Liev v The Queen - [2017] NZHC 1663

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 Haurua

D 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Liev v The Queen

Details

AGLC: Liev v The Queen [2017] NZHC 1663
Case: [2017] NZHC 1663
Decision Date: 19 July 2017

CaseChat Overview and Summary

Five of the defendants in this trial were charged with manslaughter under s 160(2)(d) of the Crimes Act 1961. The trial judge made decisions regarding three aspects of the elements of that offence. The first was whether the mental element required was that a defendant needed to intend to threaten or put the deceased in fear of violence or needed to intend to deceive. The second was whether the foreseeability requirement needed to include foreseeability of some harm to the deceased. The third was whether foreseeing a consequence as virtually certain could amount to intention per se or whether it could only be taken into account as evidence of what the defendant intended. The court concluded that the requisite mental element required an intention to threaten or put the deceased in fear of violence or an intention to deceive. Regarding foreseeability, the court held that it was not enough for a defendant to foresee the deceased attempting an action that led to her death. The defendant must also foresee the deceased suffering some harm from doing so. Finally, the court held that 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.

The defendants were found guilty of manslaughter, unanimously, and guilty of kidnapping, unanimously, except for Mr Fangupo who was found not guilty of kidnapping by a majority of 11 to 1.

Orders