R v Green
[2016] NZHC 229
•22 February 2016
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 TAURANGA REGISTRY
CRI-2015-070-576
[2016] NZHC 229
THE QUEEN v
RAYMOND GREEN
Hearing: 19 February 2016 Appearances:
A J Pollett and N Batts for Crown T Rickard-Simms for Defendant
Ruling:
22 February 2016
TRIAL RULING NO.6 OF WHATA J
Solicitors:
Crown Solicitor, Tauranga Pacific Coast Law, Papamoa
R v GREEN [2016] NZHC 229 [22 February 2016]
[1] Mr Green faces one charge of murder. The central alleged facts are that Mr Green drove at speed, striking the victim and thereby killing him. The Crown proceeds on the basis that Mr Green is culpable on the murder count by reason of:
(a)Section 167(b) of the Crimes Act 1961, intent to injure with death as a likely consequence and recklessness;
(b)Section 167(d) of the Crimes Act 1961, killing to achieve an unlawful object namely threatened application of force, with death as a likely consequence;
(c)Manslaughter by way of assault, threatened assault and/or dangerous driving.
[2] Following the close of the Crown case, Mr Rickard–Simms made two related applications:
(a)An application under s 147 of the Criminal Procedure Act 2011 (CPA) for discharge on the charge of murder and the alternative charge of manslaughter; and
(b)An application s 133 of the CPA to substitute the murder charge with a charge of dangerous driving causing death.
[3]The latter application is conditional on the grant of the section 147 application.
Alleged Facts
[4] On 2 February 2015, Mr Green had the day off work. At around 4.30 pm he was at his brother’s house at Ocean Beach Road in Mt Maunganui. He met his work colleague there, Mr Butler. Mr Butler and Mr Green had a couple of drinks and then decided to go to the house of another work colleague, Mr Aranui, at Gate Pa. They drove to that address in Mr Butler’s vehicle, a 2001 WRX Subaru.
[5] Over the course of the evening, the three colleagues used Mr Butler’s Subaru to travel in and around the Tauranga and Mt Maunganui area, drinking at various places. At a certain point in the evening, they decided to head to Welcome Bay. Mr Green insisted on driving.
[6] That same evening, the deceased, Ilya Kojevnikov, had been drinking with a friend, Mr Ormsby, at his address at Welcome Bay Road. Mr Kojevnikov was completely unknown to Mr Green. At around 10:45 pm, and after having consumed a significant amount of alcohol, Mr Kojevnikov and Mr Ormsby decided to leave the house to go play pool. Mr Ormsby, perhaps unwisely, decided to take his two-year-old daughter with him.
[7] At this point in time, Mr Green and his two colleagues were driving along Welcome Bay Road towards Mr Kojevnikov and Mr Ormsby. Mr Ormsby had crossed the road and was standing in the flush median with his daughter. Mr Kojevnikov was still waiting to cross. As Mr Green drove past him, Mr Kojevnikov kicked out at the car. The kick did not connect with the vehicle, but Mr Green and his colleagues took exception to Mr Kojevnikov’s action.
[8] The Crown’s case is that Mr Green, fuelled by anger, alcohol and testosterone, decided to deal with Mr Kojevnikov. He continued up the road, performed a u-turn then went back down Welcome Bay Road at 97 km/h (the speed limit being 60 km/h). He crossed over the median strip of the road to the area where Mr Kojevnikov was crossing. Mr Green struck Mr Kojevnikov with the car, killing him.
[9] Mr Green then fled the scene to Papamoa where he went about trying to conceal the vehicle so as to evade identification. He had an argument with his colleagues about what to do about the vehicle and threats were made. It was at this point in time that Mr Butler contacted the Police.
Framework
[10]Section 147 states:
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.
…
(4)Without limiting subsection (1), the court may dismiss a charge if—
(a)the prosecutor has not offered evidence at trial; or
(b)in relation to a charge for which the trial procedure is the Judge-alone procedure, the court is satisfied that there is no case to answer; or
(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.
[11] While decided under the previous legislative regime, the guidance provided by the Court of Appeal in Parris v Attorney General remains apposite:1
There should be a … discharge when, on the state of the evidence at the stage in question, it is clear either that a properly directed jury could not reasonably convict, or that any such conviction would not be supported by the evidence. In most cases these two propositions are likely to amount to much the same thing.
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.
[12] In order to resolve this issue it is necessary to set out the elements of the alleged offending.
[13]Section 167(b) and (d) of the Crimes Act 1961 states:
167 Murder defined
Culpable homicide is murder in each of the following cases:
1 Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [13]–[14].
(a)…
(b)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 death ensues or not:
(c)…
(d)if the offender for any unlawful object does an act that he or she knows to be likely to cause death, and thereby kills any person, though he or she may have desired that his or her object should be effected without hurting any one.
[14] The elements to be proven for the purpose of s 167(b) are uncontroversial. The Crown must prove that (on the alleged facts):
(a)The deceased was killed by the defendant;
(b)The defendant meant to assault the deceased by using the motor vehicle as a weapon;
(c)The defendant knew (actually appreciated) that there was a real and substantial risk that the deceased would die as a result of the injury; and
(d)The defendant carried on regardless.
[15] As to s 167(d), the Crown alleges that the unlawful object was to threaten the victim by using the car as a weapon. The following elements must be proven:
(a)The deceased was killed by the defendant;
(b)The defendant meant to threaten to assault the deceased by using the vehicle as a weapon; and
(c)The defendant knew (actually appreciated) that there was a real and substantial risk that the deceased would die as a result of the threatening act.
[16] In my Trial Ruling no. 5, I expressed concern at the prospect of the jury conflating actual knowledge test with an objective (i.e. “ought to know”) test. I
resolved at that stage (while reserving my position on any s 147 application) that in order to address my concern the jury should be directed to be sure that the defendant “carried on regardless”. I proceed on the basis therefore that, in terms of the mens rea thresholds, the requisite tests are the same for both limbs.2
Argument
[17] Mr Rickard Simms contends that other than the manner of driving, there is no evidence to support a reasonable inference that:
(a)Mr Green intended to assault or threaten to assault Mr Kojevnikov with the motor vehicle;
(b)Mr Green had knowledge that his driving would kill Mr Kojevnikov; and
(c)Mr Green carried on regardless of the risk.
[18] Conversely he submits that the evidence of the Crown shows that Mr Kojevnikov jumped into the path of the car and that this must negate the possibility that Mr Green intended to harm or knew that his driving was likely to harm Mr Kojevnikov.
[19] Ms Pollett identifies the following as evidence from which, she says, a jury might reasonably infer the requisite intent and knowledge:3
(a)The karate kick by Mr Kojevnikov as the car travelled east – evincing the reason for the intentional assault or threatened assault;
2 In R v Aramakutu [1991] 2 NZLR 429 (CA) at 432 the Court held that there was no difference between the knowledge requirements in s 167(b) and s 167(d): “The common essential ingredient in both paras (b) and (d) is that the offender knows that what he is doing is likely to cause death. The reference to recklessness in para (b) is usually of little practical importance, as this Court has said in previous cases; it does serve to point the contrast with para (a) whereunder there must be an actual intent to kill.”
3 I have interpolated from Ms Pollett’s submission the relevant inferences to be drawn from each item.
(b)The U turn – evincing a deliberate intention to assault or threatened to assault;
(c)The speed of the vehicle (an average of 97km/hr on the Crown evidence) as it travelled west toward Mr Kojevnikov – evincing intent to cause or threaten harm and actual knowledge of the risk of harm;
(d)The path travelled by vehicle immediately prior to the collision – namely at Mr Kojevnikov – evincing intent to injure and actual knowledge of life threatening harm;
(e)The location of the impact, straddling the median strip (though acknowledging that the left wheels remained in the correct lane) – evincing the intent to injure and knowledge of life threatening harm;
(f)The direction of vehicle at the point of impact suggesting a trajectory into the east bound lane (with all items dispersed at the point of impact within that lane).
(g)Mr Green’s flight from the scene and subsequent aggressive conduct, including evidence of extremely dangerous driving and threats to his co-passengers.
Assessment
[20] In some cases culpable murderous intent might reasonably be inferred from the act or acts causing death.4 However, as Ms Pollett quite properly conceded, but for the U turn, the proper charge would have been dangerous driving charge causing death. Yet the only evidence of Mr Green’s intent at the U turn is the evidence of Mr Kojevnikov’s karate kick as stimulus for retaliation, and the evidence of Mr Aranui and Mr Butler, who were passengers in the car. Mr Aranui deposed:5
4 R v Noel [1960] NZLR 212 (CA) at 216; R v Kamipeli [1975] 2 NZLR 610 (CA) at 217; R v Evans-Whatarangi HC Hamilton CRI-2008-068-0609, 22 October 2009 at [18]; R v Accused HC Auckland T002621, 1 February 2001 at [13]. Cf R v Mika HC Auckland T030558, 23 March 2004.
5 Notes of Evidence at 124/23–125/03.
A.I said to Ray to turn around and go back and see what … you know, just to – well what it was he’s up to, yeah.
…
Q, What did Ray say?
A. Ray didn’t – was driving he didn’t know. No he didn’t say, say nothing really just turned around. Well just did what I said ‘cos I told him to turn around so he did…
[21]Mr Butler was less certain about what was said at the time of the U turn:6
A.Nah, I saw. I know that he – I know they were upset because he made a, had a go at the car and that’s when Ray and Charlie I don't know how involved I was I don't remember but said that we’ve gotta go back just to see what this guy’s problem is because they noticed that he you know came at us. So it was big enough for them to go, “We need to go see what this guy’s up to.” Because they felt threatened so they turned around. I don't know where I stood on the decision, I don’t really remember. I think that I was kind of not too keen on it. I don’t think I was going, oh, let’s go round and you know, but none of us were planning on running him over or anything like that.
[22]And further:7
Q.What was the mood like in the car once this person had come at the car?
A. Ah, I was, I was nervous. I didn’t feel good about – at that time.
Q. What was the discussion going on between Ray and Charlie?
A.Um, I think it was, “Let’s just go see what this guy’s up to.” Just go see what happened, what was going on. Maybe a little bit leaning towards aggressive, you know, just to sort him out.
Q. When you say “sort him out” what do you mean?
A.Maybe, um, well maybe, um, see what his problem is and if he attacks us then maybe sort him out and beat him up.
[23] It will be seen that Mr Aranui’s account suggests that he (not Mr Green) instigated the U turn for the purpose of confronting Mr Kojevnikov. Mr Butler’s evidence is then equivocal about who instigated the U turn, and is contradicted by the direct evidence of Mr Aranui. His assessment of the purpose of the U turn and Mr
6 At 59/9–18.
7 At 60/10–19.
Green’s driving is then largely speculative. The U turn evidence provides therefore only a weak basis for murderous intent.
[24] The next key inquiry concerns Mr Green’s knowledge at the time of the fatal collision;8 that is whether he knew that there was a real and substantial risk that his manner of driving would kill Mr Kojevnikov and carried on in any event. But as I observed in my Trial Ruling no 5, the retaliatory assault and or threat theory provides an unlikely basis to explain Mr Green’s alleged conscious decision to carry on driving in a manner that he knew would likely kill Mr Kojevnikov.
[25] Further, the evidence purporting to show a conscious decision to turn toward Mr Kojevnikov (including Dr Calhaem’s evidence about the speed and trajectory of the vehicle) while plausible, is arguably negated by evidence tending to suggest that Mr Kojevnikov moved into the path of a moving vehicle in a way that could not have been reasonably foreseen by Mr Green. This case therefore is not like the discharge of a shotgun at close range in circumstances where the jury might readily infer murderous intent from the act of killing itself.9
[26] Overall, in my view, the Crown evidence for culpable murderous intent is highly contestable. But, as the learned authors in Cross on Evidence opine, “… the Court should not decide whether the relevant inference should be drawn”.10 Rather, I must focus on whether the facts (set out at [19] above) are capable of supporting the inference of murderous intent. I have come to the conclusion that they are. In short, the jury might reasonably infer that Mr Green was angered by Mr Kojevnikov’s karate kick; that he performed the U turn in anger; that he channelled his aggression through his manner of driving; and that he deliberately drove at Mr Kojevnikov regardless of the risk that his driving might kill him. While I might have some doubts about this, the inferences to be drawn from the U turn evidence, the plausibility or implausibility of the retaliatory assault or threat theory, and the negating effect of Mr Kojevnikov’s movements (which is disputed)11 are all matters for a jury.
8 R v Neustroski (1990) 6 CRNZ 96 (HC) at 98.
9 R v Gordon [1963] SR (NSW) 631 at 636, cited by the Court of Appeal in R v Kamipeli, above n 4.
10 D.L. Mathieson Cross on Evidence: evidence law outside the Evidence Act 2006 (NZ looseleaf ed, LexisNexis) at [1.12] citing R v Parris, above n 1 and R v Flyger [2001] 2 NZLR 721 (CA).
11 This is to be contrasted to the facts in R v Neustroski, above n 8, where the fact that the accused
[27] A residual issue remains as to whether given the frailties of the Crown case on murderous intent, there is an impermissible risk of miscarriage. It is a concern in this case because the jury may too easily employ the “shotgun” reasoning where such reasoning would be clearly improper. I have come to the view that, as I think Ms Pollett agrees at least in part, a strongly worded direction to the jury is necessary in order to mitigate such risk; namely words to the effect that:
(a)The jury must not simplistically reason from the manner of driving per se to conclude that Mr Green must have intended or recklessly pursued the outcome;
(b)Rather the jury must be sure that Mr Green consciously appreciated that his driving would likely kill the deceased and carried on in any event; and
(c)If there is a reasonable possibility that:
(i)Mr Green may have thought he could drive in manner that he did without killing Mr Kojevnikov; and/or
(ii)Mr Kojevnikov moved into the path of the vehicle and Mr Green did not foresee that movement,
then the verdict must be one of not guilty of murder.
[28] I also caution Crown counsel against reliance on post-collision conduct to infer murderous intent. While such conduct may be relevant, the focal point for assessment is Mr Green’s state of mind at the time of the collision. At present I do not accept Mr Green’s subsequent aggression toward Mr Butler is logically probative of murderous intention on the facts of this case.
Outcome
was fleeing the scene of the killing, which was not disputed, raised a reasonable doubt about murderous intent, thereby justifying the dismissal of the accused’s murder charge.
[29] The application for s 147 discharge on the murder count is dismissed. It is not necessary therefore for me to rule on the s 133 application. I reserve leave to Counsel to submit to me on the matters identified at [27] and [28] dealing with jury directions and post-collision conduct.
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