of action on his part which could reasonably have been foreseen by reasonable and responsible persons in the appellants’ shoes at the time when they finally pursued, overtook and passed the motorcycle on which the deceased was riding. This question must of course be answered by reference to the likely actions of a person in the circumstances of the deceased; in other words someone subjected to whatever course of conduct is proved against the appellants.
[13] A question relating to reasonable foreseeability was included in all the drafts of the Question Trail I discussed with counsel. On Friday 7 July 2017, after all the parties’ closing addresses to the jury, I heard submissions from counsel on the final draft of the Question Trail. At the end of that hearing Mr Leabourn, for Mr Korhomklang, raised a conceptual question about criminal liability for manslaughter under s 160(2)(d) of the Crimes Act 1961.
Mr Leabourn’s submissions
[14] Mr Leabourn was concerned about what has to be reasonably foreseen at law. He suggested that, in addition to foreseeing the deceased could attempt to escape from the boot, the defendant ought also to have to reasonably foreseen the deceased could
8 R v Tomars, above n 3, at 510.
suffer some harm to be convicted. He suggested there needed to be more than the most trifling of acts.
[15] He acknowledged there was no authority for his submission. He acknowledged comments in R v Lucas might be inconsistent with his submission.9 He cited Adams on Criminal Law:10
For consistency with the dangerousness qualification now applied to s 160(2)(a), it may be that as well as the victim’s act being reasonably foreseeable it must also have been reasonably foreseeable that there was a real risk of him or her suffering some harm. In such a case there might be no liability if, for example, the victim ran from the defendant and died from heart failure caused by the physical exertion: compare R v Hayward (1908) 21 Cox CC 692, although para (e) might apply in that situation: see [CA160.19].
In R v Williams [1992] 1 WLR 380, [1992] 2 All ER 183 (CA), it was held that in these cases some harm must be reasonably foreseeable, although the apparent holding that harm must be likely to result “from the threat itself” is difficult to understand, and could hardly apply to deception, which is an alternative under s 160(2)(d). Consistent with Tomars (above), it was also held that although in the agony of the moment the victim may do the wrong thing or act unwisely, the victim’s conduct must be such that it could be reasonably foreseen, is “proportionate” to the threat, or is “within the ambit of reasonableness”. It suffices if the reaction is “in the foreseeable range”: R v Corbett [1996] Crim LR 594 (CA). See also R v Lewis [2010] EWCA Crim 151.
Crown submissions
[16] Mr Kayes did not have long to consider his position on this question. In response, he submitted that suffering harm was not a requirement of the law and what was stated in R v Lucas was what was required. He submitted the Court of Appeal in R v Tomars had quoted English cases in formulating the New Zealand reasonable foreseeability requirement and one of those, R v Mackie, had included a reference to foreseeability of the risk of some harm resulting.11 Yet the Court of Appeal had not included the requirement in its formulation.
[17] Mr Kayes submitted that whether the act done was trifling or not could not make a difference. He gave an example of a child running from a parent and tripping
– the factual scenario in R v Mackie. He suggested tripping is a trivial act, but running
9 R v Lucas, above n 5, at [34].
10 Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CA160.18(2)].
11 R v Tomars, above n 3, at 509, citing R v Mackie (1973) 57 Cr App R 453 (CA) at 460.
away is not. Mr Kayes submitted, while it might be required that the overall activity engaged in had a potential for harm, the foreseeability limb of the offence does not require foresight of harm resulting.
Decision
[18] This was a difficult point on which there is little authority. It was raised at the end of a ten-week trial after several versions of a draft Question Trail had been circulated for submission and after all parties closed their cases.
[19] However, I considered there was an important point of law at issue. From first principles, can a defendant be convicted of manslaughter under s 160(2)(d) if someone in his or her shoes cannot reasonably foresee that a person in the circumstances of the deceased could suffer any harm from doing an act because of his or her actions?
[20] The Court of Appeal in R v Tomars did not include suffering harm in its formulation of the relevant legal tests. That was understandable because the foreseeability of the deceased suffering harm was not at issue in terms of the facts of that case. What the Court of Appeal did say was:12
… in a case of provocation the Court’s rejection of the need, as a matter of law, for a reasonable relationship between the acts or words of provocation and retaliation by the accused operated in favour of the accused. In the context of “fear” cases the rejection of an objective test would operate against the accused. Moreover in the latter class of case there is much to be said, as a matter of policy rather than strict logic, for adopting a test which will give some protection to an accused person against conviction in a criminal Court in respect of injury or death which “only in a very remote and unreal sense” is a consequence of his conduct, those being words used by Stephenson LJ in the Roberts case. So we feel, with respect, that we should adopt and apply, in “fear” cases, the objective test formulated in Roberts and Mackie.
[21] I considered the policy considerations underlying the Court of Appeal’s adoption of the reasonable foreseeability test as an element of liability under s 160(2)(d) extend to the foreseeability that some harm could be suffered. This is consistent with liability for manslaughter in killing a person by an unlawful act under s 160(2)(a).13 Under s 160(2)(d), if someone in a defendant’s shoes can reasonably
12 At 510.
13 R v Lee [2006] 3 NZLR 42 at [138].
foresee a person in the deceased’s circumstances attempting the kind of action that led to her death but cannot reasonably foresee her suffering some harm, I cannot see why, in principle or in practice, he should be liable for her manslaughter.14
[22] Accordingly, I amended the Question Trail to include that element. The final version of the questions in relation to a principal (Mr Vaifale and Mr Haurua) and a party (Mr Liev, Mr Korhomklang, Mr Havea, Mr Vaifale and Mr Haurua), respectively, were as follows:
Are you sure a reasonable and responsible person, in [the defendant’s] shoes at the time of his actions, could reasonably foresee a person in Ms Prutsiriporn’s circumstances attempting to escape from the boot and suffering some harm?
Are you sure reasonable and responsible people, in [the principal’s AND the defendant’s] shoes at the time of their actions, could both reasonably foresee a person in Ms Prutsiriporn’s circumstances attempting to escape from the boot and suffering some harm?
[23]In my summing up I said:
A note about the words “suffering some harm”. It doesn’t need to be serious harm – foreseeability of some harm would be enough. Now, you might think it likely that a person attempting to escape from the boot of the car might suffer some harm. If you do think some harm was reasonably foreseeable, you will be unlikely to have difficulty with the suffering harm aspect of this question. But you do have to consider and be sure of that.
3 Virtual certainty is not intention but may be evidence of intention
[24] Question K4 in the Question Trail concerned with the charge of manslaughter under s 160(2)(d) against Mr Korhomklang as a party. The final version read:
Are you sure a person or persons put Ms Prutsiriporn in fear of violence
and intended to do so?
AND are you sure Mr Korhomklang knew the person(s) did and intended to do so?
AND are you sure Mr Korhomklang aided or encouraged the person(s) to do so and intended to so aid or encourage?
[25]In my summing up, I had directed the jury:
14 Although I had not seen it at the time, I note that is consistent with the English Court of Criminal Appeal’s decision in R v Williams (Barry Anthony) [1992] 1 WLR 380 (Crim App) at 388–389.
When it comes to assessing whether a defendant intended to do something, whatever it is, approach that word using common sense. It has its ordinary meaning: it means that the defendant wanted to, or meant to, do the action, or bring about the consequence. So, here, it might be that they wanted to, or meant to, detain Ms Prutsiriporn.
Question
[26] The jury retired to deliberate around 3.30 pm Monday 10 July 2017. At 11 am on Tuesday 11 July 2017, in the course of deliberating, the jury asked:
With respect to question K4 (page 6) of question trail can we have some guidance/more definition of what “intended” means in relation to paragraph 3 of K4?
[27] I put the question to counsel and advised them I proposed to repeat what I had directed the jury about “intention” in the summing up in the context of that question, expanded very slightly.
Submissions
[28] Mr Kayes, for the Crown, submitted that it was likely the jury’s question derived from the closing address by Mr Leabourn, for Mr Korhomklang, suggesting his intention was to get the men out of his house and asking what choice he had. Mr Kayes submitted it might be important to make clear that intention is different to motive and that someone can have more than one intention. Mr Kayes also submitted that there can be two types of intention which can be sufficient:
(a)direct intention, where an outcome is desired; and
(b)indirect intention, where an outcome, though not desired, is seen as a virtual certainty.
[29] Mr Kayes relied on the commentary in Adams on Criminal Law and the cases of R v Wentworth and R v Nedrick.15 Adams stated:
The meaning of “purpose” in s 66(1)(b) was examined at length in R v Wentworth [1993] 2 NZLR 450, also reported as R v Richards (1992) 9 CRNZ
15 Adams on Criminal Law, above n 10, at [CA66.20(2)(a)]; R v Wentworth [1993] 2 NZLR 450 (HC) also reported as R v Richards (1992) 9 CRNZ 355 (HC); R v Nedrick [1986] 1 WLR 1025 (CA).
355, where a pharmacist was charged with aiding the homebake manufacture of heroin by supplying codeine used for that purpose. The High Court rejected the submission that it was necessary to prove that the defendant wanted heroin to be manufactured and held that, in this context, no distinction is to be drawn between purpose and intention. For the same interpretation of “purpose” in the aiding provision of the Canadian Criminal Code, see R v Hibbert [1995] 2 SCR 973, (1995) 99 CCC (3d) 193 (SCC); R v Heldson (2007) 216 CCC (3d)
1 (ONCA). Intention includes both “direct” intention, where a consequence is desired as an end in itself, and “oblique” intention, where a consequence, although not desired, is seen with “sufficient certainty” (which probably means “virtually” or “morally” certain: see [CA20.17]). Either state of mind is sufficient to constitute the “purpose” required by s 66(1)(b). The relevant consequence is variously described as encouragement or assistance in the commission of the principal offence, or the commission of the principal offence.
An alleged aider will seldom be able to foresee as certain that the principal will indeed commit the offence. It is enough if the former desires the commission of the offence, or wants to help or encourage its commission, or foresees that it is virtually certain, and not merely likely, that his or her conduct will help or encourage the commission of the offence or conduct by the principal that is intended to bring about that result: R v Wentworth CA10/93, 26 May 1993. The conclusions reached in Wentworth (above) as to the meaning of “purpose” in s 66(1)(b) were not challenged before the Court of Appeal, which accepted that it was enough that the defendant “knew the tablets were to be used for” the manufacture of either heroin or morphine. See [CA66.20(1)(a)].
[30] Ms Ives, for Mr Korhomklang, submitted that a direction along the lines of that proposed by Mr Kayes would be too confusing and comes close to importing wilful blindness into the offence. She relied on Ahsin for what parties need to intend and favoured directing the jury regarding the ordinary meaning of intention.16 Mr Kan for Mr Havea, Mr Hudson for Mr Liev, and Mr Gibson for Mr Haurua, endorsed Ms Ives’ submissions.
Direction
[31] I adjourned to consider the submissions and review the case law. I did not consider it is clearly established in New Zealand law that virtual certainty, as indirect intention, is sufficient to establish intent itself. As Simester and Brookbanks note, there is a respectable line of authority that mere foresight of a consequence does not establish an intention.17 But, before quoting House of Lords authority that they
16 Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [82]–[83].
17 A P Simester and W J Brookbanks Principles of Criminal Law (4th ed, Thomson Reuters, Wellington, 2012) at [4.2.4].
consider establishes the rule in the United Kingdom along lines suggested by HLA Hart, they also stated:
There are two main alternatives: either there is, by definition¸ a second category of (indirect) intention involving morally certain consequences,18 or there is not and moral certainty is simply evidence of an intention in its core sense. In the latter case, foresight of a moral certainty is no more than a ground for inferring that the consequence was (directly) intended,19 and the inference may be rebutted by other evidence.
There is something to be said for thinking the link is merely evidential, and that there is no second category. Even consequences that are certain to occur may appear not to be intended. If D drinks a bottle of scotch one evening, he may be sure that he will get a hangover in the morning, but he does not drink the scotch with the intention of having a hangover.20
[32] In the time available, I considered there were few objections to an evidential approach to virtual certainty which was a safer direction to give the jury than saying it suffices as intent per se.
[33]At 12.35 pm I directed the jury as follows:
Members of the jury. Thank you for your question. You will appreciate that it is the simple questions which are most difficult and which take time to consider but I do have a response.
Your question is about the meaning of “intended” in relation to paragraph 3 of question K4. That part of the question is about whether you are sure Mr Korhomklang intended to aid or encourage a principal offender to put Ms Pritsiriporn in fear of violence.
You do not have to decide on why Mr Korhomklang did what he did – you do not have to decide his motive. I should make clear it is possible to have more than one intention in doing an act.
What you have to assess here is whether Mr Korhomklang intended to aid or encourage a principal offender to put Ms Pritsiriporn in fear of violence and you should approach the word “intend” or “intended” using your common sense. It has its ordinary meaning. It means that Mr Korhomklang wanted to, or meant to, bring about the consequence or was his object or purpose.
And if you think Mr Korhomklang foresaw the consequence of Ms Pritsiriporn being put in fear of violence, that he knew that was virtually
18 Compare Lord Bridge in R v Moloney [1985] AC 905 (HL) at 925: an overwhelming probability “will suffice to establish the necessary intent” (emphasis added by Simester and Brookbanks).
19 Compare R v Nedrick, above n 14, at 1028: where D realises that a consequence is inevitable, “the inference may be irresistible that he intended that result” (emphasis added by Simester and Brookbanks).
20 Antony Duff Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (Basil Blackwell, Oxford, 1990) at 89–90.
certain, that can be evidence of what he intended. Evidence is for you to assess so you can consider that along with the other evidence in considering his intention.
What you have to be sure of is whether he wanted to, or meant to, aid the principal offender to put her in fear of violence or encourage the principal offender to put her in fear of violence. That, along with the other parts of the question, is what you have to be sure of to answer “yes” to question K4. Otherwise, as you know, you must answer no.
I hope that helps.
Outcome of the trial
[34] All the defendants were charged with manslaughter except Mr Fangupo. I attach, in an annexure, the question trail for those alleged to have been principal or, alternatively, parties to manslaughter. (In the summing up, I explained the links between the principal and party elements of questions 1 and 4).
[35] On 12 July 2017 all defendants charged with manslaughter were found guilty, unanimously. Mr Liev, Mr Korhomklang and Mr Havea were also found guilty of kidnapping, unanimously. Mr Fangupo was found not guilty of kidnapping by a majority of 11 to 1.
..................................................................
Palmer J
Annexure
Question Trail for defendant charged as a principal or a party under s 160(2)(d)
1Are you sure [the defendant] put Ms Prutsiriporn in fear of violence and
intended to do so?
OR
Are you sure [the defendant] knew that the person(s) did so and intended to do so?
AND are you sure [the defendant] aided or encouraged the person(s) to do so and intended to so aid or encourage?
If YES to either go to 2.
If NO to both find [the defendant] NOT GUILTY of manslaughter.
2Are you sure that fear of violence contributed, in a not insignificant way, to
Ms Prutsiriporn doing an act to attempt to escape from the boot? If YES, go to 3.
If NO, find [the defendant] NOT GUILTY of manslaughter.
3Are you sure what Ms Prutsiriporn did to attempt to escape from the boot
contributed, in a not insignificant way, to her death? If YES, go to 4.
If NO, find [the defendant] NOT GUILTY of manslaughter.
4Are you sure a reasonable and responsible person, in [the defendant’s] shoes at the time of his actions, could reasonably foresee a person in Ms Prutsiriporn’s circumstances attempting to escape from the boot and suffering some harm?
OR
Are you sure reasonable and responsible people, in the other person(s)’s shoes AND in [the defendant’s] shoes at the time of their actions, could both reasonably foresee a person in Ms Prutsiriporn’s circumstances attempting to escape from the boot and suffering some harm?
If YES to either, find [the defendant] GUILTY of manslaughter.
If NO to both, find [the defendant] NOT GUILTY of manslaughter.
0
4
1