R v Rubie
[2016] NZHC 2108
•6 September 2016
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 RubieJudgment:
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 so. At some stage the victim became unconscious and died. Emergency services attended the scene; however the victim was unable to be resuscitated.
[6] The victim underwent a post-mortem examination. The pathologist, Fintan Garavan, concluded that the direct cause of death was asphyxia but that compression of the victim’s neck and blunt force trauma to his head were a substantial and operative cause of death as it accelerated the process by which the victim died. Alcohol was also a factor in that it made the victim more susceptible to respiratory collapse.
[7] The Crown’s case is that Mr Rubie applied pressure to the victim’s neck for between seven and ten minutes. This time frame is deduced from closed circuit television (CCTV) footage that shows when Wiremu and Michael Orsmby exited the room, by which time the victim was already being held in a neck lock by Mr Rubie, and when Mr Rubie exited the room.2 The Crown case is that in placing the victim in a neck lock Mr Rubie acted with murderous intent.
[8] Constable Child was first on the scene with Constable Ah Shew. By then Mr Rubie had left the room. Constable Child found the victim with a very weak pulse and slow shallow breathing. Constable Ah Shew checked the victim and confirmed this state. Emergency services were called. Shortly afterwards, Constable Child observed the victim had stopped breathing. When the ambulance officers arrived they could find no pulse or signs of breathing. They attempted to resuscitate the victim.
[9] Dr Garavan opines in a written statement dated 26 November 2015 that the head trauma the victim suffered would have influenced the time it took for him to be rendered unconscious due to the application of the neck lock. In his view, if the neck lock was applied during the vulnerable moment of concussion and/or unconsciousness (as a result of the head trauma) then the application of pressure to the neck would have
made it easier for the victim to go from concussed to unconscious and, if already unconscious, to death.
[10] Dr Garavan found ample evidence of pressure having been applied to the neck: the anterior neck dissection revealed bruising to the inferior posterior attachments of the sternohyoid muscles; there was a bruise to the posterosuperior aspect of the right sternohyoid muscle; a bruise was evident to the anterior surface of the epiglottis; and a large bruise extended across the right pectoralis muscle (sternal head).3
[11] Dr Garavan opined that once the point of unconsciousness was reached, either as a result of the injury to the head or the neck lock, if pressure was then maintained to the victim’s neck the outcome would be death. He further opined that the timing from the original head injury to death would be a matter of minutes. He acknowledged that it was not possible to be exact about the timing as it would depend on the individual. However, in his view, he anticipated that a head trauma of the type suffered by the victim, followed by application of pressure to the neck would result in death in less than five minutes. He then referred to the significant amount of alcohol found in the victim’s blood and said this would play a role in expediting death. This is because high levels of alcohol are a respiratory depressant, and therefore predispose someone with those levels to a more rapid respiratory collapse.
[12] Dr Garavan’s view, therefore, was that the combination of head trauma, mechanical asphyxia (neck lock) and alcohol could reduce the time for death to occur by two, three, or four minutes. However, he noted that these were to be understood as approximate estimates. In his view, once sufficient pressure was applied to the neck, death would occur in approximately two to four minutes, with a significant intake of alcohol further reducing the time.4 Whilst he was careful to say it was not possible to put precise times on this event, his view was it would reduce a two to four minute
survival period by one to two minutes.
3 Dr Garavan also identified a sub-arachnoid haemorrhage (SAH) which he attributed to the blunt force trauma to the victim’s head. He opined that the SAH would either have led to be victim being momentarily concussed if not knocked out. Also that the SAH may have developed into a more serious head injury if the victim had survived.
4 This is attributable to: (a) the impeding of venous return from the head to the heart; (b) the impeding of arterial blood from the heart to the head; (c) obstruction of airway; or a combination
of any two or all of those factors.
[13] Mr Rubie admitted in a police interview in July 2015 that he had applied force to the victim’s neck for a couple of minutes and that he held the victim “pretty tight.” At a later interview in August 2015 Mr Rubie said he was holding the victim in the neck lock “hard” but not “as hard as I possibly could.” However, he said that it happened because of the way that the victim landed on him. He said that he did not want to let the victim go because he was scared that the victim might hurt him if released from the hold.
[14] In the July 2015 interview Mr Rubie also described the assault on the victim by Wiremu Orsmby. Part of that assault included Mr Ormsby holding the victim around the neck area with his left arm while punching the victim with the right arm.
Section 147 application
[15] Mr Rubie has filed an application seeking an order dismissing the murder charge against him pursuant to s 147 of the CPA. That section provides:
147 Dismissal of charge
(1) The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.
(2) The court may dismiss the charge on its own motion or on the application of the prosecutor or the defendant.
(3) A decision to dismiss a charge may be made on the basis of any formal statements, any oral evidence taken in accordance with an order made under section 92, and any other evidence and information that is provided by the prosecutor or the defendant.
(4) Without limiting subsection (1), the court may dismiss a charge if— (a) the prosecutor has not offered evidence at trial; or
(b) in relation to a charge for which the trial procedure is the Judge-alone procedure, the court is satisfied that there is no case to answer; or
(c) in relation to a charge to be tried, or being tried, by a jury, the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.
(5) A decision to dismiss a charge must be given in open court.
(6) If a charge is dismissed under this section the defendant is deemed to be acquitted on that charge.
(7) Nothing in this section affects the power of the court to convict and discharge any person.
[16] Mr Rubie relies on subs (4)(c), namely that a properly directed jury could not reasonably convict Mr Rubie of murder.
Submissions for the defendant
[17] Mr Speed, for Mr Rubie, submitted that there were five points in favour of granting a discharge under s 147:
(a) Mr Rubie was jointly charged with Mr Ormsby, but there was no evidence to support any contention that they acted in concert;
(b)The Crown cannot prove that the victim’s death was anything other than an accident;
(c) The Crown cannot prove that the victim’s death was due to anything other than a mistake on Mr Rubie’s part, particularly given the possibility that Mr Rubie might successfully argue self-defence;
(d)There was no or insufficient evidence to support any intention on Mr Rubie’s part to cause the victim’s death, as required under s 167(a) of the Crimes Act 1961; and
(e) The victim did not suffer a “bodily injury” and Mr Rubie was not aware that his actions were likely to cause death, as required under s 167(b) of the Crimes Act.
[18] Mr Speed argued that the Crown’s evidence did not support Mr Rubie having a murderous intent. Mr Speed referred to the evidence from the CCTV footage and the police constables who were first at the scene of the incident. This evidence shows that the victim was in a neck lock for some 7 to 10 minutes and that he was still showing signs of life when the police officers arrived, by which time Mr Rubie had
released the neck lock. Mr Speed contrasts this evidence with that of Dr Garavan who has opined that death would have occurred within two to four minutes of the neck lock being applied, if not within a shorter period of time given the amount of alcohol the victim had consumed. Mr Speed submits, therefore, the logical inference to draw from all this evidence is that Mr Rubie can only have applied moderate to light pressure to the victim’s neck, otherwise the victim would have died sooner than he did. Thus, there is no Crown evidence that Mr Rubie applied the neck lock with murderous intent.
[19] Mr Speed referred the Court to two relevant decisions, R v Neustroski5 and R v Pira.6 In Neustroski, the accused had deliberately acquired a knife and had sought out a group of people who had robbed him earlier in the day. However, at the time of the stabbing, the accused was outnumbered and was attempting to run away. The High Court held that, under those circumstances, it would be wrong to construe his earlier decision to seek out the group as amounting to an intention to kill the deceased or to cause bodily injury likely to cause death. Thomas J dismissed the charge of murder and substituted one of manslaughter.
[20] In Pira, the accused had struck the deceased on the nose with a wheel brace. The deceased had fallen to the pavement and had suffered severe head injuries from which he later died. There was evidence from a pathologist which indicated that the blow to the deceased’s nose could not have been expected to be fatal. The High Court held that there was insufficient evidence to demonstrate that the accused had the requisite murderous intent, or alternatively that the accused knew that the injury to the deceased’s nose was likely to cause death and was reckless as to whether death ensued. The accused was subsequently discharged.
[21] Mr Speed argued that the case in favour of Mr Rubie was significantly more favourable than the cases for the defendants in Neustroski or Pira. He submitted:
30.The accused had no reason to attack the deceased. It appears to be not in dispute that after the deceased was attacked by the accused Ormsby it was Mr Rubie who went over to him to see if he was alright. At that point he was tackled by the deceased who ended up lying on top of him. The deceased is a large man weighing approximately 96 kilograms, fit and strong, a fighter who had been recruited by the
5 R v Neustroski (1990) 6 CRNZ 96 (HC).
6 R v Pira (1991) 7 CRNZ 650 (HC).
Headhunters. There is evidence he was a patched member of the Headhunters and evidence that he boasted of being a Headhunter to the accused and others on this particular night. Also that he had already been involved in one fight that night. He has a history of violence and of being unpredictable particularly when drunk. The accused spoke of these things in his interview with the police.
31.It is not disputed that the accused must have been in a vulnerable position when the deceased ended up on top of him. He reacted by restraining the deceased and there is nothing to show that he appreciated the particularly vulnerable position that the deceased was in. Dr Garavan’s second brief of evidence is highly speculative and inconsistent with the evidence. It cannot be used to show that the accused was aware that such a consequence was a virtual certainty. In his first brief Dr Garavan opined that a healthy male’s air supply would need to be denied for 3 – 4 minutes to cause death.
32.In fact two police officers who arrived as the accused Mr Rubie was leaving his room observed that the deceased had a weak heart beat and was breathing in a shallow way. In other words he was alive at that point.
[22] On that basis, Mr Speed submitted that the Court should make an order dismissing the charge of murder against Mr Rubie.
Submissions for the Crown
[23] The core submission for the Crown was that the evidence regarding mens rea gave rise to a reasonable prospect of conviction on the charge of murder, such that a properly directed jury could reasonably convict Mr Rubie of murder. In particular, the Crown submitted that Mr Rubie had held the victim in a dangerous position for between 7 to 10 minutes:
4.6CCTV footage outside the defendant’s room shows Michael and Wiremu Ormsby leaving the room at 4.33pm and Michael Ormsby returning to the room within the same minute. Michael Ormsby states in his DVD interview he saw the defendant and the deceased on the floor in the neck lock position at this time. Several witnesses, including Mr Aniseko, enter the room at 4.35pm and Mr [Aniseko] leaves the room at 4.40pm, at which time he says the defendant was still applying a neck lock to the deceased. Mr Rubie does not leave the room until 4.43pm. That evidence therefore indicates the defendant applied pressure to the deceased’s neck for between 7-10 minutes.
4.7On the defendant’s own account, the deceased had been the subject of a serious attack to the head immediately beforehand in which he was not an aggressor, but was rather “too drunk to defend himself” and “might’ve been asking for help”. The evidence indicates the
defendant applied pressure to the deceased after he ceased to struggle in any way, and the hold was applied for up to 10 minutes.
[24] The Crown submitted that this evidence raised a bona fide question about the reasonableness of Mr Rubie’s actions and the inferences which could be drawn from those actions regarding his state of mind. It acknowledged that self defence might be an issue at trial, but submitted that argued that this question should be resolved by the jury.
Relevant law
[25] The leading cases regarding the interpretation of s 147(4)(c) are the Court of Appeal decision in R v Flyger7 and Parris v Attorney-General.8 In those cases, the Court of Appeal emphasised that the power of the Court to dismiss charges must not be exercised in a manner which usurps the function of the jury:9
[13] The power to discharge an accused, accorded by s 347(3) of the Crimes Act, is not expressed to be subject to any statutory limitation. Yet it is not an unqualified power susceptible of arbitrary exercise. It must be taken to be a power exercisable in the interests of justice. The nature and circumstances of a case will inform the interests of justice. In a trial before a Judge and jury a Judge must respect the jury’s responsibility to decide the facts. Accordingly a Judge should not normally make an order for discharge pursuant to s 347(3) where there is before the Court evidence which, if accepted, would as a matter of law be sufficient to prove the case. The Judge’s function in these circumstances is not to attempt to predict the outcome but to examine the evidence in terms of adequacy of proof, if accepted.
…
[15] To the extent that Wilson J’s Minute may suggest a test involving judicial prediction of the verdict, we cannot agree. It is not a question of what a jury would be likely or unlikely to do but what a jury may properly do. The evidence in support of a charge may be barely adequate and so tenuous as to lead a Judge to the view that the jury could not properly convict and accordingly the interests of justice require an order for discharge. The evidence in a case may be adequate, if accepted, but witnesses may appear so manifestly discredited or unreliable that it would be unjust for a trial to continue. It may be that in such circumstances a jury would be unlikely to convict, but the rationale for an order for discharge is not the likelihood of acquittal but the unsafeness of a conviction having regard to the evidence. Wilson J’s Minute in Myers was issued only 13 months after the Crimes Act came into effect replacing, amongst other things, the Grand Jury Procedure,
7 R v Flyger [2001] 2 NZLR 721 (CA).
8 Parris v Attorney-General [2004] 1 NZLR 519 (CA).
9 Flyger, above n 7.
the operation of which Wilson J may have had in mind when issuing his
Minute. Subsequent authority does not support a predictive test.
[26] R v Flyger was explained in the subsequent Court of Appeal decision in Parris v Attorney General. Parris confirms that the constitutional divide between the trial Judge (law) and jury (fact) mandates that the trial Judges intervene in the factual area only when, as a matter of law, the evidence is clearly such that the jury could not reasonably convict or that any such conviction would not be supported by the evidence. Questions of credibility and weight must in “all but the most unusual or extreme circumstances” be decided by the jury:10
[10] … If the evidence is sufficient in law, if accepted, to prove the case, the Judge should leave the case to the jury and not withdraw it on evidentiary grounds. …
…
[13] … There should be a [s 147] discharge when, on the state of the evidence at the stage in question, it is clear either that a properly directed jury could not reasonably convict, or that any such conviction would not be supported by the evidence. In most cases these two propositions are likely to amount to much the same thing. ...
[14] It is vital, however, to appreciate the proper compass of the word “reasonably” in this context. The test must be administered pretrial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear–cut in favour of the accused, it should be left for the jury to decide. If there is a conviction this Court on appeal has the reserve power to intervene on evidentiary grounds. The constitutional divide between trial Judge (law) and jury (fact) mandates that trial Judges intervene in the factual area only when, as a matter of law, the evidence is clearly such that the jury could not reasonably convict or any such conviction would not be supported by the evidence. …
[27] On the other hand a defendant’s right to seek a discharge under s 347 is an important one. This was recognised by Baragwanath J in R v Lua:11
[3] … But where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury could not properly convict upon it, it is his duty to stop the case.
10 Parris v Attorney-General, above n 8.
11 R v Lua HC Auckland CRI-2006-092-4336, 24 April 2007.
[4] … The jurisdiction is rather one of added constitutional protection: that no-one should be exposed to risk of verdict when the evidence is so slender that a conviction would be unsafe. The accused is entitled to a decision not only from a jury but, in advance of that, from the judge.
[28] The key question for the Judge to determine when considering an application to dismiss a charge is whether there is sufficient evidence available that a jury might reasonably convict. This is a question of adequacy, rather than acceptance, of the evidence:12
We see no injustice in a case proceeding if the evidence is adequate, with the question of its acceptance being considered when all the evidence intended to be led has been examined and counsels’ considered submissions on the whole of the case have been presented.
[29] Questions of credibility and weight are questions for determination by the jury,13 as are the matters of inference or questions of reasonableness.14 The consideration of self-defence necessarily involves all of those issues and so should, in most cases be left as a question for the jury to determine. Where self-defence is at issue, cases in which a dismissal of charges is appropriate will be rare.15
[30] It was stated in R v Bromby by John Hansen J that when deciding a s 147 application a Court should:16
… guard against a tendency to determine issues on what the Judge may regard as reasonable, rather than whether or not the Jury could reasonably come to a conclusion of guilt. For the purpose of the argument, the evidence must give the construction most favourable to the Crown, and unless a case is clear cut in favour of an accused it should be left to a Jury to determine.
Analysis
[31] I do not consider that this is one of those rare cases in which this Court would be justified in dismissing a charge of murder without proceeding to trial. The questions of whether Mr Rubie intended to kill the victim; whether he foresaw that
death was a likely consequence of his action; or whether he was acting in self-defence
12 Flyger, above n 7, at [22].
13 R v Bromby HC Dunedin T05/5334, 10 August 2006 at [10].
14 R v de Thierry HC Wellington CRI-2006-078-1422, 17 July 2007 at [6]-[7].
15 R v de Thierry, above n 14, at [7].
16 R v Bromby, above n 13, at [11].
are questions that are appropriately left to the jury to determine on the basis of the evidence presented before them.
[32] I can see no real similarities between the facts in Neustroski and Pira compared to the facts of the current case. In Neustroski, the facts were undisputed. All parties agreed that the appellant was running away from the victim at the time when the stabbing occurred. Thomas J considered those facts and determined that it was not logically possible to infer beyond reasonable doubt that the appellant had the requisite mens rea for a murder conviction. Similarly, in Pira, the expert evidence provided by the prosecution established that death was simply not a foreseeable outcome of the appellant’s actions. On that basis, it was not logically possible to convict the accused of murder.
[33] I acknowledge that the Crown case against Mr Rubie is not strong. The evidence from Dr Garavan suggests that if someone was held tightly in a neck lock, particularly if already subject to a concussion from a head injury and with a high level of alcohol in their bloodstream, that person would be likely to die in a shorter period of time than is suggested by the CCTV footage evidence and the evidence of the police officers who found the victim still showing signs of life.
[34] I accept, therefore, that a reasonable jury may well be left with a reasonable doubt once they realise the seeming discrepancy between the neck lock being maintained for seven to 10 minutes and Dr Garavan’s evidence that the victim would have been dead within two to four minutes, if not sooner, given the head injury and amount of alcohol consumed. I also accept that a reasonable jury might well believe that in the light of this evidence, Mr Rubie only applied a light to moderate pressure with the intention of restraining the victim out of fear of his aggression because at the time Mr Rubie did not realise how seriously injured the victim was by the trauma to his head. There is other witness evidence to support this view. Ethan Kelly says that while Mr Rubie had the victim in the neck lock, Mr Rubie said to Mr Kelly “go and get help I can’t hold him forever”. Nauopou Aniseko said he told Mr Rubie to “leave it” and that Mr Rubie replied “he’s a strong man if I leave it he might smash me”. Ivy Tauhinu said she told Mr Rubie “Victor what happened? Let him go” and that
Mr Rubie replied “I can’t because he will hurt me. He might attack me”. In the police
interview of Mr Rubie on 18 July 2015 he confirmed that at the time when he had the victim in the neck lock, Mr Rubie had expressed his approval of Ms Tauhinu calling the police:
MD…whilst this was happening [victim in neck lock making snoring noises] Ivy the night manager has come in, she’s seen you with, with Dom and says I’m gonna call the police
VR Yes
MD You said yeah sweet as yeah call the police
VR Yeah
MDYou hold Dom for a wee bit longer ah then ya slide out from underneath him
VR Yeah.
[35] The evidence of how Mr Rubie came to be holding the victim is consistent with the victim lunging at Mr Rubie, perhaps because by then the victim was past distinguishing Mr Rubie from the assailant Wiremu Ormsby. His comments to other persons expressing his concern for what the victim might do if Mr Rubie released the victim are consistent with Mr Rubie being concerned to defend himself from the victim. His approval of Ms Tauhinu’s comment that she was going to call the police is also consistent with him being concerned to defend himself from the victim.
[36] Thus, I accept Mr Speed’s submission that: (a) the Crown’s evidence can be understood to suggest that the pressure applied by Mr Rubie was more moderate than would lead to death in the time estimated by the pathologist; and (b) Mr Rubie was holding on to the victim because Mr Rubie was afraid the victim might attack him and that he was still capable of harming Mr Rubie. All of which suggests no more than that Mr Rubie was simply attempting to restrain someone whom he feared would act aggressively, so he was acting without murderous intent.
[37] On the other hand, the mere use of a neck lock and the known risk that hold can pose to persons could well lead a jury to infer that Mr Rubie did act with a murderous intent. There is also the evidence from Dr Garavan that his time estimates
are simply that, and so a reasonable jury may accept that the evidence relevant to timing is not precise, and on this basis they may see no discrepancy between the seven to 10 minutes during which the Crown contends the neck lock was maintained and Dr Garavan’s evidence. Seen in this way, the inference that the pressure to the neck would not have led to death is no longer sustainable.
[38] There is evidence that when told to let go of the victim, Mr Rubie maintained the neck lock. If a reasonable jury rejects Mr Rubie’s explanation for maintaining the neck lock, they might also conclude that the better explanation for his actions is that Mr Rubie was acting with murderous intent. Further, there is the evidence from Dr Garavan that he found ample evidence of pressure having been applied to the victim’s neck, which is inconsistent with Mr Rubie holding the victim simply to restrain him.17
[39] Of course there is another explanation for the injury to the victim’s neck. There is the evidence from Mr Rubie in his police interview that he saw Wiremu Orsmby put his left arm around the victim’s neck while he punched the victim with his right arm. If the physical trauma the pathologist found on the victim’s neck could be attributable to Wiremu Ormsby’s actions, the jury will need to be directed that they must not speculate as to whose actions might have caused this trauma, and so unless they can find other evidence pointing to Mr Rubie being responsible for this trauma, they would need to give him the benefit of the doubt. However, whether Mr Rubie’s account of Wiremu Ormsby holding the victim around the neck with one arm and punching him with the other is accepted is for the jury and not for the Court to decide.18
[40] I am satisfied, therefore, that the question of mens rea in this case is purely factual. When the evidence for the Crown is given the most favourable construction
for the Crown, there is just sufficient evidence on which a reasonable jury properly
17 Dr Garavan stated in the autopsy report 29 August 2015 that there is “evidence supporting the victim was held in a choke hold until he died (bruising to the neck muscles, epiglottis and petechial haemorrhages)”; see also the account of the injuries identified by Dr Garavan at [10] herein.
18 As the evidence presently stands Mr Rubie is the only person who says Wiremu Ormsby applied pressure to the victim’s neck: see p 74 of the transcript of the police interview on 18 July 2015. The other persons who were in the room were hiding and they have not mentioned Wiremu Ormsby putting his arm around the victim’s neck while he punched the victim with the other arm. Further directed enquiries from either Wiremu Ormsby (who has now pleaded to manslaughter),
Michael Ormsby or the other witnesses may throw some light on this.
directed could convict. This is not to say I am satisfied that such a jury would convict, but that is a different matter, and not relevant to the present decision I have to make.
[41] Mr Speed raised one further issue in his submissions; namely, whether it could be said that Mr Rubie had inflicted a “bodily injury” on the victim for the purposes of s 167(b). “To injure” is defined as “to cause actual bodily harm”.19 “Actual bodily harm”, in turn, means any hurt or injury which is calculated to interfere with the health or comfort of the victim.20 I am satisfied that the action of intentionally depriving a victim of oxygen for a sustained period of time amounts to actual bodily harm and therefore, that the consequences of that action amount to an actual bodily injury for the purposes of s 167(b).21
Result
[42] Mr Rubie’s application to dismiss the murder charge is denied.
19 Crimes Act 1961, s 2.
20 R v Miller [1954] 2 QB 282.
21 See also R v Cooper [1993] 1 SCR 146, (1993) 18 CR (4th) 1.
0
0