R v W HC New Plymouth CRI-2009-043-2036 [2009] NZHC 2494 (14 December 2009)

Last Updated: 15 February 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

_{CRI-2009-043-002036}

BETWEEN THE QUEEN Applicant

AND W

Respondent

Hearing: 14 December 2009

Appearances: J Marinovich for the Applicant

T T Bolstad for the Respondent

Judgment: 14 December 2009

_{ORAL JUDGMENT OF PRIESTLEY J}

Counsel:

J Marinovich, Crown Solicitors, P O Box 738, New Plymouth 4340 Fax: [phone]

_{T T Bolstad, P O Box 8213, New Plymouth Central 4342 Fax: [phone]}

R V W HC NWP CRI-2009-043-002036 14 December 2009

[1] This is an application under s 345(3) of the Crimes Act 1961. That provision states:

(3) Notwithstanding anything in subsection (1) of this section, the Attorney-General, or any one with the written consent of a Judge of the [High Court] or of the Attorney-General, may [file] an indictment for any offence.

[2] The respondent and the alleged complainant are brothers. An altercation took place at their home on 23 May 2009. The respondent was intoxicated at the time. The complainant, who was the older brother, was also intoxicated.

[3] An argument developed, it would seem, involving amongst other things, the complainant’s behaviour, a previous argument that day, and the allegedly dangerous conduct of the complainant who had lit a fire outside.

[4] During the course of this altercation the respondent allegedly hit his brother twice across his back with a fishing rod. The respondent was also holding a filleting knife. He allegedly thrust this towards the complainant who shielded his face and deflected the blow with his upper left arm. The Crown has available a photograph showing a neat diagonal incision midway between the elbow and shoulder on the complainant’s outer upper arm.

[5] During the same altercation the respondent apparently hit his mother.

[6] There was a committal hearing in the New Plymouth District Court on 4

September 2009 before two Justices of the Peace. On the charge of male assaults female (s 194(b)) relating to the mother the Justices of the Peace found a prima facie case had been established and committed the respondent to trial.

[7] The second charge which the respondent faces was laid under s 188(1) of the

Crimes Act 1961, being wounding with intent to cause grievous bodily harm.

[8] On this charge this is what the two Justices of the Peace said:

“For the second, a much more serious charge, we had more difficulty. That you wounded your brother with a knife is certain;

the bloodied t shirt, the photographic evidence of a wound together with your own evidence to the police, make it clear you indeed stabbed Troy W . What isn’t so certain is your intent to do grievous bodily harm and succeed. We have examined the lead evidence ex Brookers with care and with particular regard to the evidence of the victim, Troy W , and conclude that there is insufficient evidence to support a prima facie case.”

[9] It is this conclusion on the part of the committal court, leading to the refusal to commit the respondent to trial on the s 188(1) charge, that has led to the s 345(3) application.

[10] The law here is clear. The function of a committal court is not to dismiss outright a substantive charge. Rather it is to act as a gatekeeper to ensure that people are not committed to trial if there is insufficient evidence to establish a prima facie case (see generally Wallace v Abbott (2002) 19 CRNZ 585; R v SS (HC NEL CRI

2006-442-20, 7 November 2006, Gendall J).

[11] Justice Gendall correctly described the s 345(3) discretion as being wide and untrammelled. The test is whether there was sufficient evidence at the preliminary hearing which might lead to a conviction by a reasonable jury. The threshold and constitutional safeguards involved, although similar to the s 347 discretion, are not identical. The discretions need to be exercised from different standpoints.

[12] There are clearly two orthodox components to the charge under s 188(1). The first here is the actus reas. In this case the Crown, from the various alternatives available to it, understandably alighted on wounding. Wounding is not a difficult word. It was defined by McMullin J in R v Waters [1979] NZCA 24; [1979] 1 NZLR 375, 378 (CA), as a breaking of the skin, normally evidenced by a flow of blood and frequently from an external wound. The knife wound inflicted here, even though not a stab, is the classic example of a wound.

[13] The mens rea aspect, which caused the Justices of the Peace difficulty, is an intention to cause grievous bodily harm. It is classic that a mental element of this type can only be satisfied beyond reasonable doubt by a jury drawing safe inferences from the surrounding facts. Here there was an assault with a knife. Normally an assault with a knife (assuming it was deliberate) will lead to the inference that the

wielder of the knife intended to cause some form of harm which is more than transitory or trivial.

[14] Although I can understand that the Justices of the Peace may have had some difficulty with the concept of whether the respondent had that intention, there was certainly, on the surrounding facts, sufficient evidence to justify that mens rea going to a jury in a prima facie way.

[15] Ms Bolstad, in her submissions, does not contest any of these aspects. Rather she points to whether the surrounding factual matrix, particularly the consumption by both parties of alcohol and a dangerous fire being lit in the backyard of the mother’s home, coupled perhaps with the fact the respondent was holding the knife for a different primary purpose (dealing with an eel), might in combination negate the mens rea aspect, and even the actus reas aspect assuming that there may have been a lack of deliberateness. I need not comment on these submissions. They are understandable defence points to take. They may in combination be sufficient for the prosecution, at a later date, to turn its mind to whether some lesser charge might be a safer reach. Importantly they are matters for a jury. They do not negate a prima facie case.

[16] Nonetheless, at the threshold depositions point, I am of the view that the Justices of the Peace erred in failing to commit the respondent to trial on the basis of the evidence before them.

[17] I consider this is, in all the circumstances, a proper case for me to exercise my s 345(3) discretion. Accordingly, I give my consent to the Crown Solicitor at New Plymouth to file an indictment in terms of the draft on file, which is laid under s 188(1), being with intention to cause grievous bodily harm, he wounded the complainant.

[18] Counsel inform me that on the lesser charge of assault upon a female, the respondent has already pleaded guilty. He is additionally in custody at the moment on another more serious charge of aggravated robbery, to which he has pleaded guilty. Both those matters are before the District Court at New Plymouth.

[19] In these circumstances I exercise my discretion under s 184Q of the Summary Proceedings Act and band the s 188(1) count back to the District Court at New Plymouth for resolution in that forum.

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Priestley J