R v S HC Timaru CRI 2009-045-631
[2009] NZHC 2315
•16 December 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CRI 2009-045-000631
REGINA
v
S
Hearing: (On Papers)
Counsel: T M Gresson for Crown
J Westgate for Accused
Judgment: 16 December 2009
JUDGMENT OF FOGARTY J
Introduction
[1] At the close of the Crown case, Mr Westgate for the accused, made a s 347 application for dismissal of Counts 1, 3, 4, 8, 9 and 10 against his client. These counts all allege that she was a party under s 66 with her co-accused, Mr Shaw, in his conduct of pointing a rifle against a member of the police. The application was successful.
[2] It is also important to appreciate that the offending was directed to two different points in time. Count 1, and arguably Count 3, was while Ms S
was driving the Landrover car, being pursued by the police, with Mr Shaw in the
R V S HC TIM CRI 2009-045-000631 16 December 2009
passenger seat beside her. Counts 3, 4, 8, 9 and 10 were directed to her conduct after the vehicle had crashed into a tree and she and Mr Shaw, each carrying a child, had left the vehicle, walking away from the police for some kilometres.
[3] Section 66 of the Crimes Act 1961 provides:
66 Parties to offences
(1)Every one is a party to and guilty of an offence who— (a) Actually commits the offence; or
(b)Does or omits an act for the purpose of aiding any person to commit the offence; or
(c) Abets any person in the commission of the offence; or
(d)Incites, counsels, or procures any person to commit the offence.
(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
[4] The indictments against Ms S did not contain any particulars as to the basis on which she was being prosecuted as a party. Rather, they were drawn in exactly the same way as if she had been the person who did use the rifle. In the margin there was a general reference to s 66.
[5] In the course of the s 347 application the prosecutor relied on s 66(1)(b) and (c), and s 66(2). When arguing s 66(1) he did not particularly distinguish between sub-paragraph (b) and sub-paragraph (c).
[6] I found that there was insufficient evidence in law for a jury to convict Ms S of being a party to these offences. The Crown have made an application under s 381A of the Crimes Act 1961 to me to refer for the opinion of the Court of Appeal questions of law arising out of that direction.
[7] That application posed four questions as follows:
(a)Whether I was right in law to determine that s 66(2) could not apply on the evidence that had been adduced in the Crown case?
(b)Whether I was right in law to conclude that s 66(1) could not apply on the evidence that had been adduced in the Crown case?
(c)Whether I correctly applied the threshold test, as formulated in R v Flyger [2001] 2 NZLR 721 (CA) and Parris v Attorney-General [2004] 1 NZLR 519 in discharging the accused on the firearms charges?
(d)Was I correct in law on the s 347 discharge, to use the statement of Shaw in my consideration of the case against S being a party?
[8] By a minute of 17 November I queried whether questions (a), (b) and (c) are questions of law as that phrase is to be read in context as part of s 381A of the Act. In response the Crown filed two sets of submissions. Paragraphs 11-17 are from the first, and 2-3 from the second:
11.The question for the Court was whether the defence was right to submit that S could not be found guilty by dint of either s
66(1) or s 66(2) of the Crimes Act of the offences relating to the use
of the weapon.
12.It is the Crown’s respectful submission that, having gathered the facts that cannot be in dispute, there was an arguable error of law in limiting the assessment of S ’ conduct to her purpose in “walking off” with the co-accused [judgment, para [21]]. This conduct occurred in the context of the co-accused “covering” her by deploying the rifle against the Police. The question is, whether in participating in the furtherance of evading capture knowing, as she did, that the accused Shaw was assisting her, S also knew that her, again undoubted, acquiescence or assent in his use of the firearm would encourage that criminality. The use of the word “purpose” in the commentary in Adams is, it will be submitted, incautious in some context, and misleading.
13.On that basis it may be more helpful if the proposed question is stated in those terms, ie:
On the facts as they have been determined to be was it right in respect of s66(1) to require that the prosecution must prove that the accused could be guilty of committing the crimes charged only if it was her purpose to encourage or aid despite evidence from which it could be concluded that she knew her conduct would in fact encourage the commission of the crimes charged.
(Emphasis given by the Court)
14.In relation to the alternative route to criminal liability – s66(2) – the arguable error of law lies in confining the relevant evidence to events following the crash of the vehicle. This is to wrongly set aside as not relevant to the proof of the charge, evidence going to common purpose, commencing with (at least) the flight from the Police in which the firearm was used. From that point, the common purpose included the use of a deadly weapon, it being open to a jury to find that when it was deployed post-crash that was a foreseen consequence of the plan of escape. With respect, equiparating s 66(2) with conspiracy is apt to unduly narrow the intended scope of the section.
15.It is submitted that again with reference to the determination of fact time frames relevant to the s66(1) issue (judgment, para [26]), there is an arguable error of law in setting to one side inferences as to immediately prior occurring facts, ie Shaw while sitting beside S spent some time with the firearm in his hands preparing to use it against the Police and then doing just that by discharging and pointing it. There was ample time and a sufficient relationship nexus for that to induce encouragement and for her to have disengaged from the conduct she was knowingly assisting. Essentially, she assented to being “guarded” by Shaw’s firearm knowing that he had previously used it by shooting and pointing it at the Police. Clearly by inference her conduct indicated she accepted a position he might do so again.
16.In relation to the s 6692) issue it may, again, assist the Court if the question of law on the point in para [28] of the judgment of the Court is formulated:
On the facts as found for the purposes of the s 347 application was I right to determine that pursuant to s.66(2) the accused S could not be guilty of the crimes charged in relation to the use of the firearm because there was no evidence that she “had agreed to the use of the firearm”.
(Emphasis given by the Court)
17. As to questions ‘c’ and ‘d’ in the Crown’s application of
13 November 2009, both may be seen as superfluous if the Court accepts the reformulated questions as to ss66(1) and (2).
2.In relation to the s.66(1)(c) question the Crown submits that there is an arguable question of law, namely whether on the facts that have been determined the prosecution must prove the accused’s “purpose” to encourage, despite there being incontrovertible evidence from which it could be concluded she knew and intended her conduct would, in fact encourage. In this regard the following passage from Pene (1/7/80, CA63/80 – attached) commencing at page 5 is relevant:
We appreciate the point made to us by Mr Toogood, namely that if it be shown that there was an actual intention to encourage then the reasons which prompted the accused to intentionally encourage the commission of a crime would be irrelevant. We accept that if an accused person conducted himself in a way he intended the principal offender to interpret as encouragement then that would be enough to sustain a conviction. We cannot accept that mere knowledge by an accused person that his conduct would be likely to encourage the commission of a crime automatically means that he has intended to encourage the commission of that crime so as to be guilty as an abettor.
(Emphasis added by Crown)
It is respectfully submitted that Your Honour misdirected yourself as to the legal test for s.66(1)(c) by focusing on “purpose” i.e. by limiting the assessment of S ’ conduct to her “purpose” for evading the Police. It is submitted this is a question of law.
3.In relation to the s.66(2) question, the question of law is whether Your Honour was correct in ruling that in proving the elements of s.66(2) it was necessary for the Crown to establish there was “an agreement” between the co-accused as to the use of the firearm. Again, it is submitted this is a question of law.
[9] I have put the two formal questions in bold, and hereafter refer to them in order as the first and second questions. As best as I can tell they are the questions of law the Crown seeks leave to be submitted to the Court of Appeal – see paragraph
17.
[10] Mr Westgate submitted that the Crown was still essentially disputing the findings of fact made by me as trial Judge, when applying s 347. He referred also to the Crown’s paragraphs 12 and 15 as “trespassing in factual matters”.
[11] I note first that the Crown appears to be confining the s 66(1) argument to the application of s 66(1)(c).
[12] As I have had occasion to mention in the s 347 argument the Crown prosecution did not have particular occasion to distinguish between s 66(1)(b) and s 66(1)(c).
[13] At paragraph [20] of the s 347 judgment I quoted from Adams on Criminal Law in para CA66.19, which deals with the mens rea of secondary participation under sub-section (1)(b)-(c). The paragraph opens with the sentence:
Apart from knowing the essential facts of the principal offence a secondary party must also intend to help or encourage the principal party.
I cited from paragraph CA66.19(2) which refers to authorities using the word
“purpose” when examining the mental intent for abetting under s 66(1)(c).
[14] I then went on in paragraph [21] to use the concept of purpose when examining both “aiding” (b), and “abetting” (c).
[15] The words underlined by the Crown in the extract from Pene, taken by themselves, would appear to be a traditional distinction between motive or purpose on the one hand from intentional conduct on the other. It is necessary, however, to read on to the next two sentences, as well as to understand the facts of the case to which the Court of Appeal was responding.
[16] In brief, in my view there is nothing in Pene which suggests that a jury properly directed could convict Ms S of being a party to Mr Shaw carrying and pointing the firearm after the crash because it could be concluded that her conduct in walking away carrying a child would in fact encourage her partner to use the firearm.
[17] In my view there is nothing in Pene which suggests that the terms “aiding” and “abetting” in sub-paragraphs (b) and (c) can be read down to mere knowledge by an accused person that his or her conduct would be likely to encourage the commission of a crime. I note the emphasis of the Court of Appeal in the sentence beginning: “We cannot accept …”. Paragraph [21] repeats the key aspect of her conduct, her walking away.
[18] To fully understand the passage relied upon by the Crown it is necessary to know the material facts of Pene. Pene was one of three men charged with arson. All three were in a car in the vicinity about the time that a bomb or Molotov cocktail was thrown through the window of a shop premises. At the trial all three accused
gave evidence, two of the accused putting all the blame on Pene. Pene said that the other two were really the responsible persons. He admitted he was in the car. He admitted finding in the car some Molotov cocktails and handing them to those in the front seat. He admitted he also got out of the car carrying the third Molotov cocktail.
[19] However, his evidence was that he was trying as best he could to disassociate himself from the others and he had only done what he had done in order not to “appear to be a fool”.
[20] In this regard the Judge in summing up told the jury:
Then you will need to consider, I suggest, whether his own evidence of the handling of the bottles by him involves him in the whole incident. Why did he take the bottle from the car at all? Do you think that it is sufficient that Hand told him to? Why should he do that? This is an incident upon which you will have to place your assessment. If, in your view, he voluntarily went with the others carrying a molotov cocktail in his hand so that they believed he was associating himself with them in this activity or so that they could be expected to derive some encouragement and some support from him in what they were doing, then his reasons for going with them become unimportant. The question is, did he go with them carrying a bottle in circumstances which was a measure of support or encouragement to the other two?
(Emphasis added by the Court of Appeal)
[21] The Court of Appeal found this direction to be an error of law in the following passage:
In the present case it was stressed by Mr McLinden in his address to the jury that they could not convict Pene on the basis of conduct encouraging Hand and Clark to commit the offence unless the evidence showed beyond reasonable doubt that Pene intended to encourage them by his conduct. In our view that proposition was correct in law; if the jury thought it reasonably possible that Pene intended no more than to avoid the contempt of the others then he should have been acquitted. We appreciate the point made to us by Mr Toogood, namely that if it be shown that there was an actual intention to encourage then the reasons which prompted the accused to intentionally encourage the commission of a crime would be irrelevant. We accept that if an accused person conducted himself in a way which he intended the principal offender to interpret as encouragement then that would be enough to sustain a conviction. We cannot however accept the proposition that mere knowledge by an accused person that his conduct would be likely to encourage the commission of a crime automatically means that he has intended to encourage the commission of that crime so as to be guilty as an abettor. With respect to the trial judge we are driven to the conclusion that the effect of the passage in the summing up which we have set out was indeed to take away from Pene the defence on which he placed
particular reliance. We would think that this was quite unintentional, but there is a real risk that the jury would have thought that Pene’s intentions were to be judged solely by reference to the effect of his actions.
[22] In my view it is quite clear that the words “aiding” and “abetting” necessarily involve a purposeful conduct. The law is settled that purpose can be used when applying the term “abet” in sub-paragraph (b) even though the word “purpose” is not used in that sub-paragraph, in contradistinction to sub-paragraph (b).
[23] The Crown has formulated this first question (paragraph 13 in [8]) in order to accommodate the limited character of the findings of fact appearing in paragraph [12] of the judgment as to what happened after the crash. There is no finding in that paragraph that the couple spoke to each other, or that during the long walk there was any positive conduct of encouragement by Ms S of what Mr Shaw was doing. The argument that the Crown seek to mount based on this formulated question is that she did nothing to stop him. My analysis in paragraph [19] confirmed that she did nothing to stop him using the rifle.
[24] In short, my judgment relied on the passage quoted in Adams from Pene
which is the last sentence in the paragraph cited by the Crown and set out above.
[25] The Crown also relies on this first question in respect of the events in the car during the chase.
[26] The Crown submits that there is an error of law in paragraph [26] of the judgment, as the narrative of facts in the Crown’s paragraph 15; see [8] above:
... [S]etting to one side inferences as to immediately prior occurring facts, ie Shaw while sitting beside S spent some time with the firearm in his hands preparing to use it against the Police and then doing just that by discharging and pointing it. There was ample time and a sufficient relationship nexus for that to induce encouragement and for her to have disengaged from the conduct she was knowingly assisting.
[27] Paragraph [26] of the s 347 judgment refers to the firearm being deployed for perhaps five or six seconds.
[28] Essentially, the Crown is running the same incorrect interpretation of Pene to this argument. On the facts they have an added difficulty that at this particular point in time Ms S was driving the car at at least 100 kilometres an hour and probably in excess of that. It was a period of five or six seconds.
[29] I am satisfied that the Crown has not identified a significant point of law on the s 66(1) analysis. I do not think the first question is a question of law which should be sent to the Court of Appeal.
[30] I turn now to the second question the Crown proposes, in respect of the s 66(2) analysis. See Crown submission 16 in paragraph [8] above. Counsel for the Crown submitted the error was in paragraph [28] of the s 347 judgment. I set out paragraphs [27] and [28] of the judgment:
[27] It will be recalled that Mr Gresson argued that there was evidence upon which the jury could conclude and I quote him:
That they decided to add to that using the firearm to frighten the police off.
“That”, as I understand it, was their purpose to escape whether it be perceived as a common purpose formed originally to escape from CYPS or adding that to escape from the police.
[28] In my view there is insufficient evidence upon which the jury, properly directed, could decide beyond a reasonable doubt that Ms S had agreed to the use of the firearm to frighten the police off or to the probable use to frighten the police off. There was another explanation given in the evidence in the statements made by the accused that he had taken the firearms to assist in living off the land, and so there is no doubt that the couple were intending to live off the land. They had taken camping equipment. They were intending as it were to get out of town, get into the backblocks of the South Island, and there is an available explanation as to why they were carrying firearms, distinct from using firearms against the police.
[31] The point being made in these paragraphs [27] and [28] is that Mr Gresson’s submission was not a conclusion that the jury could reach as proved beyond reasonable doubt. I took the view that it was an essential element of any liability under s 66(2) that the use of the firearm to frighten off the police as “known to be a probable consequence of the prosecution of the common purpose”. The point I was making in paragraph [28] was that there was another explanation for the use of the firearms, so that they could live off the land. There may be an error of law in
paragraph [28] in that I made a reference to the statements by the accused. But there was ample evidence that the couple had stolen all the goods, including the guns, to go bush. These findings of fact are set out in paragraphs [6], [7] and [8].
[32] The reasoning in paragraph [28] is that because there was an available explanation as to why they were carrying firearms there was in my view insufficient evidence upon which the jury properly directed could decide beyond a reasonable doubt that Ms S had either agreed to use the firearm to frighten the police off or to its probable use. In that latter respect maybe I should have said “or known it to be a probable use”. But I am satisfied that I was applying the statutory criteria in s
66(2).
[33] I do not think there is any point of law arising out of paragraph [28]. Therefore, I do not think that the second question is a question of law that should be sent to the Court of Appeal.
[34] Original question (d) was not pursued. See paragraph 17 in [8] above. But given I have rejected the two questions, I return to it. I am not sure what it refers to. I did refer in paragraph [8] of the s 347 judgment to the swapping of drivers so Ms S could activate the scanner. That explanation came from a statement by Mr Shaw. But it is of little significance to the reasons for the discharge.
[35] I do not think it is necessary to say much on the residual discretion reserved to the Judge hearing the application, even if there is a question of law arising out of the s 347 judgment. I note that in R v Gwaze [2009] NZCA 430 William Young P said:
[54] The recent enactment (in 2008) of s 381A remedied the jurisdictional gap identified in R v Grimes [1985] 2 NZLR 265 (CA) that the case stated procedure under s 380 did not apply in the case of a s 347 discharge. Section 381A provides for Crown appeals by way of case stated against both s 347 discharges and stays.
[55] Given that a stay or s 347 discharge aborts the trial and in this sense is a terminating ruling, it is likely that appeals under s 381A will be seen as not derogating unacceptably from the spirit of the double jeopardy rule.
[36] The application for a s 347 discharge was made by Mr Westgate after the
Crown had closed its case.
[37] For these reasons the application to this Court for leave to appeal is dismissed.
Solicitors:
Gresson Dorman & Co., Timaru, for Crown
J Westgate, Dunedin, for Accused
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