W v Police HC Christchurch CRI 2010-409-33
[2010] NZHC 213
•4 March 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
CRI 2010-409-000033
W
Appellant
v
POLICE
Respondent
Hearing: 4 March 2010
Counsel: D C Ruth for Appellant
C E Butchard for Respondent
Judgment: 4 March 2010
JUDGMENT OF FOGARTY J
[1] On 4 December last Judge J A Farish convicted the appellant on two charges:
assault with a weapon, and threatening to kill. This is an appeal against the latter charge.
[2] The appellant was charged that he threatened to kill Adele Ann Peard, she being the mother of his partner, Michelle. The offence is defined in s 306 of the Crimes Act 1961 which provides:
306 Threatening to kill or do grievous bodily harm
(1) Every one is liable to imprisonment for a term not exceeding 7 years who -
W V POLICE HC CHCH CRI 2010-409-000033 4 March 2010
(a) Threatens to kill or do grievous bodily harm to any person;
or
(b)Sends or causes to be received, knowing the contents thereof, any letter or writing containing any threat to kill or do grievous bodily harm to any person.
[3] The offence can be threatened to kill or do grievous bodily harm. I note the charge referred only to threatens to kill. The Courts have held in a number of decisions, particularly, R v Meek [1981] 1 NZLR 499 and R v Cherri (1989) 5 CRNZ
177, both Court of Appeal decisions, that the mens rea required is an intention that the threat be taken seriously or be taken as a threat which may be carried out.
[4] The Judge defined the issues at the beginning of paragraph [19] of her decision as follows:
[19] In relation to the charge of threatening to kill. The issue is whether
or not Mr W intended to make that threat, whether a threat was made and who it was directed at. …
[5] That is not a correct summary of the issues that the Judge had to make a decision upon. The relevant reasoning of the Judge is in the balance of paragraph
[19] and paragraph [20]:
… Mr W accepted, when he spoke to the Police, that Mr Peard senior had had nothing to do with what he occurred immediately prior out in the cottage or on the driveway beside the vehicles. Mr Peard senior thought that the threat was directed at him because of the words used and the words were such that Mr Peard thought that because he was the oldest that was why the defendant had used the words, “You old C.” Mrs Peard however understood that the threat was being made towards her, given what had just happened immediately prior out on the driveway. Michelle Peard does not give any evidence on this matter and the defendant in his statement does not comment on it either.
[20] Given the proximity of the parties in the kitchen and given what had happened only a minutes beforehand and the anger that I accept had been delivered towards Mr Adele Peard, I am satisfied that one, there was a threat. That threat was to either kill or cause serious harm and that threat was directed towards Mrs Adele Peard notwithstanding what Mr Peard senior believed at the time. Therefore I am satisfied that that charge is proved beyond a reasonable doubt.
[6] The evidence being referred to of Mr Peard comes from page 32 of the notes
of evidence. He was giving evidence of what took place when he and his wife were
in their neighbouring house looking through the kitchen window of the cottage which their daughter and appellant were in and in the kitchen. Mr Peard saw the appellant make the gesture of drawing his hand across his throat and gave evidence that he said:
I hope it f… hurts you you stupid old c… .
[7] His evidence was that he thought the remarks were being directed at him as
he was the older of the two persons. As appears from the reasoning, the Judge considered that the threat was in fact being made to his wife, the Judge relying on the evidence of what the appellant had said to his wife when his wife was in the kitchen only a few minutes before.
[8] To explain what happened in the kitchen it is necessary to step back. On the day Michelle and her mother were in the cottage, where the younger couple lived, packing up Mr W ’s belongings, as at that time Michelle had made her decision that her relationship with the appellant had come to an end. The appellant returned home unexpected. The mother must have thought this was a possibility as she had brought a baseball bat to the house. The appellant was found by the Judge to have picked up an axe by the blade and the evidence was that he was swearing and cursing and telling Mrs Adele Peard to “f … off” and that she was a “f … whore” and he was going to “f … kill her” and stuff like that.
[9] Mr Ruth’s first point on appeal is that the Judge did not rely on that threat to kill inside the cottage but was relying on the gesture and the words used when the older couple were back in their home.
[10] Ms Butchard argued that that is an unfair summary of the reasoning of the Judge and plainly she was taking into account what had happened only minutes before, namely, the swinging of the axe and the cursing remarks, and she was satisfied that that threat was to either kill or cause serious harm and the threat was directed to Mrs Adele Peard.
[11] The problem with paragraph [20] is that that threat does appear to be a reference to the words used earlier during the confrontation, in other words, it cross references back to the previous paragraph [19].
[12] The reasoning in this oral judgment is difficult to follow, as I have endeavoured to display. That generates an unease as to the confidence that this Court can have in the Judge’s conclusion.
[13] However, there is a further unease which I have already alluded to, namely that the Crown must prove beyond a reasonable doubt that the threat was intended to
be taken seriously. In that regard Ms Butchard said, well it is an offence if there is
an intent to cause grievous bodily harm and she was arguing, I think, that if a person threatens to kill and that is intended to be taken at the very least to threaten to inflict grievous bodily harm then the elements of the offence are satisfied. The difficulty with that argument is that the charge in this case focuses on threatening to kill and those were the words and gestures used.
[14] The Court of Appeal has identified the mens rea element and found it in the way it has because, as we all know, extraordinary remarks are made in arguments in the heat of the moment. The Courts have accepted that Parliament never intended to criminalise remarks made in the heat of the moment which are not of a sufficient degree of seriousness to amount to a crime. It is important before entering a conviction under s 306 to apply the mens rea test carefully. Had the Judge set out the mens rea test carefully in the first sentence or two of paragraph [19] I would have readily inferred that she had applied it when reaching her conclusion that the charge was proved beyond a reasonable doubt. But as she defined the issue as whether or not he intended to make that threat, whether the threat was made, and who it was directed at, I am then again left in a real state of not being confident as to the quality of the conclusion.
[15] For these two reasons, therefore, I think that the conviction is unsound and it will be set aside. There is the option of referring the matter back for rehearing. The appellant remains convicted on the other charge. He has been sentenced to 100 hours of community work. At the time of the District Court hearing he and Michelle
were reconciled and indeed Michelle was estranged from her parents. I think it would not be in the interests of the family or the community for there to be a retrial
on the threatening to kill charge.
[16] Accordingly the result is the conviction is simply set aside and there will be
no retrial.
[17] The sentence is not disturbed. Its performance has been postponed pending this appeal and it will now resume.
Solicitors:
D C Ruth, Christchurch, for Appellant
Raymond Donnelly & Co, Christchurch, for Respondent
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