R v Rubie - [2016] NZHC 2488

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-092-013432 [2016] NZHC 2488

THE QUEEN

v

VICTOR GRAHAM RUBIE

Hearing: 11 October 2016

Appearances:

Yelena Yelavich and Zoe Hamill for the Crown
Andrew Speed and Karl Trotter for the Defendant

Judgment:

19 October 2016

JUDGMENT OF MOORE J

[Application under s 147 of the Criminal Procedure Act 2011]

This judgment was delivered by me on 19 October 2016 at 11:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

R v RUBIE [2016] NZHC 2488 [19 October 2016]

Introduction

[1] Victor Graham Rubie pleaded not guilty to one charge of murder. I presided at his trial. At the end of the Crown case Mr Speed, for Mr Rubie, applied for an order to discharge the defendant under s 147 of the Criminal Procedure Act 2011 (“the CPA”). I heard argument following which I determined Mr Rubie should be discharged on the count of murder leaving the included charge of manslaughter. I advised counsel I would give my reasons in writing later. These now follow.

Background

[2] On the afternoon of Saturday, 18 July 2015 Mr Rubie returned from work to his accommodation at Middlemore Lodge on Massey Road, Otahuhu. He was accompanied by a workmate, Ethan Kelly. Middlemore Lodge is an accommodation complex consisting of two blocks of modest flats. Mr Rubie occupied Room 33 on the first floor of Block B. He shared this with a friend, Tamati Ormsby. It consisted of a single room measuring approximately 5 metres by 5 metres with shared toilet and ablution facilities located across the hallway.

[3] On the afternoon in question only Mr Rubie and Ethan Kelly were initially present but they were later joined by Tamati Ormsby’s younger brother, Michael, who was then aged in his mid teens. All three engaged themselves in computer games and casual conversation. No alcohol was consumed although Mr Rubie later told the Police a modest quantity of cannabis was consumed.

[4] At about 3:00 pm the victim, Tauailapalapa Mati arrived unannounced in the room. He was extremely intoxicated having spent much of the previous evening and most of the day drinking. Toxicology results from the post mortem revealed a staggeringly high blood alcohol level of 244 mg% and a urine alcohol ratio of 349 mg%.

[5] Mr Mati was well known to Mr Rubie. He was a former resident of Middlemore Lodge. In his subsequent interviews with the Police, Mr Rubie said he and Mr Mati got on well together when the latter was sober. Even after he left Middlemore Lodge Mr Mati would, from time to time, visit Mr Rubie to download

videos from his computer. However, Mr Mati, who was a heavy drinker, had a reputation for being obnoxious, aggressive and violent when under the influence of alcohol. Despite this, Mr Rubie said he knew how to diffuse and distract Mr Mati when he was in this mood through the use of humour.

[6] On this particular Saturday…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rubie

Details

AGLC: R v Rubie [2016] NZHC 2488
Case: [2016] NZHC 2488
Decision Date: 19 October 2016

CaseChat Overview and Summary

Victor Graham Rubie pleaded not guilty to one charge of murder and one of manslaughter. The case was heard by Moore J at the High Court of New Zealand in Auckland. At the conclusion of the Crown's case, the defendant's counsel submitted an application for an order to discharge the defendant from the charge of murder. The application was considered on the basis of the evidence presented and the legal principles set out in section 147 of the Criminal Procedure Act 2011. The Crown argued that the evidence was sufficient for a jury to infer that the defendant had the intent to cause death or serious bodily harm, which would constitute murder. However, the judge found that there was insufficient evidence to support a conviction for murder, as the defendant did not have the requisite intent at the time the hold was applied. The judge also found that the defendant's belief that the victim was still alive and breathing, and his fear of further aggression from the victim, were relevant factors in assessing his state of mind. The application was therefore granted, and the defendant was discharged from the charge of murder, leaving the charge of manslaughter to be determined by the jury.

The final orders of the court were that Victor Graham Rubie is discharged on the charge of murder, and his criminal liability for manslaughter will be left to the jury. The defendant's counsel and the Crown were represented by Mr Speed and Ms Yelavich respectively.

Orders