Shadrock v R

[2011] NZCA 388

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ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA490/2010 [2011] NZCA 388

BETWEEN  CHRISTOPHER JACOB JUNIOR SHADROCK

Appellant

ANDTHE QUEEN Respondent

Hearing:         12 April 2011

Court:            O'Regan P, Stevens and Wild JJ Counsel:        K P Brosnahan for Appellant

R J Collins for Respondent

Judgment:      12 August 2011 at 3.00 pm

JUDGMENT OF THE COURT

AThe  appeal  against  conviction  is  allowed  and  the  conviction  on  the charge of murder is quashed.

B        The case is remitted to the High Court for a re-trial.

COrder prohibiting publication of the reasons for judgment in news media or on the internet or other publicly available database until final disposition  of  retrial.     Publication  in  Law  Report  or  Law  Digest

permitted.

SHADROCK V R COA CA490/2010 [12 August 2011]

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

Para No

A bag snatch gone wrong   [1] Some further detail on the background   [5] Issue one: applicability of s 167(d)  [16] Definition of murder  [22] Section 167(d):  the competing arguments  [23] Origins of s 167(d)  [28]

Is a criminal offence required  [40] Relationship of fatal act to the other offence   [49] Factors relevant to whether act for any unlawful object   [64] Distinction between the unlawful object and its aftermath   [74] Was s 167(d) available in this case?   [77] Issue two: error in directions and question trail  [84] Submissions on issue two   [88] Discussion         [91] Issue three: failure to sever trial of the appellant  [96] Discussion  [101] Issue four: absence of intoxication direction  [108] Discussion  [114]

Result  [117]

A bag snatch gone wrong

[1]      The appellant, Christopher Shadrock, was convicted of murdering Joanne Wang as a result of events that took place in a shopping mall car park in South Auckland in June 2008.  Mr Shadrock and four associates planned and embarked on a criminal enterprise to snatch a bag from a member of the public returning to a vehicle in the car park and then flee the scene and divide up the proceeds of the theft.

[2]      On this occasion the bag snatch went badly wrong. Mrs Wang died from injuries received when she pursued Mr Shadrock and was hit by the vehicle he was driving as he attempted to leave the scene of the crime.   At his trial the Judge, Rodney Hansen J, directed the jury that they should find Mr Shadrock guilty of murder if the Crown had established that the elements of either s 167(b) or s 167(d) of the Crimes Act 1961 were met.  A key ground in the appeal is whether the trial

Judge was correct to leave the case for the jury on the alternative basis by allowing the Crown to rely on s 167(d):  that for an unlawful object the accused did an act that he knew to be likely to cause death, and thereby killed a person, though he may have desired that his object should be effected without hurting anyone.

[3]      In this part of the appeal the focus is on the meaning of the words in s 167(d) “for an unlawful object”.  The circumstances of the case give rise to two subsidiary questions in relation to this ground, namely:

(a)       Whether the unlawful object in s 167(d) must be a criminal offence;

and

(b)If so, does the act causing death have to occur during the commission of the offence, or is it enough for the act to take place at a time and in a place sufficiently proximate to the commission of the offence?

[4]      Mr Shadrock’s appeal raises three further grounds.  These are first, whether the directions on s 167(d) contained in the question trail and the summing up were erroneous.  Next, did a miscarriage of justice occur from Mr Shadrock’s trial being heard jointly with two of his associates Mr Vita Lemanu and Mr Terrence Tere. Finally, there is a challenge on the basis that the Judge did not give a direction to the jury on the issue of intoxication.

Some further detail on the background

[5]      Both counsel accepted that a convenient summary of the factual background is to be drawn from the remarks of the Judge on sentencing.1    For Mr Shadrock, Mr Brosnahan emphasised that at trial Mr Shadrock disputed that he saw Mrs Wang in the vicinity of his vehicle just prior to the point of impact.   However, we are satisfied that the jury must have accepted that Mr Shadrock saw Mrs Wang in front

of , or very near, the vehicle prior to impact in order to return a verdict under either

1      R v Shadrock HC Auckland CRI-2009-092-3881, 2 July 2010 (Sentencing Notes) per Rodney

Hansen J.

s 167(b) or s 167(d) of the Crimes Act.  We therefore proceed on that basis, whilst acknowledging Mr Shadrock’s denial.

[6]      On the morning of 16 June 2008, Mr Shadrock stole a Nissan Regulus from a car park in Glen Innes.  The specific purpose of the theft was that the stolen vehicle was to be used in a bag snatch involving the appellant and his four associates.   It seems to have been well known in the criminal fraternity that a Nissan Regulus is easy stolen.   The proposed  modus operandi for the bag snatch is apparently in common use in South Auckland as a means of perpetrating the theft of handbags in shopping mall car parks.  The stolen vehicle carries the intended thief who is usually a passenger.  A legitimate car waits close by to provide support if required and to facilitate the thief’s escape.  The High Court was told that women of Chinese and Indian ethnicity are often targeted as they are seen as being more likely to carry significant sums of money and less likely to resist.  Typically, the plan is that after a bag is stolen, both vehicles leave the car park.  The stolen vehicle is abandoned and its occupants are picked up by the following legitimate vehicle.  If the two vehicles are separated, text messaging is used to determine where to meet up.

[7]      On 16 June 2008, the appellant and his associates sought to use this modus operandi.   But the appellant decided to depart from the plan.   He was driving the stolen Nissan and decided to snatch the bag himself without waiting to be joined by an associate from the legitimate vehicle.  Why the plan was changed is not known. The trial Judge hypothesised that Mr Shadrock may have seen an opportunity and jumped the gun.  For whatever reason, the appellant did it alone.

[8]      At about 3.30 pm, Mrs Wang and her eight year old son emerged from the shopping mall.  Mrs Wang was carrying a handbag containing the takings from one of the bakeries she and her husband operated.  Mrs Wang and her son returned to the van that Mrs Wang had parked in the car park.   She got into the driver’s seat. Mrs Wang’s son got into the front passenger seat.  Mrs Wang placed her handbag on the console between the front seats of the van.  Before the front passenger door could be closed, the appellant reached inside the van in front of Mrs Wang’s son, seized the handbag and ran back to the stolen Nissan that he had left in an adjoining aisle of the car park.

[9]      There  then  followed  what  the  Judge  described  as  a  “second  unexpected event”.   Instead of acquiescing in the loss of the handbag and calling for help, Mrs Wang pursued Mr Shadrock to where the stolen vehicle was parked.  There is evidence from the closed-circuit surveillance film that Mrs Wang could be seen running to the front driver’s side of the Nissan.  As the vehicle reversed at speed, Mrs Wang could be seen (and was also seen by witnesses) in front of the vehicle, possibly  with  her  hands  on  the  bonnet,  until  the  stolen  vehicle  driven  by Mr Shadrock disappeared from view behind a tree.

[10]     What happened next was the subject of extensive evidence and analysis at trial.2   The Judge found that, as the vehicle reversed, Mrs Wang moved towards the other side of the bonnet.  The vehicle slowed rapidly and stopped when its exit onto the access-way, which would have permitted egress from the car park, was blocked by another vehicle entering the car park.  The driver of that vehicle sounded her horn and the Nissan came to a sudden halt.  By this time Mrs Wang had moved towards

the passenger side of the vehicle.   One witness placed her close to the passenger door.   By the time the Nissan moved forward, the preponderance of evidence indicated that she was level with the front of the vehicle and towards the left of the bonnet.   She may well have been holding on to the mirror mounted on the front passenger mudguard.

[11]     The precise reasons why Mrs Wang chose to pursue Mr Shadrock will never be known.  It is likely that her actions were intended to attempt to recover the stolen handbag from Mr Shadrock and prevent the removal of the handbag from the scene. As we later discuss, whatever Ms Wang had in mind, it does not affect our analysis.

[12]     The Judge summarised the evidence of Mrs Brown.   She had driven her vehicle to the exit from the car park and blocked it in an effort to stop the Nissan from leaving.3   Mrs Brown had a good view of what happened next.  As the Nissan accelerated  forward Mrs Brown  saw  Mrs Wang  take  four  rapid  steps  backwards before the left front of the vehicle passed over her foot.  The Judge found that it was

probable that this caused a leveraging effect which resulted in an accelerated fall

2 Sentencing Notes at [12].

3      Sentencing Notes at [14]–[15].

causing Mrs Wang’s head to hit the ground.   She sustained non-survivable brain injuries from which she died early the following morning, 17 June.

[13]     The  Nissan  then  continued  to  accelerate  and  left  the  car  park  at  speed colliding as it did so with another vehicle that was backing out of a car park space.  It was followed closely by the legitimate vehicle, driven by one of the appellant’s associates.  This vehicle had been parked nearby and its occupants had seen what had happened.  The two vehicles met up away from the car park and the participants divided up the cash found in Mrs Wang’s handbag.

[14]     After the news got out the following day, 17 June, that Mrs Wang had died, the appellant took steps to cover his tracks.  That evening, the appellant went to the house of an associate and asked him if he could hide the handbag there.   The associate agreed.   The handbag was later found concealed in a bedroom when a search warrant was executed at the address on the morning of 19 June.

[15]     Later on 17 June, the appellant went to the home of another associate and offered him $300 to destroy the stolen Nissan vehicle which had been abandoned at Rochas Place in Manukau City.  This associate enlisted the help of several others. The associate and another person purchased petrol that was later used to set fire to the Nissan.  The stolen vehicle was completely destroyed and the Judge found that it is likely that important forensic evidence was destroyed with it.4

Issue one:  applicability of s 167(d)

[16]     This issue concerns whether Rodney Hansen J erred in law in holding that s 167(d) of the Crimes Act should be left to the jury as an alternative basis for a finding of murder.5   The Crown case at trial was put on alternative bases.  First, the appellant had intentionally assaulted Mrs Wang with intent to cause bodily injury and with knowledge that bodily injury was likely to result in death, being reckless as to whether death occurred or not (s 167(b)).   Alternatively, the appellant had hit

Mrs Wang with the vehicle he was driving whilst engaged in an unlawful object and

4 Sentencing Notes at [17].

5      R v Shadrock HC Auckland CRI-2009-092-3881, 7 May 2010 (Ruling 15).

with knowledge that his actions were likely to cause death (s 167(d)).   Clearly in seeking to rely on s 167(d), the Crown was concerned that the appellant might well be able to raise a reasonable doubt as to one or more of the elements which the Crown was required to prove under s 167(b).

[17]     At the end of the evidence, the Judge heard argument from counsel as to whether the Crown ought to be permitted to close on the basis of reliance on both s 167(b) and s 167(d).  The Judge concluded both subsections were available on the evidence.

[18]     With respect to s 167(d), the Judge determined that, if the jury thought that the appellant’s object was to flee the scene and Mrs Wang was hurt while he was attempting to achieve that object, the subsection could apply.6  The Judge relied upon two decisions of this Court, R v Hakaria7 and R v Piri,8 as supporting the proposition that the commission of an offence is not the sine qua non of an unlawful object.  In particular, the Judge cited a passage from R v Piri as follows:9

It is true that the tying up and leaving of the girl alone for hours were both parts of the accused’s plan, but not true that it was necessary for them to leave her to detain her.   The detention itself was unlawful and the act of leaving her unattended was likely to cause death because neither the accused nor anyone else would be able to observe her condition and free her if her suffering became acute.  The Judge was justified in putting it to the jury as he did.   Another way of putting it, equally open, is that for the unlawful object of extorting information by compulsion or torture of her mind, the accused  committed  acts  of  assault  and  false  imprisonment  which  were known to be likely to cause death in the circumstances.

[19]     The Judge considered that such a “template” could be applied to the evidence

heard at trial. The Judge concluded:10

The jury could take it from the evidence that the plan of the accused and his confederates was to steal a handbag and then flee the car park to avoid detection and apprehension.   The exit from the car park with the handbag was a necessary step in the fulfilment of their criminal plan.  The act which led to Mrs Wang’s death occurred as Mr Shadrock sought to achieve the unlawful object.

6 Ruling 15 at [8].

7      R v Hakaria [1989] 1 NZLR 745 (CA).

8      R v Piri [1987] 1 NZLR 66 (CA).

9      R v Piri at 78.

10 Ruling 15 at [12]. We will consider the facts of R v Piri and R v Hakaria later in this judgment at [42]–[46].

[20]     Having so ruled, the Judge, when summing up on s 167(d), said:

… you will see the elements which the Crown must prove under the second limb, s 167(d).  That is, first, that he hit Mrs Wang with the vehicle he was driving.  Now it is not necessary under this limb for you to find that he hit her deliberately.  It is sufficient that his vehicle and her came in contact. The second element is that when he hit her with his vehicle he was engaged in the unlawful object of leaving the car park with her handbag.  And thirdly – and this requirement takes us back to the third requirement in the earlier definition – at the time Mr Shadrock drove forward, he would have to have known that his actions were likely to cause the death of Mrs Wang.  Again, just as under the first ground, “likely” means that he had an actual and conscious appreciation that there was a real and substantial risk of Mrs Wang dying.

...

Turning over to s 167(d), I really do not need to say a great deal more because, as I have mentioned, there is no dispute that Mr Shadrock’s vehicle and  Mrs Wang  came  into  contact  by  some  means  and  as  a  deliberate intention to hit her is not required under [a], you can effectively treat that element as having been established.  Nor is there any real dispute about [b] is there, because it is not in issue that Mr Shadrock had stolen the handbag and was attempting to make good his exit from the car park.

[21]     The element of doing an act “for an unlawful object” is referred to in the question trail for s 167(d) provided to the jury during the Judge’s summing up.  The second element was described as involving proof by the Crown beyond reasonable doubt that Mr Shadrock:  “hit her with his vehicle for the unlawful object of leaving the car park with her handbag”.  This statement is also relevant to the second ground of appeal.  The essential point in issue one is that the Judge assumed for the purposes of his directions to the jury on s 167(d) that it was sufficient for the unlawful object element of that paragraph that Mr Shadrock was escaping from the immediate scene of the theft.   The appeal is brought on the basis that this was incorrect and that simply escaping the scene of the crime is not an unlawful object since it is not in itself illegal.  Moreover, the elements of the illegal act of stealing the handbag had already been completed.

Definition of murder

[22]     The Crimes Act relevantly defines murder as follows:

167      Murder defined

Culpable homicide is murder in each of the following cases:

...

(b)       If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:

...

(d)       If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.

Section 167(d):  the competing arguments

[23]     Mr Brosnahan for the appellant submits that it was an error of law to hold that s 167(d) was applicable in the circumstances of this case.  Relying on a passage in  Adams  on  Criminal Law,  Mr Brosnahan  submits  that  the accused  must  have carried out the fatal act with the motive or purpose of achieving some further or separate unlawful result, and that “unlawful” in this context requires  a criminal

offence: 11

Under para (b), the accused must have meant the act which caused or substantially contributed to death to cause bodily injury, but this is not required under para (d); instead it is essential that the accused did the fatal act for some “unlawful object”. Although it has been suggested that “all acts have an object” (R v Vasil (1981) 58 CCC (2d) 97 (SCC), at pp 107-108), it appears that it is required that the accused did the fatal act with the motive or purpose of achieving some further or separate unlawful result:   compare R v Hughes (1951) 84 CLR 170; R v Hakaraia [1989] 1 NZLR 745 (CA), at p 748. However, the fatal act and the unlawful object may be different elements of a single offence, and the Court of Appeal has held that there is no requirement that the further unlawful object must be “clearly distinct from the immediate object of the dangerous act”: R v Aramakutu [1991]

3 NZLR 429; (1991) 7 CRNZ 114 (CA), at p 433;  p 118.

[24]     Mr Brosnahan notes that there did not seem to be any New Zealand authority that considered the meaning of “unlawful” in this subsection.  He therefore relies on a further passage in Adams on Criminal Law which states that “a criminal offence would seem to be required”.12    Counsel submits the only criminal offence involved

here was the theft of the handbag which was completed prior to the act of causing

11     Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [CA167.10].

12     At [CA167.11], relying on a decision of the Supreme Court of Canada, R v Vasil (1981) 58 CCC

9 (2d) 97.

Mrs Wang’s death.   The appellant had no motive or purpose of achieving some further offence when that occurred, as leaving the scene of the crime is not of itself a criminal offence.  Thus there was no principled basis upon which the Judge could extend out the criminal offence of theft to a wider criminal plan of going to a car park, stealing a handbag and fleeing the car park for the purposes of s 167(d).

[25]     For the respondent, Mr Collins submits that the resolution of this issue is essentially an exercise in statutory interpretation.  Counsel further submits that the words “for any unlawful object” do not mean “for any unlawful object which is in itself  a  discrete  crime  and  not  yet  completed”.    Rather,  it  is  sufficient  for  the purposes of this case that the “unlawful object” includes an object that is inextricably linked with the successful implementation and completion of the crime.  In support, he points to the wording of s 167(d) and its context.  From the point of view of the appellant, his object did not end with taking Mrs Wang’s handbag, but with the successful execution of his escape from the scene.

[26]     Mr Collins submits that there is no direct authority to support the appellant’s interpretation of s 167(d).  But he contends that certain English cases (considered at [51]–[63]  below) support  the proposition  that  the unlawful  object  does  not  end simply at the point when the crime, by reference to its essential elements, is complete.13      As  an  additional  argument  Mr Collins  submits  that  there  was  no miscarriage of justice in this case because the appellant was still in the process of committing  the  crime  of  theft  when  he  hit  Mrs Wang.    He  was  ensuring  that Mrs Wang would be deprived permanently of the handbag and its contents, which

was the essence of his unlawful purpose.

[27]     The contest between the parties centres on whether a criminal act is actually required and if so, how proximate the fatal act must be to that criminal act in order to be committed “for an unlawful object” under s 167(d).  Can a fatal act committed by an accused in the course of making a getaway be “for an unlawful object” and if so,

in what circumstances? To resolve these issues we consider the history of s 167(d).

13     R v Watson [1989] 1 WLR 684 (CA); R v Bouhaddaou [2006] EWCA Crim 3190, [2007] 2 Cr

App R (S) 23;  R v Willett [2010] EWCA Crim 1620, [2011] Crim LR 65.

Origins of s 167(d)

[28]     As  the  Supreme  Court  observed  in  Timoti  v  R,  s 167(d)  is  a  qualified application of the old common law felony murder rule.14    In England, murder was criminalised by s 1 of the Offences Against the Person Act 1861, which provided:

Whoever shall be convicted of Murder shall suffer Death as a felon.

[29]     Section 6 provided:

In any indictment for Murder or Manslaughter, or for being an Accessory to any  Murder  or  Manslaughter,  it  shall  not  be  necessary  to  set  forth  the Manner in which or the Means by which the Death of the Deceased was caused, but it shall be sufficient in any Indictment for Murder to charge that the Defendant did feloniously, wilfully, and of his Malice aforethought kill and murder the Deceased ...

[30]     One iteration of malice aforethought was described as felonious murder:  that is, murder committed in the course of committing another felony.   The requisite intention for imposing responsibility for murder of this type was variously referred to as felonious intention or constructive malice.  Constructive malice was abolished by s 1(1)  of  the  Homicide Act  1957.    The  33rd   edition  of  Archbold’s  Criminal Pleading, Evidence and Practice refers to felonious intent in the context of express malice.15

Malice aforethought therefore may be said to mean any one or more of the following states of mind preceding or co-existing with the act or omission by which death is caused and it may exist where that act is unpremeditated–

...

(c)      An intent to commit any felony of such a kind that the actual commission thereof would involve the use of or at least the threat of force against the person killed.

[31]     Archbold  goes  on  to  discuss  felonious  intent  in  the  extract  cited  below, referring to some policy factors engaged by the conduct and intention concerned

14     Timoti v R [2005] NZSC 37, [2006] 1 NZLR 323 at [25]. (“Paragraph (d) murder reflects a different common law background [to s 167(c)]; namely the general felony murder rule. There the malice was not transferred but constructive”.)

15     TRF Butler and M Garsia Archbold’s Criminal Pleading, Evidence and Practice (33rd ed, Sweet and Maxwell, London, 1954) at 928–929.

including the fact that the fatal act would occur while in the act of committing a felony:16

1654. Killing without intention whilst doing another act– If a person while in the act of committing a felony involving violence, e.g. rape, kills another without having the intention of so doing, the killing is murder.

…

A person who uses violent measures in the commission of a felony involving personal violence does so at his own risk and is guilty of murder if those measures result, even inadvertently, in the death of the victim.   For this purpose, the use of a loaded firearm in order to frighten the victim into submission is a violent measure: R v Jarmain [1946] KB 74. ... If a man shoots at another’s poultry, with intent to steal them, and by accident kills a man, it has been said to be murder (R v Woodburne and Coke, 16 St Tr 53,

80); if without such intent, it is manslaughter, the act of shooting at the poultry being unlawful and not felonious (fost 258); but in R v Keate (1697)

Comb 406, 409, Holt CJ says that Coke’s dictum on this subject is “too large.

There must be a design of mischief to the person, or to commit a felony or great riot.” And considerable doubt was expressed by Stephen J whether the rule that if a person whilst committing or attempting to commit a felony undesignedly kills a man–as in the case put above, of a person shooting at poultry with intent to steal them–such killing is murder, is not too broadly stated, and whether it ought not be limited to cases where a person whilst committing or attempting to commit a felony does an act which is known to be dangerous to life, and likely in itself to cause death– as in the case of a person setting fire to a house with intent to defraud–and thus undesignedly killing a man: R v Serné, 16 Cox 311; and cf R v Horsey 3 F & F 287, Where the prisoner was charged with the murder of a woman as the result of a felonious operation performed by him upon her, Bigham J told the jury that if they were of opinion that the deceased died as a result of the prisoner’s unlawful operation, he was guilty of murder, but added that if they should be of opinion that the prisoner could not as a reasonable man have expected death to result, they might find a verdict of manslaughter: R v Whitmarsh, 62

JP 711; followed by Lawrence J in R v Bottomley 1903 Liverpool Assizes, 38

LJNewsp 311.

…

1655. It seems, therefore, that the doctrine that, if a person while committing or attempting to commit a felony, undesignedly kills another, the killing amounts to murder, would now be limited to a felony of such a kind that the actual commission thereof would involve at least a threat of force towards the person killed.

[32]     Another example that could be added is R v Stone, where a woman was found dead from strangulation, she having clearly been raped.17  The Court stated:18

16     At 945.

17     R v Stone [1937] 3 All ER 920 (CCA).

18     At 921.

After the jury had been directed with great propriety, they returned into court to ask this question: “If, as a result of an intention to commit rape, a girl is killed, although there was no intention to kill her, is the man guilty of murder?” It seems obvious to us that that means: “He had no intention, in our view, of killing her, but he did intend to ravish her if he could and it was in his efforts to ravish her that she died.” When the jury propounded that question to him, Lord Hewart LCJ, answered: “Yes, undoubtedly,” and, in our view, that answer was right.

[33]     The conviction of murder was upheld.19

[34]     As noted above, the requisite intention for felonious murder was sometimes referred to as “constructive malice”.  In R v Vickers, Lord Goddard discussed malice aforethought and stated:20

“Constructive malice” is an expression which I do not think will be found in any particular decision, but it is to be found in the text books, and is something different from implied malice. The expression “constructive malice” is generally used where a person causes death during the course of carrying out a felony which involves violence - that always amounted to murder. There may be many cases in which a man is not intending to cause death, as, for instance, where he gives a mere push and a person falls down and  strikes  his  head  or  falls  down  the  stairs  and  breaks  his  neck,  and although the push would never have been considered in the ordinary way as an act which would be likely to cause death, yet if it was done in the course of carrying out a felony it would amount to murder. Another illustration of “constructive malice” would be if a man raped a woman, and she died in the course of the struggle. The fact that he may only have used a moderate or even small degree of violence in the struggle would have been no defence to a charge of murder, because if he caused death, he did so during the commission of the felony of rape. Another instance of constructive malice which was always held sufficient to amount to murder was if a police officer was killed in the execution of his duty. If a person was resisting arrest before the Act of 1957 and caused the death of a police officer, although he might only have used a little violence on the officer he was guilty of murder. Murder is, of course, killing with malice aforethought, but “malice aforethought” is a term of art. It has always been defined in English law as, either an express intention to kill, as could be inferred when a person, having uttered threats against another, produced a lethal weapon and used it on a victim, or implied, where, by a voluntary act, the accused intended to cause grievous bodily harm he cannot say that he only intended to cause a certain degree of harm. It is called malum in se in the old cases and he must take the consequences. If he intends to inflict grievous bodily harm and that person dies, that has always been held in English law, and was at the time this Act was passed, sufficient to imply the malice aforethought which is a necessary constituent of murder.

19     For a similar case see DPP v Beard [1920] AC 479 (HL).

20     R v Vickers [1957] 2 QB 644 at 670.

[35]    Lord Goddard’s observations were made shortly before the abolition of constructive malice in the Homicide Act 1957.  The statutory provision effecting the abolition offered a definition of constructive malice which included the words “in the course or furtherance of” another offence.21 This suggests that the fatal act must be done prior to or as part of the unlawful act.  Moreover, the words “in the course or furtherance of” indicate that the fatal act must be committed so as to achieve the

outcome of successfully committing an unlawful act.

[36]     Lord Goddard referred to two distinct factual situations that might lead to a murder verdict.  The first is where a violent act is carried out against the victim that leads to their death.  Thus if a man violently pushes another down a flight of stairs and the victim dies, that would constitute murder since the violent act in itself was a felony.   Such conduct would be criminalised in New Zealand now under s 167(b) and a recklessness requirement imposed.  The second situation is where some other felony distinct from the fatal act is carried out and in the course of that felony, another crime is committed.  Hence if a police officer was killed whilst the accused was resisting arrest, this could constitute murder.  Under the Crimes Act this would be criminalised under s 167(d), but no intention to murder requirement imposed. Instead, knowledge that an act done is likely to cause death would be sufficient.  The language used by Lord Goddard suggests he thought the fatal act would have to occur whilst the felony was being carried out:   “a person causes death during the

course of carrying out a felony (emphasis added)”.22     Such language is common

across all the cases.   The English Courts never had cause to extend the scope of felonious intent.

[37]     All of the examples outlined above involve a death that occurs whilst the unlawful  acts  were  being  committed.    Most  of  the  examples  involve  actual  or

threatened  physical  violence.     Accordingly,  neither  those  examples,  nor  the

21     Section 1 of the Homicide Act 1957 (UK) 5 & 6 Eliz II c 11 provides:

(1)   Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance of another offence.

(2)   For the purposes of the foregoing subsection, a killing done in the course or for the purpose of resisting an officer of justice, or of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody, shall be treated as a killing in the course or furtherance of an offence.

22     At 670.

definitions of constructive malice, assist in determining a crucial issue that we must decide, namely, when can it be said that the conduct relative to the “felony” was completed for the purposes of being characterised as being for an unlawful object under s 167(d) of the Crimes Act.

[38]     We accept that a more restricted version of felonious murder is reflected in s 167(d).  The New Zealand formulation of s 167(d) was influenced by the English Royal Commission on Indictable Offences 1879.  The Commission’s draft s 174 was virtually reproduced in New Zealand’s s 167.23    The Commission’s Report and its Draft Code built upon the earlier English Criminal Code Bill drafted in 1878.24   The learned  Commissioners  recommended  freeing  the  law  of  the  fiction  of  “malice

aforethought”:

The present law may, we think, be stated with sufficient exactness for our present purpose somewhat as follows:– Murder is culpable homicide by any act done with malice aforethought. Malice aforethought is a common name for all the following states of mind:– (a) An intent preceding the act to kill or to do serious bodily injury to the person killed or to any other person; (b) Knowledge  that  the  act  done  is  likely  to  produce  such  consequences, whether coupled with an intention to produce them or not; (c) An intent to commit  any  felony;  (d)  An  intent  to  resist  an  officer  of  justice  in  the execution of his duty. Whether (c) is too broadly stated or not is a question open to doubt, but Sir Michael Foster, perhaps the highest authority on the subject, says (p 258)

A shooteth at the poultry of B, and by accident killeth a man; if  his  intention  was  to  steal  the  poultry,  which  must  be collected from circumstances, it will be murder by reason of that felonious intent; but if it was done wantonly and without that intention, it will be barely manslaughter.

…

If a person intends to kill and does kill another, or if, without absolutely intending to kill, he voluntarily inflicts any bodily injury known to be likely to cause death, being reckless whether death ensues [or] not, he ought in our opinion to be considered a murderer if death ensues.  For practical purposes we can make no distinction between a man who shoots another through the head expressly intending to kill him, a man who strikes another with a violent blow with a sword, careless whether he dies or not, and a man who, intending for some object of his own, to stop the passage of a railway train, contrives an explosion of gunpowder or dynamite under the engine, hoping

23     Except that the words “or ought to have known” after “knows” were dropped. See R v Piri

[1987] 1 NZLR 66 (CA) at 77.

24     See discussion of the history in Downey v R [1971] NZLR 97 (CA) at 100; and in R v Piri at 79–

82.

indeed that death may not be caused, but determined to effect his purpose whether it is caused or not.

[39]    It seems that the Commissioners were struggling to articulate the exact circumstances in which death would become a murder in the absence of an actual intention, and that there was some discomfort with the ambiguity of “malicious aforethought”.  Again, we note that the examples given both by the English Royal Commission and by Lord Goddard in discussing constructive malice were acts that occurred whilst in pursuit of some other crime, typically one involving violence.

Is a criminal offence required?

[40]     The appellant suggests that the words “unlawful object” in s 167(d) mean a purpose to commit a criminal offence.  The Crown suggests that it is enough that the act causing death is done for some unlawful, bad or immoral purpose.

[41]     In Canada, the analogous provision to s 167(d) has been read down so that “unlawful object” means “the object of conduct which, if prosecuted fully, would amount to a serious crime, that is an indictable offence requiring mens rea”.25    As Mr Collins points out, this has to be viewed with caution in New Zealand, since the statutory context in Canada was quite different.  In Canada at the time, constructive intention was all that was required for murder (it was enough that the accused should

have known death might ensue, it was not required that he did in fact know).  The Supreme Court thus put a gloss on the meaning of “unlawful object” so as to restrict the cases that would qualify as murder.   The Canadian legislation has now been amended  to  provide  a  purely  subjective  form  of  recklessness,  but  Canada  has

remained on the course set by Vasil.26   The question is whether it is appropriate for

New Zealand to follow this course.

[42]     Mr  Collins  relied  on  R  v  Piri27   and  R  v  Hakaraia28   in  support  of  his contention that an unlawful object need not be a purpose to commit a crime, and that

25     R v Vasil (1981) 58 CCC (2d) 97 (SCC).

26     R v Meiler (1999) CarswellOnt 1258 (ONCA) at [49].

27     R v Piri [1987] 1 NZLR 66 (CA) at 79–82.

28     R v Harakaia [1989] 1 NZLR 745 (CA).

a bad or immoral purpose is sufficient.  We accept that some support for that position can be derived from those decisions.

[43]     In R v Piri, the two appellants suspected the victim of stealing money from them.  They kidnapped the victim and left her overnight, tied to a tree in a remote bush area.  She died during the night, most likely from exposure.  The trial Judge directed the jury that a conviction under s 167(d) could be open if the jury found the appellants had the unlawful purpose of detaining the victim and that in the process of carrying out that detention they did an act, namely leaving her exposed throughout the night, that caused her death and that they knew was likely to cause her death. The conviction was upheld in this Court.  In the course of his judgment, Cooke P suggested an alternative way of putting it to the jury was that for the unlawful object of  extorting  information  by  compulsion  or  torture  of  her  mind,  the  accused committed acts of assault and false imprisonment which they knew were likely to cause death in the circumstances, though they may have desired that the victim not be  seriously  hurt.    The  Court’s  approach  seems  to  have  involved  treating  the unlawful purpose (kidnapping/detention) and the act that caused death and that was known to be likely to cause death (leaving the victim exposed to the elements) as

separate. We confess to some difficulty with that analysis of the facts.29

[44]     In R v Hakaraia, the victim was strangled by the two accused with a sheet, and that caused his death. The accused said they did not intend to kill the victim, but rather were trying to stop him crying out for help.  In this Court the unlawful object was said to be suppressing the victim’s cries; the act known to be likely to cause, and actually causing death was the placing of the sheet around the victim’s throat and pulling, leading to  strangulation.  Again, we have some difficulty with that analysis. It seems to us that the alternative bases on which the Crown put its case under s 167(a) and (b) were more likely to be appropriate to the facts.

[45]     Our misgivings about these two decisions have led us to consider the issue from first principles.  In our view, the right approach to s 167(d) is to require that

there must be an unlawful purpose, being the commission of a crime, and also an act

29 We prefer the analysis that the act causing death was the assault inherent in tying the victim to the tree. On that basis, the “unlawful object” crime was the kidnapping and the act causing death was the assault. Such analysis would be consistent with the cases discussed at [47] below.

(that is, distinct from the commission of the “unlawful purpose” crime) that is known to be likely to cause and does actually cause death.  The history of s 167(d) supports this approach.  The attempts to codify murder in England proceeded on the basis that another felony was being committed, or was at least intended to be committed. Despite the somewhat opaque wording “unlawful object”, we consider that the approach adopted by the Supreme Court of Canada has merit and should be followed

in New Zealand.30  Accordingly, we consider the “for an unlawful object” element in

s 167(d) requires the commission of another crime.  Effectively s 167(d) means:  “if in committing a crime the offender does an act that he or she knows is likely to cause death, and does kill someone, though he or she may have wanted to commit the crime without hurting anyone”.  We see this as appropriately limiting the scope of s 167(d).

[46]     We accept that it is difficult to reconcile this position with the analysis of the factual situations considered by the Court of Appeal in Piri and Hakaraia.   We acknowledge that those decisions were the basis for the Judge’s ruling in the present case.  He was, of course, bound by them.  We have come to the view that, to the extent that they can be seen to support the proposition that the unlawful object can be something less than a criminal offence, they should not be followed.

[47]     We prefer the approach taken in other decisions of this Court where the finding that s 167(d) applied is more in keeping with the approach set out above.  In particular, we refer to R v McKeown31  and R v Aramakutu.32    In R v McKeown, the unlawful purpose of the accused was to indecently assault the victim.  The acts that caused the victim’s death (and that were known to be likely to do so) were the binding, gagging and hitting of the victim.  In R v Aramakutu, the unlawful purpose was said to be to cause damage to the property in which the victim was located.  The unlawful act that caused death (and was known to be likely to do so) was the lighting

of a fire that caused the house to burn.33

30     We note that this case does not raise an issue as to the seriousness of the criminal offence required by s 167(d).  Accordingly we do not adopt Vasil in its entirety, preferring to leave this issue for another day.

31     R v McKeown [1984] 1 NZLR 630.

32     R v Aramakutu [1991] 3 NZLR 429.

33     This case can be contrasted with R v Downey [1971] NZLR 97 where the accused set fire to a house with the intention of hurting the victim, who was inside the house. This Court found that,

[48]     The view that we have taken is consistent with that expressed in Adams on Criminal Law,34  namely that “a criminal offence would seem to be required.”  We will next examine whether the fatal act was committed with the object of, or for, committing a separate criminal act.   We will also consider when and in what circumstances, in relation to the other criminal offence, the fatal act may occur.

Relationship of fatal act to the other offence

[49]     The second issue concerns the relationship of the act that caused the death of the victim to the unlawful object involving the commission of some other crime.  It is  clear  that  theft  is  a  discrete  criminal  offence.    In  a  technical,  legal  sense, Mr Shadrock had already completed the essential elements of the offence of theft at the  time  that  the  death  occurred.    He  had  taken  the  handbag  from  Mrs Wang intending to permanently deprive her of it.   Even if Mrs Wang had recovered her handbag as a result of her actions in chasing after Mr Shadrock, he would still have committed the crime of theft.  We accept that escaping from the scene of the crime is not in itself a criminal offence, nevertheless, it is obviously essential to the success of a theft that the owner does not recover the property.

[50]     Mr Shadrock’s act of driving towards Mrs Wang was close to the crime of theft in time and place.  It was soon after the theft.  He was still in the car park.  In a factual sense it could be said that the crime was continuing as he was persisting in his attempt to alienate the handbag from the victim.   On the facts, the question is whether his driving over the victim’s foot in the course of such alienation, thereby causing her death, was sufficiently close to the incident involving the snatching of the handbag so as to be committed for the unlawful object of the crime of theft.  If so, this would meet the requirements of s 167(d).

[51]     The Crown relied on three analogous English cases to support the proposition

that the “unlawful object” does not end simply at the point at which the offence is

technically complete.    There  is  not  now  an  equivalent  provision  to  s 167(d)  in

because the unlawful object was to cause the personal injury suffered by the victim, s 167(d)

could not be relied on and the prosecution had to base its case on either s 167(a) or s 167(b).

34     Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [CA167.11].

English criminal legislation.  However, other statutory provisions are considered in the three cases cited: R v Watson,35 R v Bouhaddaou,36 and R v Willett.37

[52]     In Watson, the appellant entered the home of the 87 year old victim, who suffered from a serious heart condition.  The victim was woken by the appellant and his co-accused and verbally abused, but the intruders made off without stealing anything.  An hour and a half after the burglary, the victim died from a heart attack. The appellant was convicted of manslaughter.  The issue was whether the trial judge had correctly directed the jury that knowledge reached throughout the stay in the house was able to be ascribed to the appellant, or whether knowledge held before crossing the threshold only could be ascribed.   This was an issue because for manslaughter to be made out, the appellant had to have done an act which a reasonable person would realise would subject the victim to some risk of harm. Once the appellant had encountered the victim, it would have been clear that his age and frailty put him at risk of a heart attack caused by the fright of a home invasion. But the appellant did not acquire that knowledge until after entering the house. The

English Court of Appeal dismissed the appeal, commenting:38

The unlawful act in the present circumstances comprised the whole of the burglarious intrusion and did not come to an end on the appellant’s foot crossing the threshold or windowsill.

[53]     Watson is of course distinguishable in a number of ways.   First, the case concerned knowledge for manslaughter, whereas this is a murder case.   Second, it did not turn on statutory interpretation.  Third, burglary can be distinguished from theft in that the physical boundaries of the crime are more clearly defined in a burglary since it involves robbing a premises.  This makes it easier to decide that any knowledge  acquired  whilst  within  the  premises  should  be  attributable  to  the appellant, since the knowledge was acquired whilst the crime was continuing.  But had  the knowledge  been  gained on  stepping onto  the footpath  (or  even  on  the threshold on exiting) it might be argued that the crime was over at that point and therefore it was not attributable.   In contrast, the crime of theft simply involves

taking property from a person, albeit with an element of intention permanently to

35     R v Watson [1989] 1 WLR 684 (CA).

36     R v Bouhaddaou [2006] EWCA Crim 3190, [2007] 2 Cr App R (S) 23.

37     R v Willett [2010] EWCA Crim 1620, [2011] Crim LR 65.

38     At 686–687.

deprive the owner of such property.  The spatial proximity within which a s 167(d)

murder can occur is narrower.

[54]     The issue in Bouhaddaou was whether a 30 year minimum starting point had been correctly identified for sentencing a person convicted of murder and burglary. Mr Bouhaddaou had burgled the victim’s home, but was caught by the occupier.  He stabbed him to death and then made his escape.   The Criminal Justice Act 2003 provided that a 30 year minimum applied if the crime was “a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for

payment or done in the expectation of gain as a result of the death)”.39   The  English

Court of Appeal dismissed the appeal:40

We  reject  Mr Etherington’s  submission  as  to  the  starting  point.     We appreciate the argument that the appellant did not intend to gain anything from his murderous act, other than securing his liberty, but we consider this is sophistry.  Escaping after a burglary is an integral element of the criminal enterprise and if murder is committed to facilitate escape from a burglary whose object is gain, then we consider that it can properly be said to be committed “for gain”.  If there were any doubt it would be removed by the contrast between the words “in the course of” and “in furtherance of” that the draftsman has used.

[55]     As  well  as  arising  in  quite  a  different  context,  this  case  is  not  directly analogous since the wording of s 167(d) is not the same.  The use of the phrase “for any unlawful object does an act” requires emphasis being placed on the word “for” as constraining the proximity of murderous acts under s 167(d).   The word “for” suggests  something  done  directly in  prosecution  of,  or  to  carry out,  a  criminal offence.   The Bouhaddaou case also provides a contrast to the present, where the statute used the words “in the course of or furtherance of”.  These words make clear that fatal acts more broadly relating to the crime would qualify.   Moreover, the overall question in Bouhaddaou was whether the murder had been carried out for a “gain”, and it is easy to see why a murder committed to facilitate an escape might be said to be a “gain” since it is to the benefit of the accused if they escape.

[56]     The case of Willett has some factual similarities.  Mr Willett and his brother

had attempted to steal the victim’s van but their activities were interrupted.   The

39     Criminal Justice Act 2003 (UK) sched 21, cl 5(2)(b).

40 At [15].

brother was driving the escape vehicle when it struck and killed the victim who stood in the exit of the car park to block the escape path.  Mr Willett was convicted of murder as a secondary party.  The English Court of Appeal allowed his appeal on another ground.  It considered substituting a conviction of manslaughter instead of ordering a retrial:41

We have considered whether it would be open to us to substitute a verdict of manslaughter by an unlawful and dangerous act.   A case could be made against the appellant that the escape, being part of the theft, was an unlawful act, intentionally performed, in circumstances rendering it dangerous in the sense that a reasonable and sober person would have been aware of the circumstances  which  made  the  escape  dangerous.    It  is  arguable  that  a verdict on that basis would be almost inevitable.

[57]     However the Court considered that on the facts it was not open to it to order a conviction of manslaughter since:42

We are unable to say that on its verdict of murder the jury must have been satisfied of “unlawful act” manslaughter, particularly in light of difficulties and controversy identifying the ingredients of that offence.

[58]     The observations in the Willett case are of assistance in the present context. Although the view of the English Court of Appeal was obiter, the Court was reluctant to take a narrow view of the unlawful act in the context of liability for manslaughter. To do otherwise would have risked the application of an unrealistic approach to the circumstances, devoid of their potential context.  The Court also went on to endorse the application of the decision in Bouhaddaou, even though the statutory context was

different. The Court stated:43

The Judge accepted that the murder was done for gain in the sense of a murder committed in the course or furtherance of robbery or burglary (Paragraph 5(2)(c)).  Although it is true that the murder was not committed in order to facilitate the theft but rather to facilitate his escape, the judge was entitled to take the view that the events fell within paragraph 5(2)(c).

[59]     In  terms  of  the  connection  between  the  fatal  act  and  the  other  criminal offence, we refer also to a decision of this Court in R v Wickliffe,44  which was not

cited in argument by either party.

41 At [33].

42 At [35].

43 At [39].

44     R v Wickliffe [1987] 1 NZLR 55 (CA).

[60]     Mr Wickliffe decided to execute an armed robbery on a jewellery store.  He went into the store with a semi-automatic gun, loaded and cocked.  The staff were uncooperative.   One of the men went outside and held the door closed.   On his account, Mr Wickliffe tried to open the door.  Another of the staff, Mr Paul Miet, tried to disarm Mr Wickliffe.  There was a struggle, the gun went off and Mr Miet was killed.   Mr Wickliffe claimed that the gun going off was an accident and had only occurred because he was pushed into the door frame or wall at force and his

finger slipped on the trigger. This Court held that:45

… throughout the appellant’s object was either robbery or escaping capture and was certainly unlawful. He was threatening people in the shop with a loaded and cocked gun, his finger on the trigger, although on his account it may not have been pointed directly at Paul Miet immediately before the collision.

[61]     Mr Wickliffe had his hand on the door at the time of the murderous act and appeared to be trying to exit without executing the robbery.  Nevertheless the Court clearly  decided  that  the  unlawful  object  element  of  s 167(d)  was  made  out. However, the Court ultimately concluded that, by a narrow margin, the appeal should be allowed.   There was room for a reasonable doubt that Mr Wickliffe had the requisite recklessness (as to whether carrying a cocked gun was likely to cause death) since he claimed that he thought no-one would ever confront an armed robber.

[62]     The case of R v Wickliffe is significant because the use of the gun occurred during a continuation of the criminal plan to commit aggravated robbery, even if he was trying to exit from the store at the time the fatal act occurred.  There was an element of connectedness between the planned criminal offence and the fatal act. Further,  this Court contemplated (in the passage quoted at  [60]  above) that the unlawful object included escaping capture.  Like Watson, the case is not directly on point since it involved physical premises and thus the boundaries of the offending are more clearly defined.  Moreover, an important feature of the crime of aggravated

robbery is that it includes the element of violence (such as causing grievous bodily

45     At 61.

harm to any person46 or being armed with an offensive weapon or instrument47) “to extort the property stolen or to ... overcome resistance to its being stolen”.48

[63]     Nevertheless, Wickliffe illustrates one of the policy considerations driving s 167(d). The Court was prepared to hold the conduct fell within s 167(d) because of the inherent danger involved in committing the crime of aggravated robbery.  The Crimes Act criminalises certain acts because they are committed in a context of heightened danger wherein the victim is at a greater risk of suffering harm.49    One possible policy factor recognised by Parliament when it enacted s 167(d) was that people who commit crimes put themselves in a situation where they will be more likely to resort to violence.  In Wickliffe, the risk of violence (and hence danger to the

victim) was particularly high because of the presence of the gun, which linked the offending and the fatal act.  We would also add that in addition to the element of doing an act “for any unlawful object”, s 167(d) also contains a further element: that the offender does an act “that he knows to be likely to cause death”.

Factors relevant to whether act for any unlawful object

[64]     A crucial issue raised on this appeal is whether the fatal act of assaulting Mrs Wang, which may technically be viewed as having occurred after Mr Shadrock had completed the elements for the theft, was nevertheless done for the object of carrying out the theft.  On the one hand, the emphasis of the phrase “for an unlawful object” may focus on the purpose of the action that led to the death being the commission of a crime.  On the other hand, the word “for” may suggest the need for a causative link between the murderous act and the unlawful object and suggests that the murderous act must occur before or whilst carrying out the unlawful object.  This is supported by the New Zealand English Oxford Dictionary definition of “for”, that

contemplates something done in pursuit of something else:50

46     Crimes Act 1961, s 235(a).

47     Crimes Act 1961, s 235(c).

48     Crimes Act 1961, s 234.

49     Compare ss 191, 192 of the Crimes Act 1961, which cover actions to commit or facilitate the commission of a crime, to avoid detection, and to avoid the arrest of facilitate the flight of the offender or any other person on commission of a crime.

50     At 413.

For [prep] 11a with a view to; in the hope or quest of; in order to get (go for a walk; run for a doctor; did it for the money). 14 conducive or conducively to; in order to achieve (take the pills for a sound night’s sleep).

[65]     This  definition  suggests  that,  if  the  Court  is  to  read  into  s 167(d)  some concept of proximity, that concept must hang off the words “any unlawful object”. The fatal act must be committed so closely to the unlawful object that it can properly be said that it forms part of that object.  The issue then is to find a principled way to define how close the fatal act must be to constitute a continuing part of that object.

[66]     We have considered in this regard the concept of proximity which, depending upon the circumstances, may be of assistance in determining whether the necessary degree of connection exists.  Dictionary definitions of proximity include the Oxford English Dictionary:51

proximate 1. adj. nearest or next before or after (in place, order, time, causation, thought process, etc).

proximity n. nearness in space, time etc (sat in close proximity to them).

These definitions put the focus on the distance between two things.   They each confirm that space and time are the most obvious factors to take into account, as can be taken from the English Court of Appeal in Watson.

[67]     Black’s Law Dictionary defines proximity as follows:52

proximate, adj 1. Immediately before or after. 2. Very near or close in time or space. Cf IMMEDIATE – proximateness, n.

proximity. The  quality or  state  of  being  near  in time,  place,  order,  or relation.

[68]     Like the Oxford English Dictionary, Black’s confirms that proximity may also mean immediately following, i.e. the very next act that occurred after the theft.  The nearer the fatal act is in relation to the theft, the more likely it is to be sufficiently

close to be part of the unlawful object.

51     Graeme D Kennedy and Tony Deverson The New Zealand Oxford English Dictionary (Oxford

University Press, Oxford, 2005) at 906.

52     Bryan A Garner (ed) Black’s Law Dictionary (9th ed, West, St Paul, Minnesota, 2009) at 1346.

[69]     A possible analogy in terms of the concept of proximity is the approach used in the attempts context.   This focuses on whether the acts done were sufficiently close to the commencement of the criminal act so as to qualify as an attempt.  In the area of s 72, it is the relationship between the attempt and the intended offence that is at issue, while in the context of s 167(d) it is the relationship between the criminal offence and the fatal act that is at issue.  Thus the types of factors considered under the law on attempts may have relevance.

[70]     The law on attempts is set out in s 72 of the Crimes Act:

72      Attempts

(1)     Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

(2)     The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

(3)     An  act  done  or  omitted  with  intent  to  commit  an  offence  may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

[71]     Section  72(3)  makes  clear  that  it  is  the  proximity  between  the  acts  or omissions done and the criminal offence intended that is to be taken into account in determining whether the acts were committed “for the purposes of accomplishing his object”.

[72]     The law on attempts was recently considered by a full Court of this Court in R v Harpur.53   The Court discussed the requirement that to constitute an attempt the act to be committed in pursuit of the criminal intention must be “immediately connected” with the intended criminal act.54    This necessitated a line being drawn between preparatory acts and those done for the purposes of committing a crime.55

The cases give some guidance.  It is not necessary that there be an unequivocal act

53     R v Harpur [2010] NZCA 319, (2010) 24 CRNZ 909.

54     R v Eagleton (1855) Dears CC 515 at 538, 169 ER 826 at 835; R v Harpur [2010] NZCA 319, (2010) 24 CRNZ 909 at [12].

55     R v Linneker [1906] 2 KB 99 at 104; R v Harpur at [12].

showing the intent.56     It is also not necessary that the offender is actually at the intended location for the crime if he or she has otherwise done all that is necessary for the offence to be carried out.57   But, ultimately, the Act requires the Court to draw the line on a case by case basis, as justice demands.58     The Court will carefully evaluate the facts, giving emphasis to the time, place and circumstances of the acts, taken cumulatively.59

[73]     We emphasise that the policy considerations behind attempts, and behind murder of the s 167(d) variety, are quite different.  In the case of attempts, there is a concern  that,  if  the  proximity  test  is  interpreted  too  narrowly,  police  will  not intervene to prevent crimes until it is too late, for fear that no conviction will result.60

Thus this Court in R v Harpur went to some effort to emphasise the flexible nature of the proximity test and that it is fact dependent.   The policy considerations behind s 167(d) murder are, in a sense, the opposite. Too broad a test would lead to acts that would otherwise be manslaughter charges only, being treated as murder on the basis that the offender had, sometime, or somewhere, earlier, committed a crime. Nevertheless, the analogy is apposite.

Distinction between the unlawful object and its aftermath

[74]     Ultimately, the Court must draw a distinction between the unlawful object on the one hand, and its aftermath on the other.  An escape from the scene of a crime might fall in either of these two categories, depending on whether the fatal act is a continuing part of the offence or not.  The distinction we adopt is that, if the fatal acts occur once the offence has concluded, that might not be murder under s 167(d). The issue for the Court will be to define when and in what circumstances the offence has concluded.  We are satisfied that this cannot merely be when the legal elements

of the offence are complete.

56     R v Harpur at [15].

57     R v Bateman [1959] NZLR 487 (CA); R v Harpur at [31]–[32].

58     R v Harpur at [16].

59     R v Harpur at [35]. The Court in Harpur held that on the particular facts of the case there was strong evidence of the appellant’s intent in the form of the explicit texts that he had sent. This made the steps taken in pursuit of the actus reus less significant. The Court held that his acts were sufficiently proximate to the intended offence to constitute an attempt: at [44].

60     R v Burrett (No 3) HC Wellington T3347/02, 13 February 2003 at [16] per Hammond J; R v

Harpur at [41].

[75]     The problem with including an escape in the offence is that it then becomes difficult  to  limit  the  scope  of  s 167(d)  in  any  principled  manner.61    What  if Mr Shadrock had exited the carpark and driven off at high speed, knocking down and  killing  a  pedestrian?    Would  that  be  manslaughter,  whereas  the  death  of Mrs Wang in the circumstances of this case would be murder?  The issue is how to interpret s 167(d) in a manner that avoids any arbitrariness.

[76]     In each case it will be a question of fact whether the fatal act is sufficiently linked to the “unlawful object” – that is to the other crime being committed – to constitute murder.  As with attempts, drawing the line may require fine judgment. The nature and elements of the other crime will be important.  Can it be said that commission of that crime had ended before the fatal act, or is that fatal act properly regarded as having occurred while the crime was still being committed?   The circumstances in which events occurred, and when and where those events occurred, will also be important.  We think our example in [75] above would not be murder, since the fatal knocking down occurred after Mr Shadrock had stolen Mrs Wang’s handbag and left the scene of that crime.  The knocking down thus cannot be said to have occurred “for an unlawful object” because the crime was already completed. We think the more usual situation under s 167(d) will be one where the accused does an act causing death in the course of committing a crime and that act can properly be characterised as having been for the purpose of committing that crime.

Was s 167(d) available in this case?

[77]     Whilst  the  offence  of  theft  may  have  technically  been  complete  once Mr Shadrock  removed  the  handbag  from  Mrs Wang’s  van,  she  chose  not  to acquiesce.  She took immediate and active steps to retrieve it from Mr Shadrock’s possession.  It was open for the jury to conclude that this meant the offending was continuing.   It is the particular immediacy in time and place that means there is scope for the fatal act to fall within the “unlawful object”. The events all unfolded in the  car  park,  within  a  short  distance  from  where  Mr Shadrock  had  snatched

Mrs Wang’s bag.

61     The situation may, however, be different in the context of an aggravated robbery: see Wickliffe.

[78]     We  are  therefore  satisfied  that  this  case  could  fall  within  the  scope  of s 167(d).  The basis on which we have so found differs from that relied upon by the learned Judge, who was bound by earlier Court of Appeal decisions from which we have departed.  We do not see such an outcome as deriving from an extension of the offence of theft as counsel for the appellant submits.   Rather, it would involve an application of the facts to the law as we have held it to be.  The Judge was therefore correct to leave the case to the jury on the alternative bases in s 167(b) and s 167(d).

Was there a material misdirection?

[79]     The trial Judge directed the jury on the basis that Mr Shadrock’s attempt to leave the carpark with Mrs Wang’s handbag brought the case within the “unlawful object” element of s 167(d).  This element was step [2][b] on the Issues sheet the Judge handed the jury.  The Judge directed the jury that there was no “real dispute” about that element.

[80]     On our approach to s 167(d), that was wrong.  The Judge ought to have left it to the jury to decide, on the evidence they had heard, whether step [2][b] on the Issues sheet was made out.   To assist the jury in doing that, the Judge needed to direct them in the terms we have set out in [74]-[76] above.

[81]     The failure to leave the “unlawful object” element to the jury to decide, with an adequate direction as to what it involved, gave rise to a miscarriage of justice.62   It suffices to say that the jury may or may not have found that element made out.  The defence case on this point was that Mr Shadrock did not know Mrs Wang was there when he drove forward, and may not even have realised she was still pursuing him. A decision as to whether step [2][b] is made out or not depended on an assessment of

the reliability and credibility of the various eye witnesses.  It was thus a matter for the jury, not one for this Court on appeal.63

[82]     The conclusion that justice miscarried is unaffected by the possibility that the jury convicted under s 167(b) rather than (d).  As was the position in R v Downey,

62     Compare the similar conclusion of this Court in R v Downey [1971] NZLR 97 (CA) at 103.

63     R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [32].

there is nothing to indicate on which basis the jury reached its verdict, and it is not appropriate to speculate.64

[83]     Accordingly, the appeal must be allowed.

Issue two: error in directions and question trail

[84]     The second ground of appeal concerns whether the Judge, in his instructions to the jury in respect of the elements of s 167(d) of the Crimes Act, erred when dealing with the issue in [2][a] and [b] of the question trail and the summing up relating to the use of the word “hitting” and “hit” in the elements dealing with the unlawful object.  To understand the appellant’s argument, it is necessary to refer to the question trail and the relevant parts of the summing up.

[85]     The question trail relating to s 167(d) stated as follows:

Count 1

Has  the  Crown  proved  beyond  reasonable  doubt that  on  16 June  2008, Mr Shadrock:

EITHER (under s 167(b)) …

Or (under s 167(d))

2[a]     Caused the death of Mrs Wang by hitting her with the vehicle he was driving.

[b]      Hit her with his vehicle for the unlawful object of leaving the car park with her handbag.

[c]       Knew at the time he drove forward that his actions were likely to cause the death of Mrs Wang.

Note 1:      For the purpose of [c], you must be satisfied that Mr Shadrock had an actual and conscious appreciation that there was a real and substantial risk of Mrs Wang dying.

[86]     When the Judge summed up to the jury on the elements of the charges, the members of the jury each had before them a copy of the question trail just referred to.   When it came to directing on s 167(d), the Judge did so in two parts of the

summing up. First he stated:

64     R v Downey [1971] NZLR 97 (CA) at 103.

[33]      If you turn over the page, you will see the elements which the Crown must  prove  under  the  second  limb,  s 167(d).    That  is,  first,  that  he  hit Mrs Wang with the vehicle he was driving.  Now, it is not necessary under this limb for you to find that he hit her deliberately.  It is sufficient that his vehicle and her came in contact.  The second element is that when he hit her with his vehicle he was engaged in the unlawful object of leaving the car park with her handbag.  And thirdly – and this third requirement takes us back to the third required in the earlier definition – at the time Mr Shadrock drove forward, he would have to have known that his actions were likely to cause the death of Mrs Wang.  Again, just as under the first ground, “likely” means that he had an actual and conscious appreciation that there was a real and substantial risk of Mrs Wang dying.

[34]      Now, before you can find Mr Shadrock guilty of murder, you must all either find all of the requirements of 167(b) – the four requirements – satisfied, or all of the requirements of 167(d), or it would be open for some of you to find that 167(b) applied and the rest 167(d) …

[87]     The Judge dealt with the details of the elements under s 167(d) as follows:

[45]      Turning over to s 167(d), I really do not need to say a great deal more because, as I have mentioned, there is no dispute that Mr Shadrock’s vehicle and Mrs Wang came into contact by some means and as a deliberate intention to hit her is not required under 167(a),65  you can effectively treat that element as having been established.  Nor is there any real dispute about (b)  is there,  because  it  is  not  in  issue  that  Mr Shadrock  had  stolen  the handbag and was attempting to make good his exit from the car park.

[46]      Again, you come back to this critical central issue, and I do not want to labour the point, but I simply ask you to take careful note of the words that I have used in the note there.   They are weighty words, “actual” and “conscious” appreciation, “real” and “substantial” risk.   That is what the Crown must establish under both of these if you were to find Mr Shadrock guilty of murder.  In any other circumstance, if you find that the Crown has failed to make out those elements under one or either of them, then your verdict will be not guilty of murder but guilty of manslaughter.

Submissions on issue two

[88]     Counsel for the appellant challenges as an error of law the content of the final sentence in paragraph [45] of the summing up, as well as the wording of question [2][b] of the question trail.  Mr Brosnahan submits the Judge was in error because:

The  jury  were  directed  that  it  was  not  in  issue  that  the Appellant  hit Mrs Wang [with his vehicle] for the unlawful object of leaving the car park. In other words, the jury were told that it wasn’t in issue that the Appellant

65     It is clear that, although the text of the summing up refers to s 167(a), the Judge was referring to question [2][a] in the context of his expanded discussion on s 167(d).  Neither counsel argued otherwise.

intentionally hit Mrs Wang for the unlawful object of leaving the car park. If one does an action for an object then one does the action intentionally. The correct position is that limb [2][b] (as incorrectly drafted) in the issue sheet was squarely in issue as between the Defence and the Crown.

[89]	Mr Brosnahan further submits that: [O]nce the jury had been directed by the Judge that it wasn’t in issue that the
Appellant had “hit Mrs Wang with his vehicle for the unlawful object of leaving the car park with her handbag” (i.e. hit her intentionally), it would have been a very small step indeed to infer the requisite knowledge on the Appellant’s part set out at [2][c].  Subsection [2][b] should have read “drove forward for the unlawful object of leaving the car park with her handbag”.  It was not in issue that the Appellant intentionally drove forward for the object of exiting the car park (c.f. intentionally hit her with his vehicle for the object of exiting).
[90]	For  the  Crown,  Mr Collins  submits  that  there  is  no  error  of  law.	The

challenged portion of the summing up and the question trail at [2][b] need to be read in context of what had come before, particularly the directions concerning s 167(b). Mr Collins refers to particular parts earlier in the summing up as being relevant to such context.  He submits that the appellant seeks to create this ground of appeal by adding the word  “intentionally” to  the words  used by the Judge at  [45]  of the summing up when he did not use “intentionally”.  Rather, the Judge said that for the purposes of the first element ([2][a]) of s 167(d), the hitting did not need to be deliberate.  Thus, given the fact that the Crown did not have to prove a deliberate hitting, there was no dispute that the appellant had hit or come into contact with Mrs Wang.

Discussion

[91]     We do not accept the submissions on behalf of the appellant. There is no basis for reading the word “intentionally” in juxtaposition with the word “hit” in [45] of the summing up or with the words “hitting” or “hit” in questions [2][a] or [b] respectively of the question trail.  In fact, in the first sentence of [45] the Judge made it quite clear that a deliberate intention to hit Mrs Wang is not required for the purposes of s 167(d).

[92]     This is made abundantly clear from the contrast with the Judge’ summing up on s 167(b).  The Judge gave the jury clear directions that the contact between the vehicle and Mrs Wang (for the proof of an assault) needed to involve deliberate action on the part of the accused. Thus he directed that:

[29]      The first requirement is that death was caused by the unlawful act of assaulting Mrs Wang.  Now an assault is the deliberate application of force to the person of another.  So in order for s 167(b) to apply and for the first of those  elements  to  be  satisfied,  you  would  need  to  find  it  proved  that Mr Shadrock had deliberately – rather than accidentally or unintentionally – run into Mrs Wang.  So that is the first element.

[93]     The Judge later returned to the topic of proof of element [1][a] in relation to s 167(b) as follows:66

… The first issue – and this is going back to [1][a] on page 1 – that you have to consider is whether Mr Shadrock deliberately drove into or at Mrs Wang. The Crown says he did; that he knew Mrs Wang was in his way; and that his car would hit her or come into contact with her when he drove forward.  The defence position is essentially as Mr Shadrock put it in his statement to the police.  He did not see Mrs Wang until either at the point of or just after his car started to move forward and he did not intend to hit her.

[94]     We are satisfied  that neither the question trail at [2][a] and [b], nor the summing up at [45], contained an error of law.  We consider that it would have been clear to the jury, from the overall context, and from the specific words used by the Judge that the hitting referred to for s 167(d) did not involve a deliberate hitting. Therefore there is no basis for the appellant’s submission that such directions would have necessarily contaminated the jury’s consideration of the separate knowledge element at [2][c]. The directions on this element were accurate.  Neither the question trail [2][c] (and the note) nor the summing up itself (at [46]) contained an error of law.  They properly emphasised the legal requirements for proof of knowledge that “at the time [the appellant] drove forward … his actions were likely to cause the death of Mrs Wang”.

[95]     The second ground of appeal fails.

66 Summing up at [35].

Issue three:  failure to sever trial of the appellant

[96]     This ground of appeal concerns the question whether the failure to sever the trial of the appellant from that of his co-accused resulted in the admission of inadmissible evidence against the appellant thereby causing a miscarriage of justice. The  appellant   argues   that   inadmissible  statements   made  by  the   co-accused Mr Terence Tere and Mr Vila Lemanu in respect of Mr Shadrock may not have been treated as inadmissible by the jury.  Hence there was a risk of illegitimate prejudice to the appellant giving rise to a miscarriage of justice. Counsel submits that the concern arises from the fact that the statements made by Mr Tere and Mr Lemanu, whilst properly admissible in support of the Crown cases against those co-accused, included highly prejudicial and inadmissible material relating to the appellant.   A separate trial would have avoided this prejudicial material being put before the jury at all.

[97]     Mr Brosnahan accepts that the legal principles discussed by this Court in R v Peters67 provide that in cases raising issues under s 66(1) and (2) of the Crimes Act, it is generally in the interests of justice and the ascertainment of the truth that the trials of co-accused should be heard together.  But Mr Brosnahan cites the decision of this court in R v Dacombe68  in support of this submission for severance.   He submits that severance would be appropriate to avoid injustice where the persuasive value of inadmissible evidence was out of all proportion to the probative value of admissible evidence.

[98]     Mr Brosnahan refers to particular passages in the statements made to police by  Messrs  Tere  and  Lemanu  as  being  “highly  prejudicial  material  inadmissible against the appellant”.  He also submits that references to such material in the Crown opening and closing addresses would have added to the prejudice.  As an alternative to severance, Mr Brosnahan submits that appropriate editing of the statements of

Messrs Tere and Lemanu, to avoid prejudice to the appellant, was not carried out.

67     R v Peters [2007] NZCA 180 at [17].

68     R v Dacombe CA130/99, 8 July 1999.

[99]     For the respondent, Mr Collins first emphasises that the challenged evidence was relevant to the cases against Mr Tere and Mr Lemanu.   He accepts that the statements were inadmissible against the appellant.   But Mr Collins notes that no application for severance was made by the appellant and there is no complaint on appeal  against  the  conduct  of  trial  counsel.    Mr Collins  submits  that  under  the Evidence Act 2006, a joint trial will have much greater appeal to an accused person in Mr Shadrock’s position.   This is because where the co-accused is being jointly tried, any out of court statement is inadmissible against the other co-accused.  Once

severance  is  ordered,  the  co-accused  is  compellable.69    In  this  situation  as  a

compellable  witness,  neither  Mr Tere  nor  Mr Lemanu  could  have  successfully invoked a right against self-incrimination when called to say what Mr Shadrock had said or done.70   Accordingly severance would have created a worse scenario for the appellant.

[100]   Finally, Mr Collins submits that there is evidence from the findings of the jury that the jury carefully followed the Judge’s directions not to use the statement of one accused against any of the others.  He cites the example arising from the fact that Mr Lemanu’s statement implicated the accused Mr Tuikolovatu and Mr Tekanawa in the theft of the handbag.   But, while the jury convicted Mr Lemanu of the theft, Mr Tuikolovatu and Mr Tekanawa were found not guilty.   Mr Collins submits that there is therefore no basis for suggesting that there was any real risk that the jury would have ignored the direction as far as the appellant was concerned.  He adds that in any event there was ample evidence from other witnesses, some of whom were not challenged, to the same effect as the inadmissible parts about which the appellant now complains.

Discussion

[101]   We are not able to accept the submissions on behalf of the appellant on this ground.   Usually joint offending will result in a joint trial unless an accused can

demonstrate  the  existence  of  some  feature  that  clearly  outweighs  the  ordinary

69     Evidence Act 2006, s 73(2)(a).

70     Citing Singh v R [2010] NZSC 161, [2011] 2 NZLR 322 at [21]–[39].

approach.  There are strong policy reasons in favour of this view as demonstrated by the full bench of this Court in R v Fenton:71

[25]      What the New Zealand cases show, and indeed most of the cases from other jurisdictions, is that there is a substantial public interest in having a joint trial of those who are said to have jointly committed a crime.  The reasons are primarily to avoid the risk of inconsistent verdicts, to have all aspects of a joint enterprise considered at one and the same time, and to prevent duplication of time and effort for witnesses and the court system generally.   This public interest will ordinarily outweigh the interests of an individual accused in not having inadmissible evidence before the jury.

[102]   The issue in Fenton concerned out of court statements of co-accused offered by the prosecution which were inadmissible against any other accused unless they constituted statements of co-conspirators or persons involved in a joint criminal enterprise or were accepted by the co-accused.72   Ordinarily, given proper directions by the trial Judge, juries are to be regarded as capable of understanding and applying the distinction between admissible and inadmissible evidence.73    We accept that in extreme cases a statement may be so prejudicial that, the Judge’s direction notwithstanding, there is a real risk the jury will use it against a co-accused.74    In such cases, the trial Judge may either sever the trials from each other as the usual remedy or in rare cases edit an accused’s statement at the instance of a co-accused.75

[103]   The above approach is consistent with that taken in the United Kingdom, Canada and Australia where joint trials are presumed to be the appropriate means of trying joint offenders.   Generally, inadmissible statements by co-accused are dealt with by means of appropriate judicial directions.76    The policy factors engaged by joint trials are referred to in the observations of Lord Steyn in Hayter:77

The practice favouring joint criminal trials is clear.  It has been accepted for

a long time in English practice that, subject to a judge’s discretion to order

71     R v Fenton CA223/00, 14 September 2000.

72     Evidence Act, ss 12A and 27.

73     R v Fenton at [25];  Rolston v R [2008] NZCA 431 at [60] and Smith v R [2008] NZCA 266 at

[47].

74     See Williams v R [2011] NZCA 245.

75     See Chahil v R [2010] NZCA 241 at [17] citing R v Fenton and Rolston v R. Leave to appeal to

Supreme Court declined: Chahil v R [2010] NZSC 122.

76     See R v Hayter [2005] UKHL 6, [2005] 1 WLR 605 at [6]–[9] and the Crown Court Bench Book

(March 2010) at 250–257 in respect of the United Kingdom;  Martin’s Annual Criminal Code
2011 (Canada Law Book Inc, 2010) at 1137–1141 in respect of Canada;  and Halsbury’s Laws of

Australia Criminal Trial Procedures (online edition) at [130–13625] in respect of Australia.

77     Hayter at [6].

separate trials in the interests of justice, there are powerful public reasons why joint offences should be tried jointly:  R v Lake  (1976) 64  Cr App R

172, 175 per Widgery CJ.  While considerations of the avoidance of delay, costs and convenience, can be cited in favour of joint trials this is not the

prime  basis  of  the  practice.    Instead  it  is  founded  principally  on  the perception that a just outcome is more likely to be established in a joint trial than  in  separate  trials.      The  topic  is  intimately  connected  with  public

confidence in jury trials.  Subject to a judge’s discretion to order otherwise,

joint trials of those involved in a joint criminal case are in the public interest and are the norm.  This practice hardly requires citation of authority but in

recent  times  the  practice  has  been  affirmed  by  the  Privy  Council  in

Lobhan v The Queen [1995] 1 WLR 877, 88 4B-D and by the House of lords in R v Randall [2004] 1 WLR 56, 61E, para 16.

[104]   Here, we place considerable reliance on the careful directions given by the Judge to the jury on this issue.   It is clear from the summing up that the Judge mentioned more than once to the jury the importance of only using a statement of an accused for the purposes of the case against that accused.  The final reference to this point is a powerful direction in which the Judge properly refers to the importance of compliance, albeit not being easy, but being in the interests of fairness and justice. The Judge thus stated:

I have already mentioned and I will mention again and I promise this will be for the last time, the importance of only using an accused’s statement for the purpose  of  the  case  against  him.    Nothing  that  an  accused  says  in  his statement should be used when you are considering the case against the co- accused.  That is for the very good reason that has been given to you that there was never any opportunity to challenge what was said and, of course, it is well known that an accused may always have another agenda and may have good reason to point the finger at or otherwise implicate another co- accused.  It is not easy for you to put information received for one purpose out of your mind for another purpose.   But, ladies and gentlemen, I can’t emphasise too strongly that fairness and justice requires that you do.

[105]   We agree with the observations of the Supreme Court in R v Thompson,78 although in a different context, that most illegitimate prejudice from the reception of inadmissible evidence is capable of being addressed by appropriate directions.  Here the directions were clear, strong and appropriate to the context.   None of the arguments   advanced   by   Mr Brosnahan   can   overcome   the   existence   of   the

countervailing directions given and the submissions on behalf of the respondent.

78     R v Thompson [2006] NZSC 3, [2006] 2 NZLR 589; approved in McDonald v R [2007] NZSC

66.

[106]   We also consider that there is force in the submissions by Mr Collins as to severance being of potential disadvantage to the appellant.  Further, we agree that a lack of use of prejudicial evidence (as shown by the acquittals in the cases of Messrs Tuikolovatu and Mr Tekanawa) suggests that the jury correctly applied a similar approach in the case of the appellant.  We are satisfied that this is not one of those extreme cases where the statements are so prejudicial that, notwithstanding the Judge’s directions, there is a real risk that the jury would have used the statements against the appellant.

[107]   The third ground of appeal also fails.

Issue four:  absence of intoxication direction

[108]   This ground is based on an argument that, a sufficient foundation for the appellant being intoxicated having been laid, the Judge erred in not giving an intoxication direction, despite the fact that none was sought.  Mr Brosnahan submits that  such a direction  was  relevant  to  the jury’s  assessments  of the elements  of knowledge and intention contained in ss 167(b) and (d).  Mr Brosnahan accepted in argument that there was no evidence to demonstrate gross intoxication.   Neither could it be said the appellant was so intoxicated as to have been incapable of forming any intent.

[109]   Mr Brosnahan draws attention to the evidential foundation for intoxication coming from the appellant’s statement to the police.  Having referred to the relevant passages, he relies on the decision of this Court in R v Kamipeli79 as recognising that, although drunkenness is not a defence in itself, it may be relevant to the capacity to form a criminal intent or, more commonly to the fact of intent.  Mr Brosnahan noted that the fact that the defence did not raise intoxication does not mean that the Judge is not required to instruct on intoxication.80

[110]   Mr Brosnahan submits that there was a sufficient evidential foundation for a direction on intoxication.  He also referred to the fact that the Crown prosecutor in

79     R v Kamipeli [1975] 2 NZLR 610.

80     See R v Sharma [2009] NZCA 540 at [25] and R v Tavete [1988] 1 NZLR 428 (CA) at 431.

closing  referred  to  the  consumption  of  alcohol.    The  Crown  prosecutor  having referred to the principle of law that “a drunken intent is still an intent”, went on to refer to the relevant facts concerning the amount of alcohol that the appellant had claimed to have consumed.  Mr Brosnahan submits that in the light of these matters a jury ought to have been directed on the potential relevance of intoxication to the jury’s inquiry whether the accused had a conscious appreciation of the necessary mens rea elements for murder in relation to both s 167(b) and s 167(d).

[111]   For the Crown, Mr Collins emphasises that experienced trial counsel had not sought an intoxication direction.   He also submits that any material impairment resulting from alcohol consumption such as to the appellant’s ability to appreciate the likelihood of death is inconsistent with the appellant’s proven series of deliberate acts on the afternoon that were part of a pre-conceived coherent plan.

[112] Mr Collins emphasises that the appellant headed out that afternoon to unlawfully take, and did take, the Nissan vehicle.  He had sufficient mental ability to implement the plan of setting out to the Manukau Shopping Mall in concert with his co-accused to snatch a handbag.  He then drove to and entered the car park, drove around with significant cognitive functioning to implement the plan and did in fact execute the plan.  He therefore submits that these actions, among others, would be consistent with having consumed a modest amount of alcohol.

[113]   Mr   Collins   emphasises   that   the   appellant’s   counsel   at   trial   (not Mr Brosnahan) did not close on the topic.  He submits that to have done so would have undermined a key part of the appellant’s statement to the police on which the defence relied.  The appellant’s critical stance, in answer to the Crown case that he had deliberately driven towards Mrs Wang, was that he had not deliberately driven at her.  He claimed a detailed memory and appreciation of what had taken place.  In this context the appellant said that his decision to reverse was not because Mrs Wang blocked his way.  He claimed that he was unaware of her presence in front of him and that he was looking over his right shoulder as he reversed.  He did not brake, but on  being  blocked  just  shifted  the  gear  lever  directly  from  reverse  to  drive, whereupon the vehicle immediately hopped, producing the fatal result.  Therefore,

rather than assisting the defence in any way, an intoxication direction of the type

now sought could well have impacted adversely on the appellant’s case at trial.

Discussion

[114]   We do not accept the submissions advanced on behalf of the appellant that an intoxication direction was required.   We have considered the references in the accused’s statement to the consumption of alcohol.   They are consistent with the appellant having drunk a small or modest amount of alcohol earlier in the day.  A selection of the references include:

(a)       I was sorta lightly drunk; (b)     I had a bit to drink;

(c)       Just a few cans of eight per cent … Cody’s bourbon yep pre-mix …

just a couple of cans of that? Yeah;

(d)      I was pretty drunk you know and I said yeah let’s go there now;

(e)       I was sort of drunk, sort of tipsy.

[115]   We note from the decision of this Court in R v Tavete that the obligation on the trial Judge to direct on intoxication in the context of formation of relevant intention only arises “if there is a sufficient evidential foundation”.81    We are not satisfied that a sufficient evidential foundation existed in this case.  Further, we agree with  the submission  by Mr Collins  that  to  have advanced  intoxication  as  being relevant to the knowledge or intention elements required under either s 167(b) or

s 167(d) could have seriously undermined the primary defence being advanced by

the appellant, namely, that outlined in his statement.

81     At 431.

[116]   We consider that an intoxication direction was not required to be given by the Judge in all the circumstances of this case.  Accordingly, this ground of appeal must fail.

Result

[117]   The appellant has succeeded in establishing the first of the three grounds of appeal advanced.  The appeal must therefore be allowed.  The conviction for murder is quashed.

[118]   We direct that the case be remitted to the High Court for a retrial.

[119]   Since there is to be a retrial, we suppress the reasons for this judgment.  An order is made prohibiting publication of the reasons for judgment in news media or on the internet or other publicly available database until final disposition of retrial. Publication in law report or law digest permitted.

[120]   We are grateful to counsel for the parties for their assistance, particularly in dealing with the difficult issues raised by the first ground relating to the requirements of s 167(d) of the Crimes Act.

Solicitors:

Crown Law Office, Wellington for Respondent