R v Green - [2016] NZHC 212

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 212

THE QUEEN

v

RAYMOND GREEN

Hearing: 16 February 2016

Appearances:

A J Pollett and N Batts for Crown
T Rickard-Simms for Defendant

Ruling:

18 February 2016

TRIAL RULING NO.5 OF WHATA J

This judgment was delivered by Justice Whata on
18 February 2016 at 2.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Crown Solicitor, Tauranga
Pacific Coast Law, Papamoa

R v GREEN [2016] NZHC 212 [18 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 liable 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] Prior to the close of the Crown case, I raised two concerns with Counsel about the application of s 167(d) to the alleged facts, namely:

(a) The application of the s 167(d) route in the context of threatening to apply force circumvents the usual rule in assault cases which requires proof of intent to injure and recklessness for the purposes of s 167(b), with the prospect of s 167(d) becoming the default route for such cases (the floodgates issue).

(b)The s 167(d) route involves an unduly complex and potential confusing inquiry into murderous intent.

[3] With the benefit of argument in relation to these issues, I turn to consider whether the charge of murder pursuant to s 167(d) should be left with the jury.

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, 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.…

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.

Continue reading R v Green

Details

AGLC: R v Green [2016] NZHC 212
Case: [2016] NZHC 212
Decision Date: 18 February 2016

CaseChat Overview and Summary

Raymond Green faces a charge of murder, with the Crown proceeding on the basis that Green is liable on the murder count by reason of Section 167(b) and (d) of the Crimes Act 1961, as well as manslaughter by way of assault, threatened assault and/or dangerous driving. The Crown argues that Green drove at high speed at the victim in retaliation for the victim kicking at his car, with the objective of scaring him, thereby exposing the victim to clear danger that Green knew was likely to kill him. The Court raised concerns about the application of Section 167(d) to the alleged facts, including the prospect of Section 167(d) becoming the default route for such cases and the complexity of the inquiry into murderous intent. The Court determined that Section 167(d) encompasses threats of force involving contemporaneous acts of clear danger to intended victims that the defendant knows are likely to cause death. However, the Court was concerned that the resort to threatened assault as the unlawful object effectively circumvents the usual requirement to show intent to injure and recklessness. The Court was also concerned about the difficulty for the jury in making the requisite mens rea finding in this case. The Court allowed the charge of murder under Section 167(d) to be put to the jury provided that the jury is directed to include as part of its assessment, and as an additional element of the offending, that Green acted with reckless disregard as to whether death ensued. The charge was to be split pursuant to Section 21 of the Criminal Procedure Act 2011 so as to ensure that the jury separately addresses the Section 167(d) route.

Orders