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R v Ekeroma [2020] NZHC 502 (12 March 2020)

Last Updated: 24 March 2020

JUDGMENT OF JAGOSE J

[Availability of Crimes Act 1961, s 168(1)(b)]

This judgment was delivered by me on 12 March 2020 at 5.00pm.

.............................. Registrar/Deputy Registrar

Solicitors/Counsel:

Meredith Connell, Crown Solicitor, Auckland L B Cordwell Barrister, Auckland

E I Haronga Barrister, Auckland G J Newell Barrister, Auckland

D M Dickinson Barrister, Auckland

R v EKEROMA and FATU [2020] NZHC 502 [12 March 2020]

[1] The Crown charges Mr Ekeroma and Mr Fatu each with one charge of aggravated robbery and one charge of murder, arising from their assault of the deceased in which they left him tied and gagged face down on a bed. Each defendant pleads guilty to the charge of aggravated robbery, and not guilty to the murder charge.

[2] The Crown presently intends to rely on the definitions of murder in s 168(1)(a) and (b) (and on s 66) of the Crimes Act 1961. The defendants dispute paragraph (b) has application. I was satisfied, as a matter of law, a properly directed jury could not reasonably convict the defendants here of a charge brought under s 168(1)(b), and held accordingly.¹

[3] These are my reasons for that decision.

Factual background

[4] For the purposes of my decision, the parties agreed I may rely on the following paragraph taken from the Crown’s anticipated pathology evidence:

Given the scene investigation and autopsy, the most likely cause of death is asphyxiation due to the combined effects of smothering and positional asphyxia. Despite a layered anterior neck dissection showing no muscular haemorrhage or neck fractures, strangulation can not [sic] be ruled out. Asphyxia by smothering is caused by the mechanical obstruction or occlusions of the external airways. Positional asphyxia occurs in an individual trapped in a position that restricts the ability to breathe. In this case, the decedent was hog tied in a prone position on a bed with soft bedding. The shorts that were wrapped around the anterior and sides of the neck were tied with a black shoe lace that was around the posterior neck. This may have been up around the nose and mouth, contributing to smothering. Parts of the shorts is [sic] saturated with fluids. If these parts were occluding the airways, this would have made breathing more difficult. If part of the shorts were in the mouth at the time of the death, asphyxia by choking should be considered.

together with that anticipated from the discoverer of the deceased’s body, finding it with “socks or the sleeve of a long sleeve shirt or something similar to that tied around his mouth”. The shorts are understood to be that ‘similar’ item. There is no suggestion the defendants saturated the shorts with fluids.

¹ Minute, 9 March 2020.

Relevant law

[5] Section 168(1) provides:

168 Further definition of murder

(1) Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue:

• (a) if he or she means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2),² or facilitating the flight or avoiding the detection of the offender upon the commission or attempted commission thereof, or for the purpose of resisting lawful apprehension in respect of any offence whatsoever, and death ensues from such injury:
• (b) if he or she administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof:
• (c) if he or she by any means wilfully stops the breath of any person for any of the purposes aforesaid, and death ensues from such stopping of breath.

[6] The ‘further definition of murder’ maintains aspects of common law “felony murder”, also described in various Commonwealth jurisdictions as “constructive murder”. Killing in furtherance of another offence once constituted murder, even without intention of death or personal injury, but the principle became restricted to killings in the course of violent felonies.³ The principle was the subject of strong criticism,⁴ and was abolished in the United Kingdom,⁵ and struck down in Canada as unconstitutional.⁶ It continues in various attenuated forms in Australia,⁷ particularly in the ACT, Queensland, and Tasmania,⁸ which each maintain a comparator to

2. The offences specified at subs (2) include s 234’s robbery, which is to take in also aggravated robbery: R v Rapira [2003] NZCA 217; [2003] 3 NZLR 794 (CA) at [51].
3. Director of Public Prosecutions v Beard [1920] AC 479 (HL); Attorney-General’s Reference (No 3 of 1994) [1997] UKHL 31; [1998] AC 245 (HL) at 257–258.
4. See Sir James Stephen History of the Criminal Law of England (1883) vol. 3, pp. 57–58; “illogical, unjust and unnecessary ... a standing reproach to the criminal law of England”: Report of the Royal Commission on Capital Punishment (1953) (Cmd 8932), paras 72-121 and appendix 7; and Professor David Lanham, “Felony Murder – Ancient and Modern” (1983) 7 Crim LJ 90.
5. Homicide Act 1957 (UK), s 1(1): “Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance of another offence”.

⁶ R v Vaillancourt [1987] 2 SCR 636; R v Martineau [1990] 2 SCR 633.

7. Crimes Act 1900 (NSW), s 18(1)(a); Crimes Act 1958 (Vic), s 3A(1); Criminal Code Compilation Act 1913 (WA), s 279(1)(c); Criminal Code Act 1983 (NT), s 161A (NT), Criminal Law Consolidation Act 1935 (SA), a 12A.

⁸ Crimes Act 1900 (ACT), s 27(3)(b); Criminal Code Act 1899 (Qld), s 302(1)(d); Criminal Code

s 168(1)(b) (although, in ACT, it is “any stupefying or overpowering drug or poison or other injurious substance”).

[7] Neither counsel nor I have been able to identify any New Zealand application of s 168(1)(b), or its predecessor s 183(1)(b) of the Crimes Act 1908. The Australian cases also do not appear to address administration of any “overpowering thing”.

Discussion

[8] The starting point for determining the meaning of the paragraph is the words of the statute, taken “in light of its purpose”.⁹

[9] At least for this judgment, there is no dispute the deceased was tied and gagged for one or more of s 168(1)(a)’s purposes (but not meaning to cause grievous bodily injury), with fatal consequences. (I refer to these purposes below as “the statutory purposes”.) What remains is the meaning of ‘administer’ and ‘overpowering thing’.

[10] The natural meanings of ‘administer’ include “[t]o apply or give (a medicine, a drug, a particular treatment, etc.); to treat a person with (something); to deliver a dose of”.¹⁰ It carries with it delivery of the means by which the effect anticipated of its object – here, the ‘overpowering thing’ – can occur.¹¹

[11] The natural meanings of ‘overpower’ include:¹²

To defeat or overcome with superior power or force; to reduce to submission.

...

To make imperceptible or weaken (something, esp. a quality) by greater force or intensity.

...

Of an emotion, fatigue, etc.: to overcome (a person, etc.) by intensity; to be too much or too intense for; to overwhelm”.

Act 1924 (Tas), s 157(1)(e).

⁹ Interpretation Act 1999, s 5.

¹⁰ Oxford English Dictionary (online 3rd ed, Oxford University Press, Oxford, 2011).

¹¹ See, for example, Medicines Act 1981, s 2 (definition of ‘administer’).

¹² Oxford English Dictionary (online 3rd ed, Oxford University Press, Oxford, 2004). “Overcome” is defined to refer back to ‘overpower’: “[o]f an emotion, physical condition, etc.: to overpower or overwhelm; to exhaust or render helpless; to affect or influence excessively”; as is “overwhelm” “to overcome or overpower with excess of work, responsibility, etc”.

‘Overpower’, ‘overcome’, and ‘overwhelm’ in these senses are synonyms.

[12] In context, those natural meanings are reinforced in the paragraph. Administration is of “any stupefying or overpowering thing”. Those are distinct qualities: to ‘stupefy’ is “to put (a person or animal) into a state of impaired consciousness and diminished responsiveness to stimuli”;¹³ in comparison, to ‘overpower’ must be to prevent exercise of otherwise unimpaired consciousness and undiminished responsiveness.¹⁴ Similarly, in R v Sturm, the Court of Appeal held ‘stupefy’ to mean:¹⁵

... cause an effect on the mind or nervous system of a person which really seriously interferes with that person’s mental or physical ability to act in a way which might hinder an intended crime.

Logically, ‘overpower’ must be to cause an effect on the person’s body to the same ends. By ‘body’, I mean a person’s self-directed physiology, the means by which they can effect change in the proximate physical environment. The pathologist’s contemplation of the deceased’s “asphyxia by choking” may well constitute his being ‘overpowered’.

[13] But clearly, from the paragraph’s words, the ‘stupefying’ or ‘overpowering’ quality is to be inherent in the ‘thing’; the paragraph anticipates the ‘thing’ will have “effects” – necessarily of a ‘stupefying’ or ‘overpowering’ nature, with fatal consequences. The “shorts” intended to be referred to by the pathologist lack any such quality, even if they may have contributed to any “asphyxia by choking”.

[14] The s 168 context also is of a ‘further’ definition of murder: distinctly from s 167, “whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue”.¹⁶ The lack of murderous intention is the core criticism of felony murder.¹⁷ But subs (1) still requires the offender “means to cause grievous bodily injury” under para (a), or “wilfully stops the breath of any person”

¹³ Oxford English Dictionary (online 3rd ed, Oxford University Press, Oxford, 2019).

¹⁴ See, for example, Arms (Restricted Weapons and Specially Dangerous Airguns) Order 1984, Sch, para 8: “stupefying or overpowering thing capable of rendering any person either wholly or partially incapable of resistance”.

¹⁵ R v Sturm [2005] NZCA 137; [2005] 3 NZLR 252 (CA) at [113].

¹⁶ Crimes Act 1961, s 168(1).

¹⁷ See [6] above.

under para (c), each for the statutory purposes. For parity, para (b) implies the offender knows the ‘thing’ administered has overpowering quality, for its administration for the statutory purposes. To administer an “overpowering thing” is quite distinct from administering some thing either that happens to overpower, or even with the objective of overpowering (but without that inherent quality), to achieve the statutory purposes.

[15] Sections 167 and 168 ‘virtually reproduce’ draft ss 174 and 175 from the Code proposed in the Report of the English Royal Commission on Indictable Offences 1879 (but not enacted there).¹⁸ Crown counsel arguing for application of s 168(1)(b), Sam McMullan, drew attention to an aspect of the Commissioners’ Report explaining the draft s 175 (s 168):

[S]ection 175 in sub-sections (b) and (c) provides that killing by the administration of stupefying things, or by wilfully stopping the breath, for the purpose in either case of committing any of the specified offences, shall be murder, whether the offender knows or not that death is likely to ensue. According to the provisions of the Bill, these cases would amount to murder only if the offender knew their danger. The difference between the Draft Code and the Bill upon the whole comes to this. A, in order to facilitate robbery, pushes something into B’s mouth to stop his breath and thus to prevent him from crying out; the death of B results. This is murder according to the Draft Code. According to the Bill it is murder if A knew that such an act would probably cause death; manslaughter if he did not. A few years ago a case occurred in the Western Circuit [Footnote: R v Gilbert, known as the Fordingbridge murder. See ‘The Times’, 19 July 1862.] which illustrates the principle on which this portion of the Draft Code is framed better than any hypothetical case. An innocent girl on her way to church had to pass over a stile into a narrow wooded lane and then go out of it by a stile on the other side. A ruffian who knew this lay in wait for her, muffled her head in a shawl to stifle her cries, and proceeded to drag her down the lane towards a wood. She died before she reached it. He was executed for the murder. It is plain he did not mean to kill her; indeed his object was frustrated in consequence of her not reaching the wood alive, and he probably was not aware that stifling her breath for so short a time was dangerous to life; but as the law at the time was and now is, the death having been occasioned by violence used to facilitate the commission of a rape, the offence was murder. And we believe there are few who would not think the law defective if such an offence was not murder.

[16] Mr McMullan argues:

While the Commissioners do not expressly say on which basis liability would follow, the sole basis that the offender could be convicted of murder in the [latter example] is under (what is now) s 168(1)(b).

¹⁸ R v Piri [1987] NZCA 6; [1987] 1 NZLR 66 (CA) at 79–82.

I do not follow the argument. First, the draft s 175(b) only addresses administration of “any stupefying thing” and not ‘any overpowering thing’.¹⁹ Second, both examples – in referring hypothetically to “stop his breath”, and factually to “stifling her breath” – more naturally appear references to the draft s 175(c)’s “wilfully stops the breath” than to the draft s 175(b) “administers any stupefying thing”. “[M]uffled her head in a shawl to stifle her cries” is not in itself to impair her consciousness or to diminish her responsiveness, and thus is not apt to be described by the latter phrase. And third, it is perhaps instructive the draft s 175 author’s own commentary, while doubting the utility of murder’s “further definition” (and suggesting the Commissioners’ Fordingbridge example fell within murder’s ordinary definition), explains paragraphs (b) and (c) were introduced “on account of the extreme danger involved in the use of stupefying drugs, or attempts to prevent outcries in order to commit certain crimes”.²⁰ I comprehend the comment to be made about paragraph (b) “or” (c) respectively.

[17] Mr McMullan also argues the section’s purpose draws:

... no moral distinction between the application of some things which overpower a person’s will in order to achieve [the statutory purposes] (for example a gag and tie) and any other (for example the application of chloroform). Overpowering thing must be interpreted broadly to cover all such things.

I disagree. As I have explained, the section is not about application for the statutory purposes of a thing that overpowers, but administration for the statutory purposes of a stupefying or overpowering thing. There is no moral distinction to be drawn. It is a ‘further definition’ of murder – ordinarily requiring murderous intent, and extraordinarily allowing specific lesser intents – which “rather precise” formulation is not lightly to be enlarged.²¹ That particularly is the case when the ‘further definition’:²²

... is an outcropping of old law from which the surrounding strata of rationalisation have weathered away. It survives but exemplifies no principle which can be applied to a new situation.

¹⁹ “[O]verpowering” appears to be New Zealand’s own contribution to the phrase, but the basis for its introduction has not been able to be discovered from the ten years of Parliamentary debates preceding this country’s first Criminal Code Act 1893.

²⁰ Stephens, above n 4, at 83.

²¹ AP Simester & WJ Brookbanks, Principles of Criminal Law (5th ed, Thomson Reuters, Wellington, 2019) at 16.4.5.

²² Attorney-General’s Reference (No 3 of 1994), above n 3, at 258–259.

Conclusion

[18] For all those reasons, I concluded a properly directed jury could not reasonably convict the defendants here of a charge brought under s 168(1)(b).




—Jagose J