R v ANARU-EMERY [2020] NZHC 246

R v ANARU-EMERY [2020] NZHC 246 [19 February 2020]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2018-070-005243[2020] NZHC 246THE QUEENvJASON WHERO ANARU-EMERYHearing: 18 and 19 February 2020 (held in Hamilton)Counsel: A J Pollett and E Collis for CrownA Dawson and R Stevens for defendantRuling: 19 February 2020Reasons: 21 February 2020REASONS FOR RULING NO. 4 OF KATZ JSolicitors: Pollett Legal Limited, Office of the Crown Solicitor, TaurangaPublic Defence Service, TaurangaIntroduction[1] Following a fatal car accident near Te Puke, Jason Anaru-Emery was chargedwith male assaults female, kidnapping and manslaughter. The trial of those chargestook place before a jury, commencing on 10 February 2020.[2] At the end of the Crown case the defence applied to dismiss the manslaughterand kidnapping charges. I dismissed the manslaughter charge. I declined, however,to dismiss the kidnapping charge. Rather, I gave leave to the Crown to amend theparticulars of that charge. These are my reasons for those rulings.Summary[3] On 21 July 2018 a young couple, both aged 17, left a party together in a car.Not long afterwards, the car crashed. Tragically, the young woman, Halayna Wagstaff,was fatally injured. She died almost instantly. A lengthy investigation followed. Theyoung man, Mr Anaru-Emery, was eventually charged with male assaults female,kidnapping, and manslaughter by unlawful act, the unlawful act being dangerousdriving.[4] Although Ms Wagstaff was driving when the couple left the party, CCTVfootage showed that shortly afterwards she pulled the car over to the side of the roadon Jellicoe Street, Te Puke. She got out of the driver's side and walked away.Mr Anaru-Emery got out of the passenger side of the vehicle and chased after her.[5] The Crown case at trial was that Mr Anaru-Emery dragged Ms Wagstaff backacross the road and into the car, pushing her through the driver's door. CCTV footageindicates that he then got back into the car himself, also through the driver's door.An arm (which both counsel submitted belonged to Mr Anaru-Emery) then reachedout and closed the passenger door. Within a few minutes of driving off, the vehicleleft the road at high speed by the Waiari Bridge, went over a bank, and hit a powerpole before coming to a stop.[6] For Mr Anaru-Emery to be convicted of manslaughter, the Crown was requiredto prove that he was the driver of the car, beyond reasonable doubt. Although severalwitnesses saw the car after it left Jellicoe Street, no-one could identify the driver.The Crown therefore relied on circumstantial evidence (summarised at [40](a) to[40](c) below) to support an inference that Mr Anaru-Emery must have been the driver.[7] At the end of the Crown case, the defence applied to dismiss the kidnappingand manslaughter charges1 on the basis that, as a matter of law, a properly directedjury could not reasonably convict Mr Anaru-Emery of those charges.2 I dismissed themanslaughter charge but declined to dismiss the kidnapping charge.[8] My key reason for dismissing the manslaughter charge was that the Crown'sexpert forensic evidence raised a reasonable doubt that Mr Anaru-Emery wasthe driver. Diane Crenfeldt, an expert forensic scientist from the Institute ofEnvironmental Science and Research ("ESR") identified a number of blood stains inthe vehicle after the crash. Mr Anaru-Emery's DNA was found in almost all of theblood samples taken, including in sample AFQ1, which was taken from blood spotson the inside of the windscreen on the passenger side of the vehicle.[9] Ms Crenfeldt's evidence was that sample AFQ1 was the "most critical" samplein terms of identifying where the two occupants were sitting within the vehicle. That isbecause the blood spots on the passenger side windscreen, together with bloodspots on the passenger dashboard beneath it, were identified as being a likely"impact splatter pattern". Ms Crenfeldt concluded that "the source of that blood wasfrom directly in front of the passenger dashboard pocket and windscreen rather thanbeing from the other side of the car." She said that the relevant sample "puts somebodydirectly out from that passenger side when that blood wasdeposited on thatwindscreen dashboard area" and that:My interpretation is, as I say, the blood stain on the windscreen must havecome directly out, directly in front of it, so where a passenger would be sitting.1 No application was made to dismiss the assault charge, which related to an alleged incident earlierin the day.2 Criminal Procedure Act 2011 s 147(4)(c).[10] In cross-examination, Ms Crenfeldt reiterated that her expert opinion was thatthe person whose blood was in the splatter pattern on the windscreen was in thepassenger seat when that blood was deposited. As I have noted, Mr Anaru-Emery'sDNA was found in AFQ1, the sample taken from the splatter pattern. There were notraces of Ms Wagstaff's DNA in that sample.[11] In all the circumstances of this case (including that there was no directeyewitness evidence as to who the driver was) the Crown's forensic evidence raised areasonable doubt as to who the driver was. A properly directed jury couldnot reasonably have concluded otherwise.[12] I declined, however, to dismiss the kidnapping charge. Rather, I gave leave tothe Crown to amend the particulars of the kidnapping charge to focus on the periodfrom when Ms Wagstaff left the vehicle on Jellicoe Street, until she was allegedlypushed back into it by Mr Anaru-Emery.[13] I set out below my full reasons for these decisions.Dismissal of charges – the law[14] The dismissal application was brought pursuant to s 147(4)(c) of the CriminalProcedure Act 2011, which provides that a Judge may dismiss a charge in a jury trialif the Judge is satisfied that, as a matter of law, a properly directed jury could notreasonably convict the defendant.[15] The relevant legal principles are set out in Parris v Attorney-General3 andR v Flyger.4 Those cases were determined under s 347 of the Crimes Act 1961, thepredecessor to s 147 of the Criminal Procedure Act 2011. It is well established,however, that the principles that applied under s 347 of the Crimes Act continue toapply under s 147 of the Criminal Procedure Act.53 Parris v Attorney-General [2004] 1 NZLR 519 (CA).4 R v Flyger [2001] 2 NZLR 721 (CA).5 R v A [2018] NZCA 401 at [47]; Vector Ltd v H Construction North Island Ltd (in rec and liq)[2019] NZCA 215, [2019] NZAR 1127 at [56]-[59].[16] In Parris the Court said:[13] There should be a s 347 discharge when, on the state of the evidenceat the stage in question, it is clear either that a properly directed jury could notreasonably convict, or that any such conviction would not be supported by theevidence. In most cases these two propositions are likely to amount to thesame thing.[14] It is vital, however, to appreciate the proper compass of the word"reasonably" in this context. The test must be administered pre-trial or duringtrial on the basis that in all but the most unusual or extreme circumstancesquestions of credibility and weight must be determined by the jury. The issueis not what the Judge may or may not consider to be a reasonable outcome.Rather, and crucially, it is whether as a matter of law a properly directed jurycould reasonably convict. Unless the case is clear-cut in favour of the accused,it should be left for the jury to decide.The evidence at trial[17] I will briefly summarise the key Crown evidence at trial. I note, however, thatthe Crown witnesses gave evidence for over a week. For present purposes it is notpossible, or necessary, to traverse all the detail of that evidence. I keep in mind,however, that I am required to take the Crown case at its highest.Evidence relating to the assault charge[18] Manaia Gourlay, a close friend of Ms Wagstaff, gave evidence that on theafternoon of 21 July 2018 Mr Anaru-Emery became very angry at Ms Wagstaff,grabbed her around the neck area, started throwing her around the room, and threwher onto the bed. She said that Ms Wagstaff brushed off the incident. These allegationsgave rise to the male assaults female charge. They are relevant for present purposesto the extent that they indicate that Mr Anaru-Emery was behaving in an angry andaggressive manner that day.Evidence relating to the period prior to Ms Wagstaff getting out of the car onJellicoe Street, Te Puke[19] Later that evening, Ms Gourlay, Ms Wagstaff and Mr Anaru-Emery went to aparty in Te Puke together. Ms Gourlay had known both Mr Anaru-Emery andMs Wagstaff for about six years at the time of the accident. She said that the couplehad been going out for about two years, on and off.[20] Ms Wagstaff, who had a learner's licence, drove the car to the party.Ms Gourlay said that, based on her experience of driving with Ms Wagstaff shewas a "pretty safe" driver. When asked if she had ever seen her speeding she said"not really no". She said that Ms Wagstaff was "very careful when she had otherpeople in the car with her". In all the time she had known Mr Anaru-Emery, however,Ms Gourlay had never seen him drive. She said that whenever Mr Anaru-Emery andMs Wagstaff were together Ms Wagstaff would always drive.[21] Several Crown witnesses gave evidence of Mr Anaru-Emery beingargumentative and aggressive with other young men at the party and "puffing up hischest", but there was no evidence of any actual physical alterations. Ms Wagstaffdecided to take him home. Ms Wagstaff was driving when they left the party.Ms Gourlay said Ms Wagstaff and Mr Anaru-Emery had been arguing in the house andhe was angry by the time he got to the car to leave. Another Crown witness,Topea Orgias, said that Ms Gourlay was not there when the car departed, and thatMr Anaru-Emery was sleepy and leaning on Ms Wagstaff's shoulder and that theyappeared "all good".Evidence relating to what happened on Jellicoe Street[22] Not long afterwards, Ms Wagstaff pulled the vehicle over to the side of the roadon Jellicoe Street and got out (the car had briefly stopped in the middle of the roadprior to this). Several CCTV cameras on nearby buildings captured what happenednext (although the quality of the footage is variable). In addition, three witnesses, intwo different vehicles, gave evidence of what they saw.[23] The Crown case is that the CCTV footage shows that Ms Wagstaff stopped thevehicle and immediately got out of it and ran across to the other side of Jellicoe Street.Jellicoe Street is a wide street with a grass median strip. Mr Anaru-Emery also exitedthe vehicle and caught up with Ms Wagstaff on the other side of Jellicoe Street, wherehe grabbed hold of her. He dragged her back towards the car. Ms Wagstaff did notwant to be taken back to the vehicle and resisted Mr Anaru-Emery's efforts to take herthere. Mr Anaru-Emery kept a firm hold on her, however, and would not let her go.He was much bigger than her (one witness described her as "tiny"). She continued toresist him, all the way to the car door.[24] Two vehicles drove past during the incident. The driver of the first vehicle,Toni Billing, said that she saw a man forcibly try to drag a girl over the grassed area.It looked like the girl was trying to get out of it and break away and it appeared thatshe did not want to go with him. When they crossed in front of her, Ms Billingdescribed the girl still trying to break free and the male still trying to drag her over tothe other side of the road.[25] The driver of the second vehicle, Ripeka Pouwhare, was in the car followingMs Billing. She said, amongst other things, that she had seen the male push the femaleinto the driver's seat and that "to me she didn't look like she wanted to be there."[26] Ms Pouwhare's son, Nevada Pouwhare, was in the passenger seat of hervehicle. Coincidentally, he is a close friend of Mr Anaru-Emery. Nevada Pouwhareinitially gave a police statement saying that he had seen the male push the female intothe car. He recanted that evidence in Court and said that he had not actually seen thatbut had simply repeated what he had overheard his mother say. Nevada Pouwharesaid that the couple looked like they were wrestling, pushing each other, and arguing.They both looked angry.[27] When Mr Anaru-Emery and Ms Wagstaff reached the car door their actions aresomewhat obscured from the CCTV cameras by the body of the vehicle. What can beseen, however, appears to be consistent with Ms Pouwhare's evidence that Mr Anaru-Emery pushed Ms Wagstaff into the vehicle through the driver's door.[28] Mr Anaru-Emery then also got into the vehicle through the driver's side. Anarm then emerged from the passenger side of the vehicle, reaching out to close thepassenger door. (Mr Anaru-Emery had left that door wide open when he exited thevehicle). Although ultimately a matter for the jury, it was common ground betweencounsel that it is Mr Anaru-Emery's arm that can be seen on the CCTV footage. Thedefence case is that he was in the passenger seat when he closed the door. The Crowncase is that he was in the driver's seat and reached across the passenger seat to closethe passenger door.Evidence relating to what happened after the vehicle left Jellicoe Street[29] There was evidence from several eyewitnesses, and an expert crashinvestigator, that the vehicle then travelled at excessive speed, overtaking othervehicles on the painted median strip, until it crashed a short time later by the WaiariBridge, just outside Te Puke. The crash investigator estimated the average speed ofthe vehicle at between 93 and 105 km per hour in the 50 km per hour zone in Te Puketownship. He noted that, given this is an average speed, the car must have beentravelling for a period of time above that speed. He estimated that the vehicle wastravelling between 118 and 135 kilometres an hour when it passed other vehicles.The speed limit increases to 70 km/h when leaving Te Puke, then 100 km/h onthe open road. The crash investigator's opinion was that neither the road conditions(wet from earlier rain) nor the vehicle condition (it did not have a current warrant offitness) contributed to the crash.[30] When emergency services arrived at the scene, Ms Wagstaff was lying on thegrass at the rear of the vehicle. It appears likely that she was already deceased at thattime, having suffered a ruptured aorta. Mr Anaru-Emery was also outside the vehicle.It was not in dispute that Mr Anaru-Emery had dragged Ms Wagstaff from the carimmediately after the accident, through the driver's side window, as none of the doorscould be opened.[31] Mr Anaru-Emery did not have any serious injuries but did have blood aroundhis mouth and nose. A number of witnesses gave evidence of him being angry, abusiveand combative, as well as distraught over Ms Wagstaff's condition, at the accidentscene. He told a number of witnesses that Ms Wagstaff had been driving the vehicle.The forensic evidence[32] I now turn to the forensic evidence. Ms Crenfeldt, a forensic scientist with theESR, gave evidence of her examination of the crash vehicle. She referred to variousapparent blood stains she identified on the interior of the vehicle, as well as possibleimpact marks on the windscreen. She also identified two human hairs on the inside ofthe windscreen, on the passenger side. Both were dark in colour. A 10cm hair waslocated near an area of radiating cracks. A 2 cm hair was located higher up on thewindscreen, closer to the passenger door.[33] The next Crown witness was another ESR forensic scientist, Nicholas Curnow.He gave evidence of the DNA analysis he undertook of samples taken from the car.Mr Anaru-Emery's DNA was identified in almost all of the blood samples takenfrom the interior of the vehicle. Ms Wagstaff's DNA was identified in only onesample, being a swab taken from an area of radial cracking on the passenger sideof the windscreen. That swab returned a mixed DNA profile, including bothMr Anaru-Emery and Ms Wagstaff's DNA. Ms Crenfeldt's evidence in relation tothat sample was that she had initially believed that the cracking was on the inside ofthe windscreen and therefore thought that "somebody had contacted the windscreenthere". However, as she took the sample she realised that the glass on the inside wasnot cracked, and the cracking was therefore on the outside "but we'd already collectedthe sample from the inside area". In her view, the cracking was most likely caused byan impact to the outside of the windscreen, not the inside.[34] Ms Crenfeldt also identified a blood stain (AFQ4) on the left-hand side of thedriver's seat, near the seatbelt receiver, which she said could only come from someonein the driver's area of the vehicle, because of its particular location. Ms Crenfeldtdescribed it as a drip type stain (of a type that could come from something like a cutfinger) coming from above and to the right. It was not an impact stain, so it couldhave been deposited sometime after the impact. Mr Anaru-Emery's DNA was foundin this sample.[35] There were also numerous other blood stains in the vehicle, many of whichwere described as "transfer" staining, which did not assist in determining the locationof the occupants of the vehicle.[36] Of particular significance was a series of small spots of blood on the inside ofthe windscreen, and also on the dashboard and front pocket, on the passenger side.The small spots of blood were immediately below the area of radial cracking on thewindscreen. Ms Crenfeldt's evidence was that, in her expert opinion, the small spotsof blood on the windscreen were an "impact splatter pattern." She could not excludethat they were expirated (for example by a cough or sneeze) but thought this wasunlikely as there was no evidence of any dilution, saliva or mucus. The shape of thespots of blood indicated that "the source of that blood was from directly in front of thepassenger dashboard pocket and windscreen rather than being from the other side ofthe car." Mr Anaru-Emery's DNA was identified in a sample of blood ("AFQ1") takenfrom the apparent impact splatter pattern.[37] Ms Crenfeldt's evidence was that, of all of the samples, AFQ1 was "the mostcritical one" because "AFQ1 puts somebody directly out from that passenger sidewhen that blood was, a force was applied to the blood and it broke up and wasdeposited on that windscreen dashboard area". She subsequently reiterated that:My interpretation is, as I say, the blood stain on the windscreen must havecome directly out, directly in front of it, so where a passenger would be sitting.[38] Even if the driver of the vehicle was not wearing a seatbelt and having regardto the forces involved in a high impact accident, Ms Crendfeldt thought it unlikely thatthe driver's head could have ended up that far across the vehicle and then, in effect,impacted with the windscreen on a trajectory straight out from the passenger seat. Theblood spots were not consistent with someone's head impacting the windscreen at anangle.[39] In cross-examination Ms Crenfeldt said that her expert opinion was that theperson whose blood was in the splatter pattern on the windscreen was in the passengerseat when that blood was deposited and that the source of the blood splatter onthe windscreen was directly out from that windscreen, in the passenger area. Shenoted, however, that you cannot age blood to closer than a matter of weeks and shecould not therefore say that the blood was deposited at the time of the accident.(There was no evidence, however, of any previous incidents that could have causedthe blood splatter).Is there sufficient evidence on which a properly directed jury could reasonablyconvict Mr Anaru-Emery of manslaughter?[40] There is no direct evidence that Mr Anaru-Emery was driving at the time of theaccident, for example, a witness who saw him driving. Rather, the Crown relied onseveral strands of circumstantial evidence which it submitted prove, beyondreasonable doubt, that Mr Anaru-Emery was driving, namely:(a) First, the manner in which the vehicle was driven after it left JellicoeStreet (speeding and passing other cars on the painted median) was saidto be consistent with Mr Anaru-Emery being the driver thanMs Wagstaff. Ms Gourlay described Ms Wagstaff as a careful driverand she was driving carefully prior to getting out of the car on JellicoeStreet. Mr Anaru-Emery was heavily intoxicated, whereas Ms Wagstaffwas under the adult alcohol limit (albeit over the nil limit permitted foran under 20 driver). Mr Anaru-Emery was angry and aggressive, asdemonstrated by his conduct throughout the afternoon and evening(both before and after the accident). Despite Nevada Pouwhare'sevidence that both Mr Anaru-Emery and Ms Wagstaff both lookedangry on Jellicoe Street, the overall weight of the evidence indicatesthat it was Mr Anaru-Emery, not Ms Wagstaff, who was in a heightenedemotional state. He had been aggressive and angry (on and off) for aperiod of hours.(b) Second, the CCTV footage shows that Mr Anaru-Emery got in thedriver's door, after first pushing Ms Wagstaff through that door. Whatappears to be Mr Anaru-Emery's arm is then seen closing the passengerdoor. The Crown case is that he reached over to do this, from thedriver's side.(c) Third, from the CCTV evidence and the testimony of the threeeyewitnesses that Ms Wagstaff did not want to be in the vehicle andwas manhandled back into it, against her will. Ms Pollett submittedthat this makes it highly improbable that she would then have drivenoff.[41] Ms Pollett acknowledged that the ESR evidence raised difficulties for theCrown. She advised that, prior to trial, the Crown had understood that the mostsignificant sample was AFQ4 (discussed at [34] above), which the Crown believedwould support an inference that Mr Anaru-Emery was the driver. At trial, however,it became apparent that the critical sample was AFQ1. Ms Pollett submitted,however, that the jury could find that, given the forces involved in the crash, bothoccupants could have ended up on the passenger side. This might explain howMr Anaru-Emery's DNA was found in an apparent impact splatter stain on thepassenger windscreen.[42] I was not persuaded by this submission. The Crown is required to prove itscase beyond reasonable doubt. Ms Crenfeldt was a key Crown witness. Her evidenceregarding the significance of sample AFQ1 was consistent and compelling. It raises areasonable doubt that Mr Anaru-Emery was the driver, and the jury could not havereasonably concluded otherwise, having regard to the totality of the evidence in thecase. The circumstantial evidence adduced by the Crown is not sufficiently strong tosupport a finding of guilt beyond reasonable doubt, in light of Ms Crenfeldt's forensicevidence.Is there sufficient evidence on which a properly directed jury could reasonablyconvict Mr Anaru-Emery of kidnapping?[43] Mr Anaru-Emery will be guilty of kidnapping Ms Wagstaff if he is found tohave unlawfully taken away or detained her, without her consent (or with consentobtained by duress) with intent to cause her to be confined.6[44] As Ms Pollett noted, the offence is complete when the victim is seized andcarried away against her will.7 Kidnapping is not a continuing offence requiringconcealment of the person seized.8 Rather, it is the carrying off or detention that isessential.96 Crimes Act 1961, s 209.7 R v Reid [1973] QB 299, [1972] 2 All ER 1350 (CA). See also Wiley v R [2016] NZCA 28.8 R v Reid [1973] QB 299, [1972] 2 All ER 1350 (CA) at 1351-1352.9 R v D [1984] 2 All ER 449 (HL).[45] Mr Dawson submitted that the kidnapping charge should be dismissed becausethe Crown case was that any detention or confinement had occurred in the motorvehicle. It follows, he submitted, that if the Crown cannot prove beyond reasonabledoubt that Mr Anaru-Emery was the driver of the motor vehicle, Ms Wagstaff cannothave been detained in it. Mr Dawson noted that the particulars of the kidnappingcharge stated:Dragging her back to the motor vehicle, pushing her into the motor vehicle,preventing her from exiting the motor vehicle, driving off at high speeds.[46] Mr Dawson rejected the proposition that the events on Jellicoe Street, up untilMs Wagstaff was allegedly pushed into the car, could constitute a kidnapping in theirown right (independently of who then drove the vehicle). He submitted thatkidnapping is a serious offence. An incident that lasts for less than a minute, even ifit involves restraining a person and pushing them into a car, is not of sufficient gravityto warrant a charge of kidnapping.[47] Ms Pollett did not accept that the Crown case was predicated on the onlyrelevant detention or confinement being within the motor vehicle. Rather, the Crownrelied on everything that occurred from the time that Ms Wagstaff exited the vehicle.[48] I am satisfied that the evidence as to what took place on Jellicoe Street(taking the Crown case at its highest) is sufficient to meet all of the elements of thecharge of kidnapping.[49] First, there is clear evidence that Mr Anaru-Emery intentionally took away ordetained Ms Wagstaff by dragging her back to the vehicle and pushing her in it,without her consent. To detain a person means to prevent that person from leaving,should they wish to do so. Any detention must be more than trifling10, but theassessment of whether what occurred is trifling (as the defence alleged) is ultimatelya matter for the jury.10 Boyd v R (1992) 8 CRNZ 661 (HC).[50] "Taking away" is a form of detention where the defendant compels a person toaccompany him or her so that the person is compelled to go where he or she did notwant to go.11 Any significant removal of the victim from where he or she wants to bewill suffice.12 The Crown has adduced evidence that, if accepted, meets this definition.There is also clear evidence to support an inference that Mr Anaru-Emery knew thatMs Wagstaff did not consent to being detained or taken away and, further, thatMr Anaru-Emery intended to cause Ms Wagstaff to be confined.[51] I reject Mr Dawson's submission that the defence would be prejudiced byallowing the Crown, for the purposes of the kidnapping charge, to now focus solelyon the events on Jellicoe Street and not the subsequent alleged confinement in the car.The Crown's allegations as to what occurred on Jellicoe Street have been clearfrom the outset. Indeed, what happened on Jellicoe Street formed a criticalpart of the Crown case in relation to both the kidnapping and manslaughtercharges (probably the most critical part of the Crown case). The CCTV footagespeaks for itself. It is ultimately for the jury to decide what it shows. As for thethree eye witnesses, Ms Billings, Ms Pouwhare, and Nevada Pouwhare, theywere each cross-examined at some length on what they saw. The defence would notbe prejudiced by now reducing the scope of the particulars to focus solely onwhat happened on Jellicoe Street.____________________________Katz J11 See for example Davis v R [2006] NSWCCA 392 at [64].12 As in R v Wellard [1978] 1 WLR 921, where the victim was taken 100 yards and placed in a car.