Rafferty v The King

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA341/2022
[2024] NZCA 217

BETWEEN	RICKY JAMES NOLAN RAFFERTY Appellant
AND	THE KING Respondent

Hearing:	14 September 2023
Court:	Miller, Gilbert and Mallon JJ
Counsel:	P J Davey and A J Watt for Appellant E J Hoskin and L C Hay for Respondent
Judgment:	10 June 2024 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Table of Contents

Introduction  [1]
Was it necessary for the Judge to identify the specific act or
acts committed by the appellant that directly or indirectly
caused Ms Smith’s death?
Submissions  [9]
           Assessment  [11]
Did the Judge err in his assessment of the evidence?  [41]
           The finding that the appellant lied to the police  [42]
           Mr Heremaia’s impaired vision and small stature  [56]
           The bloody shoeprints  [61]
           The appellant’s DNA under Ms Smith’s fingernails  [66]
           The stomp imprints  [68]
           The appellant’s DNA on the knives  [69]
           The neighbours’ evidence  [82]
           Mr Heremaia’s DNA found on Ms Smith’s clothing  [95]
Conclusion  [97]
Result  [100]

Introduction

The appellant, together with William Heremaia, was charged with the murder of Angela Smith. Ms Smith died from multiple blunt and sharp force injuries having been cut, stabbed, and beaten in Mr Heremaia’s flat on the night of 13 May 2020. Ms Smith’s flat was in the same residential complex as Mr Heremaia’s flat. The appellant was a friend of Mr Heremaia’s and he lived in a separate dwelling nearby.
The appellant is mentally impaired due to a traumatic brain injury and was found unfit to stand trial in terms of s 8A of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act).[1] The High Court was therefore required to determine the appellant’s involvement in the offence in terms of s 10 of the Act, specifically, whether the Court was satisfied, on the balance of probabilities, that the evidence against him was sufficient to establish that he “caused the act or omission that forms the basis of the offence” of murder.
[1]R v Rafferty [2021] NZHC 1143.
Following a five-day hearing convened for this purpose, Wylie J was satisfied to the requisite standard that the evidence against the appellant was sufficient to establish that he was involved in the assault on Ms Smith that resulted in her death.[2] The Judge noted that the Crown could not prove, as between the appellant and Mr Heremaia, who did what, but he considered this did not matter as long as both were involved.[3]
[2]R v Rafferty [2022] NZHC 642 [High Court judgment] at [68].
[3]At [15].
The Judge summarised his findings to support his conclusion that the appellant was involved in the assault that caused Ms Smith’s death as follows:
Conclusion
[68] In my view, the available evidence establishes the following on the balance of probabilities:
(a)[the appellant] was present when Ms Smith was assaulted. He lied when he denied this;
(b) during the assault, several kitchen knives were taken out and put on the kitchen bench and at least one of them was used to inflict various injuries to Ms Smith;
(c) Ms Smith’s DNA was found on four of the knives and [the appellant’s] DNA on two of them. Mr Heremaia's DNA was not found on any of the knives;
(d)the amount and quality of [the appellant’s] DNA on the knives suggests that indirect transfer is an unlikely explanation;
(e) [the appellant’s] DNA was found under Ms Smith’s left-hand fingernails, indicating that he was in close personal contact with her at some stage;
(f)Ms Smith’s blood was found on [the appellant’s] clothing; and
(g)[the appellant’s] bloody footprints were found both inside and outside Mr Heremaia’s unit.
While there are possible explanations for all or some of the available evidence, considered in the round and in totality, in my view, the evidence points strongly to [the appellant’s] involvement in the assault that killed Ms Smith. Notwithstanding the gravity of the finding for [the appellant], I am satisfied on the balance of probabilities that [the appellant] was involved in the assault on Ms Smith which resulted in her death.
The Judge subsequently made an order pursuant to s 24(2)(a) of the Act that the appellant be detained in a hospital as a special patient for a maximum period of 10 years.[4] As the Judge explained, this means that his condition will be subject to periodic reviews to determine whether he should continue to be detained as a special patient and in the meantime decisions about his day-to-day security will be made by the Minister of Health or the Director of Mental Health.[5] If he is later assessed as being no longer unfit to stand trial, the Attorney-General may direct that he be brought back before the court.[6]
[4]R v Rafferty [2022] NZHC 1538.
[5]At [40], citing the Mental Health (Compulsory Assessment and Treatment) Act 1992, ss 50–52A.
[6]R v Rafferty, above n 4, at [40]; and Criminal Procedure (Mentally Impaired Persons) Act 2003, s 31(2)(a).
The charge against Mr Heremaia proceeded to trial. Following the end of the Crown case, the trial Judge, Fitzgerald J, dismissed the murder charge against Mr Heremaia, leaving only the included charge of manslaughter with the jury. The jury found Mr Heremaia guilty of manslaughter. In sentencing him, Fitzgerald J found it had been proved beyond reasonable doubt that Mr Heremaia participated in the assault, but he did so “in a less dominant way” than the appellant.[7]
[7]R v Heremaia [2022] NZHC 443 at [17].
The appellant appeals against the involvement determination made by Wylie J pursuant to s 10 of the Act, contending that the Judge erred in two key respects:
(a)In finding it was unnecessary to identify the appellant’s role when considering whether he had “caused the act or omission” that formed the basis of the offence of murder.
(b)In his assessment of the evidence, to the extent that a miscarriage of justice has occurred.
For the reasons that follow, we have concluded that the Judge did not err in either respect, and consequently the appeal must be dismissed.

Was it necessary for the Judge to identify the specific act or acts committed by the appellant that directly or indirectly caused Ms Smith’s death?

Submissions

Mr Davey, for the appellant, notes that the Crown advised at a pre-trial hearing that the Crown case was that the appellant was the principal offender, being the one who stabbed Ms Smith with a knife. However, at the s 10 hearing before Wylie J, the Crown claimed it was not required to prove the appellant’s exact role, only that he was involved in the assault on her. Mr Davey submits that the Judge was wrong to accept this submission and simply conclude that the appellant was involved in the assault without identifying the particular act or acts he was alleged to have committed in causing Ms Smith’s death either directly or indirectly. Mr Davey says this error created a real risk that the outcome of the hearing was affected and accordingly a miscarriage of justice has occurred.
Ms Hoskin, for the Crown, submits that the Judge was correct in holding that to establish the appellant’s involvement it was sufficient for the Crown to prove on the balance of probabilities that he was physically involved in the assault that resulted in Ms Smith’s death. The Judge did not need to go further and identify the particular acts of violence that the appellant personally inflicted upon her. The Judge only needed to be satisfied on the evidence that the appellant was actively involved in the brutal, sustained, and fatal attack.

Assessment

We commence with a brief overview of the relevant statutory scheme to set the context for an examination of the specific provision in contention and how it has been interpreted and applied here and in other jurisdictions having comparable provisions.
The purpose of the Act was to restate the law formerly set out in pt 7 of the Criminal Justice Act 1985 and to make a number of changes to that law, including to provide courts with more appropriate options for the detention, assessment and care of defendants with intellectual disabilities.[8] Following amendments to the Act in 2018, these changes included providing that a defendant found unfit to stand trial for an offence must be the subject of an inquiry to determine whether the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence.[9] This amendment brought the sequencing of the statutory inquiry into line with the position in other comparable jurisdictions, including the United Kingdom and most states and territories in Australia, so that the inquiry into the sufficiency of the evidence to establish the defendant’s involvement in the offence now follows a finding of unfitness to stand trial (rather than the other way round as was the case under the predecessor section (s 9)).[10]
[8]Criminal Procedure (Mentally Impaired Persons) Act, s 3. See also the discussion in M (SC 82/2020) v Attorney-General [2021] NZSC 118, [2021] 1 NZLR 770 at [9].
[9]Section 3(b), as amended on 14 November 2018 by s 121 of the Court Matters Act 2018.
[10]This Court commented on the anomalous sequencing under the predecessor section (s 9) in R v Te Moni [2009] NZCA 560 at [69], citing s 4A of the Criminal Procedure (Insanity) Act 1964 (UK), s 315 of the Crimes Act 1900 (ACT), s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW), s 12 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 43R of the Criminal Code (NT) and s 15 of the Criminal Justice (Mental Impairment) Act 1999 (Tas).
The expression “unfit to stand trial” is defined in s 4(1) of the Act to mean:
unfit to stand trial, in relation to a defendant,—
(a)means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and
(b)includes a defendant who, due to mental impairment, is unable—
(i)to plead:
(ii)to adequately understand the nature or purpose or possible consequences of the proceedings:
(iii)to communicate adequately with counsel for the purposes of conducting a defence
A court may make a finding that a defendant is unfit to stand trial at any stage after the commencement of the proceedings and until all the evidence is concluded.[11] A court may postpone the determination of fitness if it considers that this would be in the interests of the defendant.[12] However, at a trial, a court may not postpone the determination of the fitness question until after the evidence is concluded.[13] Further, where the determination is postponed, the court may not determine the question of fitness if the defendant is acquitted or the charge is dismissed.[14]
[11]Criminal Procedure (Mentally Impaired Persons) Act, s 7.
[12]Section 8(1).
[13]Section 8(2).
[14]Section 8(3).
Section 8A of the Act sets out the procedure that must be followed in making a determination of whether a defendant is unfit to stand trial. It also directs the inquiry that must be undertaken if the court makes a finding that the defendant is unfit to stand trial:
8A      Determining if defendant unfit to stand trial
(1)The court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired.
(2)If the court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and—
(a)give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and
(b)      find whether or not the defendant is unfit to stand trial; and
(c)       record the finding made under paragraph (b).
(3)The standard of proof required for a finding under subsection (2) is the balance of probabilities.
(4)If the court records a finding under subsection (2) that the defendant is fit to stand trial, the court must continue the proceedings.
(5)If the court records a finding under subsection (2) that the defendant is unfit to stand trial, the court must inquire into the defendant’s involvement in the offence under section 10, 11, or 12, as the case requires.
Section 10 applies where the defendant is found unfit to stand trial prior to the trial. Section 11 applies where the unfitness finding is made during a judge-alone trial and s 12 applies where the unfitness finding is made during a jury trial. In each case, the court is required to decide whether it is satisfied on the balance of probabilities that the evidence against the defendant is sufficient to establish that “the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged”.[15] Where the inquiry occurs during the trial, the court may consider any evidence presented at the trial and hear any new evidence.[16] Where the inquiry occurs prior to trial or during a jury trial, the court may also consider any formal statements that have been filed under s 85 of the Criminal Procedure Act 2011 and any oral evidence taken in accordance with an order made under s 92 of that Act.[17]
[15]Sections 10(2), 11(2) and 12(2).
[16]Sections 11(3)(a) and (b), and 12(3)(c) and (d).
[17]Sections 10(3)(a) and (b), and 12(3)(a) and (b).
In the present case, the appellant was found unfit to stand trial prior to trial. Section 10 was therefore the applicable provision:
10       Inquiry before trial into defendant’s involvement in the offence
(1)This section applies if, before trial, the defendant is found unfit to stand trial.
(2)The court must decide whether the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.
(3)       For the purposes of subsection (2), the court may consider—
(a)any formal statements that have been filed under section 85 of the Criminal Procedure Act 2011:
(b)any oral evidence that has been taken in accordance with an order made under section 92 of the Criminal Procedure Act 2011:
(c)       any other evidence that is submitted by the prosecutor or defendant.
If the court is not satisfied of the defendant’s involvement in the offence in terms of s 10(2) (or s 11(2) or s 12(2) where applicable), the court must dismiss the charge against the defendant under s 147 of the Criminal Procedure Act and the finding that the defendant is unfit to stand trial is deemed to have been quashed for all legal purposes.[18] On the other hand, if satisfied of the defendant’s involvement in the offence, the court must record its finding and deal with the defendant under subpt 3 of the Act which provides for the detention, treatment and care of persons found unfit to stand trial, or acquitted on account of insanity.[19]
[18]Section 13(2)(a) and (b).
[19]Section 13(1) and (4).
A defendant may appeal against a finding that they were involved in the offence.[20] In such a case, the finding appealed against is to be regarded as a conviction.[21] If, on appeal, the court is satisfied that the evidence is not sufficient to establish that the appellant caused the act or omission that forms the basis of the offence charged, the court must quash the finding and dismiss the charge.[22]
[20]Section 16(1A).
[21]Section 16(2)(a).
[22]Section 17(1).
Where a person is found unfit to stand trial, the court must order that inquiries be made to determine the most suitable method of dealing with the person under s 24 or s 25 of the Act.[23] The orders that may be made pursuant to s 24 are that the defendant be detained either in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.[24] Such an order must be made if the court is satisfied it is necessary in the interests of the public or any person or class of person who may be affected by the court’s decision.[25]
[23]Section 23.
[24]Section 24(2).
[25]Section 24(1)(c).
If the court is not satisfied that either of the orders provided for under s 24(2) of the Act is necessary, the court must deal with the defendant in one of the four ways set out in s 25(1) of the Act — (a) order that the defendant be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act, or (b) order that the defendant be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act, or (c) not make an order if the person is liable to be detained under a sentence of imprisonment, or (d) order the immediate release of the defendant.
The maximum period for which a defendant who has been found unfit to stand trial can be detained under s 24 of the Act as a special patient or a special care recipient is 10 years from the making of the order if (as here) the charged offence is punishable by life imprisonment, or otherwise half the maximum term of imprisonment to which the defendant would have been liable if convicted of the offence charged.[26]
[26]Section 30(1).
The involvement hearing under s 10 of the Act is not a criminal trial and cannot lead to a criminal conviction — the section is engaged for the very reason that no criminal trial can be conducted due to the defendant’s unfitness to stand trial. However, the involvement hearing may be viewed as the functional equivalent supplied by the criminal justice system for persons unfit to stand trial. It leads to outcomes ranging from the dismissal of the charge (a deemed acquittal) to a recorded finding by the court that the defendant was involved in the offence (a culpability finding) and consequent sanctions that can include an order for involuntary detention in a secure facility for a potentially lengthy period of up to 10 years.
We consider this context, where a person’s liberty is at stake and the s 10 involvement hearing may be their only chance of securing an acquittal, suggests it is important that the legislative provisions should be interpreted and applied where possible in a manner consistent with fundamental rights assured under the New Zealand Bill of Rights Act 1990 (BORA),[27] including the right to minimum standards of criminal procedure guaranteed by s 25. While this Court acknowledged in Ruka v R that, strictly speaking, the court is not determining a charge when conducting an involvement hearing, the Court considered that the hearing is arguably a step taken “in relation to the determination of the [charge]” and therefore requires the observance of the minimum procedural standards in s 25 of BORA to the extent applicable and subject to any necessary modification.[28]
[27]New Zealand Bill of Rights Act 1990, s 6.
[28]Ruka v R [2011] NZCA 404, (2011) 25 CRNZ 768 at [54]–[56]. This case was decided under the former provision s 9, the predecessor of s 10, but both provisions are in materially the same terms.
As Professor Warren Brookbanks persuasively argues, the purpose of the s 10 hearing, described by this Court in R v Te Moni as a form of trial,[29] is to determine culpability and justifies “the full panoply of rights and duties that would attach to any criminal trial”.[30] This view was adopted by Edwards J in R v Tongia.[31] The Judge concluded that “the full force of the protections enshrined in our criminal justice system, and most importantly those found in the New Zealand Bill of Rights Act 1990, should apply” to such hearings.[32] We agree.
[29]R v Te Moni, above n 10, at [96].
[30]Warren Brookbanks “Evidential Sufficiency Hearings: Is Section 10 of the CP (MIP) Act Fit for Purpose” (2020) 29 NZULR 31 at 36–37.
[31]R v Tongia [2020] NZHC 2382, [2021] 2 NZLR 743 at [43]–[48].
[32]At [48].

Against this context, we turn now to the meaning of the words in s 10(2) of the Act requiring a finding on the balance of probabilities as to whether “the defendant caused the act or omission that forms the basis of the offence”. The purpose of this inquiry under the then English equivalent of s 10 of the Act was described by the House of Lords in R v Antoine as being to distinguish between a person who has not carried out the actus reus of the crime charged and a person who has committed an act (or made an omission) that would constitute a crime if done (or omitted) with the requisite mens rea:[33]
… to strike a fair balance between the need to protect a defendant who has, in fact, done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea. The need to protect the public is particularly important where the act done has been one which caused death or physical injury to another person and there is a risk that the defendant may carry out a similar act in the future. I consider that the section strikes this balance by distinguishing between a person who has not carried out the actus reus of the crime charged against him and a person who has carried out an act (or made an omission) which would constitute a crime if done (or made) with the requisite mens rea...
[33]R v Antoine [2001] 1 AC 340 (HL) at 375–376 per Lord Hutton.
In R v Te Moni, this Court similarly described the purpose of s 9 (which was in materially the same terms as s 10(2)) as being “to avoid the possibility of a person who is found unfit to stand trial being subjected to detention or similar measures in circumstances where he or she has not, in fact, committed an offence”.[34] This Court endorsed the approach taken in R v Antoine, expressing the view that the inquiry is not limited to proof that the defendant committed the physical acts that formed the basis of the offence, as opposed to the actus reus. The Court observed that limiting the inquiry to an examination of the physical acts “does not appear to set a sufficiently high threshold to meet the objective of s 9, which is to ensure that a court has made a finding of criminal culpability before the sanctions which can apply to a person who is unfit to stand trial can be imposed on that person”.[35]
[34]R v Te Moni, above n 10, at [68].
[35]At [79].
The correct interpretation of the words “caused the act or omission that forms the basis of the offence” is not always straightforward and has given rise to difficulty in some cases. In R v Cumming, French J surveyed English and Australian authorities dealing with equivalent provisions, including R v Antoine and R v Ardler[36] and concluded that the correct position is as follows:[37]
(a)so far as possible, the inquiry should focus on an accused’s actions as opposed to his state of mind.
(b)this distinction is dictated by the language of [s 9] and its social purpose.
(c)the distinction cannot be rigidly adhered to in every case because of the diverse nature of criminal offences and criminal activity. In particular, it cannot be adhered to when mens rea is a composite element of the actus reus. In those circumstances, the finding an accused caused the act or omission may of necessity include some element of mens rea.
(d)if there is objective evidence which raises the issues of mistake, self‑defence and accident, then the Court should not find the accused caused the act or omission unless satisfied on the balance of probabilities that the prosecution has negatived that defence.
(e)it is not open to an accused to argue absence of mens rea by reason of mental impairment …
[36]R v Ardler [2004] ACTCA 4, (2004) 144 A Crim R 552.
[37]R v Cumming HC Christchurch CRI-2001-009-835552, 17 July 2009 at [89].
The Judge observed that the classic illustration of where mens rea is a composite element of the actus reus is the offence of possessing an offensive weapon. While the actus reus is possessing an offensive weapon, whether the weapon qualifies as offensive depends on the defendant’s intention.[38] Applying these principles to the charge of abduction, one of the charges faced by Mr Cumming, the Judge concluded that the prosecution was required to prove three elements:[39]
(a)Mr Cumming unlawfully detained the complainant.
(b)The detention was without her consent.
(c)The accused detained her with intention to have sexual connection with her.
[38]At [73].
[39]At [94].
This Court recently discussed the relevant authorities in J v Attorney-General and confirmed that the approach taken by the House of Lords in Antoine and followed in New Zealand in Cumming and Tongia was the more appropriate and rights‑consistent interpretation of s 10.[40] This interpretation, focusing attention on the actus reus rather than simply the defendant’s acts, serves a key purpose of s 10 of not subjecting mentally impaired persons to outcomes of a potentially penal nature unless the evidence is sufficient to establish that they engaged in the conduct prohibited by law. In other words, that they committed actus reus and not merely the physical acts underpinning the charged offence.
[40]J v Attorney-General [2023] NZCA 660 at [135].
In R v Antoine, the House of Lords expressed no opinion on what it described as the difficult questions that could arise as to the meaning of the word “act” in this context where the defendant has been charged as a party to murder and another person carried out the actual killing.[41] The issue did not arise in that case.
[41]R v Antoine, above n 33, at 377 per Lord Hutton.
However, the issue of party liability in such circumstances had to be determined by the Court of Appeal of England and Wales in R v M (KJ).[42] The Court helpfully defined the task in a manner amenable to general application as follows:[43]
In such cases, it is the task of the judge to give careful consideration to the principles involved, to apply them to the circumstances of the particular case, and to give a direction framed to define and encompass the minimum facts of which the jury must be satisfied to establish the ‘act’ required to be proved against the defendant. If, by reason of the definition of the crime concerned, or the level of the participation required to establish liability, it is necessary for the jury to be satisfied that the defendant had a particular level of knowledge as to the activities of the principal offender and/or the surrounding circumstances, then the judge should so direct. In such a case, as with issues of mistake, accident or self-defence, the determination will fall to be made as a matter of inference from the independent evidence of witnesses and not from the evidence of the defendant or the suggestions of counsel. It is only by such means that the rationale and intention underlying s.4A, as set out by Lord Hutton [in R v Antoine], can be fully effected.
[42]R v M (KJ) [2003] EWCA Crim 357, [2003] 2 Cr App R 322.
[43]At [42].
In that case, the victim was chased by a group of youths and during the course of this he sustained six stab wounds, two of which pierced his heart. The Court rejected the submission that the prosecution was required to prove that the appellant was the person who actually inflicted one of the stab wounds to the victim. The Court found no error in the Judge’s direction that the jury needed to be satisfied either that the defendant was himself the stabber, or one of them, or that he was a person who took part in what he knew at the time was a knife attack.[44]
[44]At [47].
In the present case, the appellant and Mr Heremaia were charged with the murder of Ms Smith. The actus reus was the killing by an unlawful act, namely the infliction of the blunt and sharp force injuries that were a substantial and operative cause of Ms Smith’s death.[45] No particulars of the appellant’s alleged involvement in the attack were provided. The Crown charge notice referred to s 66 of the Crimes Act 1961 but did not specify the basis of the alleged party liability. The inquiry under s 10 of the Act was therefore whether the appellant participated in the unlawful killing on any of the bases specified:
[45]Crimes Act 1961, s 160(2)(a).
66       Parties to offences
(1)       Every one is a party to and guilty of an offence who—
(a)       actually commits the offence; or
(b)does or omits an act for the purpose of aiding any person to commit the offence; or
(c)       abets any person in the commission of the offence; or
(d)incites, counsels, or procures any person to commit the offence.
(2)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.
The elements that must be proved for the conviction of a person charged as a party under either s 66(1) or 66(2) of the Crimes Act were discussed extensively by the Supreme Court in Ahsin v R.[46]McGrath J, writing for the majority (which included Glazebrook and Tipping JJ), stated that s 66(1)(b) requires proof that:[47]
(a)the offence to which the defendant is alleged to be a party was committed by a principal offender; and
(b)the person alleged to be a party assisted the principal offender in the commission of the crime, by words or conduct or both; and
(c)the person alleged to be a party in fact intended to assist the principal offender to commit that particular offence; and
(d)the person alleged to be a party knew both the physical and mental elements of the essential facts of the offence to be committed by the principal offender.
[46]Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493.
[47]At [83] (footnotes omitted). The elements of party liability under s 66(2) are set out at [102].
The majority observed that although s 66(1) requires proof that the defendant in fact aided or encouraged the principal offender, it does not stipulate that the assistance or encouragement provided remained operative at the time the offence is committed by the principal. On the language of s 66(1)(b), the actus reus is complete when the assistance occurs, provided the principal offender subsequently commits the relevant offence.[48]
[48]At [116].
The elements of party liability in cases of manslaughter (particularly common purpose liability under s 66(2) of the Crimes Act) were recently considered by the Supreme Court in Burke v R.[49] In the course of her judgment, Winkelmann CJ reviewed the authorities under s 66(1) and concluded:[50]
Regarding s 66(1), New Zealand caselaw therefore proceeds on the basis that, to be a party to manslaughter under s 66(1), a party need only be intending to be a party to the unlawful act which caused the death (even if death from that unlawful act occurred in an unexpected manner), except in cases where the act causing death is “completely different from that which the [defendant] was assisting”.
[49]Burke v R [2024] NZSC 37.
[50]At [280], citing R v Hartley [2007] NZCA 31, [2007] 3 NZLR 299 at [53].
It is seldom possible to prove precisely who did what in a prolonged group attack involving numerous injuries. Nor is it necessary to do so to establish criminal liability. It was therefore not necessary for the Crown to prove, or for the Judge to specify, the particular unlawful act or acts committed by the appellant which contributed to Ms Smith’s death: for example, that he inflicted one of the fatal stab wounds. In the circumstances of this case, it was sufficient for the purposes of the inquiry under s 10(2) of the Act for the Judge to be satisfied on the balance of probabilities either that:[51]
(a)the appellant himself inflicted any one or more of the sharp or blunt force injuries (by cutting, stabbing, punching, or stomping) that were a substantial and operative cause of Ms Smith’s death (s 66(1)(a)); or
(b)the appellant physically assisted Mr Heremaia in the attack knowing that Mr Heremaia was inflicting sharp or blunt force injuries (by cutting, stabbing, punching, or stomping) that were a substantial and operative cause of Ms Smith’s death (s 66(1)(b)).
[51]On the way the case was presented, it is not necessary to separately consider other potential bases of party liability, including whether the killing was a known probable consequence of the prosecution of a common intention to prosecute an unlawful purpose in terms of s 66(2) of the Crimes Act.
For the reasons given, we consider the answer to the question posed on this ground of appeal is “no”.
For convenience, in the next section of the judgment, we will refer to the appellant’s “involvement” in the offence as embracing any of the acts referred to at [38] above. In doing so, we note that it is only liability on a s 66(1)(b) basis that imports a knowledge requirement — namely knowledge that Mr Heremaia was inflicting sharp or blunt force injuries. That is the relevant knowledge requirement for a conviction on manslaughter rather than murder on a s 66(1)(b) basis. That is because Mr Heremaia was convicted of manslaughter and not murder and so liability on a s 66(1)(b) basis would be as a party to the offence of manslaughter.

Did the Judge err in his assessment of the evidence?

Mr Davey submits that the Judge erred in his assessment of the evidence, specifically in respect to the following issues:
(a)whether the appellant lied to the police;
(b)whether Mr Heremaia’s significantly impaired vision and small stature supported the Crown’s contention that the appellant must have been involved in the attack;
(c)whether the appellant’s bloody shoeprints found inside and outside Mr Heremaia’s flat and the bloodstains found on the lower part of the appellant’s pants and his left sock (but not on other parts of his clothing or on his hands) supported the Crown’s contention that the appellant was involved in the attack;
(d)whether the appellant’s DNA found under Ms Smith’s fingernails supported the Crown’s contention that he was involved in the attack or whether it was equally consistent with Ms Smith allegedly attacking him, as he told the police;
(e)whether the stomp imprints on Ms Smith’s body were consistent with the shoes the appellant was wearing and probative of his involvement in the attack;
(f)whether the appellant’s DNA on two of the knives on the kitchen bench (but none of Mr Heremaia’s DNA on any of the knives) supported the Crown’s contention that the appellant was involved in the attack;
(g)whether the evidence from neighbours as to the time they heard screams coming from the flat excluded the appellant’s involvement at the time the fatal injuries were inflicted, given the CCTV footage indicating he had left by that stage; and
(h)whether the arrangement of Ms Smith’s clothing and the presence of Mr Heremaia’s DNA, including on the crotch of her underwear and the front opening of her jeans, supported the appellant’s explanation to the police that he left the flat because they were fighting, Ms Smith was alive at that time, and Mr Heremaia acted alone.

The finding that the appellant lied to the police

The Judge was satisfied that the appellant was present when Ms Smith was assaulted, and that he lied to the police when he denied this.[52] The Judge stated that the appellant told the police that “he left Mr Heremaia’s unit when Mr Heremaia and Ms Smith began arguing and before there was any significant physical altercation” and that this was a lie.[53]
[52]High Court judgment, above n 2, at [68(a)].
[53]At [41].
Mr Davey submits the Judge was wrong to conclude that the appellant lied. He contends that the appellant’s inability to give an accurate narrative of events when he was spoken to by the police the following morning is explained by his mental impairment and the circumstances surrounding that preliminary interview.
The police went to the appellant’s address at about 5.20 am on 14 May 2020, the morning after Ms Smith was killed. The appellant initially responded in an aggressive manner and was verbally abusive. It took around 40 minutes for the police to persuade him to allow them to enter his flat. After giving the appellant his rights, the appellant said that the last time the police tried to talk to him, 16 of them tried to kill him and then they put him in prison. He repeated this claim at various times and said he was scared of the police. He also told police several times that he needed to have his medication. He repeatedly said that he had a hole in his head, and this made it really hard for him to “deal with life”. The detective sergeant described the appellant’s behaviour as being “all over the place” and his mood as “unpredictable”.
The appellant was clearly agitated and distracted, if not paranoid (he told the police he was “paranoid about everything”). At around 6.50 am, the police accompanied the appellant to the police station to provide further information about his activities the night before. The detective sergeant had considerable difficulty getting him to focus on his questions and provide a coherent account of what had happened the night before. As a result, it took more than three hours to obtain the appellant’s account, summarised below from [47]–[51]. The interview was terminated at 9.40 am because the appellant became agitated, angry, and abusive.
We agree with Mr Davey that the appellant’s highly emotional state and his significant mental impairment are relevant to any assessment of whether he lied to the police and what weight, if any, should be placed on this. Also relevant is the likelihood that the appellant was heavily intoxicated at the time of the events he was being asked to recount. However, despite these difficulties, some aspects of the appellant’s account were reasonably detailed and independently corroborated.
The appellant said he went with Mr Heremaia to the wholesalers and purchased a box of beer which he transported with a small trolley. They went to Mr Heremaia’s flat and drank the beer while listening to music until the battery on his phone went flat. They then returned to the wholesalers and purchased another box of beer and a bottle of bourbon, stopping at the dairy to buy lemonade and cola. The appellant also bought chips from a takeaway shop for Mr Heremaia. They resumed drinking when they arrived back at Mr Heremaia’s flat.
This account was confirmed by CCTV footage subsequently obtained from security cameras. This footage shows the appellant purchasing alcohol at around 12.30 pm on 13 May 2020 and later returning with Mr Heremaia at around 4.20 pm, with the appellant purchasing more beer and a bottle of bourbon at 4.25 pm.
Sometime later, Mr Heremaia went to Ms Smith’s nearby flat to buy marijuana, the appellant having given him $20 for this purpose. Mr Heremaia and Ms Smith both came back to Mr Heremaia’s flat. The appellant said he used a knife to “cut open the glass bottle of [beer] by dropping a knife into it”. Using two “spotting knives” (which Ms Smith had brought with her) on the stove, they all consumed the marijuana and drank more alcohol.
The appellant said that Mr Heremaia and Ms Smith then started yelling at each other and fighting. When asked what they were fighting about, he replied “what normal people fight about drugs”. He said that Ms Smith (who he referred to as the woman “that was there screaming”) hit him on the head and he put his arms up to protect his head. He said Mr Heremaia also hit him on the head that evening. He said he could not handle it, it was “too insane”, so he left and went home. He stated that Mr Heremaia and Ms Smith were the only two people present when he left, and he said they were “screaming at each other”. He described them as “psychopaths”.

When specifically asked whether he had a knife, the appellant said Mr Heremaia had a butcher’s knife that he told him he used for his safety. Asked whether he knew anything about Ms Smith being stabbed, he replied “no” and said they should ask Mr Heremaia.
The Judge found that the appellant lied to the detective sergeant during this preliminary interview, specifically by saying “that he left Mr Heremaia’s unit when Mr Heremaia and Ms Smith began arguing and before there was any significant physical altercation”.[54] However, those are not the appellant’s words, and this is not an entirely accurate representation of what the detective sergeant recorded the appellant as having said.
[54]At [41].
The Judge’s understanding that the appellant told the detective sergeant that he left the flat when Mr Heremaia and Ms Smith “began arguing” is at odds with the appellant’s recorded statement to the detective sergeant that “they were [arguing] for fucking ages”.
The appellant told the detective sergeant numerous times that while he was present, Mr Heremaia and Ms Smith were fighting, arguing, screaming, and yelling at each other. When specifically asked “did they hit each other did they hurt each other”, he said “[y]es they did”. This might be described as a “significant physical altercation”, taking into account that the appellant said he was also hit on the head by Ms Smith at that time. On the appellant’s own account, this all took place before he left the flat and is not readily reconcilable with the contention that the appellant lied by saying he left before any significant physical altercation took place.
In all the circumstances, including the appellant’s emotional and mental state at the time of the preliminary interview, we would be reluctant to conclude that the appellant lied, especially given he did not actually make the statement that has been attributed to him and found to be a lie. We place no weight on this in assessing whether the appellant’s involvement in the offence was established.

Mr Heremaia’s impaired vision and small stature

The Judge referred to the pathologist’s evidence that the significant injuries suffered by Ms Smith would have required mild to moderate force to inflict.[55] While acknowledging the evidence suggesting that Mr Heremaia could be aggressive when drunk, and he admitted he had been drinking and smoking cannabis at the time, the Judge considered it unlikely that all of the injuries could have been inflicted by Mr Heremaia given the force that would have been required to inflict at least some of them.[56] In reaching this conclusion, the Judge took into account that Mr Heremaia has significantly impaired vision, walks with a stick, and was described as being “of slight build, small, and skinny”.[57]
[55]At [46].
[56]At [47]–[48].
[57]At [44].
The Judge noted that the appellant is significantly taller (six foot three inches or 190.5 cm) and of medium to big build, although he walks with a crutch.[58] Ms Smith was five foot three inches or 162 cm tall.[59]
[58]At [45].
[59]At [46].
Mr Davey submits there was no evidence to prove that Mr Heremaia’s limited sight and small size meant that the appellant must have been involved in assaulting Ms Smith. He points to the evidence that although Mr Heremaia has impaired vision, several witnesses gave evidence that he was able to move around without the need for a stick. He also refers to the evidence that Mr Heremaia had a propensity for violence, particularly when he had been drinking, and that he and Ms Smith had often been verbally abusive towards each other in the past. A neighbour gave evidence that on one occasion Mr Heremaia screamed at Ms Smith through the fence and threatened to “assassinate” her.
The Judge appears to have accepted it was unlikely that Mr Heremaia would have been physically capable of inflicting all of the injuries sustained by Ms Smith because of his small stature and sight impairment. The pathologist described the force required to inflict the injuries as being mild to moderate. He did not suggest that any of the injuries would have been beyond the physical capabilities of a person of Mr Heremaia’s size and stature. This evidence does not compel a conclusion that the appellant must have been involved. Taken in isolation, Mr Heremaia’s comparatively small stature does not materially strengthen the Crown case against the appellant.
Mr Heremaia’s impaired vision does not take the matter very far because the Judge appears to have accepted that this impairment did not prevent Mr Heremaia from being involved in the attack. We can be confident that Mr Heremaia was physically involved despite his visual impairment because this was proved beyond reasonable doubt at his trial.

The bloody shoeprints

Bloody footprints made by Croc-style shoes worn by the appellant were found both inside and outside Mr Heremaia’s flat.[60] The footprint trail from Mr Heremaia’s flat extended some 36 metres towards the appellant’s address.[61] Both shoes had blood on them. Subsequent DNA analysis strongly supported the proposition that it was Ms Smith’s blood.[62]
[60]At [68(g)].
[61]At [50].
[62]At [49].
Blood was also identified on the lower parts of both legs of the appellant’s sweatpants and on the knee or thigh area of the left leg. DNA analysis suggested that the bloodstain on the front left of the appellant’s trackpants and on the heel area of his left sock matched Ms Smith’s blood.
This evidence shows that the appellant was in close proximity to Ms Smith after she had sustained wounds sufficient to cause profuse bleeding, likely one or more of the stab or cut wounds. We agree with the Judge that this evidence strongly supports the Crown case that the appellant was involved in the attack.
However, Mr Davey submits that the Judge failed to consider the lack of any bloodstaining on the appellant or on other items of his clothing. The police seized the polar fleece top the appellant was wearing, but it was not sent for DNA analysis and thus there was no evidence of any blood on this garment. The police did not seize the “bum bag” the appellant was wearing on his front. Swabs were taken from the appellant’s hands, but these do not appear to have been sent to the Institute for Environmental Science and Research (ESR) for analysis.
The absence of testing does not assist one way or the other. However, the fact that Ms Smith’s blood was found on the lower parts of both legs of the appellant’s trackpants and in the knee or thigh area of one leg of his pants suggests that he did not merely walk through a pool of blood. We consider the fact that Ms Smith’s blood was found in these areas, combined with the large amount of her blood found on the appellant’s shoes, provides strong support for the Crown case that the appellant was in direct contact with Ms Smith at the time of the attack and was likely to have been involved in it.

The appellant’s DNA under Ms Smith’s fingernails

Forensic analysis identified the appellant’s DNA under the fingernails of Ms Smith’s left hand. The amount and quality of the DNA was consistent with close physical contact rather than a casual experience.[63] The forensic biologist who undertook the testing accepted that the presence of the DNA under Ms Smith’s fingernails could be explained by an assault along the lines the appellant described when he was first spoken to by police, namely that she struck him on the head, and he tried to protect himself by raising his arm above his head. The appellant was found to have a scratch on his arm when he was photographed by police.
[63]At [54].
No safe conclusion can be drawn as to whether the presence of the appellant’s DNA under Ms Smith’s fingernails was the result of her hitting him on the head (with him defending himself by putting his arm up as he claimed) or by him hitting her (with her fending him off using her hand). As the Judge observed, the appellant’s statement that she hit him with a closed fist may suggest that the former scenario is less likely. The single scratch on the appellant’s arm could be consistent with either scenario but may not have been caused by Ms Smith’s fingernails at all. However, the evidence strongly suggests that the appellant was, at the very least, involved in a physical altercation with Ms Smith.

The stomp imprints

A forensic scientist employed by ESR gave evidence that an impression found on Ms Smith’s body had a pattern of approximately evenly-spaced lines similar to the sole patterns on the Croc-style shoes worn by the appellant. However, she stated that other surfaces with a repeating linear pattern with similar proportions could also have made this impression. She concluded that the findings were neutral, meaning they neither provide support for or against the proposition that the appellant’s shoes made the impression. The Judge concluded that the stomp imprints on Ms Smith’s body did not prove the appellant’s involvement, but nor did they exclude it.[64] This was not one of the matters referred to by the Judge (quoted at [4] above) in support of his conclusion that the appellant was involved in the offence. We note however that the forensic evidence excluded the possibility that the stomp imprints were made by Mr Heremaia’s shoes. The similarity of the pattern of the stomp imprints on Ms Smith’s body and the soles of the appellant’s shoes is therefore a further (albeit minor) strand of circumstantial evidence pointing to his involvement.

The appellant’s DNA on the knives

[64]At [59].

The police seized five knives from Mr Heremaia’s flat — one found next to Ms Smith’s body, a small paring knife from the top drawer of the kitchen unit, and three larger knives from the bottom drawer of that unit. The two spotting knives were also seized, but these are not relevant.
The small paring knife did not have Ms Smith’s DNA on it, nor that of the appellant, and it has no relevance to the case.
The knife located next to Ms Smith’s body was found to have her blood on the blade and handle. The forensic pathologist considered this knife was capable of having caused some of the knife injuries sustained by Ms Smith. DNA from at least two people was found on the handle of this knife. The majority of the DNA was that of Ms Smith, but the remaining DNA was not suitable for meaningful comparison.
The three knives taken from the bottom drawer of the kitchen unit had been moved from the kitchen bench and placed in the drawer after the incident by a friend of Mr Heremaia. This friend (L), who lives nearby, was woken by Mr Heremaia at around 1 am following the incident. Mr Heremaia told her he thought Ms Smith had passed away and he asked her to come down to his flat and have a look. Seeing Ms Smith lying on the floor unresponsive, she told Mr Heremaia to call an ambulance. While he was on the phone, she noticed there were three sharp knives on the top of the kitchen bench. She said this was unusual. When she asked Mr Heremaia about these knives, he told her to put them in the drawer which she did.
One of these knives was a bread knife with a serrated edge and a rounded tip. The pathologist could not exclude the possibility that this knife caused Ms Smith’s injuries, although he said it would have required greater force to cause some of them because of its rounded edge (all the other knives had pointed ends). There was no visible blood on the blade of the knife. While forensic analysis indicated the possible presence of blood on both the handle and the serrated edge of the blade of this knife, this may not have been blood at all. However, DNA analysis provided extremely strong support for the proposition that some of the DNA on this knife came from Ms Smith and some from the appellant.
A second knife, described as a chef’s knife, the largest of the three seized from the bottom drawer, had a blade measuring 20 centimetres in length and 4.2 centimetres in width at the hilt. The pathologist did not consider this knife could have caused the major, and likely fatal, stab wound to Ms Smith’s chest because it was too wide. However, he considered it was possible it could have caused the other sharp force injuries. DNA profiling originating from at least three people were obtained from combined swabs of probable blood taken from the handle of this knife. However, given the low level and uncertainty as to the number of contributors, the results were not suitable for meaningful comparison purposes.
The third knife, referred to as a fillet knife, measured 15.3 centimetres in length and 2.2 centimetres in width at the hilt. Blood was clearly visible on one side of the blade of this knife. The pathologist considered that this knife could have caused the sharp force injuries to Ms Smith, including the significant stab wound to her chest. Forensic analysis provided extremely strong scientific support for the proposition that the DNA recovered from this knife originated from Ms Smith and the appellant.
The ESR forensic biologist who was cross-examined on this topic could not rule out the possibility of secondary transfer of the appellant’s DNA to this knife from another surface. However, he considered this would have required a rich source of DNA, generally body fluids, such as blood, semen, or saliva.
Despite all of the knives belonging to Mr Heremaia, his DNA was not found on any of them.
Mr Davey submits that the two knives that had the appellant’s DNA on them were unlikely to have been used in the attack on Ms Smith. He argues that the fillet knife was unlikely to have been used as a weapon against Ms Smith because blood was only visible blood on one side of the blade and there was no evidence of any wipe pattern on the other side to indicate that blood had been wiped off. The ESR scientist accepted in cross-examination that no conclusion could be drawn as to how or when the blood was deposited on this knife, and it could have been a transfer stain:
In my opinion the blood staining on this knife did not show any characteristics that necessarily allow me to make further conclusions as to exactly how or when the blood was deposited. In my opinion this knife has come into contact with something blood stained.
Mr Davey submits that the lack of blood on the bread knife suggests that it was not used to injure Ms Smith. The forensic scientist could not determine what type of cellular material was located on the blade, nor how or when the appellant’s DNA ended up there. There was no visible blood on it, only a weak presumptive test indicating the presence of blood. The possibility of transfer of trace amounts of blood could not be excluded. Mr Davey also refers to the pathologist’s evidence that more force would have been required to cause some of the injuries using this knife because of its rounded tip.
The knife found next to Ms Smith’s body had DNA on it from at least two people, including Ms Smith. However, the remaining DNA was not suitable for comparison purposes. In summary, Mr Davey submits there is no clear evidence as to which knives were used in the attack. Importantly, the evidence was not sufficient to establish that the knives that did have the appellant’s DNA on them were used to injure Ms Smith.
We acknowledge the limitations of the forensic evidence in respect of the knives. However, we consider the fact that the appellant’s DNA was found on the fillet knife (and not that of Mr Heremaia), and this knife also had Ms Smith’s blood on it, is a significant piece of circumstantial evidence indicating that the appellant was not only present when the attack occurred but was also involved in it. This is so irrespective of whether the blood on this knife may have been transferred from something else that had Ms Smith’s blood on it, such as a blood-stained garment. The presence of both Ms Smith and the appellant’s DNA on the bread knife with the possible presence of blood being detected on the blade and the handle, is further circumstantial evidence tending to implicate the appellant in the attack. We do not discern any error in the Judge’s assessment of this evidence.

The neighbours’ evidence

CCTV captured footage of a person resembling the appellant leaving the apartment block, walking south to the shops at about 9.40 pm, entering a nearby service station at about 9.45 pm and then walking in the direction of the appellant’s home (rather than back to the apartment block). There was evidence from neighbours that they heard Ms Smith arguing and yelling after this time. Mr Davey submits that although the Judge referred to this evidence in his narrative of events, he did not engage with it when considering whether the appellant was involved in the attack.
A witness (F) briefly stopped at her mother’s flat to drop off an item sometime between 7.30 pm and 8 pm on 13 May 2020. After she arrived, a male from Mr Heremaia’s nearby flat, came out and asked if she was okay. F’s description of this male fitted that of the appellant. F described him as being quite friendly during this brief encounter although she could barely understand what he was saying because his speech was so slurred. F was at her mother’s flat for only about five minutes. During this time, she heard a woman’s and a man’s voice outside the nearby flat. She said that the woman was yelling but she could not make out what was being said.
One of Ms Smith’s neighbours (W) heard three different voices coming from Mr Heremaia’s flat on the afternoon and evening of 13 May 2020. She recognised two of them as being Ms Smith and Mr Heremaia, but not the third, which was a male’s voice. She said most of the time it was just laughing and talking but at times they may have been arguing. However, she said this was not unusual as Mr Heremaia and Ms Smith usually speak to each other “quite aggressively in general, like yelling and cursing”. W said she went to bed at about 10 pm to 10.30 pm and could still hear the same people next door talking. She said she could hear Mr Heremaia and Ms Smith as well as the other male whose voice she did not recognise.
Another neighbour (H), who lived near to Ms Smith, made two statements to the police. In his first statement, H said he received a call from his girlfriend at about 9.55 pm on 13 May 2020 and then he went outside to call a friend. While he was on the phone to his friend, H said he heard loud screams that sounded like Ms Smith coming from Mr Heremaia’s flat. He said he heard these on and off, every five or 10 minutes with each scream lasting about five to 10 seconds. He said he did not think anything of it as there were always people over there drinking and fighting. He said the screams continued when he went back inside to go to bed at about 11.30 pm.
After the police obtained the relevant telephone records, H corrected his earlier statement. The telephone call to his girlfriend was actually at 8.23 pm and lasted for 28 seconds. The second call, to his friend, commenced at 8.37 pm and lasted for almost eight and a half minutes. There was a further telephone call at 11.11 pm which lasted for almost 30 minutes. H believed that it was during this call that he heard the screams. He said he did not see anyone coming or going from the apartment block while he was on this telephone call.
Another neighbour (T) who also lived near to Ms Smith, told the police that between midday and 4 pm, she heard Ms Smith yelling. She said she knew it was Ms Smith because she had heard her yelling so many times before. She could not understand what Ms Smith was saying because the windows were closed, and the sound was muffled. T and her family left their flat at 4 pm and returned home at about 5.30 pm. She noticed when she got back that everything was quiet, and the lights were out in Mr Heremaia’s flat. T did not see or hearing anything unusual until about 11 pm when she heard doors slamming at Ms Smith’s flat followed by a car alarm going off. The police knocked on T’s door just after 3 am.

T’s husband (N) said that Ms Smith regularly hosts people from Mr Heremaia’s flat on Wednesdays (when they get paid) and they generally consume alcohol and marijuana and play loud music. N said that on 13 May 2020, he heard loud music and swearing coming from Ms Smith’s flat, starting around 10 pm or 11 pm. He said it went quiet at some stage during the night, but the noise was still going when he went to sleep around 11 pm or midnight.
Mr Davey submits that this evidence, particularly H’s evidence, shows it is reasonably possible that Ms Smith was still alive after the appellant left.
For the reasons that follow, we do not consider this evidence materially assists the appellant’s case that he was not involved in the attack on Ms Smith (nor the Crown case that he was).
It appears from the CCTV footage that the appellant left Mr Heremaia’s flat at around 9.35 pm and did not return. Assuming this is correct, it can safely be inferred that Ms Smith had been mortally wounded by then given that Ms Smith’s blood was on the appellant’s track pants and on his shoes in a sufficient quantity to leave a 36 metre bloody footprint trail leading from Mr Heremaia’s flat and extending down the road.
If H did hear Ms Smith’s screams coming from Mr Heremaia’s flat, it seems likely that this was during the call he made to his friend outside his flat shortly after speaking to his girlfriend, as he initially told the police. Although he originally thought that this telephone call took place around 10 pm, the telephone records show that it was actually initiated at 8.23 pm. That fits with the other evidence including the CCTV footage and the blood on the appellant’s shoes and clothing. On the other hand, if H was correct in his second statement that he heard screams during the later call commencing at 11.11 pm, it is very unlikely to have been Ms Smith.
Given the appellant left Mr Heremaia’s flat at around 9.35 pm, W must be a little out with her timing in saying she recalled hearing all three voices (Ms Smith, Mr Heremaia and the second male whose voice she did not recognise) coming from Mr Heremaia’s next door flat when she went to bed between 10 pm and 10.30 pm. Her evidence that she heard three voices including two male voices lends no weight to the thesis that Mr Heremaia acted alone in attacking Ms Smith. If anything, this evidence that she heard all three of them behaving aggressively, yelling and cursing, tends to support the Crown case.
T’s evidence differs to that of her husband, N. T did not see or hear anything unusual after she returned to her flat at 5.30 pm and she thought everything was quiet until she heard doors slamming at Ms Smith’s flat at 11 pm. N said he heard loud music and swearing coming from Ms Smith’s flat starting at 10 pm or 11 pm. Leaving aside these discrepancies, this evidence does not assist the appellant (or the Crown). The loud music and swearing that N said he heard and the door slamming that T said she heard either came from another flat, or someone else was in Ms Smith’s flat. Either way, we can be confident that Ms Smith was not involved because we know she was bleeding profusely before 9.35 pm and she never made it out of Mr Heremaia’s flat alive. When paramedics arrived at around 1 am, Ms Smith’s body was described as “cold to touch”.

Mr Heremaia’s DNA found on Ms Smith’s clothing

Mr Davey submits that the Judge should have taken account of other evidence suggesting that Mr Heremaia was the one who killed Ms Smith. In particular, the jeans Ms Smith was wearing when she was found lying on the floor were unbuttoned and lowered, with the cuffs being positioned over Ms Smith’s heels. Her underpants had been removed and were found near her feet. Her top and jumper sat at the top of her torso, leaving her bra exposed. Mr Heremaia’s DNA was located on Ms Smith’s underwear, on the opening of her jeans, and on various swabs taken including from around Ms Smith’s eyes and inside her mouth. His DNA was also found under Ms Smith’s right hand fingernail clippings. As Mr Davey says, Mr Heremaia clearly lied when he told the ambulance officer and a police officer that Ms Smith had passed out before he went to bed, which he said was at 5 pm.
This evidence demonstrates that Mr Heremaia was involved in the attack, as was conclusively confirmed by the jury’s verdict that he was guilty of manslaughter beyond reasonable doubt and Fitzgerald J’s findings for the purposes of sentencing as to his direct involvement in the attack. However, it does not follow that the appellant was not also involved in the attack. The evidence against Mr Heremaia does not tend to exclude the appellant’s involvement. We regard this evidence as largely neutral on that issue and we are not surprised the Judge did not factor it into his analysis.

Conclusion

Like the Judge, we are satisfied that the combined force of the evidence is more than sufficient to establish, on the balance of probabilities, that the appellant was directly involved in this brutal, sustained, and ultimately fatal attack on Ms Smith in which she suffered multiple sharp and blunt force injuries caused by cutting, stabbing, punching, and likely stomping. We are satisfied that the appellant inflicted one or more of the knife wounds himself, or, at the very least, he assisted Mr Heremaia to do so knowing that one or more knives were being used in this attack. It is also likely that he inflicted one or more of the blunt force injuries that were a substantial and operative cause of Ms Smith’s death.
Mr Heremaia was plainly directly involved in the attack. However, taking the evidence as a whole, it seems equally clear that the appellant was also directly involved in one or more of the ways described at [38] above. Given the large amount of Ms Smith’s blood on the appellant’s shoes creating the lengthy bloody footprint trail, we consider it highly likely that Ms Smith had already bled profusely and was either fatally wounded or dead before the appellant left Mr Heremaia’s flat. That the appellant was directly involved in the attack is also strongly supported by her blood being found on his trackpants, his DNA being found under Ms Smith’s fingernails and on two knives that also had her blood on them. Mr Heremaia’s DNA was not found on any of the knives despite them all belonging to him. This evidence supports the likelihood that the appellant inflicted one or more of the sharp force injuries.
Further support for the appellant’s involvement in the attack comes from his own statement that he was struck on the head by Ms Smith. This was likely after the initial confrontation involving arguing, verbal abuse and yelling escalated into a violent physical altercation. While none of the wounds may have been beyond Mr Heremaia’s physical capability, the combination of his comparatively small height, slight build, and impaired vision supports the Crown case that he was assisted by the appellant in overcoming Ms Smith’s resistance and inflicting the many injuries she sustained leading to her death. The possibility that the appellant simply stood by while all of this happened appears to be remote.

Result

The appeal is dismissed.

Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent

[2024] NZCA 217

10 June 2024 at 11.30 am