Neketai v The Queen
[2014] NZCA 502
•15 October 2014 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA826/2013 [2014] NZCA 502 |
| BETWEEN | WITERI AHOMIRO NEKETAI |
| AND | THE QUEEN |
| Hearing: | 19 August 2014 (further submissions received on 5 September 2014) |
Court: | O’Regan P, Simon France and Mallon JJ |
Counsel: | C J Tennet for the Appellant |
Judgment: | 15 October 2014 at 10 am |
JUDGMENT OF THE COURT
A The appeal against conviction is allowed.
B The conviction for murder is quashed.
C In its place a conviction for manslaughter is substituted.
D The sentence on the conviction for murder is quashed.
EMr Neketai is to be re-sentenced on the manslaughter conviction in the High Court by the trial Judge.
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REASONS OF THE COURT
(Given by Mallon J)
Introduction
Mr Neketai was convicted of murder following a jury trial before Brewer J at the High Court at Hamilton. He was sentenced to life imprisonment with a minimum period of imprisonment of 13 years.[1] He appeals his conviction contending that the only reasonable verdict was manslaughter. If he is unsuccessful in his conviction appeal, he also appeals against his sentence contending that the minimum period of imprisonment is manifestly excessive.
Background
[1]R v Neketai [2013] NZHC 2711.
Mr Neketai was instructed by an associate, who was in prison at the time, to collect a debt from the victim, Mr Kimura. Violence was planned. In a text message the associate proposed that Mr Neketai “hammer him 1st” then have a “good long talk” and Mr Neketai responded that “he deserves it best thing shut his fat ass dwn an clean him dwn”. Mr Neketai was a big, powerfully built man. There was evidence that he had some knowledge of kick-boxing and how to use his body to create power.
Mr Neketai enlisted two other associates, who went with him to Mr Kimura’s house. One of Mr Neketai’s associates knocked on the door and asked for him. Mr Kimura came outside to the front of his house. There he was confronted by Mr Neketai. There was a brief exchange. Mr Neketai then punched Mr Kimura in the face. Mr Kimura fell to the ground. His head smashed onto concrete. While Mr Kimura lay on the ground Mr Neketai kicked him in the face. They left Mr Kimura lying on the ground in an unresponsive state. Mr Kimura’s wife and daughter found him lying in a pool of blood struggling to breathe. He was taken to hospital.
After leaving the scene, Mr Neketai sent a number of texts. It was apparent from these texts that he was aware of the state in which he had left Mr Kimura. He described Mr Kimura as being “in a coma” and “a pool of blood”. He also said that Mr Kimura was “fckd cuzy n hospital myt b a vege dnt no yet….hahaha tha fat fucker”. The text messages also indicated that Mr Neketai viewed Mr Kimura as having “desrespectd bratha T an tha Club” and that as a result “i jst sucked it 2 hm”.
Mr Kimura never regained consciousness. He died six weeks later.
The cause of death
The Crown charged Mr Neketai with murder on the basis of s 167(b) of the Crimes Act 1961: that is, that Mr Neketai meant to cause Mr Kimura bodily injury that he knew was likely to cause death, and was reckless as to whether death ensued or not. The Crown opened on the basis that the cause of the bodily injury which led to Mr Kimura’s death was the punch or the kick or a combination of those assaults.
Evidence was called from Dr Morrow, a forensic pathologist who undertook an autopsy of Mr Kimura the day after his death. Dr Morrow’s evidence was that he observed the following injuries:
(a)a blunt force injury on the right lip;
(b)a fracture to the left back of the skull and “internal injuries to the brain associated with, with this”;
(c)fractures to the thin bones on top of both eye sockets; and
(d)fractures to the left side of the face.
Dr Morrow described the internal injuries. He said that there was brain scarring resulting from swelling of the brain, bruises and haemorrhaging. These injuries, which had begun healing by the time of his examination, caused Mr Kimura’s “decreased level of consciousness and ultimately resulted in, in his death”. Dr Morrow was asked to explain “how the injury started with the skull fracture and moved inward and ultimately the whole process from the skull fracture to brain swelling [led] to, to death?” He explained that at the point that the skull fracture occurred there was a blow that transmitted energy to the inside of the brain. At that point the brain was bruised causing bleeding to the surface of the brain (cerebral contusions). In addition there was bleeding around the membranes that cover the brain (subdural haemorrhage). As a result of the subdural haemorrhage the brain swelled, the brain stem was injured, and this resulted in loss of consciousness.
Dr Morrow was asked for his opinion on the cause of Mr Kimura’s injuries. His opinion was that they were caused by at least three impacts: one to the right side of his mouth, one to the back of his head and one to the left side of his face. He had earlier explained that the fractures to the bones at the top of the eye sockets could have been caused by a severe blow to the back of the head which would cause the brain to slam against the front of the head, possibly in combination with the force that caused the fractures to the left side of the face.
Dr Morrow agreed that the injuries to the right side of the mouth were consistent with a blow to the right chin. He agreed that this could then have caused Mr Kimura to fall backward and to hit the left rear side of his head on the concrete to cause the skull fracture. These impacts would not account for the fractures to the left side of the face so there had to be another mechanism to inflict these injuries (that is, a further blow or blows). Dr Morrow was not asked whether this mechanism could have caused Mr Kimura’s death.
The Crown closed on the same basis as it opened. It submitted that Mr Neketai was responsible for the murder of Mr Kimura because:
…having struck Kimura to the concrete ground, heard the thud, seen that Kimura was “had it” and bleeding, he didn’t stop. He continued to attack Kimura’s injured head with a forceful kick or kicks. This proves that Neketai’s intention had developed to inflicting injuries that he knew were likely to cause death and he did it anyway.
Further on in the Crown’s closing, it was submitted:
And the Crown says not only was this a punch from a man with kickboxing knowledge, but it was an extremely powerful punch, it wasn’t the end of the story. We’re not here because of only one punch. The kicking to the head of an already incapacitated man that follows shows a clear intention to inflict injury known to be likely to cause death.
The defence submitted that it was the punch that caused the injury that ultimately resulted in Mr Kimura’s death. It submitted that the critical question for the jury to focus on was Mr Neketai’s knowledge of the likelihood of death at the time of the “assault”. It submitted that a “one punch assault” is not murder. It submitted that the jury could not be satisfied that “Mr Neketai knew that that punch was likely to cause death and in that knowledge [he] went ahead recklessly anyway”. It submitted that the proper verdict was manslaughter.
After the closing addresses but before summing up, the Judge said to counsel in chambers that his understanding of the evidence was that the punch was the cause of death. He said that the jury would have to consider “murderous intent”[2] at the time the punch was landed. He said that in considering this question at the time of the punch, the jury were entitled to look at what Mr Neketai did immediately afterwards and the kick might assist with that. Counsel for the Crown did not agree that the kick was only relevant in that way. He submitted that the kick was a further “brain impact”. He accepted that Dr Morrow did not say that explicitly. Counsel for Mr Neketai agreed with the Judge’s view of the evidence. The Judge decided that he would re-read the evidence over the weekend before summing up.
[2]In this case, as noted at [6], the alleged murderous intent was under s 167(b) of the Crimes Act 1961.
We do not know from the information before us whether there was any further discussion about this before the Judge proceeded to sum up after the weekend break. It is clear, however, that the Judge left it to the jury to decide if the kick was the operative cause of death. The question trail provided to the jury instructed them that they needed to be sure that:
(a)Mr Neketai caused the death of Mr Kimura by deliberately punching and/or kicking him; and
(b)at the time he punched and/or kicked Mr Kimura he intended to cause him bodily injury; and
(c)he knew that the bodily injury was likely to cause death; and
(d)he was reckless whether death ensued or not.
In his summing-up the Judge directed the jury to look at the evidence of Dr Morrow. He directed that, if the jury found that Dr Morrow’s evidence was that the cause of Mr Kimura’s death was his head striking the concrete after being knocked off his feet by the punch, then they had to restrict their consideration of Mr Neketai’s intent to the time at which he landed the punch. He explained that the jury could only look at the kick to “help [them] with what Mr Neketai’s intention was at the time he punched”. He explained that if the jury were not sure that Mr Neketai had murderous intent at the time of the punch, but were sure that it was the punch that caused the fractured skull and that was what killed Mr Kimura, then they could not find him guilty of murder if they thought that Mr Neketai had murderous intent at the time of the kick.[3]
Knowledge that death is likely from a single punch?
[3]Earlier in his summing-up the Judge explained to the jury that “murder” did not just mean deliberately killing someone. He carefully explained the requirements of s 167(b).
The appeal against conviction was brought on the basis that the jury’s verdict was unreasonable. The submissions proceeded on the basis that the punch was the operative cause of Mr Kimura’s death. For Mr Neketai it was said that it was not reasonable to infer that he knew death was likely at the time of inflicting a single punch to Mr Kimura. The Crown submitted that such knowledge could be inferred from the evidence about the force of the punch, because Mr Neketai kicked an incapacitated man (which was said to be relevant to his state of mind at the time of the punch) and from his subsequent text messages (which were also said to be relevant to his state of mind).
As the Judge’s question trail set out, it was necessary for the jury to be sure that at the time Mr Neketai punched Mr Kimura he intended to cause him bodily injury and that he knew that the bodily injury was likely to cause death. Ordinarily when a charge of murder is brought on the basis of s 167(b), the conduct causing death self-evidently carries a risk of death. This is the case, for example, where the defendant has inflicted injuries with a lethal weapon such as a firearm or knife. In that situation, to infer that the defendant knew that the injuries he or she caused were likely to cause death, the jury need only determine that the defendant had the same foresight as we would expect people ordinarily to have.
In contrast, a single punch does not ordinarily cause injuries likely to cause death. Foresight that death is likely is less obvious. In fact, when a punch does ultimately lead to death, something else is likely to have also occurred. In this case, for example, the blunt force trauma that ultimately led to Mr Kimura’s death was the impact of Mr Kimura’s head on the concrete. For this reason, where a single punch does lead to death, manslaughter is ordinarily the appropriate charge. Where a single punch has caused injuries which have ultimately led to death and murder is charged, it is therefore important to establish why the defendant knew that the injuries he or she intended to cause with that punch were likely to cause death.
In this case there needed to be evidence from which the jury could conclude that Mr Neketai had foresight as to consequences from a single punch different from the foresight people are ordinarily expected to have. The Crown relied on the physical size of Mr Neketai, the force of the punch and that he had some knowledge of kick-boxing. However, while Mr Neketai was undoubtedly able to inflict a very forceful punch, there is no evidence that he knew that this was likely to cause death. There was, for example, no evidence that he had punched someone before and that this was the outcome. Nor was there any evidence that he had learnt this from any kick-boxing training, nor that kick-boxers generally, or Mr Neketai in particular, knew that injury inflicted by a single punch is likely to cause death. We consider that in order to ask a jury to infer that Mr Neketai had foresight of the consequences which ordinarily people are not expected to have, something more specific was required.
Mr Neketai’s subsequent conduct does not assist with his knowledge about the likely consequences from a punch either. The subsequent kick(s) showed an intent to inflict serious harm on Mr Kimura, but does not assist with whether Mr Neketai knew that bodily injury inflicted by his punch was likely to cause death. Similarly the texts he sent were evidence that Mr Neketai may have gone further than was the original plan and that he knew that he had left Mr Kimura in a coma and in a pool of blood. The texts also indicated a degree of callousness about that. However this did not assist with Mr Neketai’s knowledge at the time he punched Mr Kimura that his punch was likely to cause death.
We therefore conclude that a verdict of murder, based on the punch as the operative cause of the death, was unreasonable. The only proper verdict would be manslaughter.
Was the kick an operative cause of death?
This raises the question of whether there was any evidence that the kick was a cause of the brain injury that led to the Mr Kimura’s death. An opportunity for further submissions on this point was provided. The Crown submitted that Dr Morrow’s evidence was consistent with the cause of the death being either the punch, or a combination of the punch and kick(s). This submission was made on the basis of Dr Morrow’s evidence which explained how a subdural haemorrhage arose. That explanation was given when Dr Morrow was asked to explain “the whole process from the skull fracture to brain swelling to… death”.
In that context Dr Morrow said:[4]
What happens when you get blunt force trauma is that there are small vessels that cross those membranes taking blood from the brain back to the body as part of the normal circulation. Those blood vessels get torn and there’s actually bleeding between the membranes that cover the brain which causes expansion and pressure.
[4]Emphasis added.
The Crown submitted that, because the bleeding (the subdural haemorrhage) was from “blunt force trauma” and Dr Morrow had identified at least three blunt force injuries (the punch, the fall to the concrete and at least one further blow), it was open to the jury to infer that a kick sufficient to cause severe facial fractures was one such blunt force trauma. However it is clear from the context of Dr Morrow’s evidence that the blunt force trauma referred to in the above passage was the blow at the point that the skull fracture occurred. He was only asked to address how the brain injuries, which he had already explained were associated with the skull fracture, arose in that context. There was no basis in the evidence for the jury to infer that the brain injuries arose from the blunt force trauma caused by the impact to the front of the face (which was the trauma that was consistent with a kick or kicks).
We therefore conclude that the question trail was in error. It was not open to the jury on the evidence to find that the kick caused Mr Kimura’s death. The Judge focussed his oral directions on the punch, and made it clear that the jury could not find murderous intent (that is, the knowledge required by s 167(b)) at the time of the kick if they concluded that the punch caused the death. It nevertheless remained with the jury to consider whether the kick caused Mr Kimura’s death. It is not possible to know whether the jury decided their verdict on this basis. If they did it was a verdict not supported by the evidence.
Substitute verdict or retrial?
We conclude that the appeal must be allowed. A verdict of murder on the basis of a punch was not open because there was no evidence from which the jury could be sure that Mr Neketai knew that the injury inflicted by the punch was likely to cause death. A verdict of murder on the basis of the kick was not open because there was no evidence that the kick was a cause of death.
Because there was no evidential foundation for a verdict of murder (whether on the basis of the punch or the kick), and a verdict of manslaughter was the only proper verdict (on the basis of the punch causing death) a substituted verdict of manslaughter is appropriate. That is the result that counsel for Mr Neketai contended for. In that event both counsel agree that it is appropriate Mr Neketai be re-sentenced by the trial Judge in the High Court. We too agree that this is appropriate.
Result
The appeal against conviction is allowed. The conviction is quashed. We substitute a conviction for manslaughter. The sentence for murder is quashed. Mr Neketai is to be re‑sentenced on the manslaughter conviction in the High Court by the trial Judge.
Solicitors:
Crown Law Office, Wellington for Respondent
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