R v Solomon
[2017] NZHC 2995
•5 December 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-092-012807
[2017] NZHC 2995
THE QUEEN v
DENIS ROBERT HENRY SOLOMON VINCENT MANA GEORGE
Hearing: 27 September 2017 Appearances:
N Walker and Y Yelavich for the Crown S Tait and J Hudson for Mr Solomon
A Simperingham and M Terekia for Mr George
Ruling:
28 September 2017
Reasons:
5 December 2017
REASONS FOR RULING OF HINTON J
[Application for discharge under s 147 Criminal Procedure Act 2011]
Counsel/Solicitors:
Kayes Fletcher Walker, Manukau Shane Tait, Barrister, Manukau Woodward Chrisp, Gisborne
R v SOLOMON AND GEORGE [2017] NZHC 2995 [28 September 2017]
[1] At the conclusion of the Crown case on 27 September 2017, the defendants applied for an order that Mr Solomon and Mr George be discharged under s 147 of the Criminal Procedure Act 2011. They advanced the application on the basis that no properly directed jury could reasonably convict the defendants of murder or manslaughter on the evidence adduced by the Crown.
[2] The Court of Appeal decision in Parris v Attorney-General makes it clear that trial Judges intervene in the factual arena 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.1 Questions of credibility and weight must in “all but the most unusual or extreme circumstances” be decided by the jury.2
[3] After hearing submissions from counsel, I dismissed the application on 28 September 2017. I now give my reasons for doing so.
[4] I proceed on the basis of whether a jury could reasonably convict the defendants of murder, which encompasses the included charge of manslaughter.
The Crown case
[5] The Crown advances its case under s 167(b) and s 66(1) of the Crimes Act 1961.
[6] The Crown says that this was a case of a joint assault by Mr Solomon and Mr George which caused the death of Mr Ratima, where it is not clear which of the defendants was the principal and which was the party. Relying on principles set out in a series of cases,3 the Crown submits that in these circumstances, in order for party liability for the charge of murder to be established, it must prove beyond reasonable doubt the following:
1 Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [13].
2 At [14]. See also R v Flyger [2001] 2 NZLR 721 (CA) at [15].
3 R v Witika (1991) 7 CRNZ 621 (CA); R v Renata [1992] 2 NZLR 346 (CA); Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493; Edmonds v R [2011] NZSC 159, [2012] 2 NZLR 445.
(a)Either Mr Solomon or Mr George or both intentionally assaulted the deceased (allegedly a concerted attack to the head and neck) causing bodily injury and later his death.
(b)Either Mr Solomon or Mr George intentionally assisted the other in the assault, in this case by participating in the assault.
(c)Mr Solomon either intended to cause bodily injury, knew the injury was likely to cause death and took a conscious risk that death would ensue, or knew those factors applied to Mr George.
(d)Mr George either intended to cause bodily injury, knew the injury was likely to cause death and took a conscious risk that death would ensue, or knew those factors applied to Mr Solomon.
Decision
[7] I consider the above summary of the relevant law is correct. If it cannot be proved which of the defendants’ acts immediately brought about or contributed to Mr Ratima’s killing, each defendant can still be convicted of murder if it is proved the act was committed by one or other of them; that the other participated and each had the necessary murderous intent, or knew the other did.
[8] It follows that Mr Tait’s submission, on behalf of Mr Solomon, that to obtain a conviction for murder the Crown must prove beyond reasonable doubt that Mr Solomon killed Mr Ratima and that at that time he had an intention to kill or to cause bodily injury known by him to be likely to cause death, being reckless as to whether death ensued or not, is not correct. It is also incorrect, from Mr Solomon’s perspective, that the Crown has to exclude the possibility that the act that caused death was committed by Mr George.
[9] The Crown case against both defendants rests very substantially on the evidence of TH Grace.
[10] The Crown’s submission is that TH Grace was a reliable and honest witness and to the extent that his evidence fluctuated, his answers that were most favourable to the Crown case should be preferred, particularly given that he said he is a friend of the defendants, and in the Crown’s submission gave evidence as favourable to the defendants as he could.
[11] TH Grace’s evidence on events prior to the alleged fatal assault is that he was woken by Mr George at the Tribesmen’s pad and told that someone wanted to fight. He consequently had a “fight” with Clayton Ratima and the only people who he saw around were the two defendants and “another guy”. The “fight” with Mr Ratima was “messy”, and TH Grace was not sure if he landed any punches on him. TH Grace said he did not want to be involved in the fight with Mr Ratima, but that no one listened. He said that people “probably threw out a few sayings” by swearing at him. He said Mr Solomon and Mr George told him to “stop being a fag”. TH Grace said he “didn’t come here for this shit” and started to walk away.
[12] The Crown submits that it can be reasonably inferred from that evidence that the only two people who were “putting out a few sayings” and swearing at TH Grace and Clayton Ratima were the two defendants. Ms Walker says there is no evidence that the other male was swearing4 or telling TH Grace or the deceased to “stop being a fag”.
[13]TH Grace’s evidence of the fatal assault includes as follows:
A.They went in. They just went in. They went in past me. Whatever happened after that, I wasn’t yeah.
Q. What did you see them do after they walked past you?
A.I didn't see much. I just saw them going in like they were about to punch him, sort of like a launch.
Q. What do you mean by, “Sort of like a launch”?
A.I don't know, just, fast action not a … Just, like someone, like leaping. Leaping at someone.
4 I note that at one point in his examination-in-chief, TH Grace said that “probably the whole lot of them” were arguing and yelling when he walked away, and that he did not recognise the voices, and under re-examination, he said that all of the men were yelling after he walked back to the car.
Q. Leaping at who or what? A.
Leaping at Clay.
Q.
Which one of them -
A.
I don't know.
Q.
- was doing that?
A.
I don't know which one.
Q.
What else can you tell us about this launching action? Were they on the ground or off the ground?
A.
It was just walking past and like just rushed past me from standing up, yeah.
Q.
So they were standing up as they rushed past you?
A.
Yeah. Yeah.
Q.
Who’s “they”?
A.
Denz or Mana or dunno, yeah, I dunno where the other guy was.
Q.
Could you see the other guy at that stage or not?
A.
Can't remember.
Q.
When they rushed past you what did you see them do next?
A.
That's it, just a launching action.
Q.
Did you see what happened at the end of the launching action?
A.
No.
Q.
What if anything did you see them do to Clay?
A.
That's it.
Q.
What’s it?
A.
That's it, just a launch into Clay. My back was, I was – like I said, “I don't want to be here” so I tried to get out of there as quick as possible.
Q.
By launch into Clay, I just need you to help us explain what that is?
A.
It’s like someone standing then jumping. Standing and jumping. I dunno what, it’s like a leap and then [inaudible] with a punch.
Q.
Where did the punch land?
A.
I didn't see it land.
Q. Who threw it?
A. I don't know.
Q. Who did you see, you saw a punch, whose hand did you see?
A. I dunno, it was either, the only people I saw was Denz and Mana.
Q. Were they the only two you saw launching at Clay or not?
A. Yeah. I dunno what the other guy.
Q.Could you see him at the time you saw Denz and Mana launching at Clay?
A.I dunno. Nah. Oh I dunno. That's the only people that mattered, that I knew was people I know.
Q. This punch that you saw, you're not sure which of them threw it?
A. Yes.
[14] Under cross-examination, when asked whether he saw just one person “launch” at Clay, TH Grace said: “I don't know man. It was either of them”. The Crown submit that “either of them” is a reference back to his earlier evidence which it says was that he saw the defendants go in and it was one of them that did the launching. He then said: “I just saw a punch, a launch and punch. I didn't see the connection or anything”. When asked again if he only saw one punch, TH Grace said: “I don't know”. But when it was put to him that there was never a suggestion of two people launching – he replied, “I don't know who it was. One person went in”. When asked “Only one?”, he said, “I don't know”.
[15] In re-examination, in relation to whether the word “launching” described what he saw the defendants do, he said, “Yeah” and he agreed that other words, “rush” and “leap” also described it.
[16] TH Grace was asked by the Crown what he thought was going to happen when he saw the defendants launch at Clay and he said, “Something was gonna happen”. He was then asked, “Based on what you'd seen and heard in the preceding minutes, what did you think that was going to be?” His answer was that he thought Clay was going to get a hiding. When asked why – he said, “I dunno. That’s something for them”.
[17] The Crown submits that as TH Grace walked away from the scene, the two defendants gave Mr Ratima a hiding. TH Grace said he could hear “arguing, yelling, scuffling”. The words said were things such as, “Fuck this, fuck that”. He could also hear punches being landed. His evidence was that it was somewhere between a couple of seconds to a minute before the two defendants returned to the car with the other unidentified male.
[18] The Crown submits that the jury can be sure on the basis of TH Grace’s evidence that the defendants were both knowingly involved in the assault on the deceased. Its submits there is no evidence before the jury that the other male was involved in the assault. It says TH Grace said that he only saw the defendants go in. The Crown says that the evidence that the defendants were annoyed at the ineffectiveness of TH Grace’s fight with the deceased is important evidence of their own intention to give Clay “a hiding”, in TH Grace’s words. His evidence that they both rushed past him and that one of them leapt at Mr Ratima and punched him, is also submitted to be important evidence from which the jury can be sure that the violent assault that followed was the intentional act of both men.
[19] The Crown says that the medical evidence supports its case that this was a significant assault, aimed at Mr Ratima’s head and neck, which was over in a matter of seconds, or at most a minute or so. The forensic pathologist, Dr Vertes, gave evidence that the direct cause of death was blunt force injuries to Mr Ratima’s head and neck. These injuries were consistent with fists, kicking, or stomping, having been used against Mr Ratima. There was nothing to suggest that a weapon had been used. Dr Vertes estimated that eight discrete blows or impacts would have caused the face and neck injuries. She estimated six impacts to the torso and approximately eight impacts to the extremities. Her evidence was that the injuries to Mr Ratima all seemed to be of the same vintage and were consistent with them having been caused on 21 February 2016. In terms of the degree of force used, her opinion was that a significant degree of force was used to cause the subdural hematoma and a lot of force would have been needed to cause the fractures to the vertebrae. Dr Vertes considered that the head injuries were not consistent with having been caused by a fall, as opposed to blunt force trauma. She said, inter alia, that the injuries to the head were inconsistent with a fall, given that the body parts that would be expected to hit the ground first were
not injured. She said also that given his age, it would have taken more than a fall for Mr Ratima to end up with a subdural hematoma.
[20] The Crown submits that the jury could properly infer from the evidence of TH Grace and the medical evidence (of a concerted attack to the deceased’s head and neck, the most vulnerable areas of the body) that it was the defendants who caused these injuries; that they intended to cause bodily injury when they assaulted the deceased; that they knew such a concerted attack by them was likely to cause death; and that they proceeded regardless.
[21] The Crown points to further evidence, of lesser importance, in support of its case against the defendants.
[22] With regard to Mr Solomon, there is evidence from Ms Puru who knows Mr Solomon and who saw him come into Femme Fatale in the very early hours of 21 February 2016 along with three other men, at least one of whom was known to be a Tribesmen gang member. She said Mr Solomon acted unusually and did not come up to the bar straight away for drinks. She said that Mr Solomon looked upset and as if he had been crying. He was rambling something about people writing to him when he was inside jail as his van had been used for something. She noticed that he had a graze on his right knuckles which she described as raw and red. The Crown submits that Ms Puru was unshaken under cross-examination as to what she had seen and heard.
[23] With regard to Mr George, Mr Kamoto said that a few months before the assault on Mr Ratima, Mr Kamoto saw Mr George doing “rough” fighting with the deceased at the Tribesmen pad. He said it was a “harden-up” thing and that it was usual. He saw Mr George punch Mr Ratima in the shoulder, but the punch was aimed at his head. It was blocked by Mr Ratima, who put his arms up to protect his head, but the force of the punch caused him to stumble and fall. He also described another such incident, in front of one of Mr Ratima’s girlfriends.
[24]There is other supporting evidence to which the Crown refers.
[25] As I have said, the Crown case rests heavily on the evidence of TH Grace, which the Crown says is credible and reliable in material parts.
[26] The defence say the evidence of TH Grace is heavily discredited. They point out that Mr Grace made three statements to the Police and he acknowledged that false information had been conveyed in two of those statements. Mr Grace himself engaged in a one-on-one fight with the deceased. He was also extremely drunk, to the point of falling over. He did not remember the trip to, or arriving at, the Tribesmen pad. He said he did not see much of what he described. It was the middle of the night and the lighting was not good.
[27] Nonetheless, this is not one of those cases where the evidence was discredited such that it would be unjust for the trial to continue. This is very much a case where questions of the credibility, reliability and weight of TH Grace’s evidence should be determined by the jury.
[28] I also do not accept Mr Tait’s proposition that the Crown could not exclude as a reasonable possibility that the violence attested to by Mr Grace was committed by the “other man”.
[29] Given the evidence, particularly of TH Grace, depending on the jury’s view of that evidence, it is open to the jury to conclude that all of the elements set out at [6] above have been proven. For those reasons, I am satisfied that a properly directed jury could reasonably convict Mr Solomon and Mr George under s 167(b) and s 66(1) of the Crimes Act 1961.
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Hinton J
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