R v Young [2012] NZHC 902 (2 May 2012)

Last Updated: 20 January 2013

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 AUCKLAND REGISTRY

CRI-2011-092-001800

CRI-2011-092-001799 [2012] NZHC 902

THE QUEEN

v

PATRICK FRANCIS YOUNG AND

ANA RUNANGA PETSY EDMONDS (ALSO KNOWN AS EDWARDS)

Hearing: 23-24, 26-27 and 1-2 May 2012

Counsel: S J Gray and M R Galler for the Crown

D S Wallwork and S D Cassidy for the Accused, Young

S Tait and H Kim for the Accused, Edmonds

Judgment: 2 May 2012

(ORAL) JUDMENT OF DUFFY j

_{[Re s 347 Application by the Accused, Edmonds]}

R v YOUNG and EDMONDS HC AK CRI-2011-092-001800 [2 May 2012]

[1] On 26 January 2010, Aran Jenkanying was seriously assaulted. On

30 January 2010, he died as a result of the assault.

[2] The accused, Patrick Young, is charged with Mr Jenkanying’s murder.

Ana Edmonds is charged with being an accessory after the fact. Both are on trial.

[3] The stage has been reached in their trial where the Crown has closed its case. [4] Ms Edmonds has applied for a discharge, pursuant to s 347 of the Crimes Act

1961. She submits that the Crown case discloses no evidence on which a properly directed jury could reasonably convict. The Crown contends that if its view of the evidence is accepted, it is sufficient in law to prove the Crown case against Ms Edmonds.

[5] The principles upon which the discretion under s 347 should be exercised are well known. They are set out by the Court of Appeal in R v Flyger [2001] 2 NZLR

721 (CA) at [13]-[15]:

[13] The power to discharge an accused, accorded by s 347(3) of the Crimes Act, is not expressed to be subject to any statutory limitation. Yet it is not an unqualified power susceptible of arbitrary exercise. It must be taken to be a power exercisable in the interests of justice. The nature and circumstances of a case will inform the interests of justice. In a trial before a Judge and jury a Judge must respect the jury’s responsibility to decide the facts. Accordingly a Judge should not normally make an order for discharge pursuant to s 347(3) where there is before the Court evidence which, if accepted, would as a matter of law be sufficient to prove the case. The Judge’s function in these circumstances is not to attempt to predict the outcome but to examine the evidence in terms of adequacy of proof, if accepted.

[14] In R v Myers [1964] NZLR 321 Wilson J expressed the opinion that pursuant to s 347(1) of the Crimes Act 1961 an accused could be discharged if:

... the Judge is satisfied that it is unlikely that any jury, properly directed, would convict, or, a fortiori, that it would be wrong for a jury to convict.

[15] To the extent that Wilson J’s Minute may suggest a test involving judicial prediction of the verdict, we cannot agree. It is not a question of what a jury would be likely or unlikely to do but what a jury may properly do. The evidence in support of a charge may be barely adequate and so

tenuous as to lead a Judge to the view that the jury could not properly convict and accordingly the interests of justice require an order for discharge. The evidence in a case may be adequate, if accepted, but witnesses may appear so manifestly discredited or unreliable that it would be unjust for a trial to continue. It may be that in such circumstances a jury would be unlikely to convict, but the rationale for an order for discharge is not the likelihood of acquittal but the unsafeness of a conviction having regard to the evidence. Wilson J’s Minute in Myers was issued only 13 months after the Crimes Act came into effect replacing, amongst other things, the Grand Jury Procedure, the operation of which Wilson J may have had in mind when issuing his Minute. Subsequent authority does not support a predictive test.

[6] R v Flyger was explained in the subsequent Court of Appeal decision in Parris v Attorney-General [2004] 1 NZLR 519 (CA). Parris v Attorney-General makes it clear that the constitutional divide between trial judge (law) and jury (fact) mandates that trial judges intervene in the factual area only when, as a matter of law, the evidence is clearly such that the jury could not reasonably convict, or any such conviction would not be supported by the evidence (at [14]). Questions of credibility and weight must in “all but the most unusual or extreme circumstances” be decided by the jury:

[10] The use by the Flyger Court of the word “normally” tends to suggest that there may be some circumstances in which a s 347 order may be made when the evidence is sufficient in law to prove the case. That cannot be so, unless the justification for the s 347 order is something other than insufficiency of evidence. We think this is what the Flyger Court must have meant. 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. Of course if another ground for a s 347 order exists, unrelated to the sufficiency of the evidence, that will be another matter. No such other ground was said to exist in the present case.

[11] There is another aspect of Flyger upon which it may be helpful for us to comment. In paragraph [15] the sentence commencing “The evidence in a case may be adequate ...” must be read in the context of the sentences leading up to it. In those earlier sentences the Court was speaking of evidence which was “barely adequate and so tenuous”. After the sentences in question the Court focused on the injustice of a trial continuing in such evidentiary circumstances. In the light of this context there is not the apparent inconsistency which would arise if the sentence we are addressing is read in isolation. If an isolated approach is taken, it is difficult to reconcile the concept of “adequate” evidence with that evidence being “discredited” or “unreliable”, but clearly the Court’s observation must be read in the light of what was said in the other parts of the paragraph.

[12] A third matter, to which we draw attention, is that in a case of the present kind, where the s347 application and order came at the close of defence evidence, it is not particularly helpful to equate the s347 issue too

closely with the “no case to answer” jurisprudence. Rather, in this situation there will almost always have been, as here, a case to answer. The question is rather whether the case has been answered in such a way that the jury could not now properly convict.

[13] We suggest that it is helpful in such circumstances, and indicated in s 347 situations generally, to correlate the exercise upon which the Judge is engaged with the function of this Court when considering an appeal on evidentiary grounds. Section 385(1)(a) of the Crimes Act 1961 provides that if the verdict of a jury is unreasonable or is not supported by the evidence the appeal be allowed. Hence when faced with a s 347 application, whether on the depositions, at the close of the Crown case, or after defence evidence has been heard, the Judge can usefully be guided by the same concepts. There should be a s 347 discharge when, on the state of the evidence at the stage in question, it is clear either that a properly directed jury could not reasonably convict, or that any such conviction would not be supported by the evidence. In most cases these two propositions are likely to amount to much the same thing.

[14] It is vital, however, to appreciate the proper compass of the word “reasonably” in this context. The test must be administered pretrial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear–cut in favour of the accused, it should be left for the jury to decide. If there is a conviction this Court on appeal has the reserve power to intervene on evidentiary grounds. The constitutional divide between trial Judge (law) and jury (fact) mandates that trial Judges intervene in the factual area only when, as a matter of law, the evidence is clearly such that the jury could not reasonably convict or any such conviction would not be supported by the evidence. In making these remarks we have largely accepted Mr Powell’s submissions which properly emphasised the matters we have mentioned.

[7] At the same time the importance of an accused person’s right to seek a discharge under s 347 was recognised by Baragwanath J in R v Lua HC Auckland CRI-2006-092-4336, 24 April 2007 at [3]-[4]:

[3] As stated by Lord Lane CJ in R v Galbraith [1981] 1 WLR 1039,

1042 and adopted in Flyger, difficulty can arise “where there is some

evidence but it is of a tenuous character, for example because of inherent

weakness or vagueness or because it is inconsistent with other evidence.” Where the strength or weakness of the prosecution evidence depends rather on the view taken on whether a witness is reliable, the judge should allow the matter to be tried by the jury. But where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury could not properly convict upon it, it is his duty to stop the case.

[4] The jurisdiction is not premised on any lack of confidence in the jury system. The research performed by Dr Young and his colleagues for the Law Commission, which confirms the capacity of juries, given proper assistance, to deal with complex and difficult issues, has received

international acclaim. Aberrations of the kind seen in R v Sally Clark [2003] EWCA Crim 1020 and discussed in Meadow v General Medical Council [2007] 2 WLR 286 (CA), where a mother was wrongly convicted of the murder of her children, result rather, as in that case, from others’ failing to put the true facts before the jury in proper context. The jurisdiction is rather one of added constitutional protection: that no-one should be exposed to risk of verdict when the evidence is so slender that a conviction would be unsafe. The accused is entitled to a decision not only from a jury but, in advance of that, from the judge.

[8] John Hansen J stated in R v Bromby HC Dunedin T05/5334, 10 August 2006 at [77] that when deciding a s 347 application a Court should:

... guard against a tendency to determine issues on what the Judge may regard as reasonable, rather than whether or not the Jury could reasonably come to a conclusion of guilt. For the purposes of the argument, the evidence must give the construction most favourable to the Crown, and unless a case is clear cut in favour of an accused it should be left to a Jury to determine.

[9] Based on the charge laid against Ms Edmonds in the indictment, the plain language of s 71 and the four guidelines given in R v Thomson (1992) 9 CRNZ 108, it needs to be proved by the Crown that Ms Edmonds:

(a) Knew that Mr Jenkanying was the victim of a homicide;

(b) Knew that Mr Young had committed that homicide at the time she offered her assistance;

(c) Did something to assist Mr Young; and

(d) At the time she did something to assist Mr Young, it was her purpose to enable Mr Young to avoid arrest.

[10] The first, second and fourth guidelines relate to the mens rea of the offence. The actus reus is in the third guideline. I propose to look at whether the alleged conduct of Ms Edmonds can satisfy the actus reus requirements of the offence and then to look at the evidence to prove the necessary mens rea.

[11] The assistance Ms Edmonds is alleged to have given Mr Young is:

[12] By hiding his vehicle (which he used to leave the scene of the homicide) and thus removing the vehicle from Mr Young; and

[13] By providing Mr Young with shelter from police (who were looking for him) by taking him to the house of an associate of Ms Edmonds, that is Ms Mitai, and spending time at that house, as well as driving him in the car of Ms Edmonds’ sister (Ms Edmonds having earlier swapped her vehicle with her sister).

[14] Section 71 sets out four categories of conduct. They are: receives, comforts or assists that person (the primary offender); or tampers with, or actively suppresses any evidence against him or her. Providing someone with shelter, in the sense of giving him a private home in which he could be at a time when the police are looking for him, fits the description of assisting, as would removing the vehicle used to leave the scene of the crime from police view and, therefore, from connection with the primary offender. Both are instances of action that enabled the primary offender, whom the police were looking for, to avoid being found. I am satisfied, therefore, that there is evidence of the actus reus of the offence of accessory after the fact to go before the jury.

[15] I now turn to the mens rea elements of the offence. Is there evidence that Ms Edmonds knew that Mr Jenkanying was the victim of a homicide and that Mr Young was the perpetrator of that act, and that Ms Edmonds acted for the purpose of assisting him to avoid arrest or conviction?

[16] There is evidence from the officer in charge that after Mr Jenkanying died on

1 February 2010, there was extensive media coverage in The New Zealand Herald, television and local newspapers regarding the case. By 1 February 2010, the police had identified Mr Young as the primary offender. The Crown says it is proper to infer that Ms Edmonds would have seen some of this coverage. To support drawing this inference, the Crown relies on the suspicious conduct of Ms Edmonds in taking Mr Young’s car to her uncle’s house in Henderson, where she locked it in his garage, and also her swapping her car with that of her sister, so that she was then able to drive Mr Young in her sister’s car. The Crown contends that Mr Edmonds would only have gone to these lengths if she knew that Mr Jenkanying was the victim of a

homicide, and that the police were looking for Mr Young. Here, the Crown asserts

that this is the only logical explanation for Ms Edmonds’ actions.

[17] Ms Edmonds contends that a jury can only reach the conclusions contended for by the Crown if they speculate. Ms Edmonds contends that leaving the car with her uncle is an equivocal event, as the uncle has not given clear evidence that the car was left at the address after Mr Jenkanying’s death. In this regard, the uncle first said the car was left at his house about one to two weeks before the police found it. One week would place the car in the timeframe of being left there after Mr Jenkanying’s death; but two weeks places it outside that timeframe. However, the uncle later was questioned more expressly about when the car arrived at his place and he rejected the idea that it was two weeks rather than one week. In such circumstances, the jury may decide to rely on the uncle’s later evidence that it was one week, rather than his first answer. They saw him give evidence and which answer they prefer as the more reliable answer is a matter for them.

[18] Ms Edmonds contends that leaving Mr Young’s car at her uncle’s address is

not an act that assisted him to avoid arrest. In R v Lepper CA102/84, 2 November

1984, the Court of Appeal considered that the act of removing a get-away vehicle from where the offender was located was one of the acts that amounted to assisting him.

[19] Ms Edmonds contends that having Mr Young in her company when she visited Ms Mitai’s home and then driving him in her sister’s car does not amount to assisting him. In R v Thomson (1992) 9 CRNZ 108, Williamson J said that a trivial or slight act of assistance is nonetheless assistance for the purpose of s 71. The jury could properly infer that by making a private home and a private vehicle that was not associated with either Mr Young or Ms Edmonds available for him to occupy whilst the police were looking for him was making shelter available to him that made it less likely that the police would find him.

[20] The evidence shows that minimal assistance was rendered, but nonetheless it would have allowed Mr Young to keep a low profile from police attention. To that extent, it assisted him to avoid arrest.

[21] I consider that the jury can properly decide that Mr Young’s car went to Ms Edmonds’ uncle at a time after Mr Jenkanying had died. I consider that the jury can properly infer from Ms Edmonds’ conduct in taking Mr Young’s car to her uncle, and swapping her car with that of her sister, that she did this because she knew the police were looking for Mr Young in connection with Mr Jenkanying’s death. Thus, the jury can properly infer Ms Edmonds knew that Mr Young was the primary offender of the homicide.

[22] Ms Edmonds referred me to R v Crooks [1981] 2 NZLR 53, where the Court of Appeal said that actual knowledge means having no real doubt. I accept that definition of actual knowledge. But I consider that here, there is sufficient circumstantial evidence from which the jury might infer that Ms Edmonds had actual knowledge as defined in R v Crooks.

[23] Since her actions can be understood as assisting Mr Young, it is open to the jury to infer from her actions that this was her purpose. Knowledge that an act will assist a primary offender is not enough in itself to constitute acting for the purpose of assistance, but it can sustain an inference of purposive action. Such purpose need not be the dominant purpose.

[24] The usual direction that is given to jurors is that if there is more than one inference available to them and they find the inferences to be of equal weight, they should draw the inference most favourable to the accused. However, whether or not the available inferences are of equal weight is essentially a question for the jury to determine. Therefore, insofar as the evidence might support other inferences that are favourable to Ms Edmonds, these are matters for a jury to determine. I note here that Ms Edmonds had submitted to me that the evidence might go no further than to show that she knew Mr Young had committed an assault on Mr Jenkanying, but not homicide.

[25] It is not for me to conclude that a jury could find the inferences that are available here to be of equal weight to those supporting the Crown’s case and, therefore, that a properly directed jury could not convict.

[26] It follows, therefore, that Ms Edmonds’ application for a discharge under s 347 cannot succeed and, accordingly, it is dismissed.

Duffy J

Counsel: D S Wallwork P O Box 76500 Manukau City Manukau 2241 for the Accused

Young

S Tait P O Box 76538 Manukau City Manukau 2241 for the Accused Edmonds

Solicitors: Meredith Connell P O Box 2213 Shortland Street (DX CP24063) Auckland 1140 for the Crown

Copies To: S D Cassidy P O Box 26172 Epsom Auckland 1344

H Kim P O Box 76538 Manukau City Manukau 2241