R v Davies aka Waipouri - [2017] NZHC 402

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-092-013800 [2017] NZHC 402

THE QUEEN

v

MICHAEL JOSEPH DAVIES (AKA) MICHAEL JOSEPH WAIPOURI

STEVE BRENT GUNBIE

Hearing: 27 February 2017

Appearances:

G Kayes and B R Smith for the Crown
J D Munro, D Niven and J Ding for the Defendant Waipouri

Judgment:

10 March 2017

JUDGMENT OF HINTON J

This judgment was delivered by me on 10 March 2017 at 9.00 am pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………
Registrar/Deputy Registrar

Solicitors/Counsel:
Kayes Fletcher Walker Ltd, Manukau
John Munro, Barrister, Auckland
David Niven, Barrister, Auckland
Adam Couchman, Barrister, Auckland

R v WAIPOURI [2017] NZHC 402 [10 March 2017]

[1] On application by the Crown following the close of the defence case, I ruled that self-defence could not be submitted to the jury. These are my reasons.

[2] Self-defence is governed by s 48 of the Crimes Act 1961, which provides:

Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

[3] The ability of a Judge to withdraw self-defence from the jury is well-established by the authorities.

[4] In R v Li, the Court of Appeal approved the following format for directing a jury as to self-defence:1

In summary, on this approach the jury is asked to consider first what the accused believed the circumstances to be, from his or her point of view. The second question is whether, bearing in mind that belief of the accused about what was happening, he or she was acting in self-defence (again considered from his or her point of view). The last question is whether, given that belief, the force used in self-defence was actually reasonable.

[5] As to when self-defence should not go to a jury, I adopt the following statements from the Court of Appeal in R v Sila in 2009:2

[28] Self-defence should be left to the jury where the evidence raises a credible or plausible narrative which might lead the jury to entertain a reasonable possibility of self-defence: R v Wang [1990]
2 NZLR 529 at 534 (CA). In deciding whether there is a credible or plausible narrative, the Judge must consider the matter on the view of the evidence most favourable to the accused: R v Kerr [1976]
1 NZLR 335 at 340 (CA). …
[29] In Bridger [R v Bridger [2003] 1 NZLR 636] a Full Court of this Court considered the role of the trial Judge when assessing whether self-defence should be left to the jury. Counsel had submitted that the Judge should assess whether, in the circumstances as the accused perceived them, the accused was acting in the defence of himself or another … but that the Judge should leave the question of whether the force was reasonable … for the jury.
[30] The Court rejected this submission, saying (at [21]):

1 R v Li CA140/00, 28 June 2000 at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 402
Decision Date: 10 March 2017

CaseChat Overview and Summary

The case of R v Davies (aka Waipouri) was heard in the High Court of New Zealand at Auckland. Michael Joseph Davies, also known as Michael Joseph Waipouri, was charged with murder. The primary issue before the court was whether the defence of self-defence could be submitted to the jury for consideration. The court examined whether the circumstances as perceived by Waipouri could justify the use of lethal force and if a reasonable person in Waipouri's position could consider the force used to be reasonable. The court found that Waipouri did not perceive an imminent threat, had alternative courses of action available, and the use of lethal force was not justified. Consequently, the court ruled that self-defence could not be submitted to the jury. The final orders reflected this decision, ensuring that the jury did not consider self-defence as a potential defence for Waipouri.

Orders