R v R
[2015] NZHC 783
•21 April 2015
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-044-2080 [2015] NZHC 783
THE QUEEN
v
R
Hearing: 13, 14, 16 and 17 April 2015 Appearances:
Mr Raftery & Mr Walker for Crown
Mr Wilkinson-Smith & Mr Brosnahan for defendantJudgment:
21 April 2015
JUDGMENT OF WINKELMANN J
[Section 9 Criminal Procedure (Mentally Impaired Persons) Act 2003
This judgment was delivered by me on 21 April 2015 at 4.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
R v R s 9 application [2015] NZHC 783 [21 April 2015]
[1] The defendant is charged with murder and sexual violation. The Crown’s case is that on the evening of 24 May 2014, he abducted Mrs Blesilda Gotingco from Salisbury Road, Birkdale, and took her against her will to his home where he raped her and subjected her to physical violence which resulted in her death. The next day he took Mrs Gotingco’s body to a nearby cemetery, where the body was subsequently located by the Police. The trial of these charges is scheduled for
28 April 2015.
[2] The issue of the defendant’s fitness to stand trial was raised by his former counsel, Mr Niven at a pre-trial hearing on 4 February 2015. At that hearing I issued a minute in which I said that I considered the provisions of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) had been triggered.1 The procedure having been triggered, the first issue to be determined is that arising under s 9 of the Act.
Statutory framework
[3] Section 9 provides that the Court cannot make a finding that the defendant is unfit to stand trial unless it is satisfied on the balance of probabilities that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged. Section 13 provides that if the Court is not satisfied of the s 9 matter, it must dismiss the charge against the defendant under s 147 of the Criminal Procedure Act 2011.
[4] Section 10 of the Act provides that where the issue of fitness to stand trial is raised before the trial that the Court may consider:
(a) any formal statements that have been filed under section 85 of the
Criminal Procedure Act 2011:
(b) any oral evidence that has been taken in accordance with an order made under section 92 of the Criminal Procedure Act 2011:
1 Minute incorrectly dated 4 February 2014. I also decided, after discussion with counsel, to order the preparation of two reports under s 38 of the Act in advance of the s 9 hearing. This was done to enable both the s 9 and s 14 issues to be addressed promptly so that the trial date would not be jeopardised. The trial has previously been adjourned because of disclosure and legal aid funding issues.
(c) any other evidence that is submitted by the prosecutor or defendant when determining whether it is satisfied of the s 9 matters.
[5] In this hearing counsel have provided me with an affidavit of the officer second in charge of the investigation, Detective Sergeant Wong Woo, a number of formal statements, and photographic exhibits. I have also heard evidence given by a number of Police Officers, the pathologist who performed the autopsy on the victim, and from a number of forensic scientists.
Principles to be applied
[6] The issue that the Court has to determine is whether the defendant “caused the act or omission that forms the basis of the offence with which the defendant is charged”. In R v Te Moni, a case concerning the fitness of the defendant to stand trial on charges of rape and sexual violation, the Court of Appeal identified several
possible approaches to that question:2
(a) Proof is required of the commission of the physical act or acts only; (b) Proof is required of both the physical and mental elements of an
offence; or
(c) Proof is required of “something that is unlawful (in a broad sense) so as to be an offence or an element of an offence but not to require proof of the full mental element necessary in law to establish the commission of the offence”.
[7] Although the Court did not identify which of those three conceptions was correct, it said that at the s 9 hearing it would be necessary to determine whether “non-consensual penetration took place” because “non-consensual penetration is qualitatively different from consensual penetration: they are different acts”.3 That suggests something more than proof of only the physical act. Subsequent cases have
declined to resolve the difference between these three approaches.4
2 R v Te Moni [2009] NZCA 560 at [75].
3 At [81].
4 See R v T [2013] NZHC 2069 at [23]; and WH v Police [2012] NZHC 3193.
[8] In R v Akuhata Heath J stated:5
[28] In my view, s 9 of the Act focuses attention on the act or omission that forms the basis of the offence with which the defendant is charged. In the context of this case, it also encompasses the element of causation that links the physical act to the consequence of death. Therefore, in my view, the Crown must prove, on a balance of probabilities, both that Mr Akuhata performed the physical act (throwing Ms Edwards off the bridge or holding her down in the water, or both) and caused her death. Whether one or more acts caused death is just as much a factual inquiry into the actus reus of the offence as the question whether the accused committed the relevant act or acts. Observations made in Te Moni, in the context of alleged sexual offending, apply with equal force.
[9] In this case the defendant is charged with rape and murder. In relation to the murder charge, it will be necessary for the Crown to establish to the required standard that the defendant performed the physical acts alleged and that those acts caused the death of the victim, Mrs Gotingco. In relation to the charge of rape it will be necessary to show that non-consensual penile penetration took place. Given the circumstances of this case, as is accepted by Mr Wilkinson-Smith, there is no issue at this hearing as to consent.
Crown case
[10] The Crown case against the defendant is as follows. At approximately 7.45 pm the victim disembarked a bus on Birkdale Road, near the intersection with Salisbury Road. She began walking toward her home address. At the same time the defendant was driving his BMW motor vehicle along that road. He drove his car onto the footpath and hit the victim with the vehicle. He then forced her into his car and drove her back to his apartment’s garage. There, in his car, he violently assaulted her and raped her. A combination of all of the injuries resulted in the victim’s death.
[11] On Sunday 26 May 2014 at approximately 6.10 am the defendant placed the victim’s body into his BMW motor vehicle and drove to Eskdale cemetery. He entered the cemetery through the main entrance and headed to the north most point
of the cemetery. He there removed the victim’s body from the vehicle and dragged
5 R v Akuhata [2013] NZHC 2669.
her body to the far side of the cemetery before depositing the body in a nearby scrub area. He then returned to his home address. Her body was not located by Police until Monday evening.
Section 9 issue: murder charge
[12] I am satisfied that the Crown case that it was the defendant who did acts which caused Mrs Gotingco’s death easily meets the required evidential threshold in respect of this charge, and indeed counsel for the defendant did not contest that for the purposes of this hearing.
[13] The Crown called the pathologist Dr Karl Wigren to give evidence as to his examination of the victim’s body, and as to the cause of her death. He also gave evidence as to the manner in which he collected samples for further testing.
[14] He said he observed very extensive injuries on the victim. These included injuries which he considered to be consistent with her having been hit by a car, namely severe bruising on the top of the victim’s head and around the crown of her head on both sides. Her jaw was broken and two of her teeth had been uprooted. She had a significant number of broken ribs and two fractured vertebrae in her neck, although with no injury to the spinal cord observed. She had bruising on her torso. She also had bruising on her legs which Dr Wigren considered consistent with the height of a bumper on a vehicle. Her left leg was broken. Dr Wigren said this pattern of injury was consistent with her left leg taking the impact of the vehicle. He said the totality of these injuries was consistent with her having been struck on the legs by a car, and then thrown up on to the bonnet striking her head as she moved across the bonnet.
[15] Dr Wigren observed bruising and damage to a bone in the victim’s throat, and peticheal haemorrhages in and around one of her eyes. The doctor considered these injuries consistent with manual strangulation.
[16] Finally, Dr Wigren described significant incision and stab wounds. He observed one stab wound where the knife had entered approximately 15 centimetres into her body transecting a rib and perforating her lung, causing it to collapse. There
was also a deep cut to the victim’s throat which partially transected her trachea. The doctor gave evidence that he observed blood in her lung, consistent with her having inhaled blood produced by this cut. This in turn was consistent with her being alive when the injury was inflicted.
[17] I have catalogued the principal injuries Dr Wigren observed, but not all of them.
[18] Dr Wigren concluded that the cause of death was as follows: homicidal violence including strangulation, sharp force injury of neck and torso, and blunt force injury of torso and lower extremities. He said that while the injuries caused by the impact of the car on their own could have been sufficient to cause her death, he did not consider that any of the causes identified could be said to have caused her death, but rather that all of them had contributed to it.
[19] The nature of the injuries taken together is clearly strongly suggestive of a non-accidental cause of death, and that the person who inflicted them had homicidal intent.
[20] There is extensive evidence tying these acts to the defendant. A witness observed the victim getting off the bus on the corner of Birkdale Road and Salisbury Road. To get to her home she had to walk down Salisbury Road. Personal belongings of the victim were found on the side of Salisbury Road, consistent with her having been abducted from Salisbury Road. There is evidence suggesting that the victim was struck by the defendant’s car. Photographs of Luminol testing were produced. Luminol reveals where even small amounts of blood are present. These photographs showed a pattern of blood on the bonnet of the car consistent with Dr Wigren’s evidence as to the mechanism of injury. ESR expert witness Ms Matheson gave evidence that there was evidence of blood on the bonnet of the defendant’s car in Salisbury Road.
[21] At the time of the alleged offending, the defendant was subject to a curfew and to electronic monitoring pursuant to special conditions imposed upon him on his release from prison. The GPS data from that electronic monitoring places him in
Salisbury Road at around the time of the victim’s disappearance. The Police also used the GPS data as to the defendant’s movements on the day after the victim’s disappearance to locate her body at Eskdale cemetery. The data establishes that the morning following her disappearance, as soon as the curfew allowed, the defendant travelled to the cemetery. The victim’s body was located at the exact point GPS data showed as the furthest point the defendant had travelled into the cemetery.
[22] On execution of a warrant in respect of the defendant’s car, blood, subsequently identified as the victim’s, was found in various locations in the car. The largest quantity was on the back seat, the seat well in front of that and the car mat. Blood was also located in the driver’s area of the car indicating that a person or persons with bloodied hands had contacted these areas of the vehicle.
[23] When the warrant was executed at his apartment bloodstained footprints were observed which linked the garage, where the defendant’s car was parked, and the defendant’s apartment. Mrs Gotingco’s blood was also found in the shower in the apartment, on a light switch and on a knife and knife sheath found at the apartment. Ms Matheson’s evidence was that the evidence of blood in the apartment suggested that if she had been inside the apartment it was before Mrs Gotingco had begun to bleed heavily.
[24] On the basis of this evidence I have no difficulty in concluding, on the balance of probabilities, that the defendant did the acts, namely deliberately striking Mrs Gotingco with his car, strangling her and stabbing and slashing her with a knife, which caused her death.
Section 9 issue: rape
[25] To prove this charge at trial the Crown must prove:6
(a) penetration of the victim’s genitalia by the defendant’s penis;
(b) without the victim’s consent, and
6 Crimes Act 1961, s 128(2).
(c) that the defendant did not believe on reasonable grounds that the victim consented.
[26] The Crown’s case against the defendant in connection with the rape charge turns upon the circumstances of the case and the detection of sperm, linked by virtue of DNA profiling, to the defendant.
[27] The defendant takes issue with the Crown’s ability to prove on the balance of probabilities that the alleged penetration took place or that the victim was alive when it did. As to the latter point the Crown accepts it must prove that the victim was alive.7
Has the Crown established on the balance of probabilities that sexual contact was penetrative?
[28] The defendant does not, at least for the purposes of this hearing challenge the
Crown’s case in connection with consent.
[29] Counsel for the defendant submits that while it is accepted for the purposes of this hearing that the evidence supports a finding that the defendant engaged in some sexual conduct directed at Mrs Gotingco, he submits that evidence does not support the conclusion that sexual conduct was penetrative.
[30] For the purposes of s 128(1)(a) the Crown must show penetration of the victim’s genitalia by the defendant’s penis. The slightest degree of penetration is sufficient.8 Genitalia for these purposes includes the labia.9
[31] Counsel for the defendant points to the evidence of the defence forensic expert, Ms Millington. While she accepted that the scientific findings provide support for the proposition that the defendant had sexual contact with Mrs Gotingco, her opinion was that it was not possible to determine the nature of any sexual contact. While acknowledging the defendant’s DNA was also detected in vaginal
swabs, and accepting that it was a reasonable inference that at least some of this
7 Misconduct in respect of human remains is governed by s 150 of the Crimes Act 1961.
8 Crimes Act 1961, s 2 (1A).
9 Bruce Robertson (Ed) Adams on Criminal Law (looseleaf ed, Brookers) at [CA128.02].
DNA came from sperm, she said this did not preclude the possibility that the
defendant’s DNA detected came from another biological source, such as skin.
[32] The defendant also points to the evidence of forensic experts, including the Crown’s expert Ms Matheson, that it was not possible to say what kind of object introduced the small amounts of the defendant’s DNA into the vagina. The Crown expert Ms Matheson said it could be a penis, or a finger, and accepted that the speculum employed Dr Wigren to collect the samples for testing could have had this effect.
[33] Having weighed the points advanced by the defence I nevertheless consider that there is sufficient evidence to prove on the balance of probabilities that the defendant raped the victim, by which I mean that the sexual conduct involved penetration of the victim’s genitalia with the defendant’s penis. In reaching that view I have taken into account the following:
(a) The abduction of the victim was done pursuant to a plan. The GPS data supports the conclusion that the defendant reconnoitred the routes he in fact took to abduct the victim, and subsequently to dispose of her body. It is reasonable to infer in the circumstances that the abduction was for a sexual purpose, although I take defence counsel’s point that this tells us little about what the sexual purpose was.
(b)The evidence of the Crown forensic expert Ms Patel that at least some of the DNA collected from the victim’s vagina originated from the defendant’s semen. I note the controversy as to whether the DNA could properly be said to come from sperm rather than some other biological source. However, Ms Millington accepted as reasonable the inference Ms Patel drew that “at least some” of the DNA originated from semen but said she believed that statement needed to be qualified by adding that contribution from other biological source could not be excluded.
(c) Semen was also detected on the endo-cervical smear. Although this was not identified as the defendant’s (it has not been DNA tested) the evidence suggests it is unlikely to be anyone else’s. The victim’s husband had been overseas for several weeks before these events, and the victim had been at work on the day prior to her abduction.
[34] I have considered the defendant’s point that any DNA/semen could have been introduced to the vagina through the post-mortem examination and collection of samples. The defendant points to the low numbers of sperm detected in the vaginal samples in support of this argument.
[35] Dr Wigren gave evidence as to the methodology he employed in collecting these samples during the autopsy. He described the meticulous care he takes with the processes involved. He described himself as obsessive. From his evidence as to how he collected the cervical smear I am satisfied it is unlikely that the speculum introduced sperm into the cervical area. Dr Wigren described the process as follows:
The vaginal speculum is inserted sideways and then twisted and then there is a ratchet and it opens up the duck bill, so the inside of the duck bill is clear, and if you don’t touch with your swab either the top or the bottom of the duck bill you’re going to get the low blind and the indo cervical.
[36] I also note that although there were lower amounts of sperm detected in the vagina than in the introital (external genital) swabs, this can be explained by drainage of seminal fluid that naturally occurs following intercourse.
[37] I am satisfied that, taken together, this evidence crosses the required evidential threshold on that issue.
Has the Crown established on the balance of probabilities that the victim was alive when the alleged rape occurred?
[38] The defendant points to the following:
(a) The absence of forensic evidence as to the timing of the alleged sexual conduct. Dr Wigren and Ms Matheson both agreed they could
not say when the semen had been deposited, including whether that occurred pre or post-mortem.
(b)The last time the victim was seen or heard alive was at about 7.50 pm on the evening of 24 May 2014. Her body was discovered nearly 48 hours later. The time of death cannot be established. There is no evidence she was alive after 7.50 pm on 24 May 2014.
(c) Dr Wigren said the car injuries on their own could have been fatal.
(d)The evidence collected from the defendant’s car suggests the victim died in the rear seat of the car and that she never made it to the apartment. She could have died in the back seat either in Salisbury Road or in the defendant’s garage.
(e) The defendant’s neighbours heard nothing unusual that night. There
is no evidence the victim had been restrained.
[39] I am satisfied that the evidence establishes on the balance of probabilities that the victim was alive for some time after she was abducted. First, the evidence suggests that when the defendant abducted the victim he was executing a plan, conceived and checked out in advance. It is a reasonable inference that returning with the victim to his apartment was part of the plan.
[40] Dr Wigren’s evidence was that although the car injuries on their own could have caused the victim’s death they did not. Rather the three identified causes together contributed to her death. He also said that the victim inhaled blood after her throat was cut, which is evidence that she survived being hit by the car.
[41] There is also some evidence that the defendant took steps to incapacitate the victim - the evidence that she had been subjected to manual strangulation. Dr Wigren’s evidence was that manual strangulation could have rendered her unconscious. It is a reasonable inference that she survived manual strangulation if she was alive when her throat was cut.
[42] On the basis of the totality of this evidence I consider the Crown has proved to the required standard that the victim was alive when the defendant’s sexual conduct toward the victim took place.
Conclusion
[43] I am satisfied on the balance of probabilities that the defendant caused the acts forming the basis of the offences he is charged with.
Suppression
[44] I note the existence of the previous order suppressing the defendant’s name until trial continues to apply. In addition, there is an order prohibiting the publication of this 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.
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