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R v Green [2016] NZHC 212 (18 February 2016)

Last Updated: 6 June 2017

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2015-070-576 [2016] NZHC 212

THE QUEEN

v

_{RAYMOND GREEN}

_{TRIAL RULING NO.5 OF WHATA J}

This judgment was delivered by Justice Whata on

18 February 2016 at 2.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Tauranga

Pacific Coast Law, Papamoa

R v GREEN [2016] NZHC 212 [18 February 2016]

[1] Mr Green faces one charge of murder. The central alleged facts are that Mr Green drove at speed, striking the victim and thereby killing him. The Crown proceeds on the basis that Mr Green is liable on the murder count by reason of:

(a) Section 167(b) of the Crimes Act 1961, intent to injure with death as a likely consequence and recklessness;

(b) Section 167(d) of the Crimes Act 1961, killing to achieve an unlawful object namely threatened application of force, with death as a likely consequence;

(c) Manslaughter by way of assault, threatened assault and/or dangerous driving.

[2] Prior to the close of the Crown case, I raised two concerns with Counsel about the application of s 167(d) to the alleged facts, namely:

(a) The application of the s 167(d) route in the context of threatening to apply force circumvents the usual rule in assault cases which requires proof of intent to injure and recklessness for the purposes of s 167(b), with the prospect of s 167(d) becoming the default route for such cases (the floodgates issue).

(b) The s 167(d) route involves an unduly complex and potential confusing inquiry into murderous intent.

[3] With the benefit of argument in relation to these issues, I turn to consider whether the charge of murder pursuant to s 167(d) should be left with the jury.

Alleged Facts

[4] On 2 February 2015, Mr Green had the day off work. At around 4.30 pm he was at his brother’s house at Ocean Beach Road in Mt Maunganui. He met his work colleague there, Mr Butler. Mr Butler and Mr Green had a couple of drinks, then

decided to go to the house of another work colleague, Mr Aranui, at Gate Pa. They

drove to that address in Mr Butler’s vehicle, a 2001 WRX Subaru.

[5] Over the course of the evening, the three colleagues used Mr Butler’s Subaru to travel in and around the Tauranga and Mt Maunganui area, drinking at various places. At a certain point in the evening, they decided to head to Welcome Bay. Mr Green insisted on driving.

[6] That same evening, the deceased, Ilya Kojevnikov, had been drinking with a friend, Mr Ormsby, at his address at Welcome Bay Road. Mr Kojevnikov was completely unknown to Mr Green. At around 10:45 pm, and after having consumed a significant amount of alcohol, Mr Kojevnikov and Mr Ormsby decided to leave the house to go play pool. Mr Ormsby, perhaps unwisely, decided to take his two-year- old daughter with him.

[7] At this point in time, Mr Green and his two colleagues were driving along Welcome Bay Road towards Mr Kojevnikov and Mr Ormsby. Mr Ormsby had crossed the road and was standing in the flush median with his daughter. Mr Kojevnikov was still waiting to cross. As Mr Green drove past him, Mr Kojevnikov kicked out at the car. The kick did not connect with the vehicle, but Mr Green and his colleagues took exception to Mr Kojevnikov’s action.

[8] The Crown’s case is that Mr Green, fuelled by anger, alcohol and testosterone, decided to deal with Mr Kojevnikov. He continued up the road, performed a u-turn then went back down Welcome Bay Road at 97 km/h (the speed limit being 60 km/h). He crossed over the median strip of the road to the area where Mr Kojevnikov was crossing. Mr Green struck Mr Kojevnikov with the car, killing him.

[9] Mr Green then fled the scene to Papamoa where he went about trying to conceal the vehicle so as to evade identification. He had an argument with his colleagues about what to do about the vehicle and threats were made. It was at this point in time that Mr Butler contacted the Police.

Framework

[10] Section 167 of the Crimes Act states:

167 Murder defined

Culpable homicide is murder in each of the following cases:

(a) if the offender means to cause the death of the person killed:

(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:

(c) if the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he or she does not mean to hurt the person killed:

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

[11] Counsel could not identify appellate level authority dealing with a situation where the threatened application of force was the alleged unlawful object for the purpose of s 167(d). Only one case was cited specifically concerning an alleged threat as forming the basis for charge under s 167(d): R v Cho.¹ In that case the Crown put the charge of attempted murder on a number of bases, including on the basis of an unlawful object of “scaring” the victim through a combination of assault and intimidation. Justice Heath was not prepared to put this alternative to the jury because of:²

(a) The difficulty inherent in assessing knowledge and intent at various times; and

(b) The fact that the Crown did not open to the jury on this basis.

[12] There is no discussion in the judgment about the application of s 167(d) to threats of force and the reasons for exclusion were fact specific.

¹ _{R v Cho HC Auckland CRI-2007-090-070, 18 September 2008.}

² At [17]–[18].

[13] In any event, for present purposes, the Court of Appeal in Shadrock v R provides the clearest guidance as to the application of s 167(d) generally.³ The Court identified that s 167(d) is a qualified application of the old common law felony murder rule which provided a person could be convicted of murder where he or she killed another with felonious intent. Felonious intent required an intention to commit any felony involving the use of, or the threat of, force against the person killed.⁴ The Court referred to a number of examples of felonious intent,⁵ one of which was the use of a loaded firearm in order to frighten the victim into submission and the gun goes off accidentally killing the victim.⁶ Reflecting on the examples, the Court noted:⁷

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.

[14] Relevant also to the present case, the Court stated:⁸

Our misgivings about [the decisions in R v Piri⁹ and R v Hakaraia¹⁰] 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 (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. 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 any one”. We see this as appropriately limiting the scope of s 167(d).

_{(footnotes omitted)}

³ _{Shadrock v R [2011] NZCA 388, [2011] 3 NZLR 573.}

⁴ _{At [28]–[30].}

⁵ _{At [31]–[36].}

⁶ At [31] referring to R v Jarmain [1946] KB 74 cited in TRF Butler and M Garsia Archbold’s

_{Criminal Pleading, Evidence and Practice (33rd ed, Sweet and Maxwell, London, 1954) at 945.}

⁷ _{At [37] (emphasis added).}

⁸ _{At [45].}

⁹ _{R v Piri [1987] NZCA 6; [1987] 1 NZLR 66 (CA).}

¹⁰ R v Harakaia [1989] NZCA 65; [1989] 1 NZLR 745 (CA).

[15] The requirement for distinctive crime appears discordant with the observation of the Court in R v Aramakutu, namely that:¹¹

We are driven to think that a “clearly distinct” requirement has no place in applying the New Zealand para (d), and would serve only to complicate the application of our code unnecessarily.

[16] The Court in Shadrock, however, explained, citing Aramakutu as an example, that the unlawful act causing death must also achieve a distinctive criminal object. The Court noted that in Aramakutu the unlawful purpose was causing damage to the property in which the victim was located, which was distinct to the unlawful act that

caused death: the lighting of the fire that caused the house to burn.¹² The Court

contrasted Aramakutu with R v Downey¹³ in which the accused set fire to a house with the intention of hurting the victim. The Court in Downey held that s 167(d) could not be relied on because the unlawful object was to cause the personal injury suffered by the victim.¹⁴

[17] The Court also examined the requisite nexus between the unlawful object and the act said to cause death, observing:¹⁵

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 harm. One possible policy factor recognised by Parliament when it enacted s167(d) was that people who commit crime put themselves in a situation where they will be more likely to resort to violence.

[18] The Court further observed that in each case it will be a question of fact whether the fatal act is sufficiently linked to the “unlawful object” – that is the crime being committed – to constitute murder, and that:¹⁶

...the more usual situation under s167 (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...

¹¹ _{R v Aramakutu [1991] 2 NZLR 429 (CA) at 433.}

¹² _{Shadrock v R, above n 3, at [47]–[48].}

¹³ _{R v Downey [1971] NZLR 97 (CA).}

¹⁴ _{Shadrock v R, above n 3, at [47]fn 33.}

¹⁵ _{At [63].}

¹⁶ At [76]

Argument

[19] Ms Pollett explained that the Crown case under s 167(d) is simply that Mr Green drove at Mr Kojevnikov at high speed in retaliation for his kicking at the car with the objective of scaring him. This involved clear danger to Mr Kojevnikov, which he knew was likely to kill him. She thus submits that all the requisite elements are present:

(a) An unlawful object – the threatened application of force by the dangerous driving of a motor vehicle; and

(b) That object was known to Mr Green to be likely to cause Mr Kojevnikov’s death, though he may have desired that his object should be effected without hurting anyone.

[20] Ms Pollett maintained the dangerous use of a motor vehicle to threaten a person, with knowledge that death is likely to ensue, is a logical and principled application of s 167(d). Further, she argued that the perceived floodgates issue did not arise because the requirement to show that the offender knew of the likelihood of causing death was a high and difficult threshold in the context where the ulterior object is simply a threat. That requirement also mitigates the perceived difference between the s 167(b) and (d) routes, because both require actual knowledge. Ms Pollett suggested that the Crown’s claim in terms of s 167(d) could form a separate charge pursuant to s 21 of the Criminal Procedure Act 2011 (CPA) so that its peculiar elements can be separately addressed by a jury.

[21] Mr Rickard-Simms contended that the Crown is effectively side stepping the requirement to show intentional injury and recklessness ordinarily required in cases where the alleged culpable act causing death is, by definition, an assault causing injury. He said that the floodgate potential is obvious – with the prospect of s 167(d) being employed in cases where there is some doubt that the offender meant to injure or was acting recklessly. He also emphasised the conceptual and practical difficulty confronted by the jury in this case:

(a) The jurors will have to find that Mr Green’s objective was to threaten (not harm) Mr Kojevnikov, but that Mr Green was prepared to run the risk of killing him to achieve that objective; and

(b) The jurors must find that in the three or so seconds prior to the incident, Mr Green not only intended to threaten Mr Kojevnikov, but also to run the risk of killing him in order to achieve that threat.

Assessment

[22] It might be thought to be remarkable that s 167(d) has never been applied in cases involving fatalities caused by dangerous driving. That might be explained by the limited research time available to Counsel and the Court. But even so, it seems to me that the multiple pathways ordinarily available to handle cases of this kind, including s 167(b), motor manslaughter and dangerous driving causing death, suggest care is needed (in the absence of appellate authority) before affirming the availability of a pathway giving rise to culpable homicide for a threat to use a car as a weapon without the requirements of intentional injury or recklessness. The result therefore in this judgment should not weigh heavy in the law texts.

Scope

[23] I have come to the view that s 167(d) encompasses threats of force (an unlawful object under s 196 of the Crimes Act 1961) involving contemporaneous acts of clear danger to intended victims that the defendant knows are likely to cause death. The origins, breadth and purpose of s 167(d) as asseverated in Shadrock support this conclusion (see [13]–[18] above). But difficulties arise when, on the Crown case, the unlawful act causing death (assault with a vehicle) is co-extensive with the commission of the unlawful purpose crime (threatening an assault with a vehicle). To my mind, the dividing line between the threatened assault and actual assault in this context is a very fine one. Furthermore, it seems to me that, as Mr Rickard-Simms submits, the resort to threatened assault as the unlawful object effectively circumvents the usual requirement to show intent to injure and recklessness. The latter requirement is, unusually perhaps, important to the defence in this case, because it requires not only knowledge that the driving will likely cause

death, but that Mr Green carried on regardless – an arguably unlikely prospect given the shortness of time involved in the alleged commission of the unlawful act.

[24] Be that as it may, I accept that Ms Pollett is correct insofar as a threat to scare the victim by driving at him is conceptually distinct from the alleged act causing death, namely the physical act hitting the victim with the car. I also note that the Court of Appeal has previously held that s 167(d) can still be put to the jury where the commission of the unlawful purpose is largely co-extensive with the commission

of the act causing death.¹⁷ In the result, I am satisfied that there is scope for

prosecuting Mr Green by way of s 167(d).

Floodgates

[25] I accept Ms Pollett’s basic submission that the threshold for employing s

167(d) must be a high one where the unlawful object is a threat simpliciter – the alleged threat must have demonstrably endangered the victim in circumstances where the commission of the threat, by itself, is likely to kill the victim. There must also be some evidential basis to support the inference that the defendant had actual knowledge that the commission of the threat was likely to cause death. This removes the vast majority of threats that do not involve a contemporaneous act that is likely to cause death – for example, a simple utterance that might frighten a victim; the waiving of a fist; or even physical violence that did not demonstrably raise the prospect of fatal harm. I am therefore satisfied that the floodgates factor does not militate against the interpretation and application of s 167(d) sought by the Crown in this case.

Complexity

[26] This segues to the second key issue. I perceive difficulties for the jury in making the requisite mens rea finding in this case, namely that Mr Green had actual knowledge that the commission of the “threat” would likely kill the victim. This has

_{multiple aspects.}

¹⁷ See, for example, R v Aramakutu, above n 11 and R v Harakaia, above n 10.

[27] First, the jury will need to be sure that Mr Green knew that the commission of the threat by his driving would likely kill Mr Kojevnikov. But there is a real risk (evident with respect from the exchange with Ms Pollett) that the jury will too easily slide into reasoning that Mr Green ought to have known in the circumstances that driving at speed in the direction of a pedestrian is likely to cause death. That limb of culpability was discarded by the Crimes Act 1961, and it is not enough to show that Mr Green should have appreciated the risk attendant with his driving.

[28] Second, the jury will need to grapple with the implausibility of Mr Green knowingly driving in a manner that will likely kill Mr Kojevnikov when his object is simply to threaten that outcome. While s 167(d) contemplates unintended killings, that outcome in this case was manifestly disproportionate to the alleged unlawful objective.

[29] Third, the jury must find the requisite mental elements for s 167(d) in relation to an incident spanning only a few seconds and involving multiple actors (including Mr Green, his passengers and three pedestrians at the time, including Mr Kojevnikov). In this regard the evidence of an intention to threaten is sparse. Conversely, there is strong evidence that Mr Kojevnikov’s movements were erratic and likely to have been alcohol fuelled, and contributed to the collision.

[30] I am prepared, nevertheless, to allow the s 167(d) route to go the jury provided that the jury is directed to be sure of both actual knowledge and recklessness as to whether death ensues or not.¹⁸ This combined test will in my view assuage, in part, my concerns about “threats’ simpliciter providing a basis for a s 167(d) prosecution and, more importantly, will require the jury to focus on proof of the subjective element necessary to establish murderous intent involving simply a

_{threat with a motor vehicle.}

¹⁸ In R v Aramakutu, above n 11, at 432 the Court held that there was no difference between the knowledge requirements in s 167(b) and s 167(d): “The common essential ingredient in both paras (b) and (d) is that the offender knows that what he is doing is likely to cause death. The reference to recklessness in para (b) is usually of little practical importance, as this Court has said in previous cases; it does serve to point the contrast with para (a) whereunder there must be an actual intent to kill.” But in this case, the risk that the jury might slide into an objective assessment of knowledge implores in my view a clear direction to the jury to be sure that Mr Green carried on in any event.

Outcome

[31] Given the foregoing, I will allow the charge of murder under s 167(d) to be put to the jury provided that the jury is directed to include as part of its assessment, and as an additional element of the offending, that Mr Green acted with reckless disregard as to whether death ensued. I also adopt the suggestion made by Ms Pollett that the charge be split pursuant to s 21 of the CPA so as to ensure that the jury separately addresses the s 167(d) route.