Rafferty v The King

[2024] NZCA 217

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

1. 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.

2. 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.

3. 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].

4. 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…