R v Tawa
[2019] NZHC 2451
•27 September 2019
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 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.
[6] On a s 147 application, the evidence must be given the construction most favourable to the Crown. If there is evidence from which a jury could reasonably draw an inference of guilt, a Judge should not intervene.6
Relevant facts and evidence
[7] The deceased first fell from a car driven by the defendant and suffered head injuries as a consequence. It is accepted for present purposes that this injury was self-inflicted. The Crown say that the defendant then turned around and intentionally drove over the deceased on the road, also causing injury to his head. The deceased was still alive after being run over, but subsequently died in hospital.
[8] There will be evidence at trial from eye-witnesses as to what happened and the state of the deceased.
[9] More materially, a report from Dr Stables, the Crown pathologist, says that the immediate cause of death was not the primary injuries received from each episode of trauma. He says the primary injuries led to brain swelling and other secondary injuries, which were the immediate cause of death.
[10] Dr Stables’ conclusion as to the relationship between the primary and secondary injuries is as follows:
The question then arises which impact caused the brain swelling, bruising and lacerations, and the eventual complications.
It is not possible to ascribe a quantitative value or approximation as to which episode of trauma has been more significant in causing the brain swelling. Rather it is most likely that the brain swelling is a cumulative effect of both episodes of trauma and both may have produced injuries which could have caused the brain to swell. I am not able to separate the relative contribution of either impact and its injuries, and the subsequent swelling.
6 Chan v R [2015] NZHC 3150 at [89].
I am also not able to quantify degree of brain swelling that can be attributed to each incident. It is my opinion, however, that the brain swelling and
complications have been the result of the cumulative effect of the
consequences of both impacts. Separating the relative contribution of the effects of each impact to this man’s death to the satisfaction of the court is not possible.
I am not able to make any comment with regards to the possible outcome had this man only fallen off the car and suffered the predominantly frontal injury to his head and brain, and not been subsequently run over. This is because the brain may have still swollen with the resulting complications.
(emphasis added)
Relevant law on causation
[11] It is clear law that where the cause of death is in issue, the Crown need not prove that the act relied on was the sole cause of death. The act relied on must be a substantial and operative cause of death, though it need not be the substantial and operative cause.7 A contributing cause may be substantial, even though it is not the main cause. It is sufficient that the act in question contributed in more than a minimal way to the death of the victim.8
[12] In R v McKinnon, the defendant struck the victim’s head with a piece of fence paling, dragged him to a telephone box, and left him there unconscious. At some point, the victim suffered a minor nose injury that resulted in bleeding. The victim died by drowning in the blood from the nose injury. The Court of Appeal held that it was open to the Crown to allege that the striking of the victim was a substantial and operative cause of death.9 It was the blow to the head that rendered the victim unconscious and unable to deal with the effects of the bleeding; the nose injury was not “so overwhelming” as to make the original blow to the head merely part of the history.10 As such, the Court held that there can be multiple, concurrent causes of death.
[13] McKinnon is based on United Kingdom authority that is also very widely adopted.11
7. R v McKinnon [1980] 2 NZLR 31 (CA); and R v Hare CA332/99, 15 November 1999.
8 R v Myatt [1991] 1 NZLR 674, (1990) 7 CRNZ 304.
9 R v McKinnon [1980] 2 NZLR 31 (CA) at 37.
10 At 36.
11 See R v Pagett (1983) 76 CAR 729.
Defence argument
[14]Mr Tomlinson, for the defendant, argues as follows:
(a)McKinnon only applies where the original trauma arises from the alleged offending, not the subsequent trauma.
(b)In any event, to show that the subsequent trauma was a substantial and operative cause in more than a minimal way, the Crown has to be able to place some quantification on that cause. Otherwise it remains a reasonable possibility it was only a minimal cause.
(c)The Crown also has to remove the reasonable possibility that the initial trauma caused the death. Mr Tomlinson says the last paragraph from Dr Stables’ report quoted above makes it clear that death from the original trauma remained a reasonable possibility.
[15] In his written memorandum, Mr Tomlinson summarises the last two points as follows:
It is the duty of the Crown (on a McKinnon approach) to remove as a reasonable possibility that the initial trauma was the primary cause of death and, the defence says to eliminate this as a substantial and operative cause of death, they must also establish beyond a reasonable doubt that the subsequent trauma (running over) was both a substantial and operative case of death in a more than minimal way – their evidence cannot do that as the doctor is unable to offer any quantification at all.
Analysis
[16] I have already said that the Crown does not need to prove that the act relied on was the sole cause of death, or even the main cause.
[17] For that reason, the question that would be put to the jury in this case with regard to causation is:
Are you sure (that is, satisfied beyond reasonable doubt) that the defendant’s action in driving over the deceased was a substantial and operative cause of the death of the deceased?
Note: A “substantial and operative cause” does not have to be the main or the only cause. But it must have played a part which was not insubstantial or insignificant.
[18] Mr Tomlinson submits that the order of the acts makes a difference to whether an act was a substantial and operative cause, or makes a difference to whether the test in McKinnon applies.
[19] However, I am satisfied that McKinnon does apply, whichever is the order. The judgment does not suggest that the test of substantial cause of death applies only where the alleged culpable act is the first act in question, and there is no authority to support this proposition.
[20] Interestingly, counsel have not been able to locate New Zealand cases where the culpable act was a second act. However, case law in other jurisdictions supports my view. The Supreme Court of Western Australia held that a “second blow” may be sufficient to give rise to a murder, even if the victim is already injured from a different defendant.12 In Krakouer, the defendant hit the victim with a marker post after the victim was already unconscious on the ground having been hit by another defendant. The Court said that, although the evidence suggested that the first injury might have caused death on its own, Mr Krakouer’s actions made a significant contribution to the victim’s death. Similarly, in R v McLachlan (a decision of the Supreme Court of Victoria), although the medical expert was unable to say whether the victim’s initial liver injury or the head injury caused by Mr McLachlan had caused death, the Court found that each injury was a substantial and operating cause of death.13 Similar conclusions have been reached in the United States.14
12 Krakouer v State of Western Australia (2006) 161 A Crim R 347.
13 R v McLachlan [2000] VSC 516.
14 State v McDonald 953 P 2d 470 (Wash Ct App 1997); People v Cox 228 P 2d 163 (Colo 1951). In People v Cox, the Colorado SC held that a driver who hit the victim, Mr Mead, who was lying already injured on the street following a collision, was liable for the death of Mr Mead. Even though Mr Mead might have been fatally injured at the point Mr Cox hit him, if “I hasten or contribute to his death, it is no defence that he would have died in any event”. This is almost the same fact scenario Mr Tomlinson poses in his submissions as a hypothetical, but with the opposite conclusion. I do note though that, while the US also applies the “substantial factor” test, the law appears somewhat different. Inter alia, the US test considers whether the cause is “proximate”, both in fact and in law. One of the tests for factual causation is whether the actions were “a substantial factor”.
[21] I therefore do not accept the submission that McKinnon does not apply, or that it applies to different effect. It does not matter that the initial injuries were sustained as a result of an accident. The focus is on whether Mr Tawa’s decision to run over the victim in his car was a substantial and operative cause of the victim’s death.
[22] Mr Tomlinson’s next submission is that the Crown has to be able to place some quantification on the impact of Mr Tawa’s actions, and that the Crown has to remove the reasonable possibility that the initial trauma caused the death. In my view, neither contention is correct.
[23] First, the medical evidence does not have to quantify the impact of the different causes of death. Again, there is no authority to support that proposition. This is a matter for the jury to determine and they do not have to place a quantification in percentage terms on the causal impact. They have to decide whether it is substantial and operative, or more than minimal.
[24] In R v Hennigan, the Court expressly said it is not necessary to show that the act was a substantial cause in the sense that, on an apportionment of liability in a civil action, the accused would, for example, be held at least one-fifth to blame for the outcome. The Court reiterated that the word “substantial” means something more than de minimis.15 It does not require mathematical apportionment.
[25] Second, the Crown does not need to exclude a reasonable possibility that the deceased would have died regardless of Mr Tawa’s action.
[26] Mr Tomlinson says that possibility is not excluded by Dr Stables’ report, which in the last paragraph quoted above, says the doctor cannot comment on what would have happened if the victim had not been subsequently run over “because the brain may have still swollen with the resulting complications”.
[27] As noted, the New Zealand cases referred to me have all involved an initial culpable act. In addition, it seems to have been accepted that the deceased in those
15 R v Hennigan [1971] 3 All ER 133.
cases would not have died without the culpable act. 16 However, in Krakouer, to which I have referred above, the evidence suggested that the first injury might have caused death on its own, but the defendant who inflicted the second injury was still found liable for murder, and the Supreme Court of Western Australia considered there was sufficient evidence to support that finding.
[28] Again, it is a matter of coming back to the jury question above. The question is whether the jury is satisfied beyond reasonable doubt on all of the evidence that the defendant’s running over of the victim contributed to his death in more than a minimal way. The question is not whether the jury is satisfied beyond reasonable doubt that the deceased would not have died but for the defendant’s action. That aspect of Dr Stables’ evidence, along with all of the other evidence, is something that the jury can take into account in answering the question properly put to them in terms of causation. They will also have to take into account that the scenario referred to by Dr Stables in the last paragraph quoted above is hypothetical, and the question the jury is considering is a real-life scenario, i.e. what actually happened.
[29] If causation were approached in the manner submitted by Mr Tomlinson, that would significantly undermine the principle stated in McKinnon and the other case law referred to above. It would mean that the Crown would have to in effect prove which act caused death, or exclude the possibility of any other act having done so. That quite clearly is not the case. So long as the jury is satisfied beyond reasonable doubt that the alleged act is one of the causes of death, and not de minimis, they can safely convict.
[30] I note that, even if a victim were going to die anyway, a defendant can be liable for their death. Section 164 of the Crimes Act 1961 provides that an act which merely hastens death from some other cause may still give rise to murder or manslaughter. This is because homicide is, at its simplest, the acceleration of death.
16 R v Ramsay [1967] NZLR 1005 (CA); R v McKinnon [1980] 2 NZLR 31 (CA); R v Hare
CA332/99, 30 September 1999.
[31] Ultimately, causation is a question to be decided by a jury, not on a philosophical or scientific basis, but by applying their common sense to the facts as they find them.
[32] The jury will have to decide whether the primary injuries caused by running over the deceased, were a substantial and operative cause of the secondary injuries. In light of the opinion of Dr Stables that, inter alia, the secondary injuries were caused by the cumulative effect of the deceased being run over and his fall from the car, there is sufficient evidence for a properly-directed jury to find that the running over was a substantial and operative cause of the death of the deceased.
Conclusion
[33]For the above reasons, the s 147 application is dismissed.
Hinton J
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