R v Rafferty

[2022] NZHC 642

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS- PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-090-002204

[2022] NZHC 642

THE QUEEN

v

RICKY JAMES RAFFERTY

Hearing:	21-25 March 2022
Appearances:	H Steele and E Rangamuwa for the Crown P Davey and A Watt for Mr Rafferty
Judgment:	1 April 2022

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 1 April 22 at 3.00 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Meredith Connell, Auckland P Davey, Auckland

R v RAFFERTY [2022] NZHC 642 [1 April 2022]

Introduction

[1]                 The deceased, Angela Smith, was killed some  time during  the evening of  13 May 2020. She had sustained a severe beating and she had been both stabbed and cut with a knife or knives. She died from multiple blunt and sharp force injuries.

[2]                 The defendant, Ricky Rafferty, and William Heremaia were jointly charged with Ms Smith’s murder.

[3]                 Mr Rafferty has been found unfit to stand trial pursuant to s 8A of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIPA).1 His involvement in what occurred now falls to be determined pursuant to s 10(2) of that Act.

[4]                 On 10 August 2021, a jury found his co-defendant, Mr Heremaia, guilty of manslaughter.

The scope of the s 10(2) involvement hearing

[5]Section 10(2) of the CPMIPA provides as follows:

10       Inquiry before trial into defendant’s involvement in the offence

…

(2) The court must decide whether the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.

[6]                 If the Court is satisfied, to the prescribed standard, that the evidence against Mr Rafferty is sufficient to establish that he caused the act or omissions that form the basis of the offence of murder (or the included offence of manslaughter), then there will be a disposition hearing under subpart 3 of the CPMIPA to determine how to deal with Mr Rafferty.2 If the Court is not so satisfied, it will be required to dismiss the charge.3

1      R v Rafferty [2021] NZHC 1143.

2      Criminal Procedure (Mentally Impaired Persons) Act 2003, s 23.

3      Section 13(2).

[7]The purpose of s 10(2) is:4

… to avoid the possibility of a person who is found unfit to stand trial being subjected to detention or similar measures in circumstances where he or she has not, in fact, committed an offence.

[8]                 The scope of the s 10(2) enquiry has been the subject of some debate, both judicial and academic.

[9]                 In R v Ardler, the Court of Appeal in the Australian Capital Territory considered the Australian equivalent of s 10(2) and set out three possible interpretations of the phrase “the acts that constitute the offence charged”, namely:5

(a)proof is required of the commission of a 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”.

The Court adopted the third option, holding that where there is objective evidence of self-defence, the Crown must negate that defence.

[10]              In this country, French J in R v Cumming considered that the enquiry should focus on the defendant’s actions so far as is possible, as opposed to his or her state of mind.6 She observed that the distinction cannot be rigidly adhered to in every case, particularly where mens rea is part of the actus reus of the offence. In R v Lyttleton,  I held that the plain meaning of the then equivalent to s 10(2) required only proof of the physical act.7 I referred to an article by Professor Warren Brookbanks where he

4      R v Te Moni [2009] NZCA 560 at [68] (dealing with what was s 9 of the CPMIPA which was in all material respects the same as s 10(2)); and see R v Antoine [2001] 1 AC 340 (HL) at 375.

5      R v Ardler [2004] ACTCA 4, (2004) 144 A Crim R 552 at [55].

6      R v Cumming HC Christchurch CRI-2001-0090-835552, 17 July 2009 at [89]; and see R v Wira

[2016] NZHC 869; and R v R [2015] NZHC 783.

7      R v Lyttleton HC Auckland CRI-2008-044-9466, 4 November 2009; and see R v Tongia [2019] NZHC 3278.

commented, by reference to the CPMIPA as it then stood, that an involvement hearing is an enquiry to determine facts in issue – a filter where a defendant can be diverted from the proceeding before being put at risk of being found unfit to stand trial.8     He considered that this implied a relaxed evidential enquiry. The Court of Appeal subsequently accepted that this conclusion was “probably right”.9

[11]              In R v Te Moni, the Court of Appeal referred to R v Ardler, but not to the various decisions in this Court.10 It did not need to decide the scope of the enquiry in that case and it did not do so.11

[12]              The CPMIPA was amended in 2018.12 The amendments reversed the order of proceedings under the Act. A fitness to stand trial hearing now comes first, followed by the involvement hearing.

[13]              In R v Tongia, Edwards J considered the nature, purpose and scope of s 10(2) in light of the 2018 amendments.13 She was faced with a defendant charged with murder, where self-defence was raised. She drew a distinction between defendants who have a temporary mental impairment and defendants with an irreversible mental impairment. She observed that, for the latter, an involvement hearing is the only opportunity for the defendant to contest the charge and put the Crown to proof.     For that reason, she expressed the view that an involvement hearing is very much an alternative to trial and commented as follows:

[51] Drawing these threads together then, I consider the s 10(2) hearing involves more than just establishing that the defendant caused the acts or omissions. The unlawfulness of those acts or omissions must also be weighed in the balance. This flows from the scheme and purpose of the Act. Reversing the sequence of the stages of the inquiry also suggests that the involvement hearing is to be considered an alternative to trial, rather than an addition to trial, at least for those defendants whose “unfitness” is irreversible.

8      Warren Brookbanks “Special Hearings under CPMIPA” [2009] NZLJ 30 at 40 as cited in R v Lyttleton, above n 7, at [21].

9      McKay v R [2009] NZCA 378, [2010] 1 NZLR 441 at [48].

10     R v Te Moni, above n 4.

11 At [80].

12     Courts Matters Act 2018, subpart 6.

13     R v Tongia [2020] NZHC 2382, [2021] 2 NZLR 743; and see Warren Brookbanks “R v Tongia

[2020] NZHC 2382” [2021] NZLJ 236.

[14]              In a more recent decision, Walker v Police, Cull J also reviewed the authorities and the 2018 amendments.14 She noted that issues surrounding the scope of s 10(2) remain unresolved, but nevertheless concluded as follows:

[60] On the basis of Ardler, the involvement hearing should identify the unlawfulness” of the offending without proof of the full mental element of the offence. If the approach in Ardler is adopted, objective evidence of accident, mistake or self-defence, which may have been available to the defendant, must be negatived by the prosecution. The hearing thus provides a judicial assessment of the facts; an accurate description of the defendant’s role in the alleged offending; and is a check on whether the alleged charge is appropriate in the circumstances. …

[15]              In the present case, there is no suggestion that what occurred to Ms Smith was an accident or a mistake; self-defence is not raised. There is no defence for the Crown to negate. Rather, in order to satisfy s 10(2), the Crown is required to prove, on the balance of probabilities, that Mr Rafferty was physically involved in the assault that resulted in Ms Smith’s death. The offence of murder includes the offence of manslaughter and the Crown does not have to prove that Mr Rafferty acted with murderous intent. Further, in this case the Crown cannot prove who did what. It does not matter, as long as both Mr Rafferty and Mr Heremaia were involved.15

The standard of proof

[16]              The standard of proof specified in s 10(2) is the balance of probabilities. In other words, the Court must be satisfied by the evidence that the fact in issue is more likely (or more probable) than not.16

[17]              In R v Tongia, Edwards J expressed the view that the civil standard of proof is “deeply troubling”.17 In Walker v Police, Cull J noted that the civil standard of proof seems to have been adopted because a finding that the defendant caused the act or omission does not involve a determination of criminal liability.18

14     Walker v Police [2021] NZHC 2606; and see R v MT [2020] NZHC 1490; and R v Dent [2021] NZHC 1218.

15     Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [35] and [227].

16     Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [26] and [102]; and see Rejfek v McElroy (1965) 112 CLR 517 at 521–522.

17     R v Tongia, above n 13, at [49]; and see Warren Brookbanks “Evidential Sufficiency Hearings: Is Section 10 of the CP (MIP) Act Fit for Purpose?” (2020) 29 NZULR 31.

18     Walker v Police, above n 14, at [50].

[18]              Parliament, in amending the CPMIPA in 2018, did not change the standard of proof specified in the section, notwithstanding that in equivalent jurisdictions overseas, the standard of proof in similar legislation is the criminal standard – that is, beyond reasonable doubt.

[19]              It is clear that, in New Zealand, there are only two standards of proof – the criminal standard of proof (beyond reasonable doubt) and the civil standard of proof (on the balance of probabilities). The majority in the Supreme Court in Z v Dental Complaints Assessment Committee observed however that the civil standard of proof can be flexibly applied; it can accommodate serious allegations through the natural tendency on the part of judges to require stronger evidence where serious allegations are made, before being satisfied to the balance of probabilities standard.19

[20]              Here, Mr Rafferty is charged with murder. This is the most serious offence in this country’s statute books. It was the joint opinion of the experts at his fitness hearing that his mental health difficulties are enduring and that they are likely to be resistant to treatment and remediation. He is unlikely to ever face trial in relation to Ms Smith’s death. If his involvement in the acts that caused Ms Smith’s death is proved, he can be subjected to detention in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. Any detention can last for up to 10 years if the offence has a maximum term of life imprisonment (as murder does). He can also be imprisoned, or the Court can order his immediate release.20

[21]              The allegations and consequences could not be more serious and I have taken this into account in my approach to this matter.

Background facts – timeline

[22]              On the afternoon and into the evening of 13 May 2020, Mr Heremaia and   Mr Rafferty were drinking at Mr Heremaia’s unit in a residential complex situated down a driveway off Great North Road, Glendene, Auckland.

19     Z v Dental Complaints Assessment Committee, above n 16, at [102].

20     Criminal Procedure (Mentally Impaired Persons) Act, ss 24–25 and 30.

[23]              The residential complex comprised a number of units on two levels. The deceased, Ms Smith, and Mr Heremaia resided in units 2 and 7 respectively on the ground floor. Mr Heremaia’s partner, L, resided in a unit on the first floor.

[24]              Mr Rafferty lived at a separate property on Norcross Avenue, approximately 350 metres away.

[25]              Mr Rafferty’s movements were captured on various security cameras serving business premises in a nearby shopping centre. There was CCTV footage of him buying beer early on the afternoon of 13 May 2020 (at around 12.30 pm) and further CCTV footage of him and Mr Heremaia visiting the shops at about 4.20 pm and of Mr Rafferty purchasing beer and  a bottle of bourbon at approximately  4.25 pm.   Mr Rafferty was seen and spoken to by the daughter of another resident in the residential complex at around 7.30 pm to 8 pm. She observed that, while his speech was slurred, he was friendly and did not present as being either angry or aggressive.

[26]              Ms Smith joined Mr Rafferty and Mr Heremaia at some stage during the afternoon or  early  evening.  The  neighbour’s  daughter  saw  a  woman  outside  Mr Heremaia’s unit at much the same time as she saw Mr Rafferty. While she could not give a detailed description of this woman, it seems likely that it was Ms Smith.

[27]              Ms Smith joined in with the drinking. She, together with Mr Heremaia and Mr Rafferty, consumed cannabis as well. On autopsy, both alcohol and cannabis were found in her blood and urine.

[28]              At approximately 9.40 pm, a person said to be Mr Rafferty was recorded on CCTV leaving the residential complex and walking south to the shops. At approximately 9.45 pm, a person, also said to be Mr Rafferty, was recorded walking north along Great North Road, crossing to Norcross Avenue and then entering the forecourt of a BP service station on the intersection of Norcross Avenue and Te Atatu Road. There was clear CCTV footage of Mr Rafferty entering the BP service station. His gait was unsteady and he was weaving as he walked. He was carrying what appeared to be a takeaway meal. He purchased some cigarettes and then left the BP station. The police officer who watched available footage did not see anyone crossing

back from the BP service station to Norcross Avenue or going across Great North Road to the residential complex.

[29]              Another neighbour in the residential complex, H, initially told the police that he was outside his unit talking on his phone from about 10 pm to 11.30 pm on 13 May 2020 and that he heard screams coming from Mr Heremaia’s unit. H thought that it was a woman screaming; he had the feeling that it was Ms Smith because he thought the screams were identical to screams which he had previously heard her make. He said that the screams were still going at about 11.30 pm when he went back inside his unit and went to bed. The police subsequently checked H’s phone records. He spoke to his girlfriend at 8.23 pm that evening and then to a friend from 11.11 pm for a period of some 30 minutes. He told the police that he believed that he heard the screaming during the phone call with his friend.

[30]              Another neighbour, W, said that between 10 and 10.30 pm on 13 May 2020, she heard people talking in unit 7. She said that it was Mr Heremaia and Ms Smith. She also heard the voice of another male which she did not recognise. She said that the voices were quite loud; she thought that the occupants might have been arguing with each other. She said that this continued after she went to bed.

[31]              Yet another neighbour, T, who lived next door to Ms Smith, said that she heard a door slam at Ms Smith’s unit at about 11 pm. T’s partner, N, said that he heard loud music and cussing between about 10 and 11 pm.

[32]              At approximately 1 am on 14 May 2020, Mr Heremaia knocked on the bedroom window of L’s unit on the first floor of the residential complex. He told her that he thought Ms Smith had passed away and asked her to come down and have a look. L got up reluctantly  and  went  downstairs  with  Mr  Heremaia.  She  found Ms Smith lying on her back in the kitchen/lounge area of Mr Heremaia’s unit. There was blood on the floor and walls and an obvious gash to Ms Smith’s head.

[33]Mr Heremaia rang emergency services at 1.17 am on 14 May 2020.

[34]              L noticed that there were three “quite sharp knives” lying on the top of the kitchen bench in Mr Heremaia’s unit. She said that they were kitchen knives and that

it looked as though they were from different sets. She said that it was not normal for Mr Heremaia to have sharp knives lying on the bench.   She said that  she asked     Mr Heremaia about them and that he told her to put them away in a drawer. She picked up the knives and put them in the bottom drawer in the kitchen bench.

[35]              Paramedics arrived at Mr Heremaia’s unit at 1.23 am on 14 May 2020. One of the paramedics, Peter Gabriel, found Ms Smith lying in the same position as had been described by L. He felt for Ms Smith’s pulse and noted that she was cold to touch. He confirmed that Ms Smith was dead.

[36]              The police arrived at the scene at 1.29 am on 14 May 2020. The formal police examination of the scene began on the same day and concluded on 19 May 2020. Scientists from ESR, police photographers and a police fingerprint officer attended at various times. So did the pathologist, Dr Simon Stables. Amongst the items identified and seized from the scene were the three knives that L had moved from the kitchen bench and placed in the drawer. In addition, a further knife was found under a blue dressing gown which was on the floor to the left of Ms Smith’s head and another knife was found in the top drawer of the kitchen bench. These knives were seized as well.

[37]              Dr  Stables  conducted  a  post-mortem  examination  on  15  May  2020.    He observed that Ms Smith’s injuries included a stab wound to her upper right chest and a further stab wound to the left side of her neck. She had suffered a bilateral fracture of the hyoid bone in her neck (consistent with pressure being applied or strangulation); her ninth and tenth left ribs were broken; she had a fractured right scapula. Ms Smith also had incise wounds or cuts to the left-hand side of her face and two lacerations to the back of her head. There was extensive bruising to Ms Smith’s face, head and torso. She had suffered from bleeding inside the abdomen cavity and on her brain and there was an injury to her brain, which may have caused her to lose consciousness at some point. Dr Stables concluded that Ms Smith had sustained a severe beating and that  she  had  been  stabbed  and  cut.  While  he  thought  that Ms Smith’s death could be explained by the single stab wound to her chest, he did not discount the contributing nature of the other blunt and sharp force injuries, as cumulatively they would have added to her overall blood loss and thus her death.

[38]The police attended at Mr Rafferty’s property at 5.30 am on the morning of

14 May 2020. Mr Rafferty was initially highly agitated and threatening towards the police. He ultimately calmed down. He let the police into his house and he spoke with Detective Senior Sergeant Nicholas Poland. Mr Rafferty acknowledged that he had been present with Ms Smith and Mr Heremaia on 13 May 2020, but he said that he had left during the course of an argument between them. He said that he then went straight home. He also said that at one point Ms Smith hit him in the head with her fist. He denied knowing that Ms Smith had been stabbed and said that when he left, she was storming up and down, and “doing shit”. He referred to her as the “screaming bitch”. Mr Rafferty was then taken to the Henderson police station, where he was photographed. He provided a preliminary statement to the police but refused to be interviewed on DVD after discussing matters with his lawyers. He was then taken back to his house in order to collect some clothing so that the police could seize the clothing he was wearing. Various items of his clothing were then seized, including a pair of crocs-style shoes, a pair of green socks, a jumper and sweatpants. Mr Rafferty’s hands were swabbed. He was taken direct to the Waitākere District Court in Henderson, as his house was in the process of being searched.

[39]              During the search of his house, the police found a second pair of crocs-style shoes. These were seized as well.

Was Mr Rafferty involved in the assault upon Ms Smith which resulted in her death?

[40]              There are a number of factors relevant to Mr Rafferty’s involvement in what occurred.

Mr Rafferty’s lies

[41]              When Mr Rafferty spoke to Detective Senior Sergeant Poland, he lied about his involvement.  He said that he left Mr Heremaia’s unit when Mr Heremaia and  Ms Smith began arguing and before there was any significant physical altercation. This was untrue. Ms Smith’s blood was found on Mr Rafferty’s clothing and on his footwear. Mr Rafferty left bloodstained footprints in various places in Mr Heremaia’s unit and outside the unit. Mr Rafferty was clearly present after Ms Smith was bleeding relatively profusely and that can only have been during or after the assault occurred.

[42]              People can of course lie for a number of different reasons. Mr Rafferty clearly had a strong dislike of the police. He considered that he had suffered at the hands of the police some time earlier. This may have accounted for the fact that he told lies.

[43]              I am satisfied that Mr Rafferty lied when he said that he left before Ms Smith was assaulted. I am entitled to take this into account.

Mr Heremaia’s blindness and physical size

[44]              Mr Heremaia is blind. Although a number of lay witnesses suggested that he makes rather too much of this and that he can see more than he discloses, the evidence nevertheless  satisfied  me  that  he  has  significantly  impaired  vision.   Further,   Mr Heremaia is not a big man. He was variously described by witnesses as being of slight build, small and skinny. He walks with a stick.

[45]              Mr Rafferty is, by his own account, six foot three inches (or 190.5 cm) tall. He was estimated by one witness as being six feet tall and of medium build; another witness described him as being solid and of big build. He walks with a crutch.

[46]              Ms Smith was 162 cm tall (or approximately five foot three inches). As I have noted, she suffered significant injuries which Dr Stables considered would have required mild to moderate force to inflict.

[47]              The evidence did suggest that Mr Heremaia could be aggressive when drunk and, by his own admission to the police, he had been drinking and smoking cannabis on the evening of 13 April 2020.

[48]              Given the number and nature of Ms Smith’s injuries and the force that would have been required to inflict at least some of them, it seems unlikely that all of the injuries could have been inflicted by Mr Heremaia.

Mr Rafferty’s presence at the scene

[49]              While it is not clear  exactly when Ms Smith was killed, it is apparent that  Mr Rafferty was present either as she was being or after she had been assaulted and once she started bleeding relatively profusely. The right shoe of the pair of crocs taken

from Mr Rafferty, and the left shoe of the pair of crocs subsequently seized from his home, had blood on them. DNA analysis undertaken provided extremely strong support for the proposition that it was Ms Smith’s blood.

[50]              Bloody footprints were found in the kitchen, bathroom, lounge and back patio of Mr Heremaia’s unit.  Bloody  footprints  were also  found walking  away from  Mr Heremaia’s unit down the driveway serving the residential complex towards Great North Road. The footprint trail leaving Mr Heremaia’s unit extended some 36 metres towards Great North Road.

[51]              ESR analysis linked a number of the footprints found to Mr Rafferty’s crocs- style shoes. Some of the footprints were considered to be a “conclusive match”. Others produced either slight, moderate, strong or very strong support for the proposition that the footprints were left by the shoes seized from Mr Rafferty.

[52]              Blood was also identified on Mr Rafferty’s sweatpants on the lower parts of the left and right legs and on the front of the thigh or knee area of the left leg. DNA analysis provided extremely strong support for the proposition that it was Ms Smith’s blood.

[53]              As Mr Davey acknowledged, the footprint evidence in particular demonstrated that Mr Rafferty must have been in Mr Heremaia’s unit at some stage after Ms Smith had suffered some sort of bleeding injury. He argued that this evidence however only established that Mr Rafferty was present and not that he caused her death.

The fingernail DNA

[54]              DNA was identified in clippings taken of Ms Smith’s left-hand fingernails by Dr Stables. Analysis provided extremely strong support for the proposition that it was Mr Rafferty’s DNA. It was the evidence of the forensic biologist from ESR who undertook the DNA testing – Nicholas Curnow – that the amount and quality of the DNA profiling detected under Ms Smith’s left-hand fingernails were consistent with close physical contact (or intimacy) and that it had not come just from a casual experience.

[55]              Mr Rafferty told Detective Senior Sergeant Poland that when Ms Smith and Mr Heremaia were arguing, Ms Smith started yelling at him (Mr Rafferty). He said that she hit him in the head with her fist and that he put his arms over his head to protect himself. He repeated this assertion a number of times. Mr Curnow accepted that an assault of this kind might explain how Mr Rafferty’s DNA was transferred to Ms Smith’s fingernails.

[56]              Mr Davey submitted that the fingernail DNA evidence did  not  prove that  Mr Rafferty assaulted Ms Smith and that it is equally consistent with the explanation that Mr Rafferty gave to the police.

[57]Two observations can be made in this regard:

(a)Mr  Curnow  qualified  his  evidence.  He  said  Ms  Smith  hitting   Mr Rafferty would provide a possible explanation for the presence of Mr Rafferty’s DNA under Ms Smith’s fingernails “if her fingernails had come into contact with an area of his arm”. Mr Rafferty in his statement (which he read and endorsed as being true) repeatedly described the alleged assault as being with a fist to the side of his head. It is difficult to see how an assault with a closed fist, where the fingernails are tucked into the palm, could result in Mr Rafferty’s  DNA ending up under  Ms Smith’s fingernails; and

(b)Dr Stables gave evidence that some of Ms Smith’s injuries may have been defensive in nature. This suggests that Ms Smith may have been conscious for at least part of the time when she was being assaulted. It may be that she attempted to defend herself and that Mr Rafferty’s DNA ended up under her fingernails because she was trying to protect herself from the assault. One of the photographs taken of Mr Rafferty at the police station showed that he had a scratch on his arm.

The stomp imprints

[58]              There were what appeared to be footprints on Ms Smith’s body, suggesting that she had been stomped on in the course of the assault. Those marks had a repeating

linear pattern, similar to that on Mr Rafferty’s shoes. The forensic evidence was however neutral. Wendy Janes, from ESR, analysed the stomp marks and concluded that they provided neither support for, nor against, the proposition that Mr Rafferty’s crocs-style shoes had been used to stomp on Ms Smith.

[59]              The stomp imprints on Ms Smith’s body do not prove Mr Rafferty’s involvement, but nor do they exclude it.

The knives and DNA

[60]Five knives were seized from Mr Heremaia’s unit.

[61]              One knife, exhibit number 30013, was seized from the top drawer in the kitchen unit. It had neither Ms Smith’s nor Mr Rafferty’s DNA on it and it does not appear to be relevant.

[62]              The knife found next to Ms Smith’s body – exhibit number 30002 – was, in Dr Stables’ opinion, capable of causing the knife injuries observed to Ms Smith’s body. It had DNA on it from at least two people, including Ms Smith. The remaining DNA was not however suitable for comparison purposes.

[63]              A knife with a serrated edge and referred to as a bread knife, was given exhibit number 30014. There was no visible blood on this knife, but a weak presumptive test for blood was obtained, which showed there was possible blood on the blade. DNA from at least two people was found. Analysis provided extremely strong support for the proposition that some of the DNA came from Ms Smith and that some of it came from Mr Rafferty. The knife had a rounded tip, but the evidence nevertheless suggested that it could have been used to inflict Ms Smith’s injuries, including the two stabbings, although it would have required more force to use it to inflict the stabbings than would have been required with any of the other knives, all of which had tapered or pointed ends.

[64]              Another knife – described as a chef’s knife and given exhibit number 30015 – had bloodstains on both sides of the blade, in what was described as a wipe/swipe

pattern. Ms Smith’s DNA was found in the bloodstains but DNA found on the handle of the knife was not suitable for meaningful comparison.

[65]              There was another knife – exhibit number 30016. It was described as a fillet knife. The blade was bloodstained on one side and DNA analysis of the blood confirmed the presence of Ms Smith’s DNA. Amelia Gamblin, a forensic scientist with ESR, described the bloodstaining as being “transfer staining”. She rejected the proposition that if the knife had been used as a weapon to stab somebody, blood would be expected on both sides of the knife. Further DNA was located on swabs taken from the handle of the knife and from a swab taken from the bloodstain on the knife blade. DNA from at least two people was found on the blade and analysis provided extremely strong support for the proposition that some of the DNA came from Mr Rafferty.

[66]              While Mr Curnow could not rule out the secondary transfer of Mr Rafferty’s DNA to either knife 30014 or knife 30016, he did say that if it was indirect transfer from a surface, there would have to have been a significant amount of Mr Rafferty’s DNA on the surface for such transfer to occur. In his words, it would have to have been a “rich source of DNA” for transfer to occur. He elaborated that a rich source of DNA is generally something like body fluids – blood, semen or saliva – unless there have been multiple contacts with the surface over a prolonged period during which any DNA cells could build up.

[67]              The Crown cannot say which knife was used to assault Ms Smith. It is however reasonable to infer from:

(a)the presence of Ms Smith’s blood on four of the five knives;

(b)the positioning of three of the five knives on the kitchen bench as described by Ms Lovatt; and

(c)the fact that  a  fourth  knife  was  found  immediately  adjacent  to  Ms Smith’s body

that some or all of the knives were used to injure Ms Smith. Mr Rafferty’s DNA was identified  on  two  of the knives.  No other DNA sufficient to provide a suitable

comparison was identified on the other knives. Mr Heremaia’s DNA was not found on any of the knives notwithstanding that they belonged to him.

Conclusion

[68]              In my view, the available evidence establishes the following on the balance of probabilities:

(a)Mr Rafferty was present when Ms Smith was assaulted. He lied when he denied this;

(b)during the assault, several kitchen knives were taken out and put on the kitchen bench and at least one of them was used to inflict various injuries to Ms Smith;

(c)Ms Smith’s DNA was found on four of the knives and Mr Rafferty’s DNA on two of them. Mr Heremaia’s DNA was not found on any of the knives;

(d)the amount and quality of Mr Rafferty’s DNA on the knives suggests that indirect transfer is an unlikely explanation;

(e)Mr Rafferty’s DNA was found under Ms Smith’s left-hand fingernails, indicating that he was in close personal contact with her at some stage;

(f)Ms Smith’s blood was found on Mr Rafferty’s clothing; and

(g)Mr Rafferty’s bloody footprints were found both inside and outside Mr Heremaia’s unit.

While there are possible explanations for all or some of the available evidence, considered in the round and in totality, in my view, the evidence points strongly to Mr Rafferty’s involvement in the assault that killed Ms Smith. Notwithstanding the gravity of the finding for Mr Rafferty, I am satisfied on the balance of probabilities that Mr Rafferty was involved in the assault on Ms Smith which resulted in her death.

Consequences

[69]              It is now necessary to order that inquiries be made to determine the most suitable way of dealing with Mr Rafferty under s 24 or s 25 of the CPMIPA.

[70]              Mr Rafferty was assessed by three health assessors for the fitness for trial hearing – Dr Ian Goodwin (a consultant psychiatrist), Mr Chris Dyson (a registered clinical psychologist and a registered neuropsychologist) and Dr Jon Nuth (also a registered clinical psychologist and a registered neuropsychologist). It would be helpful if a report or reports could be obtained from any one or more them. The Registrar is directed to contact each of them to see if they can assist.

[71]              I remand Mr Rafferty to the Mason Clinic, pursuant to s 23(2)(b) of the CPMIPA. Mr Rafferty is to be brought back before the Court for a disposition hearing at the first available date that can be fixed in consultation with counsel. The CPMIPA requires that the inquiry must be completed as quickly as practicable and, in any event, within 30 days after the date of this judgment. The Registrar is to fix a date within that timeframe for Mr Rafferty’s disposition hearing.

Wylie J