Liev v The Queen
[2017] NZHC 1439
•27 June 2017
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 KorhomklangJudgment:
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 car of Mr Ing, a Crown witness.
[6] The Crown says:
(a) Mr Sodarith Sao, who pleaded guilty, was a principal offender in the manslaughter;
(b)Mr Liev was the architect of the plan to kidnap Ms Prutsiriporn, remained in control and oversight of the operation after the initial kidnapping until and even beyond the point she suffered her fatal injuries, and assisted as a party to the kidnapping in 14 specific ways;
(c) Ms Prutsiriporn’s detention for 22 hours and being bound and gagged in the boot of the car for two and a half hours is a basis for finding she tried to escape because of an ongoing fear of violence and it was foreseeable to a reasonable person in Mr Liev's shoes that she might try to escape; and
(d)the medical evidence establishes Ms Prutsiriporn coming out of the boot contributed, in a not insignificant way, to her death.
Crown case against Mr Korhomklang
[7] The Crown alleges Mr Korhomklang is a party to manslaughter under s 66(1)(b) and (c) of the Act, because:
(a) Mr Sao, who pleaded guilty, was a principal offender in the manslaughter;
(b) Mr Korhomklang was aware Mr Sao intended to continue to detain Ms
Prutsiriporn, thereby threatening violence or causing fear of violence;
(c) Mr Korhomklang assisted and encouraged Mr Sao and other principals to kidnap and detain Ms Prutsiriporn in seven specific ways which also show he intended to assist them to threaten or cause her fear of violence;
(d)it was foreseeable to a reasonable person in Mr Korhomklang’s shoes that Ms Prutsiriporn might try to escape;
(e) there is sufficient evidence to show Ms Prutsiriporn came out of the boot as part of an attempt to escape; and
(f) the medical evidence establishes Ms Prutsiriporn coming out of the boot contributed, in a not insignificant way, to her death.
Law of dismissing a charge
[8] Section 147(4)(c) provides I may dismiss a charge if I am satisfied, as a matter of law, a properly directed jury could not reasonably convict Mr Liev or Mr Korhomklang on that charge.
[9] The Court of Appeal, in R v Flyger, stated a judge “must respect the jury’s responsibility to decide the facts” and “should not normally” order a discharge “where there is before the Court evidence which, if accepted, would as a matter of law be sufficient to prove the case”.1 Where the Crown case depends on inferences, as it does here, the credible evidence must “establish facts capable of supporting the inference” but “[t]he court should not decide on such an application or submission whether the
relevant inference should be drawn”.2
1 R v Flyger [2001] 2 NZLR 721 (CA) at [13]. And see Parris v Attorney-General [2004] 1 NZLR
519 at [13]–[14].
2 R v Adams HC Auckland T240/91, 8 October 1992 at 4, endorsed by the Court of Appeal in Flyger
at [18].
[10] Questions about the weight of evidence, or credibility, are for the jury to hear in the context of all the evidence. It is not for me to foreclose them from doing so unless I am satisfied that, taken at its highest, the Crown’s evidence is such that a properly directed jury could not reasonably convict a defendant.
Submissions
Mr Liev’s submissions
[11] Mr Ryan, for Mr Liev, submitted:
(a) If there is no evidence of Ms Prutsiriporn consciously doing an act which caused her death then there is no liability under s 160(2)(d).
(b)It is clear Ms Prutsiriporn was bound and gagged in the boot of the car and taken to 2 Caspar Rd. But Mr Liev was only there for less than five minutes. If Ms Prutsiriporn had attempted to escape from the boot of the car at 2 Caspar Rd, there might be sufficient evidence to put to a jury. But there is no evidence of a plan after Ms Prutsiriporn was taken to Caspar Rd, only speculation, and Mr Liev's instruction to Mr Sao not to get drunk.
(c) In the two hours after Mr Liev left Caspar Rd, there were a number of intervening events and unilateral actions which break the chain of causation linking him to Ms Prutsiriporn. They make it unreasonable for a person in Mr Liev’s shoes to foresee what happened including: Mr Sao consuming alcohol and methamphetamine; Ms Prutsiriporn making noises in the boot; Mr Ing directing Mr Sao to drive her away; and there being a chef ’s steel in the boot providing Ms Prutsiriporn the tools to enable escape.
(d)Any continuing assistance by Mr Liev goes to kidnapping, not manslaughter. There is insufficient evidence for a jury reasonably to infer any form of assistance in the commission of manslaughter. No
intention on the part of Mr Liev to assist Mr Sao to commit manslaughter can be proved.
(e) It would be wrong for criminal responsibility to be sheeted home to Mr Liev when whatever led to Ms Prutsiriporn’s death happened in his absence and he had no idea what was happening. Mr Liev had no idea of the physical and mental elements of the principal offending which were that Ms Prutsiriporn would attempt to escape while being driven along the road, would escape, and would die as a result.
The Crown’s submissions regarding Mr Liev
[12] Mr Kayes, for the Crown, submitted:
(a) There is an abundance of evidence that Ms Prutsiriporn took conscious steps to escape here.
(b)There does not have to be reasonable foreseeability of death to be a party to manslaughter, but reasonable foreseeability of the acts which resulted in death. Here that is an attempt to escape, given the circumstances of kidnapping and ongoing detention. The specifics of the escape do not have to be foreseeable. And Mr Sao’s actions were straightforward in deciding to remove Ms Prutsiriporn when she started making noises. It could be foreseen he would wish to avoid detection and avoid the displeasure of the occupant of the property when he could not contact Mr Liev.
(c) Mr Liev's actions here were much more closely connected to Ms Prutsiriporn’s actions than the defendant’s were to the victim in either R v Lucas, or in an earlier decision in these proceedings regarding a
different defendant by Venning J in R v Havea.3
3 R v Lucas [2015] NZHC 2155; R v Havea [2017] NZHC 580.
(d)A party’s assistance or encouragement under s 66(1) does not need to “remain operative” at the time of the principal commits the offending, according to the Supreme Court in Ahsin v R.4
(e) There is evidence of a plan from the discussion of options at 9 Wayne Drive which included taking her to Caspar Rd. There is evidence Mr Liev told Mr Sao to wait there for a period which Mr Ing said could be three hours (in which the fatal injuries occurred). There is an available inference that that was an interim step and detention would be ongoing thereafter.
(f) The principal offenders’ actions that instilled the fear or threat of violence in Ms Prutsiriporn were the kidnapping and continued detention. It is not possible to separate the kidnapping from the fear or threat of violence relevant to the manslaughter.
Mr Korhomklang’s submissions
[13] Mr Leabourn, for Mr Korhomklang, submitted there is insufficient evidence that shows a reasonable person in Mr Korhomklang’s position could have reasonably foreseen the possibility of the death of Ms Prutsiriporn. In particular:
(a) The evidence of Mr Korhomklang’s actions cannot be ignored. But Mr Korhomklang did not go out to the garage himself other than to organise the return of a car to someone else, did not participate in the discussion over options for dealing with Ms Prutsiriporn at 9 Wayne Drive, and it is clear he wanted to get his visitors away from his home.
(b)Mr Korhomklang was only at Caspar Rd for a matter of minutes and his participation in the kidnapping and detention of Ms Prutsiriporn ended then. He had no presence or communication linking to him subsequent events. He was not involved in any plan regarding Ms
Prutsiriporn after leaving Caspar Rd.
4 Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [116].
(c) There was a break of over two hours after Mr Korhomklang left during which Mr Sao and Mr Ing acted spontaneously. Mr Korhomklang was too temporally and physically remote, in terms of Venning J’s judgment in Havea.5 He was not part of any plan as to whether detention would continue or, if it would, whether it would continue in the manner it had.6
(d)There must be a point at which Mr Korhomklang effectively removed himself from the offending, otherwise he would suffer a never-ending attribution of responsibility for things with which he was not connected. He ensured the safety of his property and removed himself. What more could he have done? It would be too onerous, given the risks to his own safety, to expect him to call the Police or an ambulance.
(e) Ms Prutsiriporn’s escape must have been beyond Mr Korhomklang’s contemplation because she was bound and locked in the boot of the car. It was unreasonable to foresee her escape because the likelihood of escape was extremely remote given the way she was bound and the likelihood she would get out of the boot while the car was moving was almost non-existent.
(f) There is a distinct possibility Ms Prutsiriporn’s death occurred because of an accident rather than by her deliberate acts. That could not be within Mr Korhomklang’s contemplation either. This is not a case like R v Lucas where the defendant knew the victim was to be subjected to violence.
The Crown’s submissions regarding Mr Korhomklang
[14] Mr Kayes, for the Crown, submitted the evidence gives rise to a reasonable prospect a properly directed jury could reasonably convict Mr Korhomklang of
manslaughter. In particular:
5 R v Havea, above n 3, at [51].
6 At [51].
(a) It is the foreseeability of an attempt to escape that is required, not foreseeability of death (Mr Leabourn accepted this).
(b)There was a plan, which involved an intermediate step of Ms Prutsiriporn being held at Caspar Drive. It was entirely foreseeable to someone in his shoes that Mr Sao may have to move her from Caspar Rd.
(c) Venning J concluded of Mr Havea that it should have been foreseeable to a reasonable and responsible person in his shoes that Ms Prutsiriporn would fear further violence and might try to escape to avoid it.7 Mr Korhomklang’s actions had greater proximity to Ms Prutsiriporn’s detention in the car boot than Mr Havea’s actions.
(d)Mr Korhomklang was a world away from satisfying the requirements set out by the Supreme Court in Ahsin of the defence of withdrawal as a party to this offending.8 There is no evidence he took any steps to withdraw from the offending.
(e) Escape was not physically impossible because she did escape. Ms Prutsiriporn’s binding, confinement and lengthy detention makes it highly foreseeable she would try to escape. The fact the defendants felt it necessary to bind Ms Prutsiriporn clearly indicates her attempt to escape was foreseeable. It would be highly unpalatable and perverse if Mr Korhomklang and others could avoid liability because they had so forcefully bound and restricted her that they did not think she could escape. Even if that was the case, there is no suggestion Mr Korhomklang inspected her binds at any time to satisfy himself they
were so tight as to eliminate the possibility of escape.
7 R v Havea, above n 3 at [52].
8 Ahsin v R, above n 4, at [140].
(f) Submitting there is insufficient evidence to go to a jury because Ms Prutsiriporn coming out of the boot may have been an accident is “bold”, given the abundance of evidence that she had attempted to escape.
Decision
[15] My reasoning in relation to each of Mr Liev and Mr Korhomklang overlaps, but I present it separately, in relation to the submissions emphasised by each of their counsel.
Mr Liev
[16] I consider there is evidence on which the jury could find Ms Prutsiriporn consciously did an act which caused her death. She had found a knife while in the boot of the car, wrapped it in foam and stuffed it down her trousers. There were scratch marks around the lock and lip of the boot that could have been made by a chef’s steel. There is some evidence she may have launched herself from the boot. When she came out of the boot there was a chef ’s steel near her hand.
[17] I do not consider Mr Liev’s presence at Caspar Rd for less than five minutes, or leaving Caspar Rd, means the jury could not reasonably convict him of being a party to manslaughter. There is evidence upon which the jury could reasonably conclude that Mr Liev was involved in the planning and execution of the kidnapping and continued detention of Ms Prutsiriporn.
[18] As the Supreme Court stated in Ahsin v R, there is no requirement that assistance or encouragement “remain operative”.9 The party’s actus reus is complete once the assistance or encouragement occurs, provided the principal offender subsequently commits the relevant offence. And, in any case, there is evidence available for the jury to infer Mr Liev left Mr Sao in charge of Ms Prutsiriporn with instructions not to get drunk and to wait for his return. Mr Sao attempted to text Mr
Liev when she did escape.
9 Ahsin v R, above n 4, at [116].
[19] To be liable as a party to manslaughter someone in Mr Liev’s shoes has reasonably to foresee the acts which resulted in death. Here, that was an attempt to escape. The specifics of the attempt to escape do not need to be reasonably foreseeable. The fact Ms Prutsiriporn was kidnapped under threat of violence the previous evening, guarded by large men and detained for 22 hours, bound and gagged and confined in a car boot are all evidence escape was reasonably foreseeable. As Venning J concluded in relation to Mr Havea, the jury could reasonably find the circumstances of the kidnapping and ongoing detention reasonably caused her to fear violence and attempt to escape.10 And, as he said, these are “quintessentially jury issues”.11
[20] Accordingly, I consider it is possible a properly directed jury could reasonably convict Mr Liev as a party to manslaughter.
Mr Korhomklang
[21] I agree Mr Korhomklang’s actions cannot be ignored. There is evidence he got Ms Prutsiriporn to leave her house, organised a vehicle in which she was transported, allowed his garage to be used for the purpose (he suspected or believed) to hold her, back up to the garage the car he had been told she was to be put, and drove that car to Caspar Rd.
[22] Following Ahsin v R, there is evidence Mr Korhomklang had provided the required assistance or encouragement by the time he arrived at Caspar Rd. Leaving Caspar Rd, and the events that occurred there without his participation, did not necessarily obviate Mr Korhomklang’s participation as a party to the offending. In any case, as explained above, the jury could reasonably find a plan for dealing with Ms Prutsiriporn was continuing. There is evidence Mr Liev, with whom Mr Korhomklang left Caspar Rd, told Mr Sao to wait at Caspar Rd, not to get drunk and
that Mr Liev would be back in a couple of hours.
10 R v Havea, above n 3, at [52].
11 At [53].
[23] The specifics of how escape would be effected do not need to be reasonably foreseeable. As Venning J stated in relation to Mr Luigi Havea, a reasonable person in Mr Korhomklang’s shoes should have foreseen Ms Prutsiriporn would fear violence and try to escape to avoid it.12 But, in any case, there is evidence Mr Korhomklang was present at the discussion about the need for Ms Prutsiriporn to leave 9 Wayne Drive due to Mr Korhomklang’s mother coming home. There is evidence Mr Korhomklang drove the car that moved her. Accordingly, a jury could find it reasonably foreseeable Mr Sao would have had to move Ms Prutsiriporn from Caspar Rd, just as she was moved (by Mr Korhomklang, according to some evidence) from Mr Korhomklang’s house.
[24] 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.13 There is evidence his involvement had been substantial, as noted above. He did not, through his conduct, demonstrate clearly to others his withdrawal from the offending. Nor did he take reasonable and sufficient steps to undo the effect of his previous participation or to prevent the crime. He simply didn’t take further steps of assistance. As the Supreme Court stated in Ahsin v R, “[i]f attempted withdrawal is left too late, there may be circumstances in which withdrawal is extremely difficult if not impossible”.14
I consider it is open to the jury to find that was the case here.
[25] The submission that detaining someone so effectively that they could not reasonably be expected to escape avoids liability for the consequences of them trying to do is unattractive. If it is not also wrong in law, which it may be, it does not apply in these circumstances on this application. Similarly, I do not accept there is insufficient evidence Ms Prutsiriporn came out of the boot other than by accident, given the evidence of the preparation to escape mentioned above, to prevent that being put to the jury.
[26] Accordingly, I consider it is possible a properly directed jury could reasonably convict Mr Liev as a party to manslaughter.
12 R v Havea, above n 3 at [52].
13 Ahsin v R, above n 4, at [134]–
14 At [138].
Result
[27] Whether the charges are proven beyond reasonable doubt is up to the jury. But I do not consider the case is clear-cut in favour of Mr Liev or Mr Korhomklang.15 I am not satisfied, as a matter of law, a properly directed jury could not reasonably convict either of them of manslaughter on the basis of the evidence at this stage. I decline the applications.
..................................................................
Palmer J
15 R v Flyger, above n 1, at [14].
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