R v L HC Palmerston North CRI-2007-031-1169

[2008] NZHC 1354

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2007-031-1169

THE QUEEN

v

L
M

Hearing:         29 August 2008 (Heard at Wellington)

Appearances: B D Vanderkolk for Crown

D A Ewen for both Accused

Judgment:      1 September 2008

JUDGMENT OF WILD J

Introduction

[1]      By application under s 345(3) Crimes Act 1961 filed on 6 May, the Crown Solicitor at Palmerston North applies for an order directing that he may file in this Court an indictment charging the two accused with offences under s 188(1) and (2) Crimes Act 1961.  Those offences are, respectively, causing grievous bodily harm with intent to cause such harm, and causing grievous bodily harm with intent to

injure.

R V L AND ANOR HC PMN CRI-2007-031-1169  1 September 2008

[2]     Following a depositions hearing before Justices in the District Court at Palmerston North on 25 March, the two accused were committed to the District Court for trial on a charge of assault with intent to injure (s 193 Crimes Act).

[3]      No indictment has been presented.

[4]      With his s 345(3) application, the Crown Solicitor lodged on 6 March a draft indictment containing the two s 188 crimes I have detailed.

[5]      The application is made in reliance on the judgment of MacKenzie J in R v Lovatt HC WN CRI-2007-485-159 11 April 2007 which holds that an application under s 345(3) is appropriate in the present circumstances.  And Mr Ewen accepts s 345(3) is an appropriate vehicle.

[6]      Mr Vanderkolk’s initial approach was that the choice of charge was very much for him as Crown Solicitor.  He relied on this passage at [35] in Lovatt:

…When the matter is approached under s 345(3), I am of the view that compelling  reasons  not  to  consent  to  the  indictment  which  the  Crown Solicitor considers appropriate should be shown…

[7]      Mr Ewen submitted that is not in line with this Court’s decisions in Wallace v Abbott [2002] 19 CRNZ 585 and  Palu v The District Court at Wellington HC WN CIV-2005-485-458 18 March 2005 which equate the test under s 345(3) with that under s 347. For example, Elias CJ in Wallace:

[32]     Although the discretion under s 345(3) may be argued to permit a wider consideration (a matter I return to below), the starting point must be whether  the  evidence at the  preliminary  hearing  is  sufficient  to  put  the respondent on trial.  At the hearing, counsel agreed that there is no effective difference between the approach to be adopted in considering this question and the approach, more commonly encountered, under s 347 of the Crimes Act 1961 that on the depositions no jury properly directed could reasonably bring in a verdict of guilty.

[8]      Palu, a judgment of Gendall J, at [21] and [27] is to like effect.

[9]      The  difference,  in  practical  terms,  is  that  the  Court  should  only  allow inclusion in the indictment of a charge(s) if the evidence at the preliminary hearing

was sufficient to put the accused on trial on that charge(s). The Court has a supervisory role; selection of the charge(s) is not wholly for the Crown Solicitor.

[10]     Replying,  Mr  Vanderkolk  accepted  that  the  laying  of  the  appropriate charge(s) was the aim of s 345(3).

[11]     I agree that is the position.  Mr Ewen is not, however, correct in submitting that, were it not the case, the Court would have no control over what charges were presented in the indictment and no jurisdiction to discharge an accused on any of those charges until the close of the Crown case at trial.  That submission overlooks s 347(3).

[12]     Mr Ewen allowed that the evidence supports a charge under s 189(2) of injuring with intent to injure, but not any charge under s 188.

[13]     I have read the depositions and, in particular, the deposition of Dr D   Hill

(Depositions pp 45-45), which describes the injuries sustained by the victim.

[14]     For obvious reasons, I prefer to say little about the detail of that evidence. Suffice it to say that I accept Mr Ewen’s submission that the evidence:

•    Discloses injury to the victim, but not really serious injury.

•   Permits of an inference that the accused intended to injure the victim, but not of an inference that they set about causing him really serious bodily harm.

[15]     I add two comments.  First, I do not accept that the vulnerability of the victim has much relevance to the choice of appropriate charge.  It may have made it easier to injure the victim, but that is all.

[16]     Second, I accept Mr Vanderkolk’s submission that it is the totality of the several injuries, both internal and external, that must be assessed.  In combination, did they amount to really serious bodily injury?   What can be inferred from these injuries as to the intent of the person(s) who caused them?   It follows from my

decision as to the appropriate charge that I do not accept that a properly directed jury could find either the intention to cause, or the causing, of really serious injury to the victim.  The injuries he sustained are simply not in that league.

Result

[17]     Pursuant to s 346(1), I extend to 12 September 2008 time for the Crown to file an indictment.   Pursuant to s 345(3) I order that the Crown may, within that extended time, present to this Court an indictment charging the accused under s

189(2) Crimes Act with injuring with intent to injure.

[18]     Once  that  indictment  has  been  presented,  I direct,  pursuant  to  s  168AA Summary Proceedings Act 1957, that this proceeding be transferred to the District Court for trial.

“J R Wild J”

Solicitors:         Crown Solicitor, Palmerston North

Douglas Ewen, Wellington,  [email protected] for both Accused