The Queen v Sydney Bristow

IN THE COURT OF APPEAL OF NEW ZEALAND

CA490/99

THE QUEEN

SYDNEY BRISTOW

Hearing:	2 March 2000 (at Auckland)
Coram:	Blanchard J Robertson J Williams J
Appearances:	M I Koya for Appellant A R Burns for Crown
Judgment:	2 March 2000

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

The appellant, Sydney Bristow, appeals his conviction for murder in the High Court at Whangarei. Mr Bristow, aged 17, and his co-accused the brothers Henare Wikaira, aged 19, and Kacey Wikaira, aged 17, had been drinking at the Omapere Tourist Hotel on New Year’s Eve 1998. The victim, Mr David Taylor, aged 30, was camping with his partner and friends in the grounds of the hotel. The three accused, who were to some extent intoxicated, were involved in disturbances in the camping ground throughout the night. After one incident, at about 1am on 1 January 1999 Kacey Wikaira was chased out of the camping ground by a group of campers including Mr Taylor. Kacey ran along the beach towards Opononi. All his pursuers except Mr Taylor gave up the chase. Mr Taylor also abandoned it about 200 metres from the hotel. At that point, when he was bent over catching his breath, he was set upon by Henare Wikaira who hit him from behind, knocking him to the ground. Henare Wikaira then proceeded to punch Mr Taylor. The two men were at the water’s edge. The appellant, who like Henare, had followed the original chase, joined in the attack. By that time, according to Henare Wikaira’s interview, he had landed “a good twenty” of his “hardest” punches on Mr Taylor’s head.
Kacey Wikaira also arrived. He and the appellant both punched the victim a number of times. Henare held Mr Taylor in a headlock while Sydney Bristow hit him on the head with an empty Lion Red stubbie beer bottle.
Henare Wikaira desisted from the attack for a short period because he was out of breath. During that time the appellant threw several rocks at Mr Taylor’s head and body. He admitted in an interview that one of them hit Mr Taylor on the head. From that interview it appeared that these rocks were about the size of a fist. (The appellant did not give evidence at the trial.)
Henare Wikaira, having regained his breath, picked up a larger rock, which he said in a statement to the police was approximately 70cm in diameter. (In evidence he called it a flat rock and said it was about 40cm.) He admitted in cross-examination that he wanted to “waste” Mr Taylor. He threw or dropped the rock onto the head of Mr Taylor who was lying on the beach in the water. After that time the appellant, who had previously turned away, proceeded to run off.
Mr Taylor died in hospital on 4 January 1999.
The medical evidence at trial was that he died from head injuries caused by blunt force in the early hours of 1 January and that the cause of death was bleeding inside the skull and over the surface of the brain and bruising to the brain, leading to severe swelling of the brain and cessation of heart and lung functions. The pathologist could not say which particular blow had led to Mr Taylor’s death. He was unable to exclude a blow from a bottle or from a fist-sized rock or a kick and was not able to estimate the total number of blows to the head. He thought a kick or use of a heavy object was more likely than a punch. At least moderate to severe force was involved.
The jury convicted Henare Wikaira and the appellant of murder but found that Kacey Wikaira was guilty of manslaughter only.
The Crown case at trial against the appellant was that he was guilty of murder either as a principal offender or as a party. The Crown relied upon s167(b) of the Crimes Act 1961, alleging that one of the blows the appellant struck Mr Taylor was the cause of his death and that the appellant meant to cause bodily injury to Mr Taylor that was known to him to be likely to cause death and was reckless whether death ensued or not. Alternatively, as a party under s66(1), he aided or encouraged Henare Wikaira in attacking Mr Taylor and that, such was the viciousness of the attack, that the appellant must have known that Henare Wikaira was reckless as to the possibility of death resulting.
The defence case was that the sole cause of the fatal brain injury was the throwing or dropping of the larger rock at or onto Mr Taylor’s head by Henare Wikaira; that Mr Bristow was not a party to this act (at the time he had walked away and was not looking at Henare and the victim); and that, even if a blow struck by the appellant did cause or contribute to the death of Mr Taylor, Mr Bristow did not, by reason of his state of extreme intoxication, have an appreciation of the risk that what he or Henare did might be likely to cause death.
Mr Koya accepted that it was open to the jury to conclude that, although the appellant was said to have had his back to Henare Wikaira before the final event in the attack – the blow to the victim’s head with the larger rock – that did not necessarily indicate a withdrawal by the appellant from the attack on the victim. But counsel said that it still raised a reasonable doubt concerning whether Mr Bristow had any appreciation that Henare Wikaira was about to seize upon the larger rock and use it in the way he did.
We think, however, that Crown counsel was correct in submitting that there was ample evidence of the appellant’s willing participation in a vicious prolonged attack involving blows to Mr Taylor’s head with rocks, striking his head with a bottle and punching him about the head. (There was no evidence clearly showing any kick to the head.) It was not necessary for the Crown to establish which particular blow or blows killed Mr Taylor. It could point to a range of possibilities (R v Ryder [1995] 2 NZLR 271). Nor did the Crown have to show that the appellant anticipated a specific action of a co-accused in striking the victim a blow in the course of an attack of this kind. Even if Mr Bristow may not himself have inflicted the fatal blow, the jury could on the evidence be properly satisfied that a participant in an attack of this nature to the extent of the appellant would have appreciated the likelihood that death could result from the infliction by himself or a co-offender of blows, using rocks and a bottle, to the head of a victim who, from an early stage of the attack, was obviously unable to defend himself.
It was submitted for the appellant that, even if that danger of infliction of a fatal injury might have been appreciated by a sober attacker, the appellant was grossly affected by alcohol and that there must be a reasonable doubt as to whether he was capable of forming a murderous intent; in particular, it had not been shown that in his intoxicated state he had an appreciation of the likelihood of death being caused by the actions of himself or Henare Wikaira, nor was he, in that condition, reckless as to that consequence of the attack. There was evidence that all the offenders were very drunk.
The Crown’s response is that the jury could properly take the view on the basis of the whole of the evidence that, although Mr Bristow had been drinking and was affected by drink, his actions demonstrated that he was not grossly intoxicated and must have meant to cause, or assisted or encouraged Henare Wikaira to cause, bodily injury which he knew to be likely to cause death or was reckless whether death ensued. He was quite capable of following the chase for some distance down the beach and of joining in the attack, accurately, according to his own and Henare’s account, throwing rocks at the deceased and hitting him with a bottle. These were acts which the jury could conclude demonstrated that his drunkenness was not so gross as to prevent the formation of murderous intent in terms of s167(b). We consider that it was indeed open to the jury on the whole of the evidence to take this view. In his evidence Henare Wikaira appeared to admit that he himself was not drunk to a point where he was unable to control his actions (“I wasn’t drunk drunk”). The jury could take the view that in so saying he summed up the state of all of them. It is noticeable that the appellant in his video interview did not say that he had not understood what he was doing or the effect it might have.
Finally, Mr Koya submitted that the verdict of manslaughter delivered by the jury in relation to Kacey Wikaira was inconsistent with its verdict of murder in the case of the appellant; that no reasonable jury could have arrived at such differing conclusions in the case of two accused whose participation was similar. He referred in particular to Kacey having urged the appellant to use the bottle on Mr Taylor. We think, however, that the jury’s analysis is reasonably apparent and that the verdicts are not repugnant or inconsistent and can properly stand together (R v Irvine [1976] 1 NZLR 96). First, Henare Wikaira and the appellant both attacked the victim using weapons – rocks and, in the case of the appellant, a beer bottle. Kacey Wikaira, on the other hand, used only his fists. It was the appellant who initiated the use of rocks. If he had not done so Henare Wikaira may not have delivered what the jury may have taken to be the fatal blow. Secondly, Kacey was not physically involved in the part of the attack where the appellant hit the deceased on the head with a bottle while Henare Wikaira was holding him in a headlock, thereby making Mr Taylor’s head available as a target for the appellant. The jury must have formed the view that it was not proved beyond reasonable doubt that Kacey’s participation was at a level sufficient to demonstrate either murderous intent or an appreciation of such intent on the part of his co-accused.
The grounds of appeal having failed, the appeal against conviction for murder is dismissed.

Solicitors
M I Koya, Auckland, for Appellant

Crown Solicitor, Auckland

[2000] NZCA 36

2 March 2000