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R v Hetaraka [2015] NZHC  2430  (6 October 2015)

High Court of New Zealand

R v Hetaraka [2015] NZHC  2430  (6 October 2015)

Last Updated: 17 December 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-085-8441  [2015] NZHC 2430 

THE QUEEN

v

_{HARIBOY HETARAKA}

JUDGMENT OF ELLIS J (Reasons)

I direct that the delivery time of this judgment is

_{4.30 pm on the 6}^th _{day of October 2015}

R v HETARAKA  [2015] NZHC 2430  [28 September 2015]

[1] These are the reasons for my decision declining to dismiss the charge of manslaughter faced by Mr Hetaraka following the close of the Crown case during the trial.

Background

[2] Mr Hetaraka is charged with manslaughter and causing grievous bodily harm with intent to injure. The victim was Mr Clark McCulloch. Mr McCulloch died some two and a half months after he had been punched by Mr Hetaraka. The punch had caused Mr McCulloch to fall backwards and to hit his head on the kerb, causing

a serious brain injury. It seems that Mr McCulloch did not attempt to break his fall.¹

[3] The effluxion of time between the punch and Mr McCulloch’s death, together with various intervening events, means that there is a real issue about causation. Indeed, prior to the commencement of his trial Mr Squire QC applied under s 147 of the Criminal Procedure Act 2011 to have the manslaughter charge dismissed on the grounds that a jury, properly directed, could not be satisfied Mr Hetaraka’s single punch to Mr McCulloch was a substantial and operative cause of Mr McCulloch’s death. That application was based squarely on the autopsy report prepared by the pathologist who conducted the post mortem on Mr McCulloch, Dr Rutherford.

[4] Dr Rutherford had summarised his autopsy findings in the following way:

(1) The way in which Mr McCulloch was described to have died

suggests a “cardiac” type of death.

(2) There was no morphological evidence of natural heart disease.

(3) Abnormalities of heart rhythm (that might prove fatal) are known to occur as short-term and long-term sequelae of head injury.

(4) The head injury in this case was severe, resulting in permanent disability.

(5) Pathological resolution of the damage was still taking place.

(6) There were biochemical abnormalities of the vitreous humour indicating that Mr McCulloch was dehydrated at the time of death.

¹ A fuller account of the background can be found in R v Hetaraka [2015] NZHC 1933.

[5] Then, he concluded:

In my view the cause of death is best regarded, on balance of probability, as a sudden fatal cardiac arrhythmia related to long-term brain damage complicated by metabolic derangement (dehydration).

[6] In a statement subsequently made to the Police, however, Dr Rutherford had expressed himself differently. Collins J recorded that:²

[22] Before signing the statement of evidence Dr Rutherford was asked whether or not Mr McCulloch “had suffered a natural left sided cerebral infarction (‘stroke’) as a novus actus interveniens on or around

17 July 2014”. The reference to the 17 July 2014 stroke being a novus actus interveniens may be misleading because in the present context the term usually refers to an intervening act of a third person that is so independent of the defendant’s conduct that the actions of the defendant are excluded from being a cause of death.

[23] After considering the possible effects of the stroke Mr McCulloch suffered on 17 July 2014, Dr Rutherford summarised his statement of evidence in the following way:

In conclusion, with respect to the foregoing paragraph, I can see no reason to suppose that a natural “stroke” had occurred above and beyond what might be expected as an ongoing consequence of the initial head trauma. In short, I cannot see how the initial [head] trauma cannot be regarded as a substantial and operative cause of death.

[7] Collins J summarised those parts of Mr Squire’s submissions on the s 147

application that are relevant to the present decision as follows:

[29] First, the question Dr Rutherford was asked to focus upon concerning the stroke suffered by Mr McCulloch on 17 July 2014 had nothing to do with the cause of Mr McCulloch’s death. Mr Squire submitted that Dr Parker’s evidence establishes the stroke of 17 July 2014 was not connected to the punch delivered to Mr McCulloch by Mr Hetaraka. Mr Squire rhetorically asks, if the punch and the stroke are not connected, how could the stroke be relevant to whether or not the punch delivered by Mr Hetaraka caused Mr McCulloch’s death?

[30] Second, Dr Rutherford’s comments about causation are at odds with his own autopsy report, particularly as Dr Rutherford expressed his view in his autopsy report about the cause of Mr McCulloch’s death by reference to a balance of probabilities test.

[31] Third, Dr Rutherford’s conclusions about the punch of 1 July 2014 being a substantial and operative cause of death are not supported by any reasons.

² R v Hetaraka [2015] NZHC 1933.

[8] In rejecting the pre-trial application, Collins J said this:

[34] In his autopsy report Dr Rutherford explained the cause of death in terms of an assessment upon the balance of probabilities. That falls well short of the requirements of the criminal law. Had the Crown relied on Dr Rutherford’s autopsy report I would have granted the application under s 147 of the Criminal Procedure Act because a jury properly directed could not be satisfied on the basis of Dr Rutherford’s autopsy report that the injuries inflicted by Mr Hetaraka were a substantial or operative cause of Mr McCulloch’s death.

[35] Dr Rutherford’s statement of evidence, however, contains changes and additions that place a different complexion upon his evidence. Dr Rutherford’s revised position is that the punch delivered by Mr Hetaraka was a substantive and operative cause of death. In reaching his conclusion Dr Rutherford appears to take a different view from Dr Parker about the significance of the 17 July 2014 stroke. Although he could have expressed himself more clearly, I understand Dr Rutherford is now saying there was an unbroken chain of causation between the injuries Mr McCulloch suffered on

1 July 2014, his stroke on 17 July 2014 and his death on 16 September 2014.

[36] The fact that Dr Parker and Dr Rutherford may have a difference of opinion about the significance of the 17 July 2014 stroke is a matter for the jury to assess. The difference of professional opinion between Dr Parker and Dr Rutherford does not provide sufficient foundation for me to grant an application under s 147 of the Criminal Procedure Act.

[37] While there are unresolved questions raised about why and how Dr Rutherford has altered his position, I am obliged to take his revised evidence at face value. Thus, at this juncture I have to accept Dr Rutherford’s evidence that Mr Hetaraka’s punch was an operative and substantial cause of Mr McCulloch’s death. Accordingly I cannot grant the application on the basis of the first three grounds advanced by Mr Squire.

Dr Rutherford’s evidence before me

[9] At an early stage in his evidence in chief Dr Rutherford was asked what the purpose of the autopsy on Mr McCulloch was.³ He answered:

Generally speaking autopsies are carried out to establish the cause of death and to establish the mode of dying because there are several different modes of dying from each cause of death and in doing so assist the Coroner, police and justice system in determining the manner of death.

[10] The distinction he was drawing between “mode of dying” and “cause of death” was then explored in the following exchange between Ms Carter and the

_doctor:

³ NOE p 229.

Q. Now before we get into the detail, you've talked about cause of death and mode of death. Can you just explain the difference between the two so the jury understand before we start the difference between the cause of death and the mode of death?

A. Yes, probably best done by example. If I were to sustain a stab wound to the chest and die then the cause of death would be a stab wound to the chest. It may be that the stab wound only goes in a couple of centimetres and tickles up the heart muscle and cause an abnormality of heart rhythm so the mode of dying would be a cardiac arrhythmia from the cause of death, a stab wound to the chest. It may be that the stab wound to the chest goes through a lung instead of touching the heart in which case the lung would collapse, I would have difficulty in breathing, that may persist for several minutes or half an hour or so and then I would die and the mode of dying would be pneumothorax, or air in the chest, from the cause of death, a stab wound to the chest. The cause of death is still a stab wound to the chest. Or the stab wound might go through, for example, the aorta, the big artery coming out of the heart, and I may bleed internally and the mode of dying would be internal haemorrhage from the same cause of death, the stab wound to the chest. And these have very important legal differences because sometimes, for example, a Court will want to know whether, if a decedent was capable of active movement during the dying process and the mode of dying will tell you whether they were or were not. So there's a clear difference between the cause of death and the mode of dying and similarly, there's a difference between those two and what we call the manner of death, which is something that in this country the Coroners deal with rather than the pathologist.

[11] Although Dr Rutherford did not go so far as to opine expressly on the ultimate issue, he did, later on in his evidence in chief, confirm that he considered that there was an unbroken chain between the brain injury suffered as a result of the punch and Mr McCulloch’s death, as follows:

Q. Now, having done your examination you obviously, and having sent items off for analysis you obviously then collate together your thoughts and opinion on cause of death and mode of dying. So can you explain to the jury please what your conclusions are in relation to the death of Mr McCulloch?

A. I do outline some of the possible modes of dying which doesn’t what, it doesn’t really alter what I believe about the cause of death and I do say in conceding the unknowns in this case that separating all those factors with a reasonable degree of confidence, let alone proving one or the other singly or in combination as a definitive cause of death is problematic. So what I am saying in essence is that I see people who have brain damage of one sort or another, traumatic brain injury, epilepsy, brain tumours and sometimes they just die, they just die without a clear connection between that and any other mode of dying. And they often die suddenly so the presumption amongst forensic pathologists at least and certainly forensic

neuropathologists is that something goes on functionally, nothing that you can in the autopsy but something goes on with the control of respiration and heart control that results in sudden decompensation of the cardio-respiratory system. We do know that irregularities of rhythm occur in acute cerebral circumstances and there are those in positions of great respect who believe that this occurs in chronic conditions as well, and I think epilepsy is quite a good analogy, where there is very subtle brain damage, if you can find it at all, but there is functional disturbance in the way in which the brain, essentially the base of the brain, the medulla oblongata as it’s called, and the pons, control respiratory and cardiac control and that sometimes you get subliminal seizures, or epileptic activity, which don’t manifest themselves on the outside, in other words the person doesn’t shake about, the electrical activity goes on abnormally deep within the brain, and this affects the way in which the heart and lungs are controlled. So the belief is, certainly amongst people like me and neuropathologists, that the brain has an infinite relationship to cardiac activity and sometimes you get abnormalities of rhythm that you just can’t prove because people who die suddenly and unexpectedly are not connected to electrocardiograms and they’re not connected to electroencephalograms so we must make the supposition that this is how they die because there is no other reason, there is no other way to explain this. So, I mean there’s much more that I could say about that but in the conclusions I’ve written down here are the way in which the decedent was described to have died suggests a cardiac type of death. In other words they went cold and clammy and then there was no pulse and then there was no respiration. This is a sudden death and something has gone wrong with the heartbeat and/or the respiration. There was no morphological abnormality of the heart and I say abnormalities of heart rhythm are known to occur as short and long-term sequela of head injury, and I make the comment that the head injury in this case was very severe, I mean it really was very severe –

Q. Just on that note, because the jury aren’t necessarily going to be familiar with, when you say “very severe” how that compares in relation to how someone functions. From your examination of Mr McCulloch the damage that was caused from the injury on the 1st of July 2014, how – you approximate as well as you – are you able to give the jury an understanding of exactly how severe it was?

A. I think I can best do that by saying I’m a little surprised that he didn’t die much sooner in the acute phase of his illness or injury. It’s not very often we see people surviving this long and get to autopsy with this degree of damage. So I don’t very often see this degree of damage. It was very severe, in my experience, and frankly I’m surprised that he survived so long. And then I say pathological resolution of the damage was still taking place. In other words his brain was remodelling, there was still a lot of damage there, there was still a lot of brown material that needed to be reabsorbed back into the system and rebuilt. And I think that’s very important to note in terms of what I have read about there being a so-called stroke on the 17th of July. I regard this as an evolution in the deterioration of the condition resulting in interference with normal brain activity mimicking what one might call a natural stroke. I don’t think there’s

conclusions he had drawn in the autopsy report and, in particular, the “balance of probabilities” assessment and the “best regarded” cause of death. There was the following exchange:

Q. What you're saying there is having carried out your autopsy, having got the toxicology report, having looked at the hospital notes and written this report you have then come to the conclusion that you were unable to separate out with any degree of confidence, let alone

proving one or other in singly or in combination as a definitive cause of death, was problematic. In other words what you were saying doctor, I suggest, is I don’t know what the definitive cause of death is, it’s too difficult to work out, that’s what you're saying isn’t it?

A. No, I’m not actually saying that, and I think the use of language to describe these things is confounding the issue. I would like to make a concession in that I have written down a definitive cause of death –

Q. Yes –

A. – and I think it might be better to say a definitive mode of dying. As explained right at the beginning with a stab wound and the various modes of dying that you can add from that, so it is with this. There are many ways in which you can die from a head injury. In this case it’s been a prolonged one and involves various components, dehydration, base of brain, control of respiratory movement and cardiac activity, so the mode of dying is not very clear. What I am clear about in my own mind is that I see people, as I have said before, with various neurological conditions, head injury, epilepsy, brain tumours, and they sometimes just die, and the mechanism is not clear but it is hypothesised by those who know a lot about these things, particularly neurophathologists and neurophysiologists, that the mechanism is something to do with control of respiratory rate and heart rate by the base of the brain. Now I can’t prove that in this case, but I am satisfied from my own empirical observations of such cases, and from what I’ve read in the literature, and from what I’ve read in the case notes of this person, and from post mortem examination, that there is a connection with a chain, unbroken chain of causal links between the head injury and his death. That is what I am saying and if you are making issue of the ways in which I have expressed that, then all I can do is try and clarify them for you now.

Q. Well doctor, they’re your words, not mine, and what I’m suggesting to you is that sentence that I have just read to you, which you told me a few moments ago accurately records the view that you hold, is totally inconsistent with the view that you are now suggesting this jury should accept, which is that the head injury suffered on the 1st of July 2014 was the cause of death in the sense that you have indicated on the 16th of September 2014. Do you agree with that?

A. What you’re suggesting to me now, sir, is that I have used a poor

choice of words in expressing what I mean.

Q. No, I’m not suggesting a poor choice of words at all. They’re your words, you chose them, and they – you told me a few moments ago that they accurately encompass the view that you held?

A. Well –

Q. They’re not my words, they’re yours.

A. – both you and I as a lawyer and a forensic pathologist know that words can be used in many different ways and be interpreted in many different ways. I have said very clearly now what I believe to

be the mechanisms are. I’ve either used not very accurate ways of expressing that in the written [form] then I am here to clarify that now and believe that I am doing so.

Q. Well let’s just move on, can we, because there’s one other aspect that I want to ask you about. just turn over the page, would you – or perhaps we won’t turn over the page. You then go on to express what you call your major conclusions under that heading, do you not?

A. Yes.

Q. And you list them 1 through to 6? A. Yes.

Q. And then you conclude your report to the coroner, who exercises his judicial functions in this way. “In my view the cause of death is best regarded on balance of probability as a sudden fatal cardiac arrhythmia related to long-term brain damage complicated by metabolic derangement (dehydration).”

A. Yes.

Q. Is that a view to which you still adhere?

A. Yes, and I think the key word here, which allows for some uncertainty as to mechanism, but still confirms my view as to what I think has happened, is related as sudden fatal cardiac arrhythmia related to long-term brain damage complicated by metabolic derangement.

Q. So Her Honour and the jury can take it, can they, that the words that I have read to you from your report accurately express the view that you hold today and which you endeavoured to convey to Her Honour, the jury in the course of your evidence, is that right?

A. That last sentence there, I think in expressing the cause of death, and careful of the words here, “Best regarded.” In other words, there are lots of ways you can express this death, or the cause of death, or the mode of dying, but at the time and I still hold, essentially, to this, is that that is the best way of expressing it. In other words he had a fatal abnormality of heart rhythm which was related to long-term brain damage and complicated by biochemical disturbances which in themselves were related to the long-term brain damage because he was unable to co-operate with feeding and fluid intake. I really don’t see what is difficult about that.

Q. I’m not asking you what’s difficult about it doctor, I’m just getting you to confirm that those words and the view expressed in that sentence I read to you, your words and your report, expressed the view that you endeavour to convey to Her Honour and the jury in this Court in the course of the evidence you’ve given this morning, is that right?

A. Yes I stand by that and if it needs amplification, as sometimes these things do, I would be delighted to amplify it by examples in the notes.

The present application

[13] Following the completion of Dr Rutherford’s evidence (which coincided with the close of the Crown case) Mr Squire made a further application under s 147. It was based on the passage from Dr Rutherford’s cross-examination that I have italicised above. Mr Squire essentially submitted that because Dr Rutherford had confirmed his “balance of probabilities” conclusion as to the “cause” of Mr McCulloch’s death, there was no way that a properly instructed jury could find it proved beyond reasonable doubt that the head injury was a substantial and operative cause.

Discussion

[14] I bear in mind the respective functions of the Judge and jury. It is for the jury to determine whether evidence is, or is not, sufficient to establish guilt and not for the Judge to predict what the jury will find. As stated in Parris v Attorney-General:⁴

If the evidence is sufficient in law, if accepted, to prove the case, the Judge should leave the case to the jury and not withdraw it on evidentiary grounds.

[15] So the question is whether Dr Rutherford’s evidence (if accepted) was sufficient in law to prove that the head injury was a substantial and operative cause of Mr McCulloch’s death.

[16] If the passages from his later evidence in chief that I have set out at [11] above are regarded in isolation there could be no doubt that Dr Rutherford was sure that the head injury was a (substantial and operative) cause of death.

[17] Mr Squire nonetheless contended that the sureness with which that opinion was expressed was undermined by Dr Rutherford’s subsequent confirmation under cross-examination of his apparently more ambivalent conclusion in the autopsy

_{report. But on the basis of his earlier evidence it is, in my view, open to the jury to}

⁴ Parris v Attorney-General [2004] 1 NZLR 519 at [10].

accept that the doctor had explained the autopsy conclusion and reconciled it with his much firmer one. His explanation can be summarised as follows:

(a) a distinction is (sometimes) to be drawn between conclusions expressed for the purpose of an autopsy and those expressed for the purposes of legal proceedings;

(b) the focus of an autopsy report is on the medical “mode of dying” whereas criminal proceedings are focused on the legal “cause of death”. This distinction was, in my view, clearly explained to the jury by Dr Rutherford by way of his “stabbing” analogy which I have also quoted above;

(c) his apparent equivocation in the autopsy report derived from a lack of sureness as to exactly how brain injuries (neurological impairment) affect heart function in the longer term; and

(d) Dr Rutherford was nonetheless sure (based on a scientific process of inference) that such a link existed and that it was operative in the present case.

[18] Taking Dr Rutherford’s evidence as a whole, therefore, I consider that it would be open to the jury (if they accept his evidence over Dr Parker’s evidence and any evidence that might be called by the defence to the contrary⁵) to conclude that the Crown has proved beyond reasonable doubt that:

(a) the manner in which Mr McCulloch died was that his heart failed;

(b) notwithstanding that the medical profession have not yet established how neurological damage affects heart function, Mr McCulloch’s heart failure was directly and substantially linked to his brain injury and dehydration (which was, itself, also causally linked to the brain

_{injury); and}

⁵ Dr Parker was essentially called as a witness of fact, rather than an expert.

(c) there was no intervening “stroke” or other neurological event that was

not itself caused by the brain injury.

_{[19] I declined the application under s 147 accordingly.}

Solicitors:

Crown Solicitor, Wellington

R B Squire QC, Wellington for Defendant

“Rebecca Ellis J”