R v Kaho HC Auckland T002621

[2001] NZHC 426

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY T002621

THE QUEEN
v
PULETELE KAHO

Hearing: 28-30 May 2001

Counsel: A Kiernan for the Crown
R Wade for the Accused

Date of Ruling: 31 May 2001

REASONS FOR RULING OF PATERSON J

[1] Prior to the trial commencing, Mr Wade on behalf of Mr Kaho, applied for leave to adduce evidence of the previous criminal convictions of the complainant and the accused. This application was declined. At the same time, an application was made that I should direct the jury that it would be open to it to return a verdict on a charge that with reckless disregard for the safety of others, Mr Kaho caused grievous bodily harm to the victim (s 188(2) of the Crimes Act 1961). No decision was sought or given on that application at that stage. The application was declined after evidence had been given and before counsel were to begin their final addresses on the third morning of the trial. An application was then made to direct the jury that it would be open to it to return a lesser verdict of injuring in such circumstances that if death had been caused, the accused would have been guilty of manslaughter (s 190 of the Crimes Act). Mrs Kiernan having advised the Crown abided, I indicated I was prepared to direct accordingly. I now give my reasons for these rulings.

Background

[2] The incident on which the charges are based occurred at approximately 1 am on 23 July 2000 at Otara. Mr Koha, after being involved in a scuffle in the street outside a property where a 21st birthday was being held, went to his car, obtained an axe and returned to the scene of the scuffle and brought the axe down on the victim’s head. In my view, there can be no doubt that the result of the axing of the victim was to cause grievous bodily harm to him. Mr Wade conceded this. The victim was rendered unconscious and part of his brain came through his skull. He will have long term and perhaps permanent effects and disabilities resulting from the incident.

[3] It is Mr Koha’s position that he had previously been headbutted by the victim and his purpose for taking the axe was to scare off the victim. He did not intend to hit the victim on the head but the victim walked into the axe when he was swinging it round to scare him off. The two charges in the indictment presented by the Crown were attempted murder and an alternative charge of with intent to cause grievous bodily harm, caused grievous bodily harm.

[4] Shortly after depositions, counsel for Mr Kaho wrote to the Crown Solicitor offering to plead guilty to a charge under s 188(2) of the Crimes Act, namely, “with reckless disregard for the safety of another, caused grievous bodily harm to the other.” The same letter made it clear that Mr Kaho denied that he intended either to kill the victim or to cause him grievous bodily harm.

Previous convictions

[5] Although I was not given full details of the convictions, Mr Kaho has some previous convictions from his juvenile days. The complainant has five reasonably serious convictions and was sentenced in 1994 to three years imprisonment on a grievous bodily harm charge and in 1998 to a term of 18 months imprisonment on four charges of injuring with intent to injure. Mr Wade, in seeking to have the complainant’s convictions put before the Court, conceded that if this happened, the accused’s convictions would also need to go before the Court.

[6] The reason given for the application was that the jury was entitled to know of the complainant’s history of violence. This was notwithstanding, Mr Kaho did not know the complainant and did not know at the time of the incident his history of violence.

[7] In opposing the application, Mrs Kiernan submitted it was clear from the evidence the complainant had been in a fight with others when Mr Kaho pulled up at the party for the fourth time that evening. There was evidence to suggest that Mr Kaho had been headbutted but this was not a case where self defence was being raised. In the circumstances, the victim’s previous convictions could not be relevant.

[8] The convictions would only be admissible if they were relevant to a fact in issue. The relevant facts in issue in this case were whether Mr Kaho intended to kill the complainant or intended to cause him grievous bodily harm. The convictions do no more than establish the victim’s propensity for violent behaviour. It is difficult to see how a propensity is relevant to a fact in issue when Mr Kaho did not know of the victim’s propensity. If Mr Kaho had been in a position to raise the defence of self defence, and Mr Wade concedes he could not do so, the previous convictions may have been relevant, if the accused had known of them, in determining Mr Kaho’s state of mind at the time he brought the axe down on the complainant’s head. Whether they would have been relevant in such circumstances would depend on the nature of the offences which led to those convictions, and I was not given details of them. However, in my view, they could not possibly be relevant to the facts at issue in this case and the application was therefore declined.

Section 339 application

[9] The applications requesting I direct that it was open to the jury to return a lesser verdict were made pursuant to s 339 of the Crimes Act. Section 339(1) reads:

“Every count shall be deemed divisible; and if the commission of the crime charged, as described in the enactment creating the crime or as charged in the count, includes the commission of any other crime, the person accused may be convicted of any crime so included which is proved, although the whole crime charged is not proved; or he may be convicted of an attempt to commit any crime so included.”

[10] I respectfully adopt the statement of Tipping J in R v Norris (1988) 3 CRNZ 527 when he stated at p 529:

“For New Zealand purposes to determine whether one offence is necessarily included in another the point can I think be tested by asking whether on proof of all the ingredients of the major offence the accused must of necessity have committed the lesser offence.”

The lesser offence in respect of which the original application was made contained an element of “reckless disregard for the safety of others.” The essential element in the major charge within which the ingredient of the lesser charge must fit was “the intention to cause grievous bodily harm.” In my view, it cannot be said that proof of an intention to cause grievous bodily harm could lead to a conclusion that Mr Kaho acted with “reckless disregard.” It was for this purpose that the first of Mr Wade’s applications under s 339 was declined.

[11] In support of the alternative application for a lesser charge under s 190 of the Crimes Act, Mr Wade relied upon R v Carr (No. 2) (1995) 13 CRNZ 1. In Carr Hammond J determined in favour of the accused a similar application where the original charges were attempted murder and, in the alternative, with wounding with intent to cause grievous bodily harm (s 188(1) of the Crimes Act). As in Carr the lesser charge sought in this case under s 190 cannot be an alternative to the attempted murder charge as the indictment does not refer to a physical act by which it is alleged Mr Kaho attempted to murder the victim. However, the same consideration does not apply in respect of the original alternative charge in this case. Hammond J noted that the question of whether a charge under s 188(1) is necessarily inclusive of a charge under s 190 appeared to be foreclosed (in the affirmative) in this Court by the decision of the Court of Appeal in R v Garr (1909) 28 NZLR 546. For similar reasoning, I am of the view that the lesser charge now suggested under s 190 of the Crimes Act is inclusive on the alternative count of causing grievous bodily harm with intent to cause grievous bodily harm.

[12] In the circumstances, I saw no reason why the jury should not be directed to consider the lesser charge as an alternative to the grievous bodily harm charge if it determined that Mr Kaho was not guilty on the grievous bodily harm charge. Such a verdict was open to the jury on the way the case was presented. If Mr Kaho’s defence was accepted by the jury, he had nevertheless committed an unlawful act which would have rendered him guilty of manslaughter if the victim had died.

[13] The fact that the application was made by an accused rather than the Crown did not mean that the application should be declined in the interests of justice. It may well be that Mr Kaho was seeking some type of tactical advantage in having a lesser charge before the jury when the circumstances showed that he had inflicted grievous bodily harm on the victim. However, there was evidence, if accepted by the jury, which would support Mr Kaho’s defence and if the jury had a reasonable doubt as to whether the Crown had established the necessary intention for grievous bodily harm, the jury, particularly as the application had been made by Mr Kaho, should be in a position to convict on the lesser charge. I agreed to direct the jury accordingly.

[14] Because of the practicalities of the position Mrs Kiernan had prepared at short notice a further indictment which contained the lesser charge. This was done for practical reasons and as this additional charge was not laid by the Crown, Mr Kaho was not asked to plead to it. The jury was advised that on the application of Mr Kaho’s counsel, the Court had determined to add this charge and that the jury should only consider it if they determined that Mr Kaho was not guilty on each of the two charges which had originally appeared in the indictment.