R v T HC Auckland Cri-2007-404-162

[2008] NZHC 1099

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-000162

THE QUEEN

v

T
 AND

A

Hearing:         8-11 July 2008

Appearances: R S Reed for the Crown

S Ellis for the Accused T 
M A Edgar for the Accused A 

Judgment:      11 July 2008

(ORAL) JUDGMENT OF DUFFY J [Re s 347 Application]

Counsel:     S Ellis P O Box 163012 Lynfield Auckland 1001 (Facsimile 09 627 6296) for the Accused T 

M  A  Edgar  P  O  Box  6462  Wellesley  Street  Auckland  1141  (Facsimile

09 357 6356) for the Accused A 

Solicitors:   Meredith  Connell  P  O  Box  2213  Downtown  Auckland  1140  (Facsimile

09 336 7629) for the Crown

R V T AND ALOVILI HC AK CRI-2007-404-000162  11 July 2008

[1]      Mr T   and Mr A   are on trial on counts of:

i)        Attempted murder;

ii)       Wounding with intent to cause grievous bodily harm; iii)       Injuring with intent to cause grievous bodily harm; and iv)      Aggravated burglary.

[2]      The  trial  has  reached  the  stage  where  the  Crown  has  closed  its  case. Mr T   has applied for a discharge under s 347 of the Crimes Act 1961 in respect of count 1, attempted murder.  He submits that the Crown case discloses no evidence to prove he had the specific intent to commit the crime of attempted murder requires.

[3]      The principles on which the discretion under s 347 should be exercised are set out by the Court of Appeal in R v Flyger [2001] 2 NZLR 721 at [13] to [15]:

[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, the operation of which Wilson J may have had in mind when issuing his Minute. Subsequent authority does not support a predictive test.  (emphasis added)

[4]      R v Flyger was explained in the subsequent Court of Appeal decision in Parris v Attorney General [2004] 1 NZLR 519. Parris makes it clear 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 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]      … 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 s347  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. …

[5]      At the same time an accused person’s right to seek a discharge under s 347 is an important one.  This was recognised by Baragwanath J in R v Lua HC AK CRI

2006-92-436 24 April 2007 at [3]-[4]:

[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.

[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.

[6]       It  was  stated  in  R  v  Bromby  HC  DUN  T05/5334  10  August  2006  by

John Hansen J that when deciding a s 347 application a Court should:

… 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.

[7]      The Crown’s evidence is that Mr T   and Mr A   went to a house in King Street, South Auckland, occupied by Jeffery Humm.  His brother, Michael, was visiting at that time.   Entry into the house was obtained by threats using an axe, which was in the possession of Mr A   when he and Mr T   arrived at the house, and overbearing conduct on the part of both Mr T   and Mr A  .  In the house were cannabis plants and that is what attracted their interest in entering the house.  While in the house, a fracas broke out which resulted in Jeffrey Humm being struck on the head several times with the axe brought by Mr A  .  In the course of the fracas, Mr A   called out “I am going to kill you”.  Mr T  , who was in another room at the time, then came and joined in the fracas, assaulting Mr Humm. Later both accused turned their attention on Michael Humm and they assaulted him.

[8]      The evidence the Crown has led does not implicate Mr T   as a principal on count 1.  He can only be convicted on count 1 if he is brought in as a party.  The Crown relies on both limbs of s 66 of the Crimes Act to prove Mr T  ’s guilt on count 1.

[9]      Under s 66(1), the Crown contends that when Mr T   and Mr A   entered Mr Humm’s home, Mr T   knew Mr A   was in possession of an axe.  Mr T   went into either a bedroom or a bathroom while Mr A   stayed in the lounge with Mr Jeffery and Michael Humm.   Mr T   was in the other room when the fracas broke out between Jeffery Humm and Mr A  .   In the course of that fight, Mr A   called out “I am going to kill you” and some other words in a foreign language.  Mr T   came into the room where the fight was

occurring and joined in.  The Crown says he joined in for the purpose, first of aiding and abetting Mr A   to carry out his expressed intention to kill Jeffery Humm; therefore, he is liable as a party under s 66(1).

[10]     The Crown next says that Mr T   and Mr A   went to the house with the common  intention  of  carrying  out  as  a  joint  enterprise  the  unlawful  act  of aggravated burglary, that in this circumstance, provided that the Crown can prove that Mr A  , as the principal offender for attempted murder, had the necessary specific intent to commit that crime, Mr T   can be brought in as a party under s 66(2) on the basis that murder or attempted murder was known to be a probable consequence of carrying out the joint enterprise.

[11]     The  Crown  accepts  that  Mr  A    had  not  formed  an  intent  to  kill Jeffery Humm until the time he yelled “I am going to kill you”, and before that there was no evidence whatsoever that he had an intent to kill Jeffery Humm.  The Crown says  at the time when Mr A   used those words,  the common  purpose was continuing and each accused was acting in their assigned roles.  The Crown says that Mr T   in these circumstances would have foreseen that during the course of carrying out the common purpose to commit aggravated robbery, Mr A   might form an intent to kill one of the occupants in the house.   The Crown says that Mr T   went into the house with Mr A   knowing that Mr A   had an axe, and the axe was taken with the intent that it would be available to be used during the course of the aggravated burglary if necessary.  An axe can be a deadly weapon.  It was agreed as part of the joint enterprise that Mr A  ’s role was to prevent  resistance  to  the  burglary,  using  the  axe  if  necessary;  that  it  was contemplated as part of the joint enterprise that if there was resistance by one of the occupants, Mr A   might use the axe.   The Crown also said that it was contemplated he might use the axe on the head of one of the occupants.

[12]     The  question  I  need  to  decide  is  whether  or  not  all  of  this  provides  a sufficient factual foundation from which a properly directed reasonable jury could infer that at the time Mr T   became a party to this joint enterprise, he could have foreseen that Mr A   might use the axe with an intent to kill one of the occupants of the house.

[13]     Mr Ellis for Mr T   has very helpfully and responsibly withdrawn the s 347 application in respect of s 66(1) and he accepts that the case can go to the jury on the basis that Mr T   is a party under s 66(1) of the Crimes Act.

[14]     However, he says s 66(2) cannot be used to implicate Mr T   as a party to the crime of attempted murder because that crime requires a specific intent and there is no evidence from which a jury could reasonably infer Mr T   had the necessary intent to commit that crime.   Mr Ellis says that if Mr T   is to be treated as guilty of that crime on the basis he had knowledge it was a probable consequence of the unlawful purpose, that would in essence be to pay no regard to the specific intent the crime of attempted murder requires.

Discussion

[15]     Section 66(2) provides:

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.

[16]     I think that the best approach is to consider first the elements of the offence to which the Crown claims Mr T   was a party, that is what must be proved in respect of the principal party.

[17]     The two ingredients of attempted murder are:

a)       an intention to kill: R v McDonnell (1993) 10 CRNZ 454; and

b)       an action for the purpose of  achieving that intention: s 72 of the

Crimes Act.

[18]     To prove that Mr T   is a party to attempted murder under s 66(2), the

Crown must show:

a)       That  Mr  T    and  Mr  A    formed  a  common  intention  to prosecute an unlawful purpose, namely to carry out an aggravated burglary.

b)The  commission  of  the  offence  of  attempted  murder:  namely, Mr A  ’s intent to kill Mr Jeffrey Humm, combined with an action for the purpose of achieving that intention, here hitting Mr Humm with the axe was known by Mr T   to be a probable consequence of the prosecution of the common unlawful purpose.

Was there a common intention?

[19]     There does not seem to be any question that there is evidence from which the jury could infer that Mr T   and Mr A   formed a common intention to commit an aggravated burglary.

Was   the   commission   of   the   offence   of   attempted   murder   a   probable consequence of the prosecution of the common purpose?

[20]     Adams on Criminal Law describes the test for party liability under s 66(2) for attempted murder at CA66.26:

Where attempted murder is charged, it must be proved that the principal party meant to cause death in terms of s 167(a): R v Murphy [1969] NZLR

959 (CA); R v McDonnell (1993) 10 CRNZ 454 (CA); R v Martin 14/2/05, CA199/04; CA173.04.  Consequently, liability under s 66(2) for attempted

murder requires proof that a secondary party knew there was a real risk that the principal party intended to kill: R v Kopelani 23/11/05, CA79/05; R v

Leuluaialii  22/11/06,  CA122/06;  R  v  Chadwick  9/2/00,  Goddard  J,  HC Napier T13/99.

What is a probable consequence?

[21]     A probable consequence is one that could well happen: see R v Gush [1980] 2

NZLR 92 at 94.  It does not have to be more probable than not: see R v Gush at 95. The test has also been described as “substantial or real”: see R v Tomkins [1985] 2

NZLR 253.

[22]     It seems that the commission of the offence must be a probable consequence at  the time that  the common  purpose  is  formed.    This  was  the  view  taken  by Goddard J in R v Chadwick HC NAP T13/99 9 February 2000 at [7].   It is also supported by the following analysis in Adams on Criminal Law at CA66.25:

The test of “known probable consequences” in s 66(2) is essentially the same as the common law principle governing secondary liability in joint enterprise cases … it is now settled at common law that it is sufficient for a secondary party to have foreseen that the principal party might commit the offence in the course of the joint enterprise, whether or not the secondary party authorised or agreed to the acts constituting that offence: R v Powell; R v English [1999] AC 1; [1997] 4 All ER 545 (HL), applying Chan Wing-siu (above); R v Uddin [1999] QB 431; [1998] 2 All ER 744 (CA); R v Greatrex [1999] 1 Cr App R 126 (CA); Hui Chi-Ming v R [1991] 1 AC 34; 3 All ER

897; (1992) 94 Cr App 236 (PC).

[23]     Similarly in R v Hamilton [1985] 2 NZLR 245 at 250:

Section 66(2) is the New Zealand statutory provision dealing with the class of case in which a conspirator is guilty as a secondary party because he foresees that the principal party in carrying out their unlawful plan may commit a crime of the type in question.  Liability turns on the contemplated albeit  unwanted,  consequence  of  the  criminal  enterprise:  see  R  v  Gush [1980] 2 NZLR 92 and Chan Wing-siu v R [1984] 3 All ER 877.

[24]     The  wording of  s  66(2) and  the  elaboration  of  the  section  in  the  above authority  has  the  effect  that  the  commission  of  the  offence  must  have  been foreseeable at the time the common purpose was formed as something that could well happen in the prosecution of the common purpose.

[25]     It is inherent in the concept of foreseeing the probable consequences of the unlawful  joint  enterprise  that  those  consequences  are  known  before  they occur. Once they have started to occur it is too late to view them as being foreseen; any culpability on a party is then best dealt with under the test encapsulated in s 66(1).  I consider the analysis in Chan Wing-siu v The Queen 1 AC [1985] PC (albeit on common law principles) demonstrates this point:

The main proposition submitted for the appellants remained, however, that such an accused does at least have to be proved to have foreseen that, if such a contingency eventuated, it was more probable than not that one of his companions would use a weapon with intent to kill or cause grievous bodily harm.

In considering that argument it should first be recalled that a person acting in concert with the primary offender may become a party to the crime, whether or not present at the time of its commission, by activities variously described as aiding, abetting, counselling, inciting or procuring it. In the typical case in that class, the same or the same type of offence is actually intended by all the parties acting in concert. In view of the terms of the directions to the jury here, the Crown does not seek to support the present convictions on that ground. The case must depend rather  on the  wider  principle  whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend.

That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible   incident   of   the   common   unlawful   enterprise.   The   criminal culpability lies in participating in the venture with that foresight.  (emphasis added)

[26]     In the case of attempted murder, a further question is whether the principal must have the intent to kill at the time the common purpose is entered into and the party must, at that time, foreseen that the principal has such an intent.   At times, Goddard J seems to take this approach in Chadwick.  For example, she says at [8]:

The narrow scope of s 173, with its requisite specific murderous intent, requires proof that the principal offender harboured a specific s 167(a) intent at  the  time  he  and  one  or  more  others  formed  a  common  intention  to prosecute an unlawful purpose and, axiomatically that those others either knew of the principal’s murderous intent or knew there was a real risk that he harboured such specific intent. (emphasis in original)

[27]     I note that elsewhere in her judgment (at [10]) Goddard J implies that it will be sufficient if it is a probable consequence that the murderous intent will arise in the prosecution of the common purpose:

To succeed against Mr Chadwick on count 1, the Crown must prove that, at the  point  when Mr Milligan  alighted from the car,  Mr  Chadwick  knew Mr Milligan could well kill the victim with murderous intent when carrying out the common purpose of aggravated robbery.

[28]     Whereas the party’s mental element must be present at the time the common purpose is formed, in the above passage the Judge appears to think it unnecessary that the principal’s intent has then been formed, just that it is foreseeable that it might be formed in the prosecution of the common purpose.

[29]     This also seems to be the approach taken by Asher J in R v D HC ROT CRI 2007-270-000125 13 March 2008 when he stated at [23] that it was necessary for the Crown to show that the principal’s intention to kill combined with an action for  the  purpose  of  achieving  that  intention  was  known  by D  to  be  a  probable consequence of the prosecution of the common purpose.  At [24] he stated:

I do not consider that any reasonable jury could reach the last conclusion. While there was undoubtedly a common intention to prosecute an unlawful purpose and a limited common intention to assist, there is no evidence to show that Mr D would have thought it a “probable consequence” that Mr H would intend to kill a police officer, and carry out an act for that purpose

…(emphasis added)

[30]     Heath J framed the question in a similar way in R v Tihi HC TAU CR 2003-

047-00415 1 July 2004:

The second question is whether the use of a shotgun with intent to kill by one or more of those participating in the common intention was a known probable consequence of the prosecution of the common purpose.

[31]     In concluding that s 66(2) could go to the jury in relation to some of the offenders, Heath J said at [32]:

I am satisfied that the jury is entitled to conclude that it was a  known probable consequence, on the evidence, that one of the number who had gathered firearms to carry out the common purpose might use those firearms in an endeavour to kill one of the Black Power members. For that reason I am satisfied that there is evidence on which a jury properly directed could conclude that all Accused realised that the crime of attempted murder was a known probable consequence of the prosecution of the common purpose.

[32]     In both R v D and R v Tihi the Court took the time at which the common intention to carry out the joint unlawful purpose was formed to be the point for considering if the commission of the crime of attempted murder was foreseen by the party offender as a probable consequence of the unlawful joint enterprise.  In R v D the Court found that the crime was not foreseen as a probable consequence whereas in R v Tihi it was.

[33]     In the present case, there is no evidence the accused knew either Jeffrey or Michael Humm.  I do not think there is any evidence from which a properly directed jury could reasonably infer that at a time before entering Jeffrey Humm’s home, Mr A   had an intention to kill him.  The only evidence is the presence of the axe.

However, while it is probable that an axe can be used to kill someone, the fact that an axe is taken to a burglary by an offender who is unknown to the victim is not in itself it seems to me a sufficient foundation to support an inference that it would have been foreseen by the party accomplice that a probable consequence of that circumstance would be that the offender taking the axe would intend to use the axe to kill one of the occupants of the house.

[34]     I note that Asher J similarly considered guns against the factual context in which they were used in R v D and although guns are lethal weapons, he concluded that in the circumstances, a jury could not form a view beyond a reasonable doubt that the party considered it a probable consequence that the principal would attempt to murder a Police Officer.  I think the present case can be distinguished from R v Tihi where the ongoing animosity between rival gangs provided circumstances in which  a  common  purpose  involving  unlawful  use  of  guns  carried  with  it  as  a probable consequence the use of those guns in an attempted murder.

[35]     I also think the Court of Appeal’s analysis in R v Kopelani in relation to whether it could be proven beyond a reasonable doubt that intent to murder was a probable consequence is instructive in this case:

[47]     Unfortunately, however, while the Judge’s directions would have focused the jury’s attention on the actions of the two accused said to amount to their assisting Mr Tumahai to commit murder, they failed to deal with the possibility, open on one view of the evidence, that a verdict of manslaughter may have been possible as far as Mr Kopelani was concerned. That could have arisen either because of his lack of knowledge of Mr Tumahai’s intentions or because he knew there was a real  risk of  a  killing as  Mr Tumahai was armed with a knife but he did not contemplate a substantial risk the killing would occur in circumstances amounting to murder.

…

[49]      In view of the authorities and the evidence, we therefore conclude that there was an evidential basis on which the jury, had it been so directed, might  reasonably  have  taken  the  view  that  the  appropriate  verdict  in Mr Kopelani’s case was one of manslaughter. That could have arisen from a number of circumstances. They included that the possibility of murder was so  remote  it  was  never  a  real  risk  in  Mr  Kopelani’s  mind.  A  second possibility is that he thought they were going to Appleby Place to do a “hit” but never knew of the possibility of murder since he did not know the beating would go as far as a killing. A third possibility is that, even if the jury concluded Mr Kopelani was aware at material times that Mr Tumahai was

armed with a knife, he may not have contemplated any real risk of a killing or a killing in circumstances amounting to murder. (emphasis added)

[36]     The alternative explanations in Kopelani were relevant insofar as the Court of Appeal considered that manslaughter should have been left to the jury.   Here the existence of alternative explanations alone does not mean that the charge in question cannot be proven beyond reasonable doubt.  But, the absence of any evidence other than the presence of the axe would mean that for the jury to decide that Mr T   could have foreseen the probable consequence of Mr A   taking the axe on the burglary was his using it with the intent to kill an occupant in the house would require the jury to reach that view through speculation or guesswork, and not by any rational thought process.  Consequently, no properly directed reasonable jury could reach such a conclusion.

[37]     As the Crown case stands, there is no evidence to suggest that at the time the accused   formed   the   common   intention   to   commit   aggravated   burglary   of Mr Humm’s home, the attempted murder of Mr Jeffrey Humm could have been foreseen as a probable consequence of the aggravated burglary.

[38]     It follows that I consider that the Crown has insufficient evidence to rely on under s 66(2) and cannot close its case to the jury on that basis.

Duffy J