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Court of Appeal of New Zealand |
Last Updated: 11 November 2019
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BETWEEN |
ROBERT ROUPERE HOHUA Appellant |
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AND |
THE QUEEN Respondent |
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Hearing: |
14 October 2019 |
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Court: |
French, Lang and Mander JJ |
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Counsel: |
N M Dutch for Appellant J E L Carruthers for Respondent |
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Judgment: |
5 November 2019 at 9.30 am |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Mander J)
[1] Robert Hohua was found guilty by a jury of murdering his partner, Marie Harlick. He was sentenced to life imprisonment with a minimum non-parole period of 17 years.[1] He appeals both his conviction and sentence.
Background
[2] On the day of Ms Harlick’s death, she and Mr Hohua had consumed alcohol together at her house with some friends. He returned to his address in order to comply with a bail curfew. He was on active charges that involved allegations of violence against Ms Harlick. Later that night, Mr Hohua became fixated with the idea that Ms Harlick was being unfaithful to him. He returned to her address and sought to gain entry.
[3] Finding the door locked, Mr Hohua became increasingly angry and broke a window in order to enter the house. He found Ms Harlick coming through the back door in a heavily intoxicated state. Mr Hohua asked her where she had been. When she failed to reply he punched her in the head several times causing her to fall to the ground.
[4] Despite her unconscious or semi-conscious state, Mr Hohua continued his attack. He struck her with a combination of punches, kicks and stomps to her head and body as she lay prone on the floor. Some 36 separate injuries were inflicted. She suffered fractures to her jawbone, nose, eye socket and to other parts of her face, and extensive bruising and lacerations to her head, including a small subarachnoid haemorrhage. Other injuries were inflicted to Ms Harlick’s body. Her mesentery was ruptured resulting in severe internal bleeding.[2]
[5] Neighbours who gave evidence described sounds of banging and stomping coming from the address. One neighbour heard a male voice yelling “get up” before he called the police. Some eight minutes after making that call, he heard the male voice yell words to the effect “get up or I’ll kill you” or “get up before I kill you”, prompting the witness to again call the police. The stomping, banging and crashing continued for a few minutes more.
[6] After his assault, Mr Hohua dragged Ms Harlick to the bathroom and placed her in the bath before running water over her. He removed some of her wet clothing and then carried her to a bedroom where he laid her on a mattress and covered her with blankets. The couple’s 19-month-old daughter, who had been present in her pram, was placed on a bed in the same room.
[7] Mr Hohua was preparing to leave the address when the police arrived. He attempted to flee out the rear of the property but was accosted by an officer. As Mr Hohua was being escorted to the police car he requested the front door be closed. He claimed no one was home. The police, however, were alerted to the situation by blood on Mr Hohua. Neither immediate CPR conducted by the officers nor attempts by ambulance staff to resuscitate Ms Harlick were successful.
[8] When interviewed, Mr Hohua essentially admitted the described narrative. He had confronted Ms Harlick and knocked her out with two punches when she refused to answer his questions. Several more punches were struck to her head while she lay on the ground. Mr Hohua admitted kicking Ms Harlick multiple times. He was equivocal as to whether he had stomped on her but accepted that he “might have”. Mr Hohua described himself as having been furious and in a rage. He tentatively accepted that when he began attacking Ms Harlick he was angry enough to kill her but denied any intention to do so. He claimed that he did not know Ms Harlick was dead before he left the house. He thought she was asleep. He tacitly accepted knowing that a physical attack of the type he had described would place a person’s life at risk.
Appeal against conviction
[9] In support of his appeal, Mr Hohua relied upon a range of grounds. We deal with each in turn.
Newspaper articles
[10] Mr Dutch, who appeared for Mr Hohua, submitted that there had been emotive and unfair media coverage of the trial. He relied on two newspaper articles from The New Zealand Herald. The first was published on the second day of the trial with the headline “Killer was on bail”. The second appeared at the end of the first week of the trial and focussed on the respective cases that had been presented by counsel in their closing addresses.
[11] We have read the articles and do not consider their content was illegitimate or placed the integrity of the trial at risk. Mr Hohua had admitted that he had killed Ms Harlick, and while ordinarily there would be concern about a media item that referenced a defendant having been on bail at the time of the alleged offending, that fact had been adduced in evidence. Mr Dutch was unable to identify any material in either article that had not been canvassed before the jury.
[12] We accept the headline of the first article was arguably sensational and that the photographs of the victim in both articles were designed to attract the reader’s attention. However, we do not consider the jury would have been distracted from its task of objectively assessing the evidence nor from considering the key issue of Mr Hohua’s state of mind other than on that basis.
[13] The second article summarised the competing contentions of the Crown and the defence as it related to this question of Mr Hohua’s intent. There is no reason to believe, even had some of the jurors read the article, that it would have deflected them from, or prejudicially interfered with, their proper consideration of the detailed submissions made to them by counsel.
[14] The trial Judge provided orthodox directions to the jury in both her opening remarks and her summing up to ignore media publicity and to base their verdict solely on the evidence adduced before them. There is no reason to suggest the jury did not comply with those directions and it must be assumed that they did.[3]
Unreasonable verdict
[15] Mr Dutch submitted that in determining the defendant’s intent and therefore whether Mr Hohua had committed murder or manslaughter, the jury was required to concentrate on his knowledge of the likelihood of death being caused by the blow that he submitted was the primary cause of death. He identified that blow as being that to Ms Harlick’s abdomen that caused her mesentery to tear and resulted in significant internal bleeding.
[16] This was an unusual injury. A blow to the abdomen of a conscious and healthy adult will result in a reflexive tensing of the abdomen. The force of the blow will dissipate into soft tissue without causing the type of significant internal injury seen in the present case. However, if a person is intoxicated, has weak muscles, or is unaware of the blow (for example, by being unconscious) and it is struck to the midline of the abdomen such an injury can be caused.
[17] Mr Dutch submitted the Crown’s reliance on the nature and number of the other blows was irrelevant to the central issue of Mr Hohua’s state of mind and that, in the absence of proof of his knowledge of this particular mechanism of death, the jury could not have been satisfied that he had the requisite murderous intent when he struck that particular blow.
[18] We reject Mr Dutch’s analysis. It is premised on the sole cause of death having been the significant internal bleeding caused by the tearing of the victim’s mesentery. However, the forensic pathologist was unable to isolate a particular injury which caused Ms Harlick’s death. His opinion was that she died as a result of various injuries caused by multiple blunt force trauma.
[19] While the rupture to the victim’s mesentery played a part in Ms Harlick’s death, the pathologist’s evidence did not take the issue of causation beyond the position set out in the memorandum of agreed facts. That was to the effect that Mr Hohua had caused Ms Harlick’s death “by assaulting her and inflicting the fatal injury or injuries on her”. That formal admission reflected the pathologist’s evidence:
I am of the opinion that [Ms Harlick] died of multiple injuries. I can’t pinpoint one particular injury but I would say that if the abdominal injury itself, if left untreated she could have died from that for sure, but she had head injuries, she bled from that and she was drunk therefore there was always a possibility that she lost consciousness and could have even died because of that.
...
So she’s losing blood a lot and there’s no more blood going to the brain and she dies or she aspirated some blood into her airways which I saw in the windpipe and that compromised her breathing, lack of oxygen, combined with the bleeding could cause that. Plus a blow to the head in the intoxicated person can cause damage to the brain and the brain stops functioning. That means she’s not breathing and the heart can beat on its own for some time but lack of oxygen a person will die. So in this case a combination of all these things caused her death.
...
One thing is that she bled from the facial injuries so that contributed to the total loss of blood and the blood, I also found blood in the airways so that compromised her breathing plus the indirect effect of the ... facial injuries on the brain could have caused unconsciousness or death.
[20] Without the pathologist being definitive as to the fatal blow, the jury could not have been expected to identify the particular punch, kick or stomp that was causative of death. Moreover, even had the fatal blow or injury been able to be identified, the issue of murderous intent was not limited to an assessment of Mr Hohua’s state of mind at the time he inflicted that fatal blow. In the situation of an ongoing assault a defendant’s intention is to be assessed from the attacker’s combined actions. [4]
[21] It would be artificial to divide a virtually continuous series of violent blows administered within a relatively short period of time and isolate a particular assault for the purpose of assessing a defendant’s state of mind. As was noted by this Court in R v McKeown, in such instances there will be no evidential basis upon which to suggest that during the course of the episode of violence, the perpetrator’s state of mind or purpose varied in any significant way.[5] In the present case there was no evidential foundation or narrative to support a contention that Mr Hohua’s intention was other than consistent throughout his attack or varied in any significant way.[6]
[22] Finally, in relation to this ground we accept the Crown’s submission that Mr Hohua’s reliance on the unlikelihood of a ruptured mesentery resulting from a stomp to the abdomen to rebut an inference of having a murderous intent is misplaced. It was not necessary for the Crown to prove that he foresaw the particular physiological mechanism by which death occurred as being a likely consequence of his actions. It was only necessary for the prosecution to prove that Mr Hohua foresaw death as a likely consequence of the bodily harm he deliberately inflicted on his victim.
[23] Because of the nature of Mr Hohua’s extensive assault there was ample evidence upon which the jury could reasonably infer that he intended to cause her bodily injury that he knew created a real risk of death. The range of serious injuries, the force required to cause such damage coupled with the fury with which they were inflicted, and the rage that Mr Hohua admitted he was in at the time, meant there was a strong evidential foundation upon which the jury could find murderous intent.
Jury unanimity on form of murderous intent
[24] The Crown closed to the jury on the basis that it could be satisfied that Mr Hohua possessed at least one of the alternative murderous intents at the time he attacked and killed Ms Harlick, and that it did not have to be unanimous as to which so long as they were unanimous that one or other of those intents had been proved.[7] Mr Dutch was critical of that submission. He contended that the jury had to be unanimous as to the particular form of murderous intention they found proved before finding that element of the charge established. We do not consider Mr Dutch’s submission is correct.
[25] Mr Dutch relied on a passage from this Court’s judgment in Merritt v R which we consider is to the contrary effect.[8] It reads as follows:
[66] An alternative charge or unanimity direction may be required, however, when the jury are offered alternative bases for guilt on a single charge. It is especially important to direct the jury carefully if alternative narratives put different legal ingredients of the offence in issue or invite different defences. By way of illustration, a manslaughter case in which potentially fatal blows were separated in time and circumstance may raise questions of identity, intent, and self-defence, and sometimes a unanimity direction is required in such cases.
[67] We accept that when the charge is murder and there are different factual bases for verdict, the availability of different forms of murderous intent may contribute to the need for a unanimity direction. That was so in R v Chignell, in which this Court held that unanimity was needed where the Crown offered in the one charge two alternatives separated by place, time, unlawful act and “it seems likely, different intents on the part of each accused”. In a single-transaction case, there is no need to distinguish between a willed and a reckless killing for purposes of verdict. The distinction often informs sentencing, but the judge acts there as the 13th fact-finder.
(Footnotes omitted.)
[26] In the present case, the inflicted blows were not separated in time and circumstance, nor were different factual bases put forward for the jury’s consideration that would have required an unanimity direction regarding the form of murderous intent. This was a single-transaction case. There was no need to distinguish between a wilful and a reckless killing for the purposes of arriving at a proper verdict.
[27] In any event, the trial Judge’s directions were unduly favourable to Mr Hohua on this point. The question trail said that the jury should seek to be unanimous as to the form of murderous intent before it could find that element of the charge proved. Insofar as that may be considered to have been a misdirection, it was to Mr Hohua’s advantage and does not give rise to any miscarriage.
Prosecutorial misconduct
[28] Based on various aspects of Crown counsel’s closing address, Mr Dutch alleged prosecutorial misconduct. This ground is without foundation. We take the opportunity to caution counsel of the need to take care before making such a serious allegation.
[29] It was suggested that the Crown prosecutor’s characterisation of Mr Hohua’s attack on Ms Harlick as “fearsome” was overly emotive. We consider it was an apt description of Mr Hohua’s assault. It was expressly couched by the prosecutor as being the Crown’s “contention, for you to accept or reject as you like ...” and was qualified by the further statement that if the jury thought that was “overstating it” that they should “of course substitute [their] own word ...”.
[30] The prosecutor continued, “When you look at the nature and extent of the injuries to her, this was a fearsome beating. Very, very high level of violence used here”. Mr Dutch maintained the prosecution overstated the level of violence and unduly focussed on this aspect of the case. That criticism is unsustainable. It overlooks the critical relevance to the Crown’s case of the inferences to be drawn about Mr Hohua’s state of mind from the violence he inflicted on his victim.
[31] Mr Dutch criticised the prosecutor’s submission that Mr Hohua knew “what a beating” he had given Ms Harlick, and that he must have been “monitoring her very closely to see if she would survive what he had done to her”. It was submitted there was no evidential foundation for that argument. We do not accept that criticism.
[32] The Crown’s submission was made in the context of its critique of claims made by Mr Hohua during the course of his police interview. In particular, his assertion that he did not know he had killed Ms Harlick and that he thought she was simply sleeping. To dispute the truthfulness of that statement the Crown could point to Mr Hohua’s own admitted actions and observations that were not consistent with such ignorance. These included that he had knocked Ms Harlick out; that she was gasping for him to stop, and that thereafter she never responded to him; that he tried to perform CPR because she was choking on her own blood; and that she was still breathing when he carried her to the bathroom.
[33] Mr Dutch argued that there was no evidential basis for the prosecutor’s submission that, in addition to punching and kicking Ms Harlick, Mr Hohua had stomped on her, possibly multiple times. However, there was a range of evidence, either alone or in combination, upon which the jury could accept such a submission. In addition to the tentative admission by Mr Hohua to the police of having committed such an act, there were the neighbours’ descriptions of hearing stomping and the pathologist’s evidence of the type of blow necessary to cause the victim’s mesentery to rupture from being caught between the force of the blow and her spine.
[34] Mr Dutch was also critical of how the Crown prosecutor addressed aspects of the defence cross-examination of Crown witnesses. He claimed these submissions were designed to gratuitously undermine the conduct of the defence and were not focussed on the key issues at the trial. Again, we do not accept that criticism. As Crown counsel noted in his address, only two witnesses’ evidence had been substantially challenged. A police officer had been cross-examined about whether he could have made the observation he said he made of Mr Hohua washing his hands, and a neighbour was challenged about his evidence of hearing gasping and stomping coming from the address.
[35] In anticipation of submissions being presented by the defence in its closing address based upon those lines of cross-examination, it was predictable and proper for the Crown to take the pre‑emptive step of making submissions about why both witnesses’ evidence should be accepted. There can be no complaint about the prosecutor making submissions about parts of the evidence that were put in issue during the trial.
[36] Finally, there was a criticism of Crown counsel having been unduly focussed on the content of Mr Hohua’s statement to the police. That too is unsustainable. Mr Hohua’s account was a central piece of evidence in the trial. To the extent the Crown did not accept parts of that account, and to the extent that the defence relied upon parts of his interview which aligned with other evidence, the Crown was entitled to contrast other aspects that were inconsistent, and to highlight the potential significance and motivation for such discrepancies. The approach taken was entirely orthodox.
[37] It follows from our findings in respect of each ground that the conviction appeal must fail.
Appeal against sentence
[38] The appeal against sentence is based on a cultural report obtained pursuant to s 27 of the Sentencing Act 2002. The report was not available to the trial Judge and Mr Hohua seeks leave to adduce it as fresh evidence on the appeal.
[39] Mr Dutch submitted that had the report been available at the time of sentencing it would have led to a reduction in Mr Hohua’s sentence. He contended it would have resulted in a lesser minimum period of imprisonment of 17 years and would have rendered the imposition of such a minimum term, pursuant to s 104 of the Sentencing Act, manifestly unjust.
[40] In support of that argument, Mr Dutch identified the particular circumstances of Mr Hohua’s background that he submitted could be linked with the offending. These included a cultural “disconnectedness” from te ao Māori; whānau “disconnectedness”; severed family relationships; the death of his whāngai grandparents; parental abandonment followed by the separation of his parents; experience of family violence and sexual abuse as a child; limited education, having left school at the age of 13 years with no formal qualifications; early involvement with Care and Protection and Youth Justice; the joining or at least affiliation to a gang as a young teenager followed by alcohol and drug abuse; and imprisonment for serious offending at the age of 17 years.
[41] The cultural report sets out information that was not otherwise detailed in the pre-sentence report provided to the sentencing Court. It provides evidence of Mr Hohua’s extremely disadvantaged background. However, apart from the cycle of family violence, the causal nexus between that background and Mr Hohua’s murder of Ms Harlick is open to question, particularly when regard is had to the maturity of Mr Hohua, who is now aged 36 years, and his entrenched gang lifestyle.
[42] Moreover, it is not apparent that this further information takes matters significantly beyond the personal circumstances reviewed by the sentencing Judge, who observed:[9]
[30] Mr Hohua, you are 36 years old. You are of Tuhoe descent and Ngati Kaurikino hapu. You have seven children with whom you have had little contact. You were raised by your grandparents until you were 12, when they both passed away. Your parents had already separated when you were ten years old. Your father used to be a member of the Nomads gang, but later became a Jehovah’s Witness. There was limited contact between you and your father before his death last year, and there has been little contact between you and your mother, who now resides up north. You told the report-writer that you were unsure if your mother would know of your current circumstances unless she had read the papers. That is very sad.
[31] You were raised in Tikanga Maori with Te Reo Maori as your first language. When your grandparents passed away, you were moved around various family members. You told the pre-sentence report-writer that you lived with an uncle who was physically abusive towards you, and a cousin sexually abused you. Other family members did not believe you when you told them of the sexual abuse, and they were abusive to you as well.
[32] You attended Ruatoki School until Year 11, and worked in forestry when you first left school. You were later convicted of a serious physical and sexual assault and were sentenced to three years and six months’ imprisonment at the age of 17. You told the report-writer that you were sickened by your criminal history, and that your life could have been different if you had been treated normally yourself. I accept, as is unfortunately very common, this background will have been a real contributor to your offending.
[33] The pre-sentence report-writer identified your upbringing and lifestyle as being relevant to your offending-related behaviour. Further factors contributing to your offending were identified as your propensity for violence, your relationship issues, alcohol and drug use, friends and associates, and your lifestyle and attitudes.
[43] As acknowledged by Mr Dutch in his written submissions, the sentencing Judge accepted that there was a connection between Mr Hohua’s background and his offending. Despite that connection that factor does not appear to have been regarded as having much, if any, mitigating effect when set against the nature and brutality of Ms Harlick’s murder, either in setting the minimum period of imprisonment of 17 years or in determining whether such a term was manifestly unjust.[10]
[44] Circumstances that are personal to an offender’s background, including cultural considerations of the type canvassed in the report, may bear on the setting of an appropriate sentence. Their potential mitigating effect is not limited to particular types of offending. However, where a person is for sentence for murder, particularly one as grave and callous as the present, the discretion available to the Court to reduce an otherwise appropriate sentence on account of such considerations will be more constrained.[11] This is because the minimum period of imprisonment must accurately reflect the seriousness of the crime and the need to give effect to the legislative policy mandated by the statutory minimum period of imprisonment that is to be imposed for particularly callous and brutal murders.[12] An offender’s background of deprivation may carry less weight in the context of such a sentencing exercise.[13]
[45] We consider that the sentencing Judge was adequately appraised of Mr Hohua’s estranged and difficult personal background to be sufficiently informed about whether those circumstances should result in any material adjustment to the minimum term of imprisonment. In the event, it did not. Notwithstanding the additional information contained in the s 27 report, we are unable to conclude that the length of the minimum period of imprisonment imposed for the murder of Ms Harlick was manifestly excessive or inappropriate.
Result
[46] It should not be assumed that counsel who endeavour to adduce such reports for the first time on appeal will be granted leave. However, in the absence of opposition from the Crown, we are prepared to grant leave to admit the s 27 report, but the appeal is declined.
[47] The application to admit fresh evidence on appeal is granted.
[48] The appeals against conviction and sentence are dismissed.
Solicitors:
Crown Law Office,
Wellington for Respondent
[1] R v Hohua [2018] NZHC 76.
[2] The mesentery is a fold of membrane that attaches the intestine to the posterior abdominal wall.
[3] Weatherston v R [2011] NZCA 276 at [24]; Mussa v R [2010] NZCA 123 at [41]; and Green v R [2016] NZCA 196 at [23].
[4] R v Ryder [1995] 2 NZLR 271 (CA) at 273; and R v McKeown [1984] NZCA 3; [1984] 1 NZLR 630 (CA) at 633.
[5] R v McKeown, above n 4, at 633.
[6] Churchis v R [2016] NZCA 264 at [37], [40] and [45]. Leave to appeal was declined in Churchis v R [2016] NZSC 128.
[7] The Crimes Act 1961, s 167 provides that: “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 ...”.
[8] Merritt v R [2018] NZCA 610.
[10] Sentencing Act 2002, s 104.
[11] Section 104(1)(e).
[12] R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [66]–[67].
[13] Keil v R [2017] NZCA 563 at [55]–[58].
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