R v Pink HC Hamilton T002701

[2001] NZHC 327

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY T002701

THE QUEEN

-v-

ALLAN JAMES PINK

HEARING: 30 April, 1 and 2 May 2001

COUNSEL: G. Marshall for Crown
S. Ellis for Accused

JUDGMENT: 2 May 2001

JUDGMENT OF HAMMOND J

INTRODUCTION

[1] Mr Pink is standing his trial on counts of aggravated robbery and aggravated wounding.

[2] At the close of the Crown case Mr Ellis made an application that Mr Pink be discharged under s347 of the Crimes Act 1961. Mr Pink is charged as a party. Mr Ellis submitted that this is a case in which his client had effectively withdrawn as a party, prior to the commission of these offences. A submission of that kind is most unusual. The law in this area is notoriously difficult and does not appear to be the subject of a fully considered decision in New Zealand.

[3] In the event, in the particular circumstances of this case, I have come to the view that the accused should be discharged. The burden of this judgment is therefore to explain why I gave that ruling.

THE FACTS

[4] The Ngaruawahia Golf Club holds a tournament each Anzac Day. There is a good attendance and substantial sums of money are accumulated in cash for entry fees and from the bar after the tournament. Certain men in Ngaruawahia decided that they were going to rob the Golf Club at the end of the day and appropriate these takings. The ringleaders were a Mr Moana and a Mr Thom. They were certainly assisted by a Mr Jacobs.

[5] These men and this accused, Mr Pink, were drinking in the Delta Tavern at Ngaruawahia before the commission of the offences. Mr Jacobs had a vehicle. All four men drove to Taupiri, and then to Hopuhopu. Somehow, a sawn off shotgun and two live shells were procured. Where this occurred, and under what circumstances, has not been satisfactorily established. There is no doubt that these men, as a last port of call prior to proceeding to the Golf Club, went to a Mr Awa’s house. The Crown case is that there, Mr Pink was at least seen handling the shotgun in a light outside Mr Awa’s house (the suggestion being that he was checking the safety catches). The evidence on that point is equivocal - Mr Awa was treated as a hostile witness with my leave and he gave two quite different accounts in his deposition statement and at trial.

[6] In any event, it was common ground that Mr Jacobs’ vehicle left Mr Awa’s house with these four men in it, and proceeded in the direction of the Golf Club. Moana and Thom were putting on disguises and dark clothing in the car, and had the shotgun and a baseball bat with them. Jacobs dropped these two at a gap in the hedge near the Golf Club, just off State Highway 1. Jacobs then drove off.

[7] Mr Moana and Mr Thom went into the Golf Club (it was by now dark). The three persons then present - one male and two females - were ordered at gunpoint to lie down and were tied up. The takings were appropriated. Then, the partner of one of the female victims drove up the lane to the Golf Club to pick her up in his motor vehicle. This event had not been foreseen by the robbers. The driver of this vehicle, Mr Rowe, started to come into the clubhouse. He saw feet sticking out from behind a kitchen partition. He immediately became suspicious, and repaired to his motor vehicle. He was actually sitting in it when one of the robbers rushed out of the clubhouse and up to his vehicle. The shotgun was discharged through the passenger window. The main blast passed just behind Mr Rowe. He was wounded by some pellets in the back of the left shoulder. He rushed away from the scene in his car and alerted the police.

[8] Messrs Moana and Thom then commandeered the keys to a four wheel drive vehicle belonging to the male victim in the Golf Club. They appropriated that vehicle and drove off for some kilometres to a relatively remote location. En route they collided with a car being driven by a member of the public. The driver of that car thought that the four wheel drive was being followed by a lightish coloured vehicle. The four wheel drive vehicle was subsequently found torched in a remote location.

[9] Messrs Moana, Thom and Jacobs all pleaded guilty. They have been sentenced to substantial terms of imprisonment. Mr Pink denied any criminality on his part and came to trial.

THE FACTUAL BASIS OF THE APPLICATION

[10] What Mr Ellis relies upon for the present application is what happened inside Mr Jacobs’ motor vehicle en route from Mr Awa’s home to the Golf Club. He says that the only evidence against Mr Pink of any initial complicity on his part in relation to the weapon is the equivocal evidence of Mr Awa. But even assuming that the jury were to accept one of the constructions to be placed on Mr Awa’s evidence - that Mr Pink had been seen handling the weapon - he submits that Mr Pink withdrew completely and effectively, before these offences were committed.

[11] This is on the basis that Mr Jacobs gave unchallenged evidence to the following effect. Mr Jacobs himself was clearly worried about the fact that Mr Moana had a shotgun. In the car, he said, “Oh man, I hope no-one gets shot”. Mr Pink then said that these robbers were “a pack of bloody idiots”. He said he did not want to have anything to do with this robbery; that “You guys are crazy”; that they were “on their own”; and that he (Mr Pink) thought it was a “dumb idea”. I should record here that Mr Jacobs had received no favourable treatment on sentencing and that he is presently serving his sentence.

[12] For completeness, I should record that there seemed to be what could only be a faint suggestion from the Crown that Mr Pink was somehow implicated as a pick up driver. The evidence on this was decidedly thin and seemed to rest on an acknowledgement (also unchallenged) by Mr Jacobs that Mr Pink “would see the other three persons somewhere else later”.

THE PRINCIPLES RELATING TO A DISCHARGE

[13] It is well accepted that this Court has an unfettered discretion under s347 of the Crimes Act. Perhaps the most commonly adopted test by Judges of this Court is: “Is it unlikely that any jury, properly directed, could convict or that it would be wrong for a jury to convict?”. (I refer to R v Myers [1963] NZLR 321 and Re Fiso (1985) 1 CRNZ 689, 691).

THE LAW RELATING TO WITHDRAWAL OF A PARTY FROM AN OFFENCE

[14] In the case of inchoate offences, there is no doubt that an offender cannot undo his or her crime. That is, once the elements of an offence are concurrently satisfied, the offence is complete. It cannot be “uncommitted”. But just as obviously, participation can be undone before the commission of an offence. X may withdrawn [sic] from participation in the crime, although he or she must do so before the crime is attempted or committed.

[15] That is the law, as I understand it, in all the British Commonwealth jurisdictions. It follows that because the onus is on the Crown, where “withdrawal” is raised by a party the onus is on the Crown to negative any such “defence”. The difficulty which has arisen in the cases appears to be as to the precise conditions of withdrawal which have to be in place for this doctrine to apply.

[16] A classic statement of the defence is that by Plowden in his commentary on R v Saunders and Archer (1576) 2 Plowd 473, 476; (1576) 75 ER 706, 710:

“If I command one to kill JS and before the fact done I go to him and tell him that I have repented, and expressly charge him not to kill JS and he afterwards kills him, there I shall not be accessory to this murder, because I have countermanded my first command, which in all reason shall discharge me, for the malicious mind of the accessory ought to continue to do ill until the time of the act done, or else he shall not be charged; but if he had killed JS before the time of my discharge or countermand given, I should have been accessory to the death, notwithstanding my private repentance.”

[17] A more modern statement of the doctrine is to be found in the judgment of Slane JA in the Canadian appellate decision of R v Whitehouse [1941] 1 DLR 683, 685: the doctrine of withdrawal only obtains on the footing that, “where practicable and reasonable, there must be timely communication of the intention to abandon the common purpose”.

[18] That decision gave rise to some debate as to what is meant by “timely” and “effective”? What, for instance, is the position to be where timely communication is not practicable? Some jurists suggested that withdrawal by means of countermand would not then be available to the accomplice at all. On that point, the High Court of Australia in White v Ridley (1978) 52 ALJR 724 has held that the withdrawal must be sufficiently timely to be capable of being effective.

[19] That there is a doctrine of withdrawal in New Zealand law is at least implicitly accepted by the Court of Appeal in a decision cited to me by Mr Ellis - R v Wilcox [1982] 1 NZLR 191. In that case, at p.196, Sir Owen Woodhouse accepted that there was a material misdirection on the part of the trial Judge in that case, insofar as the jury had been left under the misapprehension “that any subsequent change of mind following the first step taken (the purchase of the weapons) could not be used by Wilcox as a defence”.

[20] It is not possible in a trial ruling of this kind to consider at length, even if it were appropriate, the very considerable academic literature and interest which has been generated on this difficult topic. The literature includes Lanham “Accomplices and Withdrawal” (1981) 97 LQR 575; Smith, “Withdrawal from Criminal Liability for Complicity and Inchoate Offences” (1984) 12 Anglo-American Law Review 200; O’Regan, “Complicity and the Defence of Timely Counterman or Withdrawal Under the Griffith Code” (1986) 10 Criminal Law Journal 236; Marcus, “Joint Criminal Participation: Establishing Responsibility, Abandonment” (1986) 34 American Journal of Comparative Law 479. See also in New Zealand, Simester and Brookbanks, Principles of Criminal Law (1998) at para 5.1.4.4, and R v Malcolm [1951] NZLR 470 (CA).

[21] Without attempting to resolve the jurisprudential debate as to the basis of this “defence” (if a defence it be, properly so called) it seems to me that, as a matter of public policy, there should be a plea of this kind which is open to an accused. It is surely in the public interest that somebody who has contemplated criminal endeavour and changed their mind, should be able to do so. At the same time, attempting to withdraw from a crime about to happen may not in itself be sufficient, since the accomplice’s prior act may have some very distinct impact on what in fact occurs. It may be that the law should look for some kind of abrogation of the influence of that act.

[22] As a matter of legal doctrine, it seems to me that the following conditions must be met.

•   First, there must in fact be a notice of withdrawal, whether by words or actions.

•   Second, that withdrawal must be unequivocal.

•   Thirdly, that withdrawal must be communicated to the principal offenders. There is some debate as to whether the communication must be to all the principal offenders, but here all were told.

•   Fourthly, the withdrawal may only be effected by taking all reasonable steps to undo the effect of the party’s previous actions. (See R v Menniti [1985] 1 Qd. R. 520). As with any test of “reasonableness”, it is impossible to divorce that consideration from the facts of a given case. The accused’s actions may have been so overt and influential that positive steps must be taken by him to intercede, and prevent the crime occurring. There is at least one authority (R v Grundy [1977] Crim LR 534 (CA)) which suggests that where the accused’s participation was in the form of counselling, attempts by the accused to dissuade the principal offenders from proceeding with the crime are sufficient.

RESOLUTION

[23] As I have noted, whether the Crown had been able to persuade this jury that the second of Mr Awa’s versions in evidence should be accepted - that Mr Pink had been seen handling the weapon prior to the robbery at Mr Awa’s house - is problematical. For the purpose of this ruling, I am obliged to proceed on the basis that there is evidence on which the jury could reach that view.

[24] But even accepting that view of the evidence, the only evidence before the Court as to what transpired in the motor vehicle that evening is that of Mr Jacobs. His unchallenged evidence is that there was a countermand; it was unequivocal (Mr Pink said that he was “out of” what was happening) and Mr Pink attempted to dissuade Messrs Moana and Thom. He said what these men were doing was crazy, that they were a “pack of bloody idiots” and that it was a “dumb idea”. Mr Pink never went to the scene of the crime. He could hardly have jumped out of, or moved away from, a travelling vehicle.

[25] It seems to me to be sufficient to dispose of this point, therefore, to say that the Crown could not establish, beyond a reasonable doubt, on the evidence that is before me, that Mr Pink had not withdrawn, in a legal sense, from participation in this crime.

[26] For all these reasons, I discharged Mr Pink in the usual way, in open Court.