R v W

[2024] NZHC 3402

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-219-000278

[2024] NZHC 3402

THE KING

v

W

Ruling:	14 November 2024
Counsel:	A M McClintock and K Nihill for Crown B J Hunt and H de Groot for Defendant
Reasons:	15 November 2024

SUPPLEMENTARY REASONS FOR RULING (3) OF LANG J

[jury communication received at 3.26 pm on 13 November 2024]

This judgment was delivered by Justice Lang On 15 November 2024 at 11.00 am

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Meredith Connell, Office of the Crown Solicitor, Auckland B J Hunt/H de Groot Auckland

R v W [2024] NZHC 3402 [15 November 2024]

[1]    W is standing trial on a charge of murder. He contends the Crown cannot disprove that he was acting in self-defence. If that argument fails, he contends the Crown is unable to prove that he had either of the two forms of intent necessary to prove the charge of murder.

[2]    Whilst the jury was considering its verdict they provided the Registrar with several communications indicating that they were having difficulty reaching a unanimous decision on the issue of self-defence. In order to understand the issues that the communications raised, it is necessary to set out the questions posed in the question trail I provided to the jury during my summing up:

1.Has the Crown made you sure that [W] caused the death of Epapara Poutapu by stabbing him in the neck on 18 September 2023?

Accepted – go to Question 2.

2.What were the circumstances as [W] believed them to be at the time he caused the fatal stab wound to Mr Poutapu?

3.Has the Crown made you sure that [W] was not acting in self-defence at the time he caused the fatal stab wound to Mr Poutapu?

If Yes, go to Part B.

If No, go to Question 4.

4.Has the Crown made you sure that the force [W] used when he caused the fatal stab wound to Mr Poutapu was not reasonable having regard to the circumstances as he believed them to be at that time?

If Yes, go to Part B.

If No, find [W] not guilty of both murder and manslaughter.

[3]    At 3.26 pm on 13 November 2024 the jury provided the Registrar with a communication containing the following advice.:

We do not have a unanimous decision to Q3 or Q4.

A number of jurors have answered No to both Q3 and Q4. The remainder have answered Yes to Q3.

Given there are a number of jurors answering No to both Q3 and Q4 does our collective verdict then become that of the “No” response in Q4.

[4]    After discussing this with counsel, I provided the jury with brief directions as to how they should proceed. A short time later they indicated they wished to conclude deliberations for the day.

[5]    Reflecting on the issue overnight, I concluded it was necessary to provide the jury with additional guidance in relation to the communication they had provided the previous day. On the morning of 14 November 2024 counsel for the Crown sent an email to the Registrar confirming that the Crown also considered I should provide the jury with additional guidance given their advice the previous afternoon.

[6]    I then asked the Registrar to ask counsel to meet with me in Court for Chambers at 9.45 am. I also issued a minute in which I advised counsel that I was minded to provide the jury with further guidance along the following lines:

[1]        Members of the jury, late yesterday afternoon you indicated that you are not unanimous on the answers to be given to either Question 3 or Question

4. You advised that some jurors have answered “No” to Question 3 but the remainder have answered “Yes”. You also said that some jurors have answered “No” to both Question 3 and Question 4.

[2]        To clarify the answer that I gave you in response to your question, I now provide some additional guidance.

[3]        Those jurors who answered “Yes” to Question 3 have thereby concluded that the Crown has disproved self-defence. Assuming your answers to Question 3 remain unaltered, in order to arrive at a unanimous decision that the Crown has disproved self-defence it would be necessary for all those jurors who answered “No” to Question 3 to answer “Yes” to Question 4.

[7]    When the Court convened at 9.45 am, I provided counsel with the following passage from the Criminal Jury Trials Bench Book:

Unanimity

Although the three questions shown in the question trails where self- defence is raised were approved  in Tobin  v  R [2020]  NZCA  66  at  [33]; Theobald v R [2018] NZCA 409 at [56]; Simon v R [2016] NZCA 449

at [14]; Pakai v R [2016] NZCA 343 at [23]; Stepanicic v R [2015] NZCA

35 at [10] and Afamasaga v R [2015] NZCA 615 at [59] – [60], there is a respectable argument that the jury need not be unanimous on the second and third questions as to:

·whether a defendant was acting in self-defence; and

·whether the force used was reasonable in the circumstances.

The argument is that they are each an acceptable pathway to guilt and do not need to be mutually exclusive. However, there is no Court of Appeal or Supreme Court authority for this proposition. If that course was taken, the jury could be directed in the following way:

Note: All 12 of you do not need to agree on which of [2] or [3] above is applicable, as long as all 12 of you are sure that either [2] or [3] applies. If you are all sure that either [2] or [3] applies, then enter a verdict of guilty.

[8]    Counsel for the Crown had no issue with my proposed directions. However, after taking some time to consider them Ms Hunt opposed the directions on W’s behalf. She submitted they were likely to confuse the jury. She also argued they would place an unduly onerous obligation on the foreperson, who was responsible for guiding the jury’s discussions. Ms Hunt did not, however, suggest that the proposed directions were legally incorrect. I therefore advised counsel that I proposed to give the jury the directions set out in my earlier minute.

[9]    After giving the jury those directions I issued my reasons for doing so. In these I noted that the obvious response to Ms Hunt’s submissions was that it was my responsibility as trial Judge to ensure that any directions give to the jury are clearly worded and readily understandable. I also noted that, should there be any confusion, the jury may always seek further clarification.

[10]I then observed:

[8]   I am satisfied that the suggested direction contained in the Bench    Book is correct even though there is no appellate authority to support it. Before the jury can consider the issue of intent in the present case, they must conclude that the Crown has disproved self-defence. The Crown may do this in one of two ways. First, it may prove beyond reasonable doubt that the defendant was not acting in self-defence at the time he or she committed the act giving rise to the charge. Alternatively, it may prove beyond reasonable doubt that the force used by the defendant was not reasonable in the circumstances as the defendant believed them to be. In either event, the Crown will have disproved the defence. I do not consider there is any illogicality or prejudice to the defendant by directing the jury that the Crown may disprove self-defence in either of these two ways. In the context of the present case this means the jury are not precluded from considering Question 4 in the question trail at this stage.

[11]   I have decided to issue these supplementary reasons so they can be made available for distribution in the same way as a judgment. I do so because there appears

to be no authority on the point that I dealt with in my ruling. It may therefore be of assistance in future cases where the same issue arises.

Lang J