R v Rubie - [2016] NZHC 2108

ORDER PROHIBITING PUBLICATION OF THE 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.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2015-092-13432 [2016] NZHC 2108

THE QUEEN

v

VICTOR GRAHAM RUBIE

Hearing: 17 August 2016

Counsel:

Y Y Yelavich & Z R Hamill for Crown
A G Speed & K Trotter for Mr Rubie

Judgment:

6 September 2016

JUDGMENT OF DUFFY J

This judgment was delivered by me on 6 September 2016 at 2.15 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Solicitors:
Crown Solicitor, Manukau
Andrew Speed, Barrister, Auckland

R v RUBIE [2016] NZHC 2108 [6 September 2016]

Introduction

[1] Victor Rubie has pleaded not guilty to one count of murder. He seeks an order under s 147 of the Criminal Procedure Act 2011 (“CPA”) dismissing the charge against him on the basis that there is no or insufficient evidence to support the charge. Mr Rubie's co-offender, Mr Ormsby, has pleaded guilty to a charge of manslaughter.

Background

[2] At approximately 4.00 pm on 18 July 2015, the victim visited Mr Rubie in his room at Middlemore Lodge in Auckland. Mr Rubie had known the victim since 2014 and they would occasionally meet to drink alcohol and watch movies together. There were two other males present in the room: Mr Rubie’s workmate and another friend, Michael Ormsby.

[3] The victim had been drinking earlier in the afternoon and continued to do so after his arrival. He began boasting about beating up some Black Power members, shadow boxing and also began rubbing the head of Mr Rubie’s workmate, asking for a kiss. His behaviour apparently annoyed the other occupants of the room. Michael Ormsby texted his older brother Wiremu Ormsby and received a text in reply indicating that Wiremu Ormsby was on his way to the address.

[4] Wiremu Ormsby arrived at the address, concealing either a long wooden bat or a metal bar under his clothing. He walked into Mr Rubie’s room and began to strike the victim about the back and head. The victim was knocked to the floor in a semi- conscious state. He suffered lacerations to his head and face and was developing a brain injury due to internal haemorrhaging. Wiremu and Michael Ormsby then fled the scene.

[5] Mr Rubie then approached the victim. For whatever reason the victim grabbed hold of Mr Rubie and pulled him to the floor.1 Mr Rubie placed the victim in a neck lock, wrapping his legs around the victim’s waist in a wrestling manoeuvre so that the victim was unable to move away. Mr Rubie applied pressure to the victim’s neck

while the victim attempted to escape. Residents from the room next door heard the noise and came to investigate. Some of them told Mr Rubie to release the victim but he refused to do…

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 2108
Case: [2016] NZHC 2108
Decision Date: 6 September 2016

CaseChat Overview and Summary

Victor Rubie has pleaded not guilty to one count of murder. The defendant seeks an order under s 147 of the Criminal Procedure Act 2011 dismissing the charge against him on the basis that there is no or insufficient evidence to support the charge. The Crown opposes the application. The issue for the Court is whether there is sufficient evidence available that a jury might reasonably convict Mr Rubie. The Court noted that the key question was whether there is sufficient evidence available that a jury might reasonably convict. This is a question of adequacy, rather than acceptance, of the evidence. The Court held that the question of mens rea in this case was purely factual and that the evidence, when given the most favourable construction for the Crown, was just sufficient evidence on which a reasonable jury properly directed could convict. The Court dismissed Mr Rubie's application to dismiss the murder charge.

Orders