R v E HC Hamilton CRI 2008-068-609
[2009] NZHC 1997
•22 October 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2008-068-000609
THE QUEEN
v
E
Hearing: 21 October 2009
Counsel: P Crayton and R Mann for the Crown
T Sutcliffe and K Tustin for the Accused
Reasons: 22 October 2009
REASONS FOR JUDGMENT OF POTTER J On s 347 application
R V E HC HAM CRI 2008-068-000609 22 October 2009
Introduction
[1] At the conclusion of the evidence Mr Sutcliffe for the accused made application for a discharge under s 347 on the charge of murder. He accepted that there is evidence upon which a properly directed jury could reasonably convict of manslaughter but submitted there is no evidence upon which a jury could reasonably convict of murder.
[2] Having heard from both parties, I declined the application on the basis that the Crown will pursue murderous intent only under s 167(b) of the Crimes Act. (Mr Crayton for the Crown accepted that the evidence would not support murderous intent under s 167(a)). These are the reasons for that decision.
Principles
[3] Both counsel proceeded on the basis of the same test: Whether as a matter of law a properly directed jury could reasonably convict on the evidence properly admissible: R v Flyger [2001] 2 NZLR 721; Parris v A-G [2004] 1 NZLR 519 (CA).
Section 167(b)
[4] Section 167(b) provides that culpable homicide is murder: If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether ensues or not.
Submissions for the accused
[5] Mr Sutcliffe submitted there is no evidence that the accused knew his actions toward the deceased, as variously described in evidence by Crown witnesses, was likely to cause the death of the deceased.
[6] He relied considerably on the evidence of the pathologists, Dr Vuletic for the Crown and Dr Ferris for the defence, that the injuries to the deceased’s head were relatively minor. He noted that the impact of any injuries inflicted by the accused was not serious enough to cause damage to the bone or tissue of the brain. The only injury to the head that broke the skin was above the left eye. The evidence of the experts was that the subdural haemorrhage in the deceased’s brain which resulted in his death was caused only by damage to the bridging veins, which the experts agreed could be caused by a relatively minor level of force.
[7] He said there were three possibilities upon which the Crown could rely:
a) Punch/es to the head;
b)The deceased falling to the ground as a result of punches or kicks from the accused;
c) Kick/s to the head.
[8] He submitted in relation to a) that this was a short-lived incident and the evidence of punches to the head could not give rise to an inference that the accused knew that death was a likely result.
[9] As to b) he said there was no evidence of the deceased’s head hitting the ground, only that he fell to the ground.
[10] In relation to c) he submitted that if there were kicks from the accused that caused bruises to the head, they resulted in comparatively minor injuries and the accused could not have known that death was likely to result.
[11] He summarised that this was not a prolonged attack where the accused was put on notice of the risk of continuing with the attack. He submitted the jury could not reasonably conclude on the basis of the evidence that the accused knew the injuries to the deceased were likely to cause his death, and that it was not safe to put the charge of murder to the jury.
Submissions for the Crown
[12] Mr Crayton submitted there is evidence upon which it would be open to the jury to convict of murder under s 167(b).
[13] He submitted the arguments for the accused merged the evidence of the acts of the accused with the medical evidence as to the consequences of those acts, and that on the evidence of the acts of the accused towards the deceased, if accepted by the jury, there was a proper basis for the jury to draw the inference that the accused knew that the bodily injury he inflicted on the deceased was likely to cause his death, and that he carried on regardless.
[14] He referred to the evidence of the Crown witnesses, which had also been referred to by Mr Sutcliffe:
• Robert Pu – saw the accused kick the deceased on the left side of his eye – “looked like a soccer boot” – “the head moved back”
• Drina Pihema – saw the deceased struggling to get up off the ground and accused
“kicking his head in like a football – just once – on the left hand side”
• Gordon Te Uira – saw the accused kicking, stomping to the side of the body and the face of the deceased, towards his head area and face, three or four kicks, “Would’ve knocked me out anyway” (in answer to cross-examination the witness said there were two or three kicks to the head).
• Hope Tai – kicks to the stomach when the deceased was lying on the ground, kicks to the face, five or six kicks in total, three to the head and probably two to the face, “hard kicks”.
[15] Mr Crayton submitted the jury can properly take into account that there is evidence of kicks to the head of the deceased while he was on the ground; that there was a continuum, although short, in which on the evidence, the accused punched the
deceased, the deceased fell to the ground and the accused proceeded to kick him on the ground.
[16] Counsel referred to the evidence of Dr Vuletic as to the facial injuries suffered by the deceased – bruising to the right side of the forehead, areas of possible bruising on the left forehead, two small abrasions above the right eye-brow, bruising to the left upper eye-lid with a small laceration, abrasion to the left nostril, blood present in both nostrils, bruising in the left upper eye-lid with a laceration in the right corner of the eye-lid and bruising to the left cheek bone and the lower jaw identified on subcutaneous dissection. Mr Crayton accepted there is no evidence of fracture or serious injuries to the head but emphasised the distinction between the consequences of the injuries inflicted by the accused and the evidence of what he did to the deceased. He submitted there is sufficient evidence of a short continuum of conduct by the accused towards the deceased on the basis of which the jury could reasonably infer the knowledge required by s 167(b) on the part of the accused.
Discussion and conclusion
[17] This is not a case where the Crown can properly submit that the nature and extent of the injuries inflicted raise inferences relevant to the state of knowledge of the accused when he inflicted the injuries. As Mr Sutcliffe said, there was common ground between the experts that the injuries to the deceased were “relatively minor”. But Mr Sutcliffe was not correct in submitting that the medical evidence shows the kicks were capable of producing only minor injuries. The medical evidence shows only that the actual consequence of the accused’s actions towards the deceased were relatively minor injuries. A further actual consequence was the damage to the bridging veins which caused the subdural haemorrhage resulting in the death of the deceased.
[18] While the injuries may not give rise to inferences as to the knowledge of the accused at the time he inflicted injury to the deceased, there is the evidence from the various witnesses referred to above – particularly evidence of kicks to the head while the deceased was on the ground – upon which the jury could reasonably infer that the
accused knew his actions were likely to cause the death of the deceased and took the risk of death resulting.
[19] These are matters for the jury. The Crown case may not be a strong one, as Mr Crayton accepted, but ultimately it is for the jury to decide what evidence they accept and what inferences they draw from it.
Result
[20] I concluded that there is evidence, if accepted by the jury, upon which they could reasonably convict of murder under s 167(b). I accordingly dismissed the application under s 347.
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