R v Brackenridge
[2018] NZHC 164
•16 February 2018
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
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-004-011508
[2018] NZHC 164
THE QUEEN v
KIRI PAUL PATIRA BRACKENRIDGE
Hearing: 8 February 2018 Counsel:
S L McColgan for the Crown
M Dyhrberg QC and N P Chisnall for the Defendant
Judgment:
16 February 2018
JUDGMENT OF GORDON J
This judgment was delivered by me
on 16 February 2018 at 4.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Auckland Counsel: M Dyhrberg QC, Auckland
R v BRACKENRIDGE [2018] NZHC 164 [16 February 2018]
Introduction
[1] The defendant, Kiri Brackenridge, is to stand trial on one charge of murder,1 one charge of arson2 and one charge of using a document to obtain a pecuniary advantage.3
[2] Mr Brackenridge applies under s 147(1) of the Criminal Procedure Act 2011 (CPA) to dismiss all three charges on the ground that, as a matter of law, a properly directed jury could not reasonably convict him.4
[3] The application in respect of the arson and using a document charges will be heard together with an application under s 101(2) of the CPA in relation to the admissibility of two statements made by Mr Brackenridge to the police. A decision on the s 101 application may have a bearing on the s 147 application in relation to the arson and using a document charges.
[4] This judgment, therefore, concerns only the application to dismiss the charge of murder. Mr Brackenridge says that there is insufficient evidence to enable a properly directed jury to draw the inference that Mr Brackenridge caused the death of the deceased.
The Crown case – a brief summary
[5] The deceased, Linda Edwards, was Mr Brackenridge’s mother. At the time of her death, she lived in a one bedroom unit in Mt Roskill, Auckland. Mr Brackenridge stayed with his mother from time to time. On 8 November 2016, he returned to Auckland from a short stay with a relative in the Gisborne area. He was present at his mother’s house at least sometime after 9.35 pm on the evening of 8 November.
[6] At about 11.30 pm, Mr Brackenridge drove to the ASB ATM at Three Kings, Auckland in his mother’s Honda car which had been parked at her unit. He withdrew
$100 from his mother’s account. A minute later he made a second withdrawal of $140
1 Crimes Act 1961, s 167.
2 Crimes Act, s 267(1)(b).
3 Crimes Act, s 228(1)(b).
4 Criminal Procedure Act 2011, s 147(4)(c).
from the same ATM. Mr Brackenridge next drove to a nearby service station and purchased a packet of cigarettes and one dollar’s worth of petrol. Mr Brackenridge then returned to his mother’s address where he was witnessed fleeing from the property in his mother’s vehicle at the time the fire took hold from inside the property.
[7] The neighbours became alerted to the developing fire as the glass windows blew out with smoke and flames. They reported it to the fire service shortly before midnight.
[8] A body, which was later identified as that of Ms Edwards, was located at the address on a sofa in the sitting room, after the fire service attended at approximately midnight on 8 November 2016.
[9] The Crown case is that Mr Brackenridge intentionally killed his mother by strangling or smothering her to death after which he stole her money and purchased petrol to set her and the house alight to destroy the evidence of what he had done. Or, alternatively, he stole her money in order to purchase the petrol that he used to intentionally kill his mother by setting her and the house alight.
The pathologist’s report
[10] Mr Chisnall, who argued the application for the defence, founded his submissions almost entirely on the report of the pathologist, Dr Balachandra, which was completed following a post-mortem examination of the deceased by Dr Balachandra on 10 November 2016. It is necessary to set out the relevant parts of that report:
PRINCIPAL PATHOLOGICAL FINDINGS:
I. Burns a.
Extensive burns of the head, face, front and sides of the chest and upper limbs
b.
Moderate burns of the lower limbs and back of the body
c.
Spared areas of the neck and back of the head
d.
No soot in the airways
II. Other findings
a.Microscopic evidence of cardiac hypertrophy
b.Occasional areas of patches of fibrosis in the left ventricle of the heart
III. Toxicology
a.Blood Carboxyhemoglobin less than 5%
b.Blood cannabis level 1.6 micrograms per litre
CAUSE OF DEATH:
Ia) Direct cause (injury, disease or complication directly leading to death)
No Anatomic Cause of Death
b)Antecedent causes (morbid conditions, if any, giving rise to the above)
c)Stating the underlying condition last
IIOther significant conditions contributing to the death, but not related to the disease or condition causing it.
COMMENTS
...
Autopsy showed extensive burns of the body. Back of the body and back of both lower limbs were burnt less than the front. A small part of the front/left side of the neck was relatively spared. A tuft of hair was intact at the occipital area. These areas correspond to the position of the body on the couch. Surface of the tongue and the mucosa of the larynx, trachea, and bronchi were free of soot deposition. Heart showed microscopic evidence of mild left ventricular hypertrophy and associated changes. Toxicology showed a blood carboxyhemoglobin level less than 5% and presence of cannabis consistent with recreational use.
Position of the body at the scene, lack of soot in the airways, and less than 5% carboxyhemoglobin in the blood indicate that she was dead when the fire started. The only other possible explanation for being alive and dying due to the fire is “Flash Burns”. In this condition sudden onset of instant flash of heat, engulfing the whole body, could cause instant lethal reflexes thereby causing a lack of soot in the airways and absence of carboxyhemoglobin in the blood (Reference: Hirch CS, et al. Carboxyhemoglobin concentrations in flash fire victims: report of six simultaneous fire fatalities without elevated carboxyhemoglobin. American Journal of Clinical Pathology 1977;68: 317- 20).
Face was burnt to the extent that antemortem injuries on the face, nose, and mouth, even if caused by smothering, could not be visualised. Neck was
dissected last and no injuries were noted. Hyoid bone and thyroid cartilage were intact. Though injuries to the soft tissues of the neck and fractures of the thyroid cartilage and hyoid bone are usually seen in strangulation, absence of such injuries does not rule out the possibility of strangulation.
She did not have high blood pressure, her EKG was normal, and she did not have heart related complaints. At autopsy her heart weight was within normal limits for her weight, heart appeared normal on gross examination, and the coronary arteries were free of obstruction. The only abnormality found was microscopic features of cardiac muscle enlargement. There is a rare possibility that she died of an arrhythmia (Abnormal heart beat) of the heart.
Defence submissions
[11] The defence case on this application relies on the proposition that there is no identified cause of death. Mr Chisnall submits that the other evidence available to the Crown does not carry the Crown case over the line in terms of evidential sufficiency, where there is no identified cause of death.
[12] Mr Chisnall relies on the opinion of the pathologist that various stated factors indicate that Ms Edwards was dead when the fire started. He submits that that opinion sets the case for the Crown and that there is a question as to whether “flash burns” is a realistic cause.
[13] Mr Chisnall submits that if Ms Edwards was dead before the fire started, the only realistic cause of death could have been strangulation, but he says the pathologist’s evidence is that there were no injuries to the soft tissues of the neck or fractures of the thyroid cartilage or hyoid bone.
[14] As to smothering, because of the extent of the burns to the deceased, there is no evidence that would support this as a cause and he submits the Crown cannot prove either way whether it was strangulation or smothering on the evidence available.
[15] Mr Chisnall, therefore, submits that the Crown case rests on a hypothesis, in the absence of medical evidence, as to the cause of death. He further argues that malice on the part of Mr Brackenridge towards his mother before her death (referred to in the summary of other evidence below) is not sufficient to fill the evidential gap and further, that the Crown has conflated the issues of unlawful act and intent.
[16] Mr Chisnall relies on the judgment of the Court of Appeal in R v Kinghorn5 and submits that any hypotheses put to the jury must have an evidential foundation. Here, he says there is none and accordingly the Court ought to exercise its discretion under s 147(1) and dismiss the murder charge.
[17] Mr Chisnall’s submissions, however, do not engage with other evidence (apart from a reference to malice towards his mother evidenced in part by Mr Brackenridge’s writings) on which the Crown relies to support its case for murder. I therefore set out below a summary of the other Crown evidence, taken largely from the summary provided by the Crown in its submissions.6
The events of 8 November 2016
Mr Brackenridge’s absence from and return to Auckland
[18] Around 29 October 2016, Mr Brackenridge drove down to Gisborne with his uncle, Allen Edwards. He then returned to Auckland by bus on 8 November 2016, leaving on the 7.55 am bus from Gisborne to Auckland. Police inquiries with InterCity Buses confirmed that there was a passenger by the name of Kiri Edwards (his mother’s surname) who travelled on a bus from Gisborne to Auckland on 8 November 2016 arriving in Auckland at 5.20 pm.
[19] CCTV footage obtained by the police shows Mr Brackenridge leaving the bus terminal and walking along Dominion Road towards Mt Roskill Road. He was last viewed at 6.12 pm at the corner of Dominion Road and Balmoral Road.
The evening of 8 November 2016 – before the fire
[20] The last time Ms Edwards was seen alive was between 8.30 and 9 pm on 8 November 2016. Ms Edwards had been at the address of her daughter, Rachel Brackenridge, who lived nearby. Ms Edwards then left her daughter’s address, returned home and began to use her home computer.
5 R v Kinghorn [2014] NZCA 168.
6 Mr Chisnall accepts that the Crown submissions accurately summarise the evidence.
[21] The police have obtained Ms Edwards’ internet records. They record activity on Ms Edwards’ Facebook account on the night of 8 November 2016. This consisted of conversations with Tiana Stewart-Reid, who had been in a relationship with Mr Brackenridge. She was two months’ pregnant with his child.
[22] At the conclusion of the conversation that commenced at 9.35 pm, Ms Edwards told Ms Stewart-Reid that “he was back”. The Crown submission is that this is a clear reference to Mr Brackenridge.
[23] A message was also sent from Ms Edwards’ account at 10.28 pm to Tania Brackenridge, another of Ms Edwards’ daughters. An online game update was accessed at 10.48 pm from Ms Edwards’ Facebook account and then the wireless internet disconnected at 11.52 pm, which the Crown submits is consistent with the time of the fire.
[24] There was around an hour between the last internet action and the wireless internet disconnection. Accordingly, the Crown case focuses in particular on Mr Brackenridge’s movements within that hour.
Mr Brackenridge’s movements between 10.48 and 11.52 pm
[25] The Crown relies on a combination of CCTV footage, banking records and cash located in Mr Brackenridge’s clothing to show that between 11.30 and 11.45 pm Mr Brackenridge drove to an ATM machine near his mother’s address and withdrew
$240 (all but $9.14 of the money in Ms Edwards’ account). He then drove to a nearby petrol station where he purchased a pack of cigarettes and one dollar’s worth of petrol.
[26] Mr Brackenridge then returned to his mother’s address. His mother’s neighbour, Zhilan Wang, stated that at 11.45 pm she was at her home address. She saw car lights shining into her lounge window. Through that window, she saw a male, whom she identified as Mr Brackenridge, driving into the common parking area in Ms Edwards’ red car. Ms Wang saw Mr Brackenridge enter Ms Edwards’ unit. She also saw Mr Brackenridge’s “girlfriend” get out of the car but she did not go inside. Less than two minutes later Ms Wang saw “a big flame” inside Ms Edwards’ unit.
Immediately after seeing the flame, Ms Wang saw Mr Brackenridge running out of the unit. He got back into the car, as did his “girlfriend” and he drove off at speed.
The fire
[27] Just before midnight on 8 November 2016, a fire engine/s from the Mt Roskill station responded to a callout in relation to the fire. Fire Officer Ebbett estimated that it took about three minutes to arrive at the scene.
[28] On the morning of 9 November 2016, and following the discovery of Ms Edwards’ body by the fire service, Detectives Jared Evans and Yisu Li conducted a scene examination at the address. During that examination, a container with liquid in it was located in the sitting room near the sofa on which Ms Edwards’ body was lying. The liquid was subsequently tested and found to be petrol.
[29] The scene was also examined by a fire risk management officer, Mr Goffin. His examination included the following findings and opinions:
(a)The area of origin was the living room, with the point of origin being the sofa.
(b)The main seat of fire was located on the sofa where the deceased had been positioned.
(c)Examination of the sofa fire patterns show that the fire began on top, rather than below the sofa or at floor level.
(d)A box of matches was found under the sofa, with a lighter identified in a cardboard box next to the sofa. No evidence of cigarette smoking could be found. Those sources were deemed unlikely to have been utilised for accidental ignition.
(e)Various other possible sources were considered and discounted.
(f)No evidence of an accidental ignition source could be identified.
[30] The report concluded that the cause of the fire was believed to be the intentional introduction of a fuel and an external ignition source.
Police locate deceased’s daughter and Mr Brackenridge
[31] At approximately 5 am on 9 November 2016, two police officers located and spoke to Ms Brackenridge, at her home. Mr Brackenridge was in his sister’s house when the police arrived. Ms Brackenridge did not know what time he had arrived overnight. She only became aware of his presence when woken by him standing in her bedroom saying that someone was knocking on her bedroom window (the police). Ms Brackenridge told the police of her brother’s relationship with his mother. She said:
The relationship between Kiri and my mum was good and bad. When it was good it was really good and when it was bad it was bad. When it was bad he would be mean to my mum and say horrible things to her. I am not aware of it ever being physical. I’m not sure if he has threaten[ed] her before. This wouldn’t be something that she would talk about.
[32] When Mr Brackenridge emerged from his sister’s house while the police officers were there he was wearing only his boxer shorts. His clothes and hands were subsequently tested for accelerant. The tests returned positive results for accelerant, with some of the results specifying petrol in particular.
Writings by Mr Brackenridge
[33] During the investigation, police located three sets of writings by Mr Brackenridge. It seems that the dates of these writings are unclear, but it is also apparent from the statement of Mr Brackenridge’s uncle, Mr Edwards, that Mr Brackenridge was writing in a notebook shortly before Ms Edwards’ death.
[34] There was a notebook of around 145 pages (notebook 1) which Mr Brackenridge left at the address of a family friend before going to the Gisborne area with his uncle. Another notebook was found at Ms Edwards’ address in Mr Brackenridge’s sleeping bag that he had brought back with him to Auckland (the sleeping bag notebook).
[35] The third set of writings was seized from Mr Brackenridge by the police after the alleged offending.
[36] There are the following extracts from notebook 1. They appear approximately 10 pages prior to a page on which October 3rd (or 3 October) is written. I have maintained the emphasis in the Crown submissions to all these extracts:
“I get it Dad come thru I’m the EEG. Cracked it. My mother lied and now I’m paying?? Nah. Come finish me off face to face. Bring your gun. The answers come from without not within. I’ll be your voice up here Dad. I’m sorry I’m not the man”.
“My words connect better than anyone else, they all lip synk, put your lips in my trousers. I’m not capable, listen to yourself, laughing bitch, ill (sic) punch
the teth (sic) out of your mouth. It was you who made me sick, sick with
pycosis? The prognosis is your not well. Just fucking die mum, no I’m not
walking, can hear you talking, bitch you suck dick, lyer. You say it and I’ll make it happen. Never judge a book by its cover. You don’t know half of it, detached from my father, Mum just told me lies, tried and tried but my whole
life was denied right in front of me, putting things in front of me, teasing me,
guess what when I get back I’ll be getting even G. Have your lil (unknown word). Fly around the world, laugh while you still can coz ima murder yall
when you get back, that’s not a threat either I mean it …”.
[37] From notebook 1, three pages prior to where the date of October 3rd (or 3 October) appears, there is the following:
“I see peace in a pen, because my niece didn’t deserve what I did to her, now I owe my rib to her, mum you don’t mean shit to her, you can’t buy love. You
held me back, moved me around too much, slut fuck you, ill erupt. You were
the world to me and now I wish you were dead.
She holds power over both of you cunts. Pigs won’t stop me. I’ll find yous
and ill kill you both. Promise.
Kill the Asian, kill Mum, dump the bodies under the floor and dig my way to heaven?”
[38]From notebook 1, after the October 3rd (or 3 October) reference:
“I need to get away from my Mum. I don’t like living with her anymore. She
lied to me and now I know everything”.
[39]From the sleeping bag notebook:
“My mom lied so im guna burn her f’n house down, circle around and hit the
hydrant so she fails to put the furniture out. Music always told me what to do,
I just listened to my mother’s rock too much. Need to get letters from god more often. Music can’t hypnotise me, I burn mother fuckers
…
Just fucking die mum, no I’m not walking, can hear you talking, bitch you
suck dick, lyer. You say it and I’ll make it happen.”
[40]From the writings seized from Mr Brackenridge on 16 November 2016:
“My family were the first family to believe in cancer so I was sent back to 19991 to battle my own cancer/death. People who are scared of death cause death to occur. Taking my blood is what kills me. She took my blood.
With family support I can achieve anything. Murder is not as bad as
molestation.
Keeping secrets from me and treating me like a child will ensure you all die.
25 [degrees symbol] burning point is perfection.
There is only one thing that causes death. Heart attacks”.
Statements by Mr Brackenridge to friends
[41] One of the defendant’s associates, Darion Brown, refers to both a conversation he had with Mr Brackenridge and text messages received from him. Mr Brown said the last time he saw Mr Brackenridge was about a week or two weeks before 8 November 2016. He said at the time Mr Brackenridge was living at Ms Edwards’ place. Mr Brown went there and spoke to Ms Edwards who told him that Mr Brackenridge was in the park behind the house. Mr Brown found Mr Brackenridge who told him that “his mother is a devil and she should die”.
[42] In text messages sent by Mr Brackenridge to Mr Brown on 28 October 2016, Mr Brackenridge said that he lives at the Devil’s house and it was 29 Rainford Street (his mother’s address). He also said that he wants his mum to die and he has two fathers.
[43] Another of Mr Brackenridge’s associates, Mary-Jane Takerei, made a statement to the police which included the following:
[Mr Brackenridge] also mentioned heaps of times that Linda was the devil. He would blame her for anything and everything. He said that she was lying
to him about who his dad was. He went through phases of thinking his dad could be all these weird people that it couldn’t possibly be.
[44] Another associate, Daniel Taiamoni, said that around October 2016 Mr Brackenridge started talking really badly about his mother. He was blaming her for all his problems, including for his drug addiction.
Crown submissions
[45] Mr McColgan submits that the Crown case is a circumstantial one and that all of the evidence must be considered.
[46] Starting with the pathologist’s report, he submits that there is no anatomical cause of death. The pathologist’s statement that “[t]here is a rare possibility that she died of an arrhythmia (Abnormal heart beat) of the heart” indicates that this is a remote possibility and so, Mr McColgan says, it can be put to one side.
[47] Mr McColgan submits that what the pathologist cannot exclude (because of the extent of Ms Edwards’ injuries from the fire) is strangulation, smothering and flash burns. What is clear from the pathologist’s report, Mr McColgan submits, is that the lack of soot in Ms Edwards’ airways and less than five per cent carboxyhemoglobin in her blood meant that there was some mechanism that shut down Ms Edwards’ respiratory system, namely strangulation, smothering or flash burns.
[48] Mr McColgan submits that if Ms Edwards died from “flash burns”, her death was at the hands of another human being. The rest of the evidence indicates that this was the case. Mr McColgan points to the evidence of Mr Brackenridge’s purchase of petrol a short time before his mother’s death, as well as the evidence of the neighbour, Ms Wang, who saw Mr Brackenridge enter the unit then a short time later saw a flame inside and saw Mr Brackenridge run out of the unit. He also points to the fire report as to the cause and seat of the fire. He submits, therefore, that there is an evidential basis for the inferences that Ms Edwards died at the hands of another human being and that was Mr Brackenridge.
[49] On the other hand, Mr McColgan says that if Ms Edwards died prior to the fire being set, then that leaves open two significant mechanisms, smothering or
strangulation. The pathologist could not rule out either as a cause of death. Again, Mr McColgan submits that the pathologist’s evidence should not be considered in isolation. Other evidence available to the Crown shows that Ms Edwards was alive at
10.48 pm and there are then Mr Brackenridge’s movements referred to in [25] and [26] above. If the cause of death was strangulation or smothering, there is an evidential basis for the inference that the offender was Mr Brackenridge.
[50] Mr McColgan next submits that Mr Brackenridge’s writings all point to him as the person who caused his mother’s death. He submits that the Crown has not blurred causation with intent. When the evidence is viewed in its totality, Ms Edwards’ untimely death is immediately preceded by the return to her home of a person who bears her extreme ill-will and has ideated and ruminated about killing her and burning her home. He says her body was found in just this manner, with Mr Brackenridge having purchased an unusual amount of petrol some 15 minutes before the fire and he was seen fleeing from the address at the time the fire took hold.
[51] He submits that the reasonable, just and natural conclusion from those facts, and one that a jury would be entitled to draw, is that Mr Brackenridge intentionally killed his mother by strangulation or smothering, stole her money and burned her body as well as her house (or that she died from flash burns at his hands). He says the fully constructed Crown case, if accepted by the jury, is such that there is no other reasonably available explanation for Ms Edwards’ death.
Section 147 – principles
[52]Section 147 of the CPA relevantly provides:
147 Dismissal of charge
(1)The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.
…
(3)A decision to dismiss a charge may be made on the basis of any formal statements, any oral evidence taken in accordance with an order made under section 92, and any other evidence and information that is provided by the prosecutor or the defendant.
(4)Without limiting subsection (1), the court may dismiss a charge if—
…
(c) in relation to a charge to be tried, or being tried, by a jury, the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.
[53] Case law under s 347 of the Crimes Act 1961, the predecessor of s 147, remains applicable and the principles are well settled.7
[54]In R v Flyger,8 the Court of Appeal described the applicable test as follows:
[13] The power to discharge an accused, accorded by s 347(3) of the Crimes Act 1961, is not expressed to be subject to any statutory limitation. Yet it is not an unqualified power susceptible of arbitrary exercise. It must be taken to be a power exercisable in the interests of justice. The nature and circumstances of a case will inform the interests of justice. In a trial before a Judge and jury a Judge must respect the jury’s responsibility to decide the facts. Accordingly a Judge should not normally make an order for discharge pursuant to s 347(3) where there is before the Court evidence which, if accepted, would as a matter of law be sufficient to prove the case. The Judge’s function in these circumstances is not to attempt to predict the outcome but to examine the evidence in terms of adequacy of proof, if accepted.
[55]In Parris v Attorney-General, the Court of Appeal stated:9
[14] It is vital, however, to appreciate the proper compass of the word “reasonably” in this context. The test must be administered pre-trial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear-cut in favour of the accused, it should be left for the jury to decide. If there is a conviction this Court on appeal has the reserve power to intervene on evidentiary grounds. The constitutional divide between trial Judge (law) and jury (fact) mandates that trial Judges intervene in the factual area only when, as a matter of law, the evidence is clearly such that the jury could not reasonably convict or any such conviction would not be supported by the evidence ….
[56]For the purposes of argument, the Crown case must be taken at its highest.10
7 See R v McMeeking [2017] NZHC 247 at [6].
8 R v Flyger [2001] 2 NZLR 721 (CA).
9 Parris v Attorney-General [2004] 1 NZLR 519 (CA).
10 R v Flyger, above n 8, at [17]-[18], [25].
Circumstantial evidence/inferences
[57] Both the Crown and the defence relied on R v Kinghorn where the Court of Appeal stated:11
[20] The methodology involved in drawing an inference has never been better put than by Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd:
Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.
(Citations omitted)
[58] A standard direction given to juries is that circumstantial evidence relies on reasoning by inference and derives its force from the involvement of a number of factors that independently point to the guilt of the defendant. The analogy that is often drawn is of a rope. Any one strand of the rope may not support a particular weight but the combined strands are sufficient to do so. The logic that underpins a circumstantial case is that the defendant is either guilty or is the victim of an implausible, unlikely series of coincidences.
Causation/unlawful act
[59] In considering issues of causation, a jury is not limited to the evidence of medical experts. The jury is entitled to consider all of the evidence.12
[60] In order to sustain a murder charge, the Crown must first establish that there is a “homicide”, which is defined in s 158 of the Crimes Act as follows:
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
11 R v Kinghorn, above n 5, at [20].
12 R v Thackeray (1997) 113 CCC (3d) 190 (BCCA) at [16]; citing Smithers v R [1978] 1 SCR 506 (SCC) at [17]. See also Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [CA160.08].
[61] In my view, there is sufficient evidence for the purposes of this application to enable the inference to be drawn that another human being was involved in the killing of Ms Edwards. The evidence of the pathologist is that there were no anatomical causes of death. Arrhythmia is described as only a “rare possibility” and without further elaboration. The fire report discounts the possibility of an accidental fire.
[62] Homicide may be either culpable or not culpable.13 It is culpable when it consists in the killing of any person by an unlawful act.14 Section 2(1) of the Crimes Act defines an unlawful act as meaning “a breach of any Act, regulation, rule, or bylaw”.
[63] The Crown puts its case on the basis of either an assault (either by strangulation or smothering) or arson (causing flash burns). Each of those is an unlawful act. It is not necessary for the Crown to limit its case to a particular unlawful act.15
[64] The act must be objectively dangerous as well as unlawful.16 That is satisfied here on any of the three acts.
[65] The unlawful act must also be a “substantial and operative cause” of death.17 I consider that there is evidence from which an inference may be drawn that Mr Brackenridge committed an unlawful act which was a “substantial and operative cause of death”. It is not a matter of speculation or conjecture. I refer to the following combination of evidence.
[66]First, there is the evidence from the pathologist:
(a)He stated that there was “no anatomic cause of death” (although allowing for a “rare possibility” of arrhythmia. When considered in combination with all the other evidence this is not a realistic possibility).
13 Section 160(1).
14 Section 160(2)(a).
15 See, for example, Kumar v R [2016] NZCA 329.
16 R v Myatt [1991] 1 NZLR 674 (CA) at 679.
17 R v Kuka [2009] NZCA 572 at [19]-[22]; R v Myatt, above n 16, at 682-683.
(b)The pathologist’s opinion was that Ms Edwards was dead when the fire started; but allowed for the possibility of flash burns.
(c)The pathologist could not rule out either strangulation or smothering. The absence of neck injuries or fractures of the thyroid cartilage and hyoid bone does not, in the pathologist’s opinion, rule out the possibility of strangulation.
[67] Any one of the three mechanisms, namely strangulation, smothering or flash burns, would have shut down Ms Edwards’ respiratory system, consistent with both the lack of soot in her airways and low level of carboxyhemoglobin in her blood. Each mechanism is available on the evidence of the pathologist.
[68] Then there is the following evidence of Mr Brackenridge’s movements and Ms Edwards’ activities on 8 November 2016:
(a)Mr Brackenridge returned to Auckland on 8 November 2016 and was seen on CCTV footage at 6.12 pm at the corner of Dominion Road and Balmoral Road.
(b)Ms Edwards was seen alive by her daughter, Rachel Brackenridge, at Ms Brackenridge’s address between 8.30 and 9 pm on 8 November 2016.
(c)Ms Edwards was using her computer after her return home. At the conclusion of an electronic conversation that commenced at 9.35 pm with Tiana Stewart-Reid, Ms Edwards said that “he was back”. Given that Ms Stewart-Reid had been Mr Brackenridge’s partner and that she was two months’ pregnant with his child, I accept that it can be inferred that the “he” was a reference to Mr Brackenridge.
(d)There was an online game update accessed at 10.48 pm from Ms Edwards’ Facebook account. The inference to be drawn is that Ms Edwards was still alive at that time.
(e)There is then the combination of CCTV footage, banking records and cash which was located in Mr Brackenridge’s clothing, which indicate that between 11.30 and 11.45 pm Mr Brackenridge had driven to an ATM machine near Ms Edwards’ address, withdrawn $240 (all but
$9.14 of the money in Ms Edwards’ account), and then driven to a nearby petrol station where he purchased a packet of cigarettes and one dollar’s worth of petrol.
(f)There is evidence from Ms Edwards’ neighbour, Ms Wang, that at
11.45 pm she saw car lights shining into her window. She recognised Mr Brackenridge driving Ms Edwards’ car. She saw him entering the unit and a short time later she saw “a big flame” inside the unit followed by him running out of the unit and driving off in his mother’s car.
[69] Tests on Mr Brackenridge’s hands and clothes returned positive results for accelerant, with some of the results specifying petrol in particular.
[70] Finally, there is the evidence from Mr Brackenridge’s writings. I do not agree with Mr Chisnall’s submissions that they go to intent and not to causation. They demonstrate extreme ill-will towards his mother, e.g. “kill Mum” and “i’m guna burn her f’n house down”. Ms Edwards’ death occurred in her unit which was set alight.
[71] There are also the statements to his associate in [41] and [42] above that his mother is a devil and she should die, and that he wanted his mum to die.
[72] I am satisfied on the combination of the pathology evidence and the rest of the Crown’s evidence, that there is an evidential basis so that a properly directed jury could draw the inference that Mr Brackenridge killed his mother by an unlawful act.
[73] For completeness, I note that counsel for Mr Brackenridge took no issue with intent at least for the purposes of this application. The focus was on causation and whether the Crown could establish that Mr Brackenridge committed an unlawful act causative of death.
Conclusion
[74] Mr Brackenridge’s application for a discharge under s 147(1) of the CPA on the charge of murder is refused.
Gordon J
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