R v Candy
[2023] NZHC 284
•23 February 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2022-043-000914
[2023] NZHC 284
THE KING v
WILLIAM MARK CANDY
Hearing: 7 February 2023 Counsel:
C E Clarke for Crown
P M Keegan for Defendant
Judgment:
23 February 2023
JUDGMENT OF ISAC J
[Special plea]
Introduction
[1] On 29 July 2022, Mr Jacob Ramsay was seriously assaulted by the defendant, Mr William Candy, and a co-offender, Mr Ethan Webster. As a result of the assault Mr Ramsay died and Mr Candy was subsequently charged with:
(a)his murder;1 and
(b)a separate charge of wounding with intent to cause grievous bodily harm.2
1 Crimes Act 1961, ss 167(6), 172 and 66; maximum penalty of life imprisonment.
2 Sections 188(1) and 66; maximum penalty of 14 years’ imprisonment.
R v CANDY [2023] NZHC 284 [23 February 2023]
[2] Mr Candy has pleaded guilty to the charge of murder but sought to enter a special plea under s 46 of the Criminal Procedure Act 2011 in relation to the charge of causing grievous bodily harm. He argues that the wounding charge arises from the same facts as the murder charge. The question for me is whether that contention is correct.
Relevant principles
[3] Under s 17(1) of the Criminal Procedure Act a charge must relate to a single offence. In Mason v R, when discussing the predecessor to s 17(1), the Supreme Court observed:3
Section 329(6) of the Crimes Act says that:
Every count shall in general apply only to a single transaction.
The qualification “in general” and the relatively indefinite word “transaction”, which can encompass both a single event or a course of conduct, recognise the difficulty of application of any precise rule to the charging of the many different fact situations in which acts of offending may occur. They indicate the need for some flexibility. The essential requirement emerging from case law is that, if particular acts of alleged offending can sensibly be charged separately without undesirably lengthening the indictment (overcharging), then that should be done. It is necessary that distinctly identifiable acts of alleged offending be the subject of separate charges where the accused may be prejudiced either at trial or on sentencing if they are combined in a single count. On the one hand, the use of a multiplicity of counts is to be avoided where fewer would suffice for the interests of justice. On the other, overly complex counts may prejudice the defence or make it difficult to frame fair and accurate directions to the jury. If necessary trial judges should intervene if either problem arises.
We repeat what Anderson J said for this Court in R v Qui. The Court endorsed the practice of not charging as separate offences a continuing course of conduct which it would be artificial to characterise as separate offences. But the Court said that it was another thing to charge as a single count repetitive acts which can be distinguished from each other in a meaningful way, even if they relate to more than one act of a certain class or character. The Court added something which the present case vividly illustrates:
[8] … Separate counts facilitate fairness in the conduct of the trial by focusing attention on matters of fact and law which can and need to be distinguished for the purposes of different counts. In the event of conviction, they assist the sentencing Judge by indicating the extent of culpability.
3 Mason v R [2010] NZSC 129, [2011] 1 NZLR 296 at [9], citing R v Qiu [2007] NZSC 51, [2008]
1 NZLR 1 at [9]-[10].
[4] In Fungavaka v R the Court of Appeal held “that this reasoning applies with equal force to s 17 … where there are distinctly identifiable acts of offending, those acts should be charged separately”.4
[5] In Rangitonga v Parker the Court of Appeal in discussing special plea of previous acquittal, held that “it must be accepted that the New Zealand courts have generally taken a narrow view of the availability of the special pleas”.5The Court held that s 47 “focuses on the substance of the facts giving rise to the previous and new charges rather than a fine-grained comparison of each element of the charges”.6
[6] Finally, in Filitonga v R, the Court of Appeal considered whether the appellant’s trial had miscarried on the basis that two of the charges he faced, recklessly causing grievous bodily harm and criminal nuisance, arose from the same facts. The Court observed:7
[15] As this Court concluded in Rangitonga v Parker, the test applicable to special pleas changed with the enactment of the Criminal Procedure Act. Rather than undertaking a close comparison between the elements of the charges as had previously been required, the attention has now shifted to the facts giving rise to the charges:
We agree that the reference to offences “arising from the same facts” in s 47 is intended to apply to cases where there is a common punishable act central to both the previous and new charge. We would add that the same approach should apply to a common punishable omission. The new section focuses on the substance of the facts giving rise to the previous and new charges rather than a fine-grained comparison of each element of the charges.
[16] Although Rangitonga was concerned with a special plea of previous acquittal for the purposes of s 47, the same language is used for a previous conviction in terms of s 46 and the same analysis applies. The line of authority relied on by Mr Lillico commencing with Smith v Hickson focused on the previously applicable enquiry as to whether the same offence was being prosecuted twice. These cases must now be read with care in the light of the different approach mandated under ss 46 and 47.
4 Fungavaka v R [2017] NZCA 195 at [13] and [14].
5 Rangitonga v Parker [2016] NZCA 166, [2018] 2 NZLR 796 at [29].
6 At [41].
7 Filitonga v R [2017] NZCA 492, [2017] NZAR 1667 (footnotes omitted).
The offending
[7] The argument was advanced by both Mr Candy and the Crown on the basis of an accepted summary of facts. The following is drawn from it.
The Ōakura assault
[8] Mr Ramsay was employed on the same dairy farm in South Taranaki as Messrs Candy and Webster. While the defendants had worked on the farm for some years, Mr Ramsay was a recent arrival. All three workers were provided with separate houses by their employer. Mr Ramsay also allegedly owed the defendants, including Ms Hughes (Mr Candy’s partner), a sum of money.
[9] On the morning of 29 July 2022, Ms Hughes checked her bank account for the money owed to her by Mr Ramsay. On seeing that nothing had been deposited to the account she became angry and drove to the victim’s address a short distance away with a machete in her vehicle. She entered the unlocked dwelling without authority and removed two flat screen televisions, purportedly as payment for the money owed. The victim was not at home at the time. Ms Hughes then drove back to her own house with the property.
[10] Then in the evening of the same day, 29 July, Mr Ramsay was in Ōakura, an approximately 30 minute journey from the farm by car. He sent a text message to another farm worker asking to be picked up and taken home. Mr Candy and Mr Hughes were made aware of the text message and instructed the other farm worker to continue messaging Mr Ramsay so they could locate him.
[11] Ms Hughes then drove Mr Candy to Ōakura. The summary of facts discloses that they intended at that time to locate and then assault the victim before bringing him back to the farm to “sort out the money [Mr Ramsay] owed them and [Mr Webster]”.
[12] Mr Ramsay was located at the Ōakura Cemetery. Mr Candy immediately punched him in the face and pushed him over a wooden barrier down a grass bank into the cemetery. Mr Ramsay’s glasses came off during this initial assault and were located subsequently by Police. Mr Candy continued to attack Mr Ramsay over what
is said to be a prolonged period, punching and wrestling with him with the intention of forcing Mr Ramsay into Ms Hughes’ vehicle. During the struggle, Mr Ramsay lost his shirt and cap and was knocked to the ground “multiple times”.
[13] Eventually overpowered, Mr Ramsay was punched about the head and face by Mr Candy. The assault was heard by a member of the public, who approached and asked what was going on, and asked Mr Candy to get off Mr Ramsay. Despite this, Mr Candy continued to punch Mr Ramsay to the head, face and abdomen while accusing him of stealing money and ruining the farm. After a further request by the member of the public, Mr Candy, who had pinned Mr Ramsay to the ground, got up. He nevertheless kicked the victim several times in the torso. As Mr Candy was trying to force Mr Ramsay toward the vehicle, the victim broke free and tried to run away. However, he was caught by Mr Candy within 10 metres and at that point forced into the vehicle.
[14] The summary of facts also discloses that during the 30 minute journey back to the farm, Mr Ramsay was “periodically assaulted”.
[15] These events based at Ōakura—the initial assault—give rise to the charge of wounding with intent to cause grievous bodily harm. The Crown does not allege that at any time during this assault did Mr Candy have the requisite mens rea for murder.
The murder of Mr Ramsay at the farm
[16] At approximately 7.15 pm Mr Ramsay, Ms Hughes and Mr Webster arrived at the farm and parked outside one of the farm worker’s houses on a tanker track. They were then met by Mr Webster. By this stage it appears that Mr Ramsay was unconscious. Mr Webster then appears to have seriously assaulted Mr Ramsay despite the vulnerable state he was in. The assault included kneeling on the victim’s chest with one hand on his throat and punches to his face. Mr Webster did not desist until he thought he had broken his hand.
[17] As Mr Webster stood up, Mr Candy approached Mr Ramsay and kicked him in the head with his right boot. Mr Webster then began stomping on the victim’s head with his right foot. Despite the ongoing protestations of a witness, Mr Candy obtained
a short length of chain with a carabiner on the end, attached it to Mr Ramsay’s right ankle and then attached it to the back of his motor vehicle. He was heard to say to Mr Ramsay “you’re going on a trip down to the hole”. Mr Candy and Mr Webster then got into the vehicle and drove nearly a kilometre down a hard gravel tanker track and across a muddy paddock before dumping his body in the farm rubbish pit.
[18] The autopsy report reveals extensive blunt force injury and trauma was caused to Mr Ramsay. He had numerous fractures in various parts of his skeleton, extensive abrasions and lacerations to his skin, and the cause of death was as a result of multiple blunt force injuries.
[19] It goes without saying that Crown is unable to exclude the possibility that some of the injuries caused during the earlier Ōakura assault were not in some way causative of death.
Consideration
[20] For Mr Candy, Mr Keegan submitted that Mr Candy’s plea to the charge of murder on the basis of an agreed summary of facts included the Ōakura assault. Here, there was a “common punishable act” encapsulated in the summary of facts in relation to the murder charge. Mr Keegan points to the pathologist’s report and summary of facts, which do not permit a causal distinction between the earlier Ōakura assault, and the subsequent assault at the farm.
[21] Finally, Mr Keegan submitted, by reference to s 110 of the Criminal Procedure Act, that on a charge of murder the jury may find the defendant guilty of an attempt, or if the evidence establishes it, manslaughter. Murder therefore casts a wide blanket, and Mr Candy’s plea of guilty under s 167(b) encompasses all of the violence that took place on the day of the offending. I took Mr Keegan to argue that, accordingly, the charge of grievous bodily harm arises from “the same facts” as the murder charge, and, he is not obliged to enter a plea to the charge of wounding with intent to cause grievous bodily harm.
[22] I have concluded that a special plea is not available to Mr Candy for three reasons.
[23] First, while there may clearly be a causal connection between Mr Ramsay’s death and the Ōakura assault, that causal connection does not mean the charges arise from the same facts for the purpose of s 46(1) of the Criminal Procedure Act.
[24] Second, as Ms Clarke rightly notes, s 17(1) of the Act requires that a charge must relate to a “single offence”. As the Supreme Court noted in Mason v R, the obligation to charge distinctly identifiable alleged offending under separate charges reflects the requirements of natural justice;8 and as Filitonga v R demonstrates, charges which are duplicitous are liable to result in a miscarriage of justice and run foul of the rule against double jeopardy.9 The obligation to charge identifiably different criminal acts under discrete charges is not a matter of prosecutorial discretion but one of statutory (and common law) obligation.
[25] Third, the facts giving rise to the charge of grievous bodily harm are not the same as those giving rise to the murder charge. There is not a “common punishable act” central to both charges. They occurred at different locations, separated by a significant period of time. The two charges involve different physical assaults, and are marked by different states of mind.
[26] The state of mind or intention of a defendant is an element of an offence and a fact in issue.10 There is no suggestion that Mr Candy held a murderous intent at any point during the assault on Mr Ramsay at Ōakura. That critical distinction arises only in relation to the subsequent and clearly more serious assault at the farm. Given the mens rea elements of the two charges are different, the facts are also different. In my view that is the short answer to Mr Candy’s special plea.
[27] A similar conclusion was reached by Nation J in R v Taylor. In that case the defendant armed himself with a knife and a tomahawk before ramming a police car and chasing the police officer. After pleading guilty to two charges of assault with a weapon, the defendant made admissions that he had intended to kill the officer. He
8 Mason v R, above n 3.
9 Filitonga v R , above n 7.
10 R v Makoare [2001] 1 NZLR 318 at [21].
was charged with attempted murder and entered a special plea of previous conviction.
The Court, having considered the authorities referred to above, held:11
[42] The essential elements of an offence frequently require the Crown to prove the defendant had a specified intent. I consider the Court of Appeal have made it clear the reference to “same facts” in s 46 can be to the facts necessary to prove mens rea or intent where that is an essential element of the charge and do not have to be limited to the physical acts or actus reus on which the previous and new charges were based.
[43] Consistent with their judgment in Rangitonga v Parker, in Filitonga v R the Court of Appeal held that two charges should have been laid in the alternative because, in terms of s 46, “a common punishable act was central to both charges”. They said “the common punishable act [was] having unprotected sex, while knowingly HIV-positive, being reckless as to the consequences”. The facts they referred to thus included the facts as to the defendant’s state of mind, not just his physical acts.
…
[45] For a special plea to be available there had to have been the same facts, as to Mr Taylor’s intent, which the prosecution relies on in bringing a charge of attempted murder, as were before the Court when Mr Taylor was charged with and pleaded guilty to the lesser charges.
[46] The charge of attempted murder is based on new and different facts as to Mr Taylor’s intent. The earlier charges were not based on those facts. Accordingly, the special plea is not available to Mr Taylor.
Conclusion and result
[28] It follows that I am not satisfied that there is any element of double jeopardy or unfairness arising from the Crown’s decision to charge the Ōakura assault separately.
11 Taylor v R [2020] NZHC 390 (footnote omitted).
[29] In accordance with s 49(3), Mr Candy is now required to enter a plea of guilty or not guilty to the charge of wounding with intent to cause Mr Ramsay grievous bodily harm. I direct that his plea be entered within five working days of the date of this Judgment.
Isac J
Solicitors:
Crown Solicitor, New Plymouth
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