R v TAWA [2019] NZHC 2451

R v TAWA [2019] NZHC 2451 [27 September 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2018-087-002032[2019] NZHC 2451THE QUEENvHIRA MOANAROA TAWAHearing: 28 August 2019Appearances: R Jenson and B R Smith for the CrownG Tomlinson for the DefendantJudgment: 27 September 2019JUDGMENT OF HINTON J[Re s 147Application]This judgment was delivered by me on 27 September 2019 at 2.30 pmRegistrar/Deputy RegistrarSolicitors:Pollett Legal Ltd, TaurangaGowing & Co Lawyers Ltd, Whakatane[1] The defendant is charged with murder.[2] He applies for a discharge pursuant to s 147 of the Criminal Procedure Act2011. He submits that there is insufficient evidence to show that running over thedeceased with his car was a substantial and operative cause of death. The applicationis opposed.Law on application for discharge[3] Section 147 provides that the Court may dismiss a charge at any time, if(inter alia) "in relation to a charge to be tried, or being tried, by a jury, the Judge issatisfied that, as a matter of law, a properly directed jury could not reasonably convictthe defendant".[4] Section 147(4)(c) essentially codifies the common law guidance provided bythe Court of Appeal in R v Flyger1 and Parris v Attorney General.2 In Flyger, theCourt of Appeal said that, when considering a discharge on the basis of evidentialinsufficiency, it is not the function of the Court to " attempt to predict the outcomebut [rather] to examine the evidence in terms of adequacy of proof".3 The Court statedthat " the rationale for an order for discharge is not the likelihood of acquittal butthe unsafeness of a conviction having regard to the evidence".4[5] In Parris, the Court of Appeal held that:5There should be a discharge when, on the state of the evidence at the stagein question, it is clear either that a properly directed jury could not reasonablyconvict, or that any such conviction would not be supported by the evidence.In most cases these two propositions are likely to amount to much the samething.It is vital, however, to appreciate the proper compass of the word "reasonably"in this context. The test must be administered pre-trial or during trial on thebasis that in all but the most unusual or extreme circumstances, questions ofcredibility and weight must be determined by the jury. The issue is not whatthe Judge may or may not consider to be a reasonable outcome. Rather, andcrucially, it should be left for the jury to decide. If there is a conviction this1 R v Flyger [2001] 2 NZLR 721 (CA).2 Parris v Attorney-General [2004] 1 NZLR 519 (CA).3 R v Flyger [2001] 2 NZLR 721 (CA) at [13].4 At [15].5 Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [13] and [14].Court on appeal has the reserve power to intervene on evidentiary grounds.The constitutional divide between trial Judge (law) and jury (fact) mandatesthat trial Judges intervene in the factual area only when, as a matter of law, theevidence is clearly such that the jury could not reasonably convict or any suchconviction would not be supported by the evidence.[6] On a s 147 application, the evidence must be given the construction mostfavourable to the Crown. If there is evidence from which a jury could reasonably drawan inference of guilt, a Judge should not intervene.6Relevant facts and evidence[7] The deceased first fell from a car driven by the defendant and suffered headinjuries as a consequence. It is accepted for present purposes that this injury wasself-inflicted. The Crown say that the defendant then turned around and intentionallydrove over the deceased on the road, also causing injury to his head. The deceasedwas still alive after being run over, but subsequently died in hospital.[8] There will be evidence at trial from eye-witnesses as to what happened and thestate of the deceased.[9] More materially, a report from Dr Stables, the Crown pathologist, says that theimmediate cause of death was not the primary injuries received from each episode oftrauma. He says the primary injuries led to brain swelling and other secondaryinjuries, which were the immediate cause of death.[10] Dr Stables' conclusion as to the relationship between the primary andsecondary injuries is as follows:The question then arises which impact caused the brain swelling, bruising andlacerations, and the eventual complications.It is not possible to ascribe a quantitative value or approximation as to whichepisode of trauma has been more significant in causing the brain swelling.Rather it is most likely that the brain swelling is a cumulative effect of bothepisodes of trauma and both may have produced injuries which could havecaused the brain to swell. I am not able to separate the relative contributionof either impact and its injuries, and the subsequent swelling.6 Chan v R [2015] NZHC 3150 at [89].I am also not able to quantify degree of brain swelling that can be attributedto each incident. It is my opinion, however, that the brain swelling andcomplications have been the result of the cumulative effect of theconsequences of both impacts. Separating the relative contribution of theeffects of each impact to this man's death to the satisfaction of the court is notpossible.I am not able to make any comment with regards to the possible outcome hadthis man only fallen off the car and suffered the predominantly frontal injuryto his head and brain, and not been subsequently run over. This is because thebrain may have still swollen with the resulting complications.(emphasis added)Relevant law on causation[11] It is clear law that where the cause of death is in issue, the Crown need notprove that the act relied on was the sole cause of death. The act relied on must be asubstantial and operative cause of death, though it need not be the substantial andoperative cause.7 A contributing cause may be substantial, even though it is not themain cause. It is sufficient that the act in question contributed in more than a minimalway to the death of the victim.8[12] In R v McKinnon, the defendant struck the victim's head with a piece of fencepaling, dragged him to a telephone box, and left him there unconscious. At some point,the victim suffered a minor nose injury that resulted in bleeding. The victim died bydrowning in the blood from the nose injury. The Court of Appeal held that it was opento the Crown to allege that the striking of the victim was a substantial and operativecause of death.9 It was the blow to the head that rendered the victim unconscious andunable to deal with the effects of the bleeding; the nose injury was not "sooverwhelming" as to make the original blow to the head merely part of the history.10As such, the Court held that there can be multiple, concurrent causes of death.[13] McKinnon is based on United Kingdom authority that is also very widelyadopted.117. R v McKinnon [1980] 2 NZLR 31 (CA); and R v Hare CA332/99, 15 November 1999.8 R v Myatt [1991] 1 NZLR 674, (1990) 7 CRNZ 304.9 R v McKinnon [1980] 2 NZLR 31 (CA) at 37.10 At 36.11 See R v Pagett (1983) 76 CAR 729.Defence argument[14] Mr Tomlinson, for the defendant, argues as follows:(a) McKinnon only applies where the original trauma arises from thealleged offending, not the subsequent trauma.(b) In any event, to show that the subsequent trauma was a substantial andoperative cause in more than a minimal way, the Crown has to be ableto place some quantification on that cause. Otherwise it remains areasonable possibility it was only a minimal cause.(c) The Crown also has to remove the reasonable possibility that the initialtrauma caused the death. Mr Tomlinson says the last paragraph fromDr Stables' report quoted above makes it clear that death from theoriginal trauma remained a reasonable possibility.[15] In his written memorandum, Mr Tomlinson summarises the last two points asfollows:It is the duty of the Crown (on a McKinnon approach) to remove as areasonable possibility that the initial trauma was the primary cause of deathand, the defence says to eliminate this as a substantial and operative cause ofdeath, they must also establish beyond a reasonable doubt that the subsequenttrauma (running over) was both a substantial and operative case of death in amore than minimal way – their evidence cannot do that as the doctor is unableto offer any quantification at all.Analysis[16] I have already said that the Crown does not need to prove that the act relied onwas the sole cause of death, or even the main cause.[17] For that reason, the question that would be put to the jury in this case withregard to causation is:Are you sure (that is, satisfied beyond reasonable doubt) that the defendant'saction in driving over the deceased was a substantial and operative cause ofthe death of the deceased?Note: A "substantial and operative cause" does not have to be the main or the onlycause. But it must have played a part which was not insubstantial or insignificant.[18] Mr Tomlinson submits that the order of the acts makes a difference to whetheran act was a substantial and operative cause, or makes a difference to whether the testin McKinnon applies.[19] However, I am satisfied that McKinnon does apply, whichever is the order. Thejudgment does not suggest that the test of substantial cause of death applies only wherethe alleged culpable act is the first act in question, and there is no authority to supportthis proposition.[20] Interestingly, counsel have not been able to locate New Zealand cases wherethe culpable act was a second act. However, case law in other jurisdictions supportsmy view. The Supreme Court of Western Australia held that a "second blow" may besufficient to give rise to a murder, even if the victim is already injured from a differentdefendant.12 In Krakouer, the defendant hit the victim with a marker post after thevictim was already unconscious on the ground having been hit by another defendant.The Court said that, although the evidence suggested that the first injury might havecaused death on its own, Mr Krakouer's actions made a significant contribution to thevictim's death. Similarly, in R v McLachlan (a decision of the Supreme Court ofVictoria), although the medical expert was unable to say whether the victim's initialliver injury or the head injury caused by Mr McLachlan had caused death, the Courtfound that each injury was a substantial and operating cause of death.13 Similarconclusions have been reached in the United States.1412 Krakouer v State of Western Australia (2006) 161 A Crim R 347.13 R v McLachlan [2000] VSC 516.14 State v McDonald 953 P 2d 470 (Wash Ct App 1997); People v Cox 228 P 2d 163 (Colo 1951). InPeople v Cox, the Colorado SC held that a driver who hit the victim, Mr Mead, who was lyingalready injured on the street following a collision, was liable for the death of Mr Mead. Eventhough Mr Mead might have been fatally injured at the point Mr Cox hit him, if "I hasten orcontribute to his death, it is no defence that he would have died in any event". This is almost thesame fact scenario Mr Tomlinson poses in his submissions as a hypothetical, but with the oppositeconclusion. I do note though that, while the US also applies the "substantial factor" test, the lawappears somewhat different. Inter alia, the US test considers whether the cause is "proximate",both in fact and in law. One of the tests for factual causation is whether the actions were"a substantial factor".[21] I therefore do not accept the submission that McKinnon does not apply, or thatit applies to different effect. It does not matter that the initial injuries were sustainedas a result of an accident. The focus is on whether Mr Tawa's decision to run over thevictim in his car was a substantial and operative cause of the victim's death.[22] Mr Tomlinson's next submission is that the Crown has to be able to place somequantification on the impact of Mr Tawa's actions, and that the Crown has to removethe reasonable possibility that the initial trauma caused the death. In my view, neithercontention is correct.[23] First, the medical evidence does not have to quantify the impact of the differentcauses of death. Again, there is no authority to support that proposition. This is amatter for the jury to determine and they do not have to place a quantification inpercentage terms on the causal impact. They have to decide whether it is substantialand operative, or more than minimal.[24] In R v Hennigan, the Court expressly said it is not necessary to show that theact was a substantial cause in the sense that, on an apportionment of liability in a civilaction, the accused would, for example, be held at least one-fifth to blame for theoutcome. The Court reiterated that the word "substantial" means something more thande minimis.15 It does not require mathematical apportionment.[25] Second, the Crown does not need to exclude a reasonable possibility that thedeceased would have died regardless of Mr Tawa's action.[26] Mr Tomlinson says that possibility is not excluded by Dr Stables' report, whichin the last paragraph quoted above, says the doctor cannot comment on what wouldhave happened if the victim had not been subsequently run over "because the brainmay have still swollen with the resulting complications".[27] As noted, the New Zealand cases referred to me have all involved an initialculpable act. In addition, it seems to have been accepted that the deceased in those15 R v Hennigan [1971] 3 All ER 133.cases would not have died without the culpable act. 16 However, in Krakouer, to whichI have referred above, the evidence suggested that the first injury might have causeddeath on its own, but the defendant who inflicted the second injury was still foundliable for murder, and the Supreme Court of Western Australia considered there wassufficient evidence to support that finding.[28] Again, it is a matter of coming back to the jury question above. The questionis whether the jury is satisfied beyond reasonable doubt on all of the evidence that thedefendant's running over of the victim contributed to his death in more than a minimalway. The question is not whether the jury is satisfied beyond reasonable doubt thatthe deceased would not have died but for the defendant's action. That aspect ofDr Stables' evidence, along with all of the other evidence, is something that the jurycan take into account in answering the question properly put to them in terms ofcausation. They will also have to take into account that the scenario referred to byDr Stables in the last paragraph quoted above is hypothetical, and the question the juryis considering is a real-life scenario, i.e. what actually happened.[29] If causation were approached in the manner submitted by Mr Tomlinson, thatwould significantly undermine the principle stated in McKinnon and the other caselaw referred to above. It would mean that the Crown would have to in effect provewhich act caused death, or exclude the possibility of any other act having done so.That quite clearly is not the case. So long as the jury is satisfied beyond reasonabledoubt that the alleged act is one of the causes of death, and not de minimis, they cansafely convict.[30] I note that, even if a victim were going to die anyway, a defendant can be liablefor their death. Section 164 of the Crimes Act 1961 provides that an act which merelyhastens death from some other cause may still give rise to murder or manslaughter.This is because homicide is, at its simplest, the acceleration of death.16 R v Ramsay [1967] NZLR 1005 (CA); R v McKinnon [1980] 2 NZLR 31 (CA); R v HareCA332/99, 30 September 1999.[31] Ultimately, causation is a question to be decided by a jury, not on aphilosophical or scientific basis, but by applying their common sense to the facts asthey find them.[32] The jury will have to decide whether the primary injuries caused by runningover the deceased, were a substantial and operative cause of the secondary injuries. Inlight of the opinion of Dr Stables that, inter alia, the secondary injuries were causedby the cumulative effect of the deceased being run over and his fall from the car, thereis sufficient evidence for a properly-directed jury to find that the running over was asubstantial and operative cause of the death of the deceased.Conclusion[33] For the above reasons, the s 147 application is dismissed.---------------------------------------------------------Hinton J