R v Tawa - [2019] NZHC 2451

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2018-087-002032

[2019] NZHC 2451

THE QUEEN

v

HIRA MOANAROA TAWA

Hearing: 28 August 2019

Appearances:

R Jenson and B R Smith for the Crown G Tomlinson for the Defendant

Judgment:

27 September 2019

JUDGMENT OF HINTON J

[Re s 147Application]

This judgment was delivered by me on 27 September 2019 at 2.30 pm

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:
Pollett Legal Ltd, Tauranga
Gowing & Co Lawyers Ltd, Whakatane

R v TAWA [2019] NZHC 2451 [27 September 2019]

[1]The defendant is charged with murder.

[2] He applies for a discharge pursuant to s 147 of the Criminal Procedure Act 2011. He submits that there is insufficient evidence to show that running over the deceased with his car was a substantial and operative cause of death. The application is opposed.

Law on application for discharge

[3] Section 147 provides that the Court may dismiss a charge at any time, if (inter alia) “in relation to a charge to be tried, or being tried, by a jury, the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant”.

[4] Section 147(4)(c) essentially codifies the common law guidance provided by the Court of Appeal in R v Flyger1 and Parris v Attorney General.2 In Flyger, the Court of Appeal said that, when considering a discharge on the basis of evidential insufficiency, it is not the function of the Court to “… attempt to predict the outcome but [rather] to examine the evidence in terms of adequacy of proof”.3 The Court stated that “… the rationale for an order for discharge is not the likelihood of acquittal but the unsafeness of a conviction having regard to the evidence”.4

[5]In Parris, the Court of Appeal held that:5

There should be a … 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.

It is vital, however, to appreciate the proper compass of the word “reasonably” in this context. The test must be administered pre-trial 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 should be left for the jury to decide. If there is a conviction this

1      R v Flyger [2001] 2 NZLR 721 (CA).
2      Parris v Attorney-General [2004] 1 NZLR 519 (CA).
3      R v Flyger [2001] 2 NZLR 721 (CA) at [13].
4 At [15].
5      Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [13] and [14].

Court on…

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 Tawa

Details

AGLC: R v Tawa [2019] NZHC 2451
Case: [2019] NZHC 2451
Decision Date: 27 September 2019

CaseChat Overview and Summary

In the case of R v Tawa, the defendant is charged with murder. The defendant applied for a discharge pursuant to s 147 of the Criminal Procedure Act 2011, arguing there was insufficient evidence to show that running over the deceased with his car was a substantial and operative cause of death. The court was required to determine if, as a matter of law, a properly directed jury could not reasonably convict the defendant. The legal issues involved understanding the relevant law on causation and whether the Crown needed to prove that the act was the sole cause of death or merely a substantial and operative cause. The court examined the evidence, including the medical report from Dr Stables, which stated that the brain swelling and complications were the result of the cumulative effect of both impacts. The court concluded that the defendant's actions were a substantial and operative cause of death, and there was sufficient evidence for a properly-directed jury to find him guilty. Therefore, the s 147 application was dismissed.

The court's reasoning hinged on the established legal principles that the Crown need not prove the act was the sole cause of death, only that it was a substantial and operative cause. The court rejected the defence's argument that the Crown needed to quantify the impact of the defendant's actions or exclude the possibility that the initial trauma caused the death. The court found that causation was a question for the jury, to be decided by applying their common sense to the facts. Based on the medical evidence and other facts, the court determined that there was sufficient evidence for the jury to find the defendant's actions were a substantial and operative cause of death. The application for discharge was dismissed, allowing the case to proceed to trial.

Orders