R v Waaka HC Hamilton T010076

[2001] NZHC 625

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY T010076

THE QUEEN

v

KARORA FRANCIS WAAKA

HEARING: 9 July 2001

COUNSEL: D. Wilson QC for Crown
W Bain for accused

JUDGMENT: 9 July 2001

JUDGMENT OF HAMMOND J

Solicitors:
Crown Solicitor, Hamilton
Wallace Bain, Te Kuiti

INTRODUCTION

[1] [In] 2000 the female complainant, X, attended a wedding at the [B] Chapel. That evening there was a party at the home of the bride and groom. X attended that party. She became grossly intoxicated. She passed out on a couch. When she woke up in a bed the following day, X noticed that she had panties on other than those which she had been wearing the evening before. Her fingernails were dirty; and there were dirt marks on her pants. Her shirt was “buttoned up wrong”. She thought she smelled of sex. But she had no recollection of what had happened to her.

[2] The Crown case is that whilst she was comatose, X had been carried away by two men, Messrs Tauroa and Waaka, to a glade near the house. Mr Tauroa had there raped X, while Mr Waaka watched.

[3] Mr Waaka gave the Police a statement which directly implicated Mr Tauroa as the rapist. That evidence was not admissible as against Mr Tauroa. But it was the only evidence the Crown had. The charges against Mr Tauroa were therefore dismissed under s 347 of the Crimes Act 1961. Under that Act, such a discharge is deemed to be “an acquittal” (s347(4)).

[4] Mr Waaka has been charged with taking X away without her consent “with intent to have sexual intercourse with her”, under s 208(1)(a) of the Crimes Act 1961. On that count he is charged as a principal. He is also charged with aiding Mr Tauroa to commit the rape, and with having aided Mr Tauroa to have unlawful sexual connection with X (it also having been alleged that Mr Tauroa had placed his penis in X’s mouth). Mr Waaka is charged as a party to those two offences under s 66(1)(b) of the Crimes Act 1961.

[5] Mr Waaka was to stand his trial before a jury this morning. Then, shortly before the jury was to be empanelled, Mr Bain handed up an application to have Mr Waaka discharged under s 347 of the Crimes Act. The essential ground of the application is that no offence has been committed by Mr Tauroa. Therefore, it is said, Mr Waaka could not have aided the commission of a non-existent offence.

[6] That application was made far too late. In the context of a matter such as this, it should have been made timeously, and disposed of by a pretrial hearing. The application is not a straight-forward one. The Court was placed in the very difficult position (as for that matter was Mr Wilson, for the Crown) of having to deal with the application at the last minute. And, matters were further complicated by virtue of the fact that X has come from Australia for this trial. If it goes off, she will have to make a second trip to New Zealand.

[7] In the result I took the view that, making the best I could of a bad situation, I should empanel a jury and send them away until tomorrow while I heard this application. I could have required the trial to proceed and have left it to Mr Bain to advance his s 347 application at the close of the prosecution case. But that would necessarily involve X having to give evidence, which might not be required, if there is anything in Mr Bain’s s 347 application.

COUNT 1

[8] The s 347 application on this count was made by Mr Bain on the premise that Mr Waaka is charged as a party to the abduction of X. That was understandable, because the indictment was drawn in such a way that it had s 66 noted beside the count. However Mr Wilson, for the Crown, clarified before me that the Crown proposes to open and proceed on the basis that Mr Waaka is a principal, not a secondary party on this count. Mr Bain accepted that in those circumstances he could not maintain his “no offence” argument as deflecting this particular count.

[9] That being so, the argument on this count reduced to a traditional s 347 application of an evidential character. The issue is: is there evidence upon which a jury, properly directed, could convict? (Re Fiso (1985) 1 CRNZ 689).

[10] The Crown case is that Mr Waaka took Ms X away without her consent, with intent to have sexual intercourse with her. It is plain from R v Crossan [1943] NZLR 454 that the words “takes away or detains” create two separate and distinct offences. Whichever alternative is advanced, the offence is complete once there has been a taking away, regardless of whether the particular intent was carried out (R v Moki [1982] 1 NZLR 240).

[11] The evidence against Mr Waaka on this count is that contained in his own statements. Mr Waaka made statements to a Police Officer on 7 November 2000, and 16 November 2000. It is common ground that he took X away. She was carried by Mr Tauroa holding her shoulders and Mr Waaka holding her feet, from the house to the glade, where she was placed on the ground.

[12] In his first statement, and indeed in parts of his second statement, Mr Waaka denied any intention at the time this action was being committed of having an intention to have sex with Ms X. But right at the end of his second statement, the following passages occur:

“Q. What were you thinking when you were carrying her?

A. Oh, I was thinking of going with her, yeah, but um when we got to the pongas, I thought it wasn’t the buzz.

Q. Is going with her mean, what?

A. Oh, I was going to root her myself too but I didn’t ended up doing it and he ended up calling me little “laho” and “drop nuts”.

Q. What made you change your mind?

A. I don’t know. I just thought it wasn’t the thing. I was keen, but when he got her on the ground I just turned off . . .”

[13] This is an unremarkable instance of an accused having made contradictory remarks within a statement. It is a jury question as to what, in the particular context, Mr Waaka’s intention was at the relevant time. There is evidence in the passage I have just cited on which the jury could conclude, that at least at the time she was being carried off, Mr Waaka did have an intention to have sex with her himself. This count therefore should go before the jury.

[14] I add, for completeness, that for some reason the Crown did not charge, in the alternative, that Mr Waaka’s intention may have been for Mr Tauroa to have sex with X.

COUNTS 2 AND 3

[15] I think I do Mr Bain’s submissions no injustice if I say they really came to this: as a matter of law there has been no offence by Mr Tauroa - he has been acquitted. Nor is this a case in which it is suggested that there has been an offence by a person or persons presently unknown who might one day be brought to trial. It is really that, by operation of law, there is no offence. There was no admissible evidence against Mr Tauroa, and he has been acquitted. Therefore there can be no secondary party to a non-existent offence.

[16] That last point really formed the springboard for Mr Wilson’s submissions. As I understood him, his essential proposition was that as long as it could be shown by other evidence that a rape had occurred - even though no conviction was entered - Mr Waaka could still be guilty of aiding. That “other evidence” in this case consists partly of some background evidence and contextual evidence; but fundamentally in Mr Waaka’s own statements, namely, his assertions as to what he had seen. These would be admissible against him, as statements against interest.

[17] I have come, I have to say without any enthusiasm at all, to the conclusion that I must uphold Mr Bain’s submissions.

[18] My reasoning is as follows. The starting point must be that the Crimes Act 1961 is a code. It follows that common law decisions are of no direct assistance. However, they do have some present bearing on the terminology of the law. And it is difficult to understand the present law without knowing something of them.

[19] A person becomes liable to conviction for a criminal offence not only by committing the crime himself, but also by promoting its commission by another person. This is a most important extension in the law because routinely it is the most dangerous criminals who organise others to commit crimes for them. Hence, the law takes the policy position that anyone who deliberately promotes the commission of a criminal offence by another is equally guilty with the principal offender, and may be convicted of committing the offence himself or herself.

[20] At common law, the rules of complicity were the same for felonies and misdemeanours, but they were described in different ways. The instigator of a felony was called an accessory before the fact. If the defendant participated in the commission of the felony he was called a principal in the second degree, and to achieve that status he had to aid or abet the commission of the felony.

[21] Section 66 of the Crimes Act 1961, so far as it is relevant to what is now before me, provides that everyone is a party to, and guilty of an offence “who does or omits an act for the purpose of aiding any person to commit the offence” (s66(1)(a)). The term “offence” means “any act or omission for which any one can be punished under this Act” (s2(1) Crimes Act 1961).

[22] Section 66 does not create offences. The underlying proposition of the law is that the fact a crime has been committed “must be established before there can be any question of criminal guilt of participation in it”. (Russell, Crime, 12th ed. by JWC Turner 128; and see Simester & Brookbanks, Principles of Criminal Law (1998) 173). This proposition that a man or woman cannot be guilty of having abetted a crime unless the crime has actually been committed by the principal offender has been accepted in New Zealand. See, for instance R v Paterson [1976] 2 NZLR 394 (CA): “We think it clear that an accused person cannot be found guilty of an offence under [para. 66(1)(b)] unless it be proved that that offence has been committed by some person other than himself”, Richmond P, p395, line 50.

[23] The jurisprudential theory which underpins this principle is that complicity is a form of derivative liability. But that proposition cannot be carried too far. Although complicity in the offence necessarily depends on that of the underlying offence having been committed, it is his conduct, not the conduct of another, for which the accused is responsible. That is, the accused is convicted because he promoted the commission of the crime, not because someone else committed it. It follows that if no crime occurred, the secondary party cannot be said to have helped the principal offender to commit it (Glanville Williams, Criminal Law: The General Part, 2nd edition, p350). It also follows from this proposition that the conviction of the accused for complicity is not necessarily dependent upon the prior or simultaneous conviction of a principal offender - the accused’s complicity may be able to be established by showing the offence was committed by someone, by other means. This has given rise to particular complications in the case of separate trials. (See Adams, Criminal Law, para. 66.10).

[24] The general principle that there cannot be a secondary party to a crime in the absence of a principal in the first degree has plainly placed the law in real difficulty, in some circumstances. But the unfortunate results of the logic of the principle have been addressed, to some extent.

[25] The reason that there may not be a principal party is sometimes that the principal party may be an infant or insane, or under some other juristically cognisable disability.

[26] It is for that reason that ss21 to 23 of the Crimes Act 1961 contain saving provisions at the conclusion of each of those sections, which enable a secondary party to be found liable, even although there is (technically) no offence. It may be significant (this was not argued before me) that those are the only statutory exceptions.

[27] A second legal technique for reducing the implications of the logical consequences of the head principle as I have stated it, is the doctrine which has become known as the doctrine of “innocent agency”. See, for instance, R v Cogan [1976] QB 217; and White v Ridley (1978) 21 ALR 661 ; Orchard, “Criminal Responsibility for the Acts of Innocent Agents” (1977) NZLJ 4.

[28] A third avenue of escape from the intractable logic of the head principle may rest on the construction of the scope of the underlying offence. I have in mind the decision of the English Court of Appeal in Austin [1981] 1 All ER 374. There, the secondary party assisted the principal offender to snatch his child out of the possession of the child’s mother. The accused’s conviction for complicity in the offence of child stealing was upheld, although the principal offender - the father of the child - was exempt from liability. The offence of child stealing was not committed by the principal offender but the way the Court of Appeal construed s 56 of the Offences Against the Person Act 1861 (UK) enlarged the reach of that particular provision.

[29] Conceptually, the difficulties for the law are created by the strict logic of complicity: that it is simply an ancillary form of liability dependent on the commission of a principal offence. Those who favour an expansion of the law in this area apparently seek instead to refocus the law on the “blameworthiness” of the abetting person’s conduct.

[30] There has been a good deal of academic criticism of the judicial fictions and devices resorted to in this area. Plainly Judges have been doing what they can, in particular instances, to see that morally repugnant actions are condemned. The judiciary can only do so much. There is a great deal to be said for the enactment of some statutory offence of criminal facilitation which is not contingent upon the commission of any principal offence.

Glanville Williams drafted a suggested provision in his “The Theory of Excuses” (1982) Criminal Law Review 732. See also, Buxton, “Complicity in the Criminal Code” (1969) 85 LQR 252; and the work of the English Law Commission, in Working Paper No. 47 (“Complicity”). The American Model Penal Code has a suggested ameliorating provision (s2.06 (2)(a)). For a rigorous theoretical examination of this area of the law see Kadish, “Complicity, Cause and Blame: A Study in the Interpretation of Doctrine” (1985) 73 California Law Review 324.

[31] Whatever has been able to be achieved in cases where the accused is really the “procurer” and the somewhat strained doctrine of agency is pressed into service, or those cases where particular statutory provisions have been able to be given a particular interpretation, in the absence of a fundamental alteration to our statutory provisions this case must be governed by the principle to which I have referred viz., that there cannot be a secondary party to a crime in the absence of a principal in the first degree. That principle cannot be met in this case because the only possible perpetrator has been “acquitted”. There are therefore no offences of the character alleged.

[32] It is tempting to argue - though Mr Wilson did not - that all that an acquittal means under s 347 is “not proven”. But that too would be to impermissibly strain the plain Parliamentary language of s 347.

[33] It follows therefore, that Mr Bain’s application is well founded. The accused will be discharged under s 347 of the Crimes Act 1961 on counts 2 and 3.

CONCLUSION

[34] The Crown may open on count 1, on the basis I have indicated, and that count will proceed to trial.

[35] The accused will be discharged on counts 2 and 3, under the provisions of s 347 of the Crimes Act 1961. That will be attended to, tomorrow morning, in open Court.