R v K S HC Hamilton CRI 2006-019-4686

[2006] NZHC 1677

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2006-019-4686

THE QUEEN

v

KS (NAME SUPPRESSED)

Hearing:         16 August 2006

Appearances: Ms L Dunn for Crown

Mr M Gibson for Accused

Judgment:      21 August 2006

JUDGMENT OF LANG J

[on application for orders under s 347 Crimes Act 1961]

Solicitors:

Crown Solicitor, Hamilton
Counsel:

Mr M Gibson, 34 London Street, Auckland

R V KS (NAME SUPPRESSED) HC HAM CRI-2006-019-4686 [21 August 2006]

[1]      Mr S faces a large number of charges, all of which have their origin in events that occurred whilst he was being sought by the police between 12 November 2004 and 19 August 2005.   He has now applied under s 347 of the Crimes Act 1961 to be discharged on five of those charges.  They are counts 1, 4, 5, 6 and 7 in the latest form of the indictment, and they allege that Mr S wilfully attempted and conspired with others to defeat the course of justice.

[2]      In order to understand the issues raised by the present  applications,  it  is necessary to have regard to the context and factual background in which they have arisen.

Factual background

[3]      Mr S was arrested after his vehicle was stopped in Kihikihi on 4 November

2004.    At that time he was awaiting trial in the District Court on several firearms charges.    When the police searched Mr S’s vehicle, they discovered firearms and drugs.   As a result, he was charged with the unlawful possession of those items.   He was also  charged  in relation to  an aggravated robbery that  had occurred in the Northland District some time earlier.   All charges were laid indictably.

[4]      When Mr S first appeared on these charges in the District Court, he was granted bail.   The Crown appealed against this decision, and in a judgment delivered on 12 November 2004 Potter J allowed the Crown’s appeal.   As a result, Mr S’s bail was revoked and a warrant was immediately issued for Mr S’s arrest.

[5]      For the purposes of the present argument Mr Gibson accepted that Mr S was at all material times aware of the outcome of the Crown’s appeal.    Mr S therefore knew that his bail had been revoked and that a warrant had been issued for his arrest. Notwithstanding this knowledge, Mr S failed after 12 November 2004 to surrender to the police or to appear in the District Court on the dates to which he had earlier been  bailed.      Instead,  the  evidence  suggests  that  he  made  a  determined  and prolonged attempt to evade capture by the police.

[6]      For a period prior to 7 June 2005 Mr S lived on a remote rural property at Waingaro, near Ngaruwahia.     This property was owned by one of the accused persons in this proceeding, Vicki Cobb and her late husband, Mr Andre Wilson.

[7]      Mr S’s residence at the Waingaro property came to an abrupt end in the early hours of 7 June 2005.   His departure was brought about by an incident in which Mr Wilson received a fatal gunshot wound to his chest.   The incident occurred in a shed on the property, and Mr S was present at the time that Mr Wilson was injured.  Mr S’s girlfriend, Ms Carrie Lyndon, was also present at that time.

[8]      Attempts  by  Ms  Cobb  and  Ms  Lyndon  to  revive  Mr  Wilson  were unsuccessful, and he died prior to the arrival of the ambulance.    By that time, too, Mr S had departed from the property in Ms Lyndon’s car, taking with him the firearm that had inflicted the fatal wound on Mr Wilson.

[9]      The car and the firearm were subsequently discovered abandoned on 15 June

2005.    I was advised during the hearing that the gun was found in a disassembled state.

[10]     Once the police learned of Mr S’s presence at the time of the shooting, they renewed their efforts to find him.  It appears that after Mr S left Waingaro he began living in a hut in another isolated location in the Franklin District.    He fled from there when the police began searching nearby on 24 July 2005.    He was ultimately located near Patumahoe and captured by police on 19 August 2005.

[11]     The   Crown   contends   that   in   deliberately   evading   capture   between

12 November 2004 and 19 August 2005 Mr S wilfully obstructed or defeated the course of justice.     He did so because his refusal to present  himself at  court in accordance with his bail conditions prevented the charges against him from proceeding any further.   The Crown contends that he thereby effectively stymied the judicial process, because the charges against him could not be determined in his absence.

[12]     The Crown also  alleges that  Mr S was assisted  in his  attempts to  avoid capture by several other persons.    In this proceeding those persons face charges of conspiring with Mr S to defeat the course of justice.

[13]     In  addition,  the  Crown  contends  that,  in  departing  from  the  Waingaro property on 7 June 2005 and taking with him the firearm that had been used to fatally wound Mr Wilson, Mr S wilfully attempted to defeat the course of justice.     The Crown says that Mr S must have known that the firearm would form an integral part of the police investigation into the shooting, and that it was possible that charges could be laid.   The Crown contends that in removing the firearm Mr S intentionally hindered or obstructed the investigation.

[14]     Counsel for Mr S contends that none of these charges have any legal basis. For that reason he argues that Mr S should be discharged at this stage under s 347 of the Crimes Act 1961.

[15]     I propose to deal first  with Count  4, which is the charge relating  to  the removal of the firearm.    I will then deal with the remaining charges, which have broadly the same factual and legal foundation.

Count 4 – Wilfully attempting to defeat the course of justice by removing the firearm

[16]     The Crown brings this charge under s 117(e) of the Crimes Act 1961, which provides as follows:

[117     Corrupting juries and witnesses

Every one is liable to imprisonment for a term not exceeding 7 years who—

…

(e)      wilfully attempts in any other way to obstruct, prevent, pervert, or defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction.

[17]     Mr Gibson submitted that this charge cannot succeed because no one has ever been charged with any offence in relation to Mr Wilson’s death.     As a result, it

cannot be said that the firearm was used in any criminal offending, or that it has ever truly been part of the criminal justice process.  For this reason Mr Gibson argued that Mr  S  could  not  be  charged  with  attempting  to  defeat  the  course  of  justice  by removing the firearm from Waingaro.

[18]     The authorities make it clear that the offence contained in s 117(e) creates a substantive offence requiring proof both of an action which has a tendency to pervert the course of justice and an intention to bring about that result:  R v Rogerson (1992)

174 CLR 268 at 279; R v Meyrick CA 513/04, 14 June 2005 at [41].

[19]     In the present case Mr S removed the firearm in circumstances where no criminal or other proceedings were actually pending.    I am satisfied, however, that this fact does not prevent a charge under s 117(e) being laid.   In Meyrick the Court of Appeal said (at [42]):

… There is no doubt that criminality attaches to actions which have the tendency (and are intended) to adversely affect court proceedings (or indeed prevent such proceedings being commenced) even though those actions are in the context of police investigations, and occur prior to proceedings being commenced, see, for instance, R v Kane [1967] NZLR 60 and R v Sharpe [1938] 1 All ER 48 at 51. But the fact remains that the tendency and intention which are critical must be addressed to actual or contemplated proceedings before publicly constituted tribunals, a point which emerges clearly from Rogerson.

[20]     I consider that the circumstances giving rise to this charge are similar in some ways to those in R v Rafique [1993] QB 843. In that case five men were present when a firearm was accidentally discharged, killing one of them. The other four men drove off in a panic. Three of them then disposed of the firearm and remaining ammunition, before hiding from police for several days. Eventually they gave themselves up, and were convicted of doing acts tending and intended to pervert the course of public justice.

[21]     In dismissing their appeals against conviction, Lord Taylor of Gosforth CJ

said (at 850 to 851):

Applying, as we do, the principle stated by Pollock B. in Reg. V. Vreones [1891] 1 Q.B. 360, 369 we conclude that an act is not beyond the ambit of those tending to pervert the course of justice by reason of its being performed after the crime but before investigations into the alleged crime

have begun.   Whether an act has a tendency to pervert the course of justice cannot depend upon whether investigation of the matter which may become the subject of court proceedings has begun.    If an intention to pervert the course of justice in relation to that matter is proved, the act has the same quality whether performed before that alleged offence is investigated,  or even discovered, as it would have at the later stage.

…

…   One of the appellants, to the knowledge of the others, had discharged a firearm and thereby killed another man.   It was open to the jury to conclude that, to put it no higher, the possibility of judicial proceedings must have been in the contemplation of the appellants.   An act had occurred which was likely to lead to a specific charge in judicial proceedings, as indeed it did. At the very least there was bound to be an inquest.   In those circumstances, the disposal of the shotgun and cartridges had a tendency to pervert the course of justice.

[22]     Mr S must have known that Mr Wilson had been seriously injured as a result of the gunshot wound to his chest.   He was present when Ms Cobb and Ms Lyndon were desperately trying to revive Mr Wilson.    It is a logical inference that Mr S would also have known that the police would inevitably investigate the shooting, and that it was possible that criminal charges would be laid.    Alternatively, and even if no criminality was involved, he must have known that if Mr Wilson died it was likely that the Coroner would need to determine the cause of his death.    This, too, would require the police to carry out an investigation.

[23]     It would also have been obvious to Mr S that the police would have a keen interest in the firearm that had been used to inflict the wound.   Indeed, it was likely to be central to any investigation.   In those circumstances a jury would be entitled to conclude that, in removing the firearm prior to the arrival of the police and retaining it until 15 June 2005, Mr S committed an act that had a tendency to  hinder or obstruct any police investigation in a significant way.   In law, that would amount to an act having the tendency to obstruct or defeat the course of justice.

[24]     Similarly, a jury would be entitled to conclude that in removing and retaining the firearm, Mr S must have known, and intended, that his actions would have that effect.      Although  other  inferences  may  be  available,  or  another  explanation tendered, the jury would be entitled on the evidence as it presently stands to reach that conclusion.

[25]     For these reasons the application cannot succeed so far as it relates to Count

4.

Counts 1, 5, 6 and 7

[26]     These charges are laid under s 116 of the Crimes Act 1961, which provides as follows:

116     Conspiring to defeat justice

Every one is liable to imprisonment for a term not exceeding 7 years who conspires to obstruct, prevent, pervert, or defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction.

[27]     The essential issue to be determined in relation to these counts is whether, if the jury accepts that  Mr S made a deliberate attempt  to  evade capture between

12 November 2004 and 19 August 2005, his actions could, in law, obstruct or defeat the course of justice.   If they could, and if Mr S reached an agreement with others that they would assist him to achieve that objective, a charge of conspiring with those other persons to obstruct or defeat the course of justice will be available.

[28]     Mr Gibson submitted that offences of obstructing and perverting the course of justice are primarily directed  to  secondary offenders,  and  generally  relate  to assistance that such persons have rendered to the principal in disguising criminal offending.    As he pointed out, the classic example of this type of offending is the concealing of evidence or the assistance of a principal offender to avoid criminal responsibility.    He submitted that “being a fugitive per se does not of itself render the principal a party to the conspiracy, notwithstanding that those who offer such assistance may be parties to a conspiracy to defeat the course of justice”.

[29]     Mr Gibson accepted that the provision of assistance to a fugitive can lead to a charge of attempting to pervert or defeat the course of justice, and referred me to the Scottish case of McElhinney v Normand (1996) SC (J) 25.   In that case the appellant had picked up and driven away a person who was being pursued by the police.  The police were endeavouring to  execute a warrant  for  that  person’s arrest, and the appellant’s actions enabled him to evade apprehension.  The appellant was charged with and convicted of perverting the course of justice.  The High Court of Justitiary

dismissed  his appeal against  conviction, holding that the appellant’s actions  had brought the course of justice abruptly to an end by removing the object of the police chase.  As a result, his actions had perverted the course of justice.

[30]     Counsel were unable to refer me to any other decided case in which the availability of s 116 has been considered in circumstances similar to the present. The  learned  authors  of  Adams  on  Criminal  Law  opine  (at  CA117.04)  that  “a defendant who has been released on bail and absconds to avoid criminal proceedings may  commit  the  offence  of attempting  to  prevent  the  course  of  justice”.      As authority for that proposition they rely on the decision of Tompkins J in R v Zalkalnins (HC AK T.84/94, 20 July 1994).    Having read that case, however, I do not consider that  it  is direct  authority for the proposition for  which the authors contend.

[31]     The two accused in Zalkalnins faced eight dishonesty charges and one charge of wilfully attempting to prevent the course of justice.    The latter flowed from the fact that the accused had acquired an ocean going vessel and  left  New Zealand without clearing customs.   They were ultimately located on Lord Howe Island and brought back to New Zealand to face the charges laid against them.    The Crown sought  to  adduce  evidence  of their  flight  from New  Zealand  in  support  of the dishonesty charges, as well as the charge of attempting to prevent the course of justice.   The accused objected to the admissibility of that evidence in relation to the dishonesty charges.   They also sought an order severing their trial on the dishonesty charges from that on the charge of wilfully attempting to  prevent the course of justice.

[32]     Tompkins  J  dealt  predominantly  with  the  admissibility  of  the  evidence relating to the flight of the accused from New Zealand in relation to the dishonesty charges, because all counsel agreed that resolution of that issue was likely also to determine the severance application.   He did not discuss the appropriateness of the charge of wilfully attempting to prevent the course of justice at all.    Both he and counsel appear  to  have proceeded on the  basis  that  such  a  charge  could  lie  in circumstances where an accused person absconds from New Zealand in order to avoid facing criminal charges.

[33]     The charge of wilfully attempting to prevent the course of justice laid against one of the accused in Zalkalnins was, however, the subject of an earlier judgment by Anderson J (Zalkalnins v  R  HC AK T84/94,  7 July 1994).      In  that  judgment Anderson J dealt with an issue arising from the fact that that accused had already pleaded guilty to a charge that he had breached the terms of his bail when he left New Zealand.    The accused contended that the elements of this charge were the same as those that made up the charge of wilfully attempting to prevent the course of justice, and that the latter charge could therefore be met by the special plea of autre fois convict.

[34]     Anderson J described the basis upon which the Crown had laid the charge of wilfully attempting to prevent the course of justice as follows (at 3):

The Crown alleges that the wilful attempt to prevent the course of justice consisted in the purchasing and subsequent using of an ocean going vessel to enable the applicant to leave New Zealand in order to avoid criminal proceedings pending against him …The essence of the Crown allegation, as I understand it, is that the wilful attempt to prevent the course of justice consisted in leaving New Zealand in order  to avoid trial, and  the  other matters presently contained in Count 9 amount to particulars of the attempt and indications of the requisite intent.    When approached in such a way it can be seen that the essence of the alleged offence is the act of leaving New Zealand with the requisite intent to avoid trial.

[35]     In rejecting the submission that the special plea was available, the Judge said

(at 3):

It is argued on behalf of the applicant that he is entitled to be discharged upon Count 9 on the grounds of autre fois convict.   Central to the argument is the validity of the concept that failing without reasonable excuse to attend personally to the Auckland District Court, as specified in his notice of bail, is a matter which is the same in whole or in part as the matter of leaving New Zealand   with   the   intention   of   avoiding   trail   on   the   other   counts. Alternatively the applicant submits that the present Count 9 charges substantially the same offence as failing to meet a term of bail but adds a statement  of  intent  or  circumstances  of  aggravation.     Implicit  in  this argument is the suggestion that the present Count 9 envisages a deliberate decision by the accused not to report in terms of his bail bond.

In my judgment the offence of wilfully attempting to prevent the course of justice would, in the circumstances indicated by the depositions, be a completed offence at the time the applicant actually departed the jurisdiction. Such offence was complete some time before the failure to meet the terms of bail.     Whilst interesting questions may arise as to whether the applicant could properly be convicted of failing to respond to bail, being an act of omission at a time when he was not actually within the jurisdiction, such act

of omission was disjunctive in time and concept.   It was a separate offence, if it were an offence at all, and not one which is included within the contemplation of ss 358 and 359.   The application fails.

[36]     If the judgment is read as a whole, it seems reasonably clear that Anderson J accepted that a charge of wilfully attempting to prevent the course of justice may be laid in circumstances where a person deliberately avoids criminal charges by absenting himself or herself from the jurisdiction.  He certainly made no comment to the effect that it was not.  The present case does not involve an allegation that Mr S departed from the jurisdiction.  I see no distinction in principle, however, between the act of a person who  deliberately  leaves the  jurisdiction  in  order  to  prevent criminal charges from being determined and that of a person who deliberately goes into hiding within the jurisdiction in order to achieve the same object.

[37]     I consider that the passage cited above (at [35]) also highlights one of the major  distinctions between a charge of breaching bail  and  a  charge  of wilfully attempting to defeat the course of justice by absconding whilst on bail.   Whilst a charge of breaching bail is complete when the offender fails to appear, the offence of wilfully attempting to defeat the course of justice will be complete as soon as the offender embarks upon the course of conduct that is designed to prevent outstanding criminal charges from being determined.   That may occur prior to the date upon which the offender was due to honour any obligations imposed by a grant of bail.

[38]     I have reached the view that the wording of s 116 is sufficiently wide to encompass   a   deliberate   attempt   by  an  accused   person  to   prevent   criminal proceedings from being determined by going into hiding.     Such conduct has the practical effect of stopping proceedings in their tracks and preventing them from being determined.    If it succeeds completely, it may prevent the proceedings from ever being heard.     I see no reason in principle why an accused person who deliberately goes into hiding in order to avoid criminal proceedings should not be criminally liable under s 116.    If the accused enters into an agreement with other persons to carry his or her plan into effect, both the accused and those who assist him may be liable to be charged with conspiring to obstruct or defeat the course of justice.

[39]     I am also satisfied, however, that not every breach of bail will lead to the charge being available.    It is clear from Meyrick that an essential element of any charge  relating  to  the  perversion  or  obstruction  of  the  course  of  justice  is  the intention to achieve that actual result.    The actions of an accused person must also have the tendency to do so.    In many cases the failure to appear will be due to factors unrelated to any deliberate decision to go into hiding so as to prevent outstanding charges from being determined.   In such circumstances the appropriate charge will be one of breaching bail rather than a charge relating to the obstruction of the course of justice.

[40]     In the present case numerous charges were pending against Mr S.    He had been bailed on each of them to appear in the District Court on set dates.   If the jury in the present case concludes that Mr S deliberately went into hiding, that could amount to an act having the tendency to obstruct or defeat the course of justice because it prevented those charges from being determined.     At the very least, it delayed the administration of justice by the Court.    If the jury is also satisfied that Mr S went into hiding with the express intention of thwarting the disposition of the charges that he knew were outstanding, it would be entitled to conclude that Mr S thereby intended to defeat or obstruct the course of justice.   If other persons agreed to assist him in achieving his objective, both Mr S and those other persons may be liable to conviction on a charge of conspiring to defeat the course of justice.

[41]     I am therefore satisfied that there is no legal impediment to the ability of the

Crown to proceed to trial on Counts 1, 5, 6 and 7.

Result

[42]     The applications are dismissed.

Lang J