R v Barlow

[2014] NZHC 1976

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-070-4588 [2014] NZHC 1976

THE QUEEN

v

ALAN FRANCIS BARLOW

Hearing:	18-19 August 2014
Appearances:	H Sheridan for the Crown C Tuck for the accused
Ruling:	19 August 2014

RULING OF CLIFFORD J ON

s 147 APPLICATION BY DEFENCE TO DISMISS CHARGE

[1]      Mr Barlow faces a single charge under s 174 of the Crimes Act 1961 of attempting to procure the murder of his parents.   The Crown’s case having closed Mr Tuck, on behalf of Mr Barlow, applied pursuant to s 147(4)(c) of the Criminal Procedure Act 2011 for the charge of attempting to procure murder to be dismissed.

[2]      In  the  first  half  of 2013  Mr Barlow made contact  with  an  acquaintance, Mr Ryder.  They were also distant relatives.  Mr Barlow allegedly said to Mr Ryder that he wanted to have his parents killed and asked Mr Ryder if he could put him in touch with someone who might assist him.  Sometime later, Mr Ryder having gone to the police, Mr Barlow was contacted by John, an undercover policeman.  It was

largely on the basis of Mr Barlow’s contact with John that the charge was laid.

R v BARLOW [2014] NZHC 1976 [19 August 2014]

[3]      On the Crown’s version of the facts, that contact proceeded to the point where Mr Barlow had agreed that John would kill his parents, and had agreed to the price.   A problem arose over the payment of a deposit.   John required a deposit before commencing his task. That deposit was never paid.

[4]      Mr Tuck argued that as a matter of law that – even if accepted by the jury – the  evidence  of  what  Mr Barlow  did,  and  in  particular  what  occurred  in  his conversations and meeting with John, did not constitute an attempt to procure the murder of his parents.

[5]      Mr Tuck   said,   in   general   terms,   that   what   Mr Barlow   did   may   be characterised as an attempt to attempt to procure the murder of his parents.  More specifically, and in terms of s 72(2) of the Crimes Act 1961, Mr Tuck’s submission was that Mr Barlow’s actions are properly to be characterised as preparation and are too remote to constitute an attempt.

[6]      Mr Tuck pointed to what he submitted was the apparent disengagement of Mr Barlow during his meeting with John.  He also referred to ss 28 and 30 of the Evidence Act.  Those sections provide for the exclusion of unreliable statements or unfairly obtained evidence.  Although clearly not directly relevant here, what I took Mr Tuck to be saying was that Mr Barlow was reacting to John’s proposal, rather than, with sufficient proximity, attempting to procure the murder of his parents. Mr Tuck also referred to the “shift” in the payment arrangements that had taken place (from an initial requirement for the deposit of $2,000, to one of $1,500 with John indicating some flexibility as to that requirement).  On that basis, I understood Mr Tuck’s proposition to be that whilst at some point Mr Barlow may have had a wish that his parents be killed (as Mr Barlow himself appeared to admit during his video interview) the actual steps he took were not sufficiently proximate to constitute an attempt to procure that outcome.

[7]      For the Crown, Mrs Sheridan argued that the case should go to the jury, and relied on the case of Brookland v R,1 a 1997 decision of William Young J.  Brookland also involved a, then s 347, application on behalf of an accused facing a charge of

attempting to procure murder.  The basis for the application was that the discussions between the accused and the undercover policeman, who also was pretending to be a contract killer, never got beyond a point where there would have to be further contact between the accused and the undercover constable before the offence was to be committed.  Justice Young, on that issue, concluded that it would be open to a jury to conclude, within the meaning of the authorities, that the accused had commenced the procurement of murder.   Mrs Sheridan submitted that, similarly here, the fact that Mr Barlow had never paid the required deposit did not mean that his actions had not gone beyond mere preparation, nor that they did not constitute an attempt in terms of the separate substantive offence of attempt involved here.

[8]      Mrs Sheridan also pointed to the number of specific steps that Mr Barlow had taken to engage with John and to procure the murder of his parents,  including agreeing to meet with him, preparing the floor plan of the house and providing details of his parents’ routine, agreeing the way the murder should be made to appear (accidental) and agreeing on a price of $10,000 per target.  Mr Barlow had also been willing to pay a deposit: the problem he had was obtaining that deposit at the end of the day.

[9]      Courts have, in the past, taken different approaches to the relevance of s 72 of the Crimes Act for substantive “attempt” offences, such as attempting to procure murder or attempting to pervert the course of justice.  In R v Fawcett,2 the Court of Appeal considered that the better approach was to consider the concept of attempt, as it appears in s 174, by reference to the concept of attempt found in s 72.   In that context, the question Mr Barlow’s s 147 application raises is whether his actions

have, as a matter of law applying s 72 directly, gone beyond mere preparation, and are sufficiently proximate or immediate to constitute an attempt.  In a more general context, the question is whether or not there is sufficient evidence here on which a properly instructed jury could find Mr Barlow guilty of attempting to procure the murder of his parents.

[10]     Either approach involves an assessment of the evidence.

[11]     That evidence is essentially as the Crown has highlighted but also in my view includes,  if  the jury accepts  the evidence of  Mr Ryder,  an  earlier indication  by Mr Barlow of a desire that his parents be killed.

[12]     Mr Barlow responded positively to John’s proposition that he would fix his problem in Invercargill by agreeing to meet with him.  As requested, he prepared a floor plan of his parents’ house.  He supplemented that information with details of his parents’ routine.  Although he initially spoke of John roughing up his parents, he can be seen as having very shortly thereafter agreed that what he was asking John to do was to kill his parents.  He agreed he wanted that to appear as an accident, and that he did not want to be associated with it in any way.  He agreed on a price and appeared willing to pay a deposit although, as matters turned out, he did not ever do that.

[13]     I have  given some  particular thought  to  the question  of the deposit  and Mr Tuck’s implicit argument that any offer to kill by John was subject to payment of a deposit and that, at the end of the day, Mr Barlow never paid the deposit and, to use the vernacular, “went off air” as time passed.

[14]     In that regard, I do think the case is similar to the Brookland decision of William Young J.   In my view, the evidence was such that the jury could find Mr Barlow did enough to attempt to procure John to murder his parents to constitute the substantive offence of attempt to procure even if, at the end of the day, that arrangement was not perfected by the payment of the deposit.

[15]     As a matter of law, my conclusion is that Mr Barlow had gone beyond mere preparation,  and  had  undertaken  actions  that  were  sufficiently  proximate  to constitute the substantive offence of attempt.   Approaching the issue on a more general basis, I consider that the evidence was such that a properly directed jury could convict Mr Barlow of attempting to procure the murder of his parents.  I do not think that the failure to reach agreement on payment of the deposit prevents the attempt to procure being available to a jury as a reasonable verdict.  The very notion of “attempt” means that the procurement has not actually occurred.  Here that did not occur for the very obvious reason that John was an undercover agent.  But, where the

potential killer was not an undercover agent, but seriously intending to commit the crime, a failure to agree on price would not, in my view, prevent the offence of attempt having occurred.  On the contrary, it may be that a failure to agree on price would be a not uncommon reason why the accused’s actions only constituted an attempt to procure.

[16]     On that basis  I declined Mr Tuck’s  application  and ruled that the matter

would go to the jury.

“Clifford J”