Liev v The Queen - [2017] NZHC 1439

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-092-5315 [2017] NZHC 1439

SENG LEK LIEV
APHICHART KORHOMKLANG

v

THE QUEEN

Hearing: 26 June 2017

Appearances:

G R Kayes, L Radich and H Benson-Pope for the Crown
M W Ryan and J M Hudson for S L Liev
H B Leabourn and A M M Ives for A Korhomklang

Judgment:

27 June 2017

JUDGMENT OF PALMER J (SECTION 147 APPLICATIONS)

This judgment is delivered by me on 27 June 2017 at 11.45 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel/Solicitors:
Kayes Fletcher Walker, Manukau
M W Ryan, Barrister, Auckland
J M Hudson, Barrister, Manukau

LIEV & ANOR v R [2017] NZHC 1439 [27 June 2017]

Summary

[1] Mr Seng Lek Liev and Mr Aphichart Korhomklang are each on trial for kidnapping and manslaughter. After the Crown presented its evidence they each applied for dismissal of the manslaughter charges under s 147 of the Criminal Procedure Act 2011. But I am not satisfied a properly directed jury could not reasonably convict Mr Liev or Mr Korhomklang of manslaughter on the basis of the evidence against each of them. The decision is for the jury. I decline the applications.

The cases

[2] Mr Liev and Mr Korhomklang are each charged with the kidnapping and manslaughter of Ms Jindarat Prutsiriporn on 29 February and 1 March 2016. Mr Liev is charged as a party to both offences. Mr Korhomklang is charged as a principal offender and, in the alternative, a party in relation to kidnapping and as a party to manslaughter. They have each pleaded not guilty to both charges.

[3] One other defendant is on trial for both kidnapping and manslaughter. Two others have pleaded guilty to kidnapping but are on trial for manslaughter. One is on trial for kidnapping only. Four other defendants have pleaded guilty to kidnapping. One has pleaded guilty to kidnapping and manslaughter.

[4] The manslaughter charges against Mr Liev and Mr Korhomklang are, under s 160(2)(d) of the Crimes Act 1961 (the Act), that between 29 February and 1 March
2016, they were parties to causing Ms Prutisiriporn, by threats or fear of violence, to escape from the boot of a moving vehicle causing her death.

Crown case against Mr Liev

[5] The Crown alleges Mr Liev is a party to manslaughter under s 66(1)(b), (c) and

(d) of the Act, by way of:

(a) his party liability for kidnapping (which is not the subject of application);

(b)the kidnapping and ongoing detention of Ms Prutsiriporn causing the threat and fear of violence; and

(c) Mr Liev providing encouragement, assistance and counsel in the planning and execution of the continued detention of Ms Prutsiriporn on 1 March 2016 in the…

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 1439
Case: [2017] NZHC 1439
Decision Date: 27 June 2017

CaseChat Overview and Summary

Seng Lek Liev and Aphichart Korhomklang are on trial for kidnapping and manslaughter. They applied for the manslaughter charges to be dismissed under s 147 of the Criminal Procedure Act 2011. The legal issue was whether there was evidence a properly directed jury could not reasonably convict them of manslaughter on the basis of the evidence against them. The court held that a properly directed jury could reasonably convict Mr Liev as a party to manslaughter because there was evidence upon which the jury could conclude he was involved in the planning and execution of the kidnapping and continued detention of the victim. The specifics of the attempt to escape did not need to be reasonably foreseeable. Mr Korhomklang was also liable as a party to manslaughter because he provided the required assistance or encouragement by the time he arrived at Caspar Rd. There was evidence a plan for dealing with the victim was continuing. Mr Korhomklang's actions did not approach the level required by the Supreme Court in Ahsin v R to withdraw from his participation in the offending. The court declined the applications for the manslaughter charges to be dismissed.

Orders