R v SM - [2018] NZHC 2741

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-219-209

[2018] NZHC 2741

THE QUEEN

v

SM

Hearing: 4 October 2018

Counsel:

P J Morgan QC and S F Gilbert for Crown R M Mansfield and S R Lack for Defendant

Judgment:

5 October 2018

Reasons:

8 November 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 8 November 2018 at 2:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Almao Douch (Hamilton) for Crown

R v SM [2018] NZHC 2741 [5 October 2018]

Introduction

[1] SM has been found guilty of the manslaughter of Mr Kingi, having been charged with his murder. At the close of the Crown case, Mr Mansfield applied for rulings on a number of issues going to the charge of murder. I gave a results decision. I now give my reasons.

Background

[2] The Crown’s case was that SM, her co-defendant ME, and a third person, DC, were roaming the streets of Hamilton by night breaking into cars, attempting without success to “hotwire” them, and stealing from them. The last car they broke into was parked on the street and it belonged to Mr Kingi and Ms Reihana. SM, ME and DC were caught in the act by Mr Kingi and Ms Reihana as they were walking home from a social occasion. SM (then 15 years old) and ME (then 13 years old) ran off. DC (then 12 years old) was still in the front of the car and as she got out she was detained physically by Ms Reihana who held her against the car. DC tried to get away and was vocal in her protests at being held by Ms Reihana.

[3] SM and ME returned to the vicinity of the car. From what Ms Reihana reports, the jury could infer SM’s purpose was to effect the release of DC. She demanded the release and was told by Mr Kingi that the Police were going to be called. Ms Reihana says she had called to Mr Kingi to call the Police.

[4] SM was armed with a knife. This had been stolen from one of the cars earlier broken into. Mr Kingi advanced a few steps towards her and SM stabbed him through the heart before running off. Mr Kingi died very shortly after being stabbed.

[5] In opening the case for the Crown, Mr Morgan QC told the jury (I paraphrase) that SM is guilty of murder either through forming a murderous intent1 or because she meant to cause Mr Kingi grievous bodily injury for the purpose of facilitating the rescue or escape of DC from Ms Reihana.2

1 Crimes Act 1961, s 167(1)(a) and (b).
2 Section 168.

[6] At the close of the Crown case Mr Mansfield, for SM, raised a number of objections to…

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 SM

Details

AGLC: R v SM [2018] NZHC 2741
Case: [2018] NZHC 2741
Decision Date: 5 October 2018

CaseChat Overview and Summary

In this case, the defendant, SM, was found guilty of manslaughter in the death of Mr. Kingi. SM, along with two other individuals, had been breaking into cars and attempting to steal from them. They were caught in the act by Mr. Kingi and his partner, Ms. Reihana. SM and the other juvenile fled the scene, but SM returned with the intent to free the third individual, who was still in one of the cars. SM stabbed Mr. Kingi, resulting in his death. The primary legal issues were whether the Crown could rely on Section 168 of the Crimes Act 1961 for the murder charge, how self-defence evidence would affect this reliance, and whether there was a credible narrative for the jury to consider self-defence.

The court ruled that the Crown could rely on Section 168, which defines murder when grievous bodily injury is meant to facilitate the rescue or escape of someone in lawful custody. The court found that Ms. Reihana's detention of the third individual was a lawful citizen's arrest, despite the lack of a specific power of arrest for citizens. The immunities provided under Sections 35 and 36 of the Crimes Act 1961 were sufficient to establish lawful custody for the purposes of Section 168. The court also held that self-defence evidence would only break the applicability of Section 168 if it was the sole intention of the defendant at the time of the stabbing. However, the court found that there was no credible or plausible narrative of self-defence based on the evidence presented in the Crown's case. SM's aggressive actions, including the use of a knife and threatening words, did not support a finding of self-defence. The jury was not permitted to consider self-defence as a justification for the stabbing.

The final orders of the court are not explicitly stated in the text, but it can be inferred that the ruling allowed the Crown to proceed with the murder charge under Section 168, and SM's guilty plea to manslaughter was accepted by the court.

Orders