R v SM

[2018] NZHC 2741

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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 the Crown relying on this last basis for murder. He requires me to rule on the following issues:

(a)Can the Crown rely on s 168 as a matter of law applied to the evidence in the Crown case?

(b)If the Crown can, how does evidence of self-defence affect such reliance?

(c)Is there, on the Crown case, a plausible and credible narrative that the stabbing by SM was in self-defence such that the jury can be asked to consider that justification?

Can the Crown rely on s 168?

[7]Section 168 of the Crimes Act 1961 provides, relevantly:

168 Further definition of murder

(1)        Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue:

(a)if he or she means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2), or facilitating the flight or avoiding the detection of the offender upon the commission or attempted commission thereof, or for the purpose of resisting lawful apprehension in respect of any offence whatsoever, and death ensues from such injury:

…

(2)     The offences referred to in subsection (1) are those specified in the following provisions of this Act, namely:

…

(e) section 119 to 122 (escape or rescue from prison or lawful custody or detention): …

[8]                 It is evident that so long as a defendant comes within the requirements of s 168, a specific murderous intent is not necessary for a finding of murder.3

[9]                 Mr Mansfield’s submission is that, no matter how it is considered, the detention of DC by Ms Reihana was not lawful. Therefore, s 168 cannot be used by the Crown.

[10]              Mr Morgan argues that Ms Reihana had effected what is known as a “citizen’s arrest” and accordingly DC was lawfully apprehended by Ms Reihana or was in her lawful custody or detention. That means s 168 does apply.

[11]              I note there are two aspects of s 168 which could be in play here. For clarity, I will set them out in full.

[12]              First, there is the definition housed entirely within s 168(1)(a): “Culpable homicide is murder … whether the offender means or does not mean death to ensue, or knows or does not know death is likely to ensue … if he or she means to cause grievous bodily injury … for the purpose of resisting lawful apprehension in respect of any offence whatsoever, and death ensues from such injury”.

[13]              Then there is the definition which links to subsection (2): “Culpable homicide is murder … whether the offender means or does not mean death to ensue, or knows or does not know death is likely to ensue … if he or she means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2)”.4

[14]              As I have mentioned, in its opening address the Crown appeared to refer to the second of these definitions.5 During the course of the trial, reliance shifted to the first definition.

3      I respectfully adopt [10]-[14] of the judgment of Rodney Hansen J in R v Shadrock HC Auckland CRI-2008-092-13566, 15 April 2010. See also the discussion of the Court of Appeal in R v N CA269/98, 2 December 1998.

4      Listed at 168(2)(e) is ss 119 to 122. Section 121 provides the offence of assisting escape from lawful custody: “Everyone is liable to imprisonment for a term not exceeding 7 years who rescues any person from lawful custody, whether in prison or not; or assists any person in escaping or attempting to escape from lawful custody, whether in prison or not…”

5      See [5] of this judgment.

[15]              This is something of a moot point and I intend my comments to be equally applicable to both the definitions of murder under s 168 which I have set out above. That is because I do not think there is any principled difference between the two definitions when assessing the legality of the alleged arrest and its relevance to a charge of murder under s 168.  Whether the Crown seeks to prove that  SM killed  Mr Kingi “for the purpose of resisting lawful apprehension in respect of any offence whatsoever” or “for the purpose of facilitating the rescue of DC from lawful custody” is immaterial in this case.

[16]              I will therefore refer to both definitions collectively under the umbrella term of their statutory provision, s 168. What matters is whether s 168 can apply, under either definition, given the circumstances of the case.

Citizen’s arrest

[17]              It is quite clear that a citizen6 does not have the power to arrest another citizen unless called to do so by a constable. The Crimes Act provides:

315     Arrest without warrant

(1)No one shall be arrested without warrant except pursuant to the provisions of-

(a)this Act; or

(b)some other enactment expressly giving power to arrest without warrant.

(2)Any constable, and all persons whom he or she calls to his or her assistance, may arrest and take into custody without a warrant-

(a)any person whom he or she finds disturbing the public peace or committing any offence punishable by imprisonment:

(b)any person who he or she has good cause to suspect of having committed a breach of the peace or any offence punishable by imprisonment.

[18]              The result is that there is no common law power of arrest in New Zealand. Cooke P said in Police v Cox:7

6      I use “citizen” as shorthand for “a person who is not a police officer and who does not have any legally confirmed power to arrest or detain which is applicable”.

7      Police v Cox [1989] 2 NZLR 293 (CA) at 295.

We wish to make it clear that nothing said in either Minto or Waaka should be understood to indicate that there are common  law  powers  of  arrest  in  New Zealand. The effect of s 315 of the Crimes Act 1961 is that no one shall be arrested without warrant except pursuant to the provisions of a statute.

[19]              There is no statutory power given to one citizen to arrest another either. However, Parliament, in the Crimes Act, confers immunities on citizens who do arrest another citizen in the circumstances prescribed. Two of the provisions are:

35Arrest of persons found committing certain crimes

Every one is justified in arresting without warrant—

(a)any person whom he or she finds committing any offence against this Act for which the maximum punishment is not less than 3 years’ imprisonment:

(b)any person whom he or she finds by night committing any offence against this Act.

And:

36Arrest of person believed to be committing crime by night

Every one is protected from criminal responsibility for arresting without warrant any person whom he or she finds by night in circumstances affording reasonable and probable grounds for believing that that person is committing an offence against this Act.

[20]              I also set out an additional provision, s 37. It is not strictly relevant to the current case. However, it helps to shed light on ss 35 and 36 and I include it for that reason:

37Arrest after commission of certain crimes

Where any offence against this Act has been committed, every one who believes, on reasonable and probable grounds, that any person has committed that offence is protected from criminal responsibility for arresting that person without warrant, whether or not that person committed the offence.

[21]              There is a difference between being “justified” and being “protected from criminal responsibility”. Section 2 of the Act has the following definitions:

Justified, in relation to any person, means not guilty of an offence and not liable to any civil proceeding.

Protected from criminal responsibility means not liable to any proceedings except a civil proceeding.

[22]              On an initial reading, ss 35-37 are confusing provisions. They are clearly related to one another, yet appear to overlap. Moreover, they confer differing immunities and impose differing thresholds to be crossed to activate those immunities. This would be commonplace insofar as legal protections go, but for the lack of a clear hierarchy into which the provisions fit. Then there is the matter of the distinction drawn between arrests taking place during the daytime and during the night, which is perplexing.

[23]William Young P addressed the difficulties in R v Ahmed:8

[94]      … These sections overlap in terms of potential application and there are puzzling variations between them (for instance the “finds by night” requirement which appears in ss 35(b) and 36 but not in s 37, and the subjective “believes” requirement in s 37 as opposed to the objective test in  s 36). As well, and as will become apparent, I think that the order in which the sections appear is not entirely logical.

[95]      I do not pretend to be able to discern a complete rationale for the entire scheme. On the other hand, the sections seem to me to be broadly – although only broadly – consistent with the following rough hierarchy of justifications and excuses:

(a)        The strongest basis for a private arrest is where the arresting person finds the arrested person committing a relevant offence (s 35(a) and (b)). There is an actual offence, committed by the arrested person and there must be “finding” which is contemporaneous with the commission of the offence. In these closely defined circumstances, there is immunity from civil and criminal liability.

(b)        The next strongest basis is where an offence has actually been committed. In this situation, the arresting person is immune from criminal liability if he or she believes on reasonable and probable grounds that the arrested person committed the offence. There is no “finds” or “finds by night” requirement.

(c)        Where an offence has not necessarily been committed, an arrest is only subject to an immunity from criminal liability where the “finds by night” test is satisfied and the circumstances afford reasonable and probable grounds for the belief that the arrested person is committing an offence.

[24]              With the exception of requiring a “finding” that is contemporaneous with the commission of an offence (which I will come to later),9 I respectfully agree with

8      R v Ahmed [2009] NZCA 220, [2010] 1 NZLR 262.

9      See [39] of this judgment.

William Young P’s comments. I think they provide a rational explanation for the workings of ss 35-37.

Do the protections provided by ss 35-36 form the basis of lawful custody for the purposes of s 168?

[25]              Mr Mansfield’s argument is that since there is no power of arrest, Ms Reihana’s physical detention of DC was an unlawful assault. If the immunities conferred by s 35 or s 36 apply, all that does is protect her from, on the one hand, the criminal and civil consequences of her assault or, on the other, the criminal consequences of her assault.

[26]Mr Mansfield points to the following comments of the Court of Appeal in

R v N:10

Except under s 315(2)… the Crimes Act does not confer any express powers of arrest on persons other than constables, and it has not been suggested that there are any such arrest powers under any other enactment which are relevant to the present case… There is, however, a further set of provisions under Part III concerning matters of justification or excuse, some of which are directed to arrest situations…

Powers and immunities are separate concepts, not necessarily overlapping in practice in their reach…

…

The only reason for setting out s 35(b) and s 36 is that they demonstrate in the context of the same class of offending (crimes committed at night) the careful distinction the legislation draws between justification and protection against criminal responsibility only: under s 35 the arrester is “justified” where he or she finds a person committing an offence against the Act; under s 36, short of that, where there are reasonable and probable grounds for believing that that person is committing an offence, the immunity is limited to protection from criminal protection.

[27]And:11

… under the 1961 Act the legislature has provided a graduated scale of protection for the private citizen. Full protection (“justified”) is given where... Protection from criminal responsibility is given where… The distinction between powers and protections (or immunities or privileges) is of course generally recognised in the law.

…

10     R v N [1999] 1 NZLR 713 (CA) at 716-717; Mr Mansfield also referred to the Court of Appeal’s discussion of that case in R v Ahmed at [25]-[31].

11     At 720-721.

On this analysis there is no basis in the statutory scheme or legislative history for concluding that an arrest immunity provision under the 1961 Act confers a power of arrest. Statutory protective provisions serve a different purpose from empowering provisions…

…

It is common ground that there is no express power of citizen's arrest or detaining in this case and for the reasons given we are satisfied that the immunity provisions, focused and limited as they are, cannot be characterised as constituting a function, power or duty conferred by law on private citizens.

[28]              Mr Mansfield takes from these comments that there is no power for citizens to make lawful arrests in New Zealand. All ss 35 and 36 do is grant citizens immunity from prosecution for arbitrary arrests. Section 168 therefore cannot apply.

[29]              However, Rodney Hansen J considered this issue in R v Shadrock, a case with somewhat different facts to this one. That case involved a man charged with murder after running over a woman in a carpark. It was alleged he had stolen her handbag and the woman was pursuing him to retrieve it. The issue facing Rodney Hansen J was whether the Crown could rely on s 168(a) on the basis that the victim was attempting to carry out a citizen’s arrest under s 35, which the defendant was resisting. He said:

[20]      Nowhere in the discussion of the Court of Appeal in R v N is it suggested that, because a citizen acting under s 35 is not exercising a power of arrest, he or she is not acting lawfully. Indeed, the Court quoted, a passage from the report of the Law Commission on “Crown Liability and Judicial Immunity”, which highlighted that a person acting under a “no liability” provision such as s 35 is not committing a legal wrong. The Law Commission said:

There is a significant difference between the ‘no liability’ provisions and the ‘no proceedings’ provisions. The first formula means that the person is not committing a legal wrong: the person is not bound by the relevant law (generally of tort) and is not subject to the relevant substantive obligation. By contrast, the second set of provisions does not deny the liability of the person or the wrongfulness of the action; nor does it deny that the person is subject to an obligation. Rather, it states that no proceedings may be brought against that person for that (wrong) action or breach of obligation. That is to say, the first set of provisions is concerned with a lack of duty, the second only with an immunity from jurisdiction.

[21]      To interpret “lawful apprehension” in s 168 to exclude an arrest under s 35 would be to unjustifiably restrict the plain meaning of the expression. Apprehension clearly encompasses an arrest. And, on the authority of R v N itself, an arrest under s 35 is lawful as involving no legal wrong. The absence of a legal power is irrelevant.

(Citations omitted)

[30]I respectfully agree.

[31]              Parliament has not conferred a specific power, but clearly contemplates there will be circumstances where one citizen may arrest another. It has set out, by specifying immunities, the circumstances in which such an arrest will be lawful. This is most apparent with s 35. The definition of “justified” includes being “not guilty of an offence”. As has been said, that means an exoneration. Even with s 36, although civil liability is preserved, that does not mean an arrest where reasonable and probable grounds for believing a qualified offence has been committed is otherwise than a lawful arrest.

[32]              Similarly, the comments of the Court of Appeal in R v N must be viewed in context. That case was concerned with whether someone who was purporting to effect a citizen’s arrest was exercising a public power for the purposes of the New Zealand Bill of Rights Act 1990.12 The Court found that the “focussed and limited” immunity provisions could not be characterised as constituting such a power.13 However, that does not mean that a private citizen arresting somebody under the protection of one of the immunity provisions is not acting lawfully. Private citizens may act as they choose without actual legal authority, provided they do not break the law. A lack of explicit empowerment does not render their actions unlawful.

[33]              In a similar vein, the effect of the immunity provisions is to ensure those acting under their tightly controlled ambit are protected from legal repercussions. Parliament has chosen to vary the extent of this protection in accordance with the nature of the circumstances in which the arrest is made. However, the commonality is protection from legal consequences, particularly in the criminal sphere. The essence of the immunity provisions is to say that what might otherwise constitute an unlawful assault is not, in certain circumstances, unlawful. The net result is that the relevant conduct of the arrester, and the arrest itself, must be lawful. At least in the criminal sense.

[34]              In  this  case,  I  consider  the  Crown  could  rely  on  both  ss 35  and  36.  Mr Mansfield submitted there is no evidence from Ms Reihana that she was intending

12     Section 3(b).

13     At 721.

to effect a citizen’s arrest, nor any evidence as to what she believed DC had done. In my view, the jury could infer from Ms Reihana’s evidence that she considered DC had been caught in the act of attempting to convert or steal the car. However, the requirements of ss 35 and 36 are objective, not subjective.

[35]              The relevant limb of s 35 is that a person is justified in arresting without warrant any person whom she finds by night committing an offence against the Crimes Act 1961. This was by night. There is evidence that DC was found in the front seat of the vehicle. The ignition of the car had been interfered with in a manner which the ESR scientist said was consistent with an attempt to start the car without a key. Several of the cars broken into earlier in the night were found in a similar state. Attempting to convert a motor vehicle is an offence against the Crimes Act 1961.14

[36]              There is an issue as to whether under these circumstances DC was “found” committing such offence.   I have  considered the Court of Appeal’s  discussion in    R v Ahmed, including the dissenting judgment of William Young P.

[37]              The majority in Ahmed endorsed the definition of “finding” as someone “perceiv[ing] or becom[ing] aware that another was committing a qualifying offence in their presence”.15 William Young P preferred a more restricted reading, confining “finding” to situations where someone “comes across” or “lights upon” the activity.16

[38]                  In my view, the verb “to find” in this context does not require observation of the actual offence. The definition preferred by the majority in Ahmed is more natural. It could therefore be concluded that DC was found committing the offence of attempted conversion by being discovered in the car and with the damage to the ignition system.

[39]              As to s 36, it follows from the above discussion that the circumstances in which DC was found by Ms Reihana afforded reasonable and probable grounds DC was committing an offence covered by the Crimes Act 1961.

14     Sections 226 and 72.

15 At [50].

16 At [100].

[40]              Mr Mansfield argues that even so, the arrest was unlawful because the general prerequisites for an arrest being lawful were not complied with by Ms Reihana. He points to s 316(1) of the Act which provides:

316 Duty of persons arresting

(1) It is the duty of every one arresting any other person to inform the  person he or she is arresting, at the time of the arrest, of the act or omission for which the person is being arrested, unless it is impracticable to do so, or unless the reason for the arrest is obvious in the circumstances. The act or omission need not be stated in technical or precise language, and may be stated in any words sufficient to give that person notice of the true reason for his or her arrest.

[41]              In this case, the reason for Ms Reihana’s arrest of DC was obvious in the circumstances. DC had been caught in the  act  of offending in relation  to the car.  Ms Reihana had physically detained her, refused to release her, and had told Mr Kingi to call the Police. Therefore, she manifested “an intention to invoke the authority of the criminal law and set in train the processes of the criminal law”.17

[42]              Moreover, Ms Reihana’s conduct satisfied the requirements for an arrest set out by the Court of Appeal in Arahanga v R.18 These comments were made in the context of an escaping lawful custody charge (s 120). However, I consider them equally applicable to the establishment of lawful apprehension for the purposes of     s 168(a):

[53]      … the test for whether there has been an arrest, as the basis of an escaping lawful custody charge, is:

(a)        the arrester, by words or conduct, makes it clear to the person being arrested that he or she is no longer free to go where he or she pleases; and

(b)        the person being arrested knows that he or she is no longer free to leave.

[54]      Whether a person is arrested or not is a matter of fact. Where words are used to arrest a person, no particular form of words is required. However, any words used must clearly bring home to the person that he or she is under compulsion and preferably the word arrest should be used.

[55]      Where the arrest is effected by physical conduct only, the conduct must unequivocally convey to the person that he or she is no longer free to

17     R v N at 718.

18     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

leave. We would expect that words of arrest would accompany any physical manifestation of an intention to arrest in all but exceptional cases.

[43]              Mr Mansfield argues the Crown cannot prove that SM, in deciding to rescue DC, realised she was in the lawful custody or apprehension of Ms Reihana in that she knew she could no longer leave. Ms Reihana was not claiming to have exercised a power of citizen’s arrest and SM cannot be presumed to have understood that she was.

[44]              Again, I respectfully agree with the discussion of this issue by Rodney Hansen J in R v Shadrock.19 Once the lawfulness of an arrest is established, a defendant’s belief as to the lawfulness of an arrest is irrelevant. As I have mentioned, the immunities relating to the various forms of citizens arrest are both confused and confusing. Expecting laypeople to be able to assess the legality of an arrest by another layperson would be manifestly unreasonable. All that is required is that it is plain that a person has been taken into custody because of criminal offending and for the purpose of invoking the criminal law. In this case, there is uncontradicted evidence that in response to SM’s demand for the release of DC she was told by Mr Kingi that the Police would be called and that DC would not be released. That is sufficient.

[45]              Similarly, I consider Ms Reihana’s initial arrest of DC continued into lawful custody, taking into account the principles listed by the Court of Appeal in Taueki v Police:20

(a)DC’s liberty was subject to a physical constraint such that she could be said to have been confined by Ms Reihana;

(b)DC’s immediate freedom of movement was under Ms Reihana’s direct control; and

(c)DC remained under this direct control throughout the episode.

[46]              I therefore find that, on the evidence called by the Crown, it is entitled to ask the jury to find SM guilty of the murder of Mr Kingi in reliance on s 168.

19     At [23]-[31].

20     Taueki v Police [2017] NZCA 113, [2017] 3 NZLR 179 at [10].

How does s 168 apply where self-defence is claimed?

[47]              Mr Mansfield submits there is evidence SM stabbed Mr Kingi not pursuant to a desire to rescue DC but in defence of herself against a perceived threat of violence by Mr Kingi. Mr Mansfield submits if the jury were to find that the stabbing was for the purpose of self-defence, then that breaks the applicability of s 168.

[48]              I agree with Mr Mansfield that s 168 lowers the threshold of murder only where the stated purposes are present. If they are not present, then the section cannot apply. It follows that if, at the time she stabbed Mr Kingi, SM no longer had the purpose (broadly) of rescuing DC but instead intended only to defend herself, then the death of Mr Kingi must be considered against the murderous intents required by s 167 of the Act.

[49]              However, a person can act with more than one intention. If the stabbing was done in reaction to a desire to defend, but within the purpose of effecting the rescue of DC, then s 168 still applies. On the Crown’s case, as I will come to, this is not an issue.

On the Crown case, can self-defence be put to the jury?

[50]              Mr Mansfield submits the evidence in the Crown case raises a credible or plausible narrative from which the jury might find a reasonable possibility of self- defence. He points out that I must look at this submission on the view of the evidence most favourable to SM.21

[51]              Mr Mansfield’s submissions on the evidence really boil down to the inferences which could be drawn from the confrontation between Mr Kingi and SM. Mr Kingi, an adult male, was intoxicated and angry. There was yelling and swearing back and forth between Mr Kingi and SM. Mr Kingi advanced six or seven steps towards SM and said, “Whatever, look at you, no, shut your fucken mouth, we’re not letting her go and we’re ringing the Police.” Ms Reihana’s evidence is that she thought Mr Kingi

21     R v Kerr [1976] 1 NZLR 335 (CA) at 340.

was going to punch or strike SM. There was only a single stab, which did not appear to be delivered with force, and SM immediately turned and ran away.

[52]              The evidence to the contrary is that SM, having left with ME, returned with ME for the purpose of rescuing DC. SM had a knife which she took into her hand and demanded the release of DC. During the exchange with Mr Kingi, the evidence is she said words to the effect, “Let her go or we’ll fucken do you.”

[53]There is no evidence Mr Kingi actually struck a blow or attempted to do so.

[54]              I do not find, considering these circumstances most favourably for SM, there is a credible or plausible narrative going to self-defence.22 The evidence is that SM was acting aggressively, both physically and verbally. She had armed herself with a knife. Even if the jury were to find there was a reasonable possibility the stab wound was inflicted because Mr Kingi advanced towards SM, it would not be open for the jury to find that was a reasonable use of force in the circumstances as disclosed by the evidence of the Crown case. It follows that, on the Crown case, self-defence is not available for the jury to consider.23

Brewer J

22     R v Sila [2009] NZCA 233 at [28] citing R v Wang [1990] 2 NZLR 529, (1989) 4 CRNZ 674 (CA).

23     Following my ruling, SM elected to give evidence and gave a narrative going to self-defence which fell to be considered by the jury as to whether it justified the stabbing.