R v Rubie [2016] NZHC 2488 (19 October 2016)

Last Updated: 18 January 2017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-092-013432 [2016] NZHC 2488

THE QUEEN

v

_{VICTOR GRAHAM RUBIE}

Hearing:	11 October 2016
Appearances:	Yelena Yelavich and Zoe Hamill for the Crown Andrew Speed and Karl Trotter for the Defendant
Judgment:	19 October 2016

JUDGMENT OF MOORE J

_{[Application under s 147 of the Criminal Procedure Act 2011]}

This judgment was delivered by me on 19 October 2016 at 11:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

R v RUBIE [2016] NZHC 2488 [19 October 2016]

Introduction

[1] Victor Graham Rubie pleaded not guilty to one charge of murder. I presided at his trial. At the end of the Crown case Mr Speed, for Mr Rubie, applied for an order to discharge the defendant under s 147 of the Criminal Procedure Act 2011 (“the CPA”). I heard argument following which I determined Mr Rubie should be discharged on the count of murder leaving the included charge of manslaughter. I advised counsel I would give my reasons in writing later. These now follow.

Background

[2] On the afternoon of Saturday, 18 July 2015 Mr Rubie returned from work to his accommodation at Middlemore Lodge on Massey Road, Otahuhu. He was accompanied by a workmate, Ethan Kelly. Middlemore Lodge is an accommodation complex consisting of two blocks of modest flats. Mr Rubie occupied Room 33 on the first floor of Block B. He shared this with a friend, Tamati Ormsby. It consisted of a single room measuring approximately 5 metres by 5 metres with shared toilet and ablution facilities located across the hallway.

[3] On the afternoon in question only Mr Rubie and Ethan Kelly were initially present but they were later joined by Tamati Ormsby’s younger brother, Michael, who was then aged in his mid teens. All three engaged themselves in computer games and casual conversation. No alcohol was consumed although Mr Rubie later told the Police a modest quantity of cannabis was consumed.

[4] At about 3:00 pm the victim, Tauailapalapa Mati arrived unannounced in the room. He was extremely intoxicated having spent much of the previous evening and most of the day drinking. Toxicology results from the post mortem revealed a staggeringly high blood alcohol level of 244 mg% and a urine alcohol ratio of 349 mg%.

[5] Mr Mati was well known to Mr Rubie. He was a former resident of Middlemore Lodge. In his subsequent interviews with the Police, Mr Rubie said he and Mr Mati got on well together when the latter was sober. Even after he left Middlemore Lodge Mr Mati would, from time to time, visit Mr Rubie to download

videos from his computer. However, Mr Mati, who was a heavy drinker, had a reputation for being obnoxious, aggressive and violent when under the influence of alcohol. Despite this, Mr Rubie said he knew how to diffuse and distract Mr Mati when he was in this mood through the use of humour.

[6] On this particular Saturday afternoon Mr Mati was true to form. He was aggressive and offensive. Although he had not met Ethan Kelly or Michael Ormsby before, his conduct towards them was provocative. He patted Ethan Kelly patronisingly on his head and asked him for a kiss. He did the same to Michael Ormsby. He boasted about how he just beat up four or five men who had foolishly attempted “to take him on” at a nearby liquor store. He pointed to a fresh cut on his face which he said he had received as a result of that fracas. He also made reference to the fact that he was a member of the Head Hunters gang.

[7] This intimidating conduct led Michael Ormsby to send a text message to his older brother, Wiremu Ormsby. He said, “There’s a drunk tuff guy here.” Within a short time he received a message back from his brother indicating he was on his way over. By this time Mr Mati had been in the room for approximately 50 minutes.

[8] A short time later Wiremu Ormsby burst into the room. He was carrying a weapon which appears to have been a metal baseball bat. He immediately began to attack Mr Mati aiming at his head and shoulders area. He pursued him around the room. The evidence is that Mr Mati was struck a number of times (between four and

10) before he fell to the floor where the attack continued using the base of a lamp. After a minute or two Wiremu Ormsby left the room with his younger brother in tow.

[9] While the attack was in progress those in the room took refuge in various places. No witness appears to have viewed the attack from start to the finish. However, after the attack Mr Mati was left kneeling on the floor with his torso slumped forward and his head or forehead touching the floor. He was bleeding and, unbeknownst to those in the room, in addition to a 2 cm laceration on his right forehead, he was suffering from a developing brain haemorrhage.

[10] Mr Rubie tentatively approached Mr Mati. Solicitously he tapped him on the shoulder and asked him if he was alright. This caused Mr Mati to rear up, lurching forward and tackling Mr Rubie to the floor.

[11] The descriptions of this tackle varied. Mr Rubie, Michael Ormsby¹ and Ethan Kelly each described the force involved slightly differently. However, on the evidence I am easily satisfied it was a full on, aggressive tackle because Mr Mati ended up lying completely on top of Mr Rubie with his head in the area of Mr Rubie’s chest. To have ended up in that position would have required a considerable degree of vertical and forward momentum, particularly having regard to the fact that Mr Mati was a large man weighing 98 kgs and 175 cm tall. Mr Rubie is very much smaller. Although there was no direct evidence of his height or weight he is a relatively short man of very slight stature.

[12] According to Mr Rubie, as soon as Mr Mati landed on him, he applied a head lock using his right arm. This manoeuvre appears to have pushed Mr Mati’s head down and onto Mr Rubie’s left side. Mr Rubie then locked his feet together, scissor- like, in the area of Mr Mati’s buttocks and upper thigh area.

[13] The evidence is that Mr Mati initially struggled. Mr Rubie said he applied pressure to Mr Mati’s neck in order to restrain him. After a relatively short time Mr Mati stopped moving and Mr Rubie loosened, but did not release, the hold. At no stage did Mr Mati say anything although Mr Rubie could feel and hear him breathing.

[14] The evidence is that Mr Rubie maintained this hold for a period of between seven and 10 minutes. These timings can be linked to the movements of other residents of Middlemore Lodge captured on CCTV who had been alerted to the commotion in Mr Rubie’s room through the noises of the earlier attack by Wiremu Ormsby. These witnesses described seeing Mr Mati lying face down on top of Mr Rubie who had Mr Mati in a neck hold. Some described hearing Mr Mati

_snoring.

1. After Michael Ormsby left the room with his brother he returned to the room for just a few seconds. He said that on his brief return to the room he witnessed Mr Mati tackle Mr Rubie.

[15] A number of witnesses told Mr Rubie to let the man go. Mr Rubie was heard to reply that he would not because if he did Mr Mati would kill him. There is also some evidence he asked for help, but these pleas were unsuccessful. He was aware the Police had been called but despite this maintained the hold.

[16] Within a few minutes the Police arrived by which time Mr Rubie had extricated himself from beneath Mr Mati. The officers who first attended noted that although Mr Mati was still breathing, his breaths were shallow and his pulse was weak. Shortly afterwards St John’s Ambulance staff arrived and commenced resuscitation. Despite this, Mr Mati’s condition deteriorated and he died shortly afterwards at the scene.

[17] Mr Rubie was initially spoken to as a witness. He said that he did not know who the attacker was.² Asked if he had any weapons on him he volunteered he was carrying a small paring knife. This was secreted in his hoody. He said that during Wiremu Ormsby’s attack on Mr Mati he saw the knife lying on a table and retrieved it because he feared one of the participants in the fight might use it.

[18] The post mortem examination revealed that Mr Mati died from asphyxiation secondary to the application of force to his neck. The snoring overhead by the witnesses was consistent with symptoms associated with the last stages of the process of asphyxial death. The pathologist expressed the view that the “point of no return” leading to death would have occurred at any time between 30 seconds and two to three minutes after the choke hold was first applied with effective death following seven to 10 minutes later.

[19] The pathologist also said that the combination of the developing brain injury and the very high levels of alcohol intoxication made Mr Mati more vulnerable to death although neither the alcohol nor the brain injury, individually or in

_{combination, caused death.}

² This was untrue. He knew Wiremu Ormsby as Tamati’s older brother. In this later interview, recorded a month later, he admitted he had lied because he did not want “to dump” Wiremu in it, adding he knew he would be identified and apprehended through the CCTV cameras in the hallway.

[20] Evidence was led from the Crown indicating that Mr Rubie had some particular knowledge of the hold he applied to Mr Mati. In Jiu Jitsu circles the restraint used is apparently known as the guillotine hold.

[21] Wiremu Ormsby has pleaded guilty to Mr Mati’s manslaughter and has been

sentenced.³

[22] In August 2016 Mr Rubie brought a pre-trial application under s 147 of the

CPA. This came before Duffy J who, in a reserved decision, dismissed it.⁴

Legal principles – s 147 applications

[23] Section 147 of the Act reads:

“147 Dismissal of charge

(1) The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.

(2) The court may dismiss the charge on its own motion or on the application of the prosecutor or the defendant.

(3) A decision to dismiss a charge may be made on the basis of any formal statements, any oral evidence taken in accordance with an order made under section 92, and any other evidence and information that is provided by the prosecutor or the defendant.

(4) Without limiting subsection (1), the court may dismiss a charge if—

(a) the prosecutor has not offered evidence at trial; or

(b) in relation to a charge for which the trial procedure is the Judge-alone procedure, the court is satisfied that there is no case to answer; or

(c) in relation to a charge to be tried, or being tried, by a jury, the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.

_{(5) A decision to dismiss a charge must be given in open court.}

³ _{R v Ormsby [2016] NZHC 2220.}

⁴ R v Rubie [2016] NZHC 2108.

(6) If a charge is dismissed under this section the defendant is deemed to be acquitted on that charge.

(7) Nothing in this section affects the power of the court to convict and discharge any person.”

[24] Section 147(4)(c) requires a Judge to be satisfied that, as a matter of law, a properly directed jury could not reasonably convict. The power to dismiss a charge for lack of evidence was previously found in s 347 of the Crimes Act 1961. The case law decided under that provision remains applicable.

[25] The Court of Appeal described the test in the following way in R v Flyger:⁵

“The power to discharge an accused, accorded by s 347(3) of the Crimes Act

1961, 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.”

[26] In Parris v Attorney General, the Court of Appeal added that:⁶

“The test must be administered pre-trial 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.”

[27] I also refer to the following passage from R v Kinghorn in relation to inferences:⁷

“The methodology involved in drawing an inference has never been better put than by Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd:

‘Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective

⁵ _{R v Flyger [2001] 2 NZLR 721 (CA) at [13].}

⁶ _{Parris v Attorney General [2004] 1 NZLR 519 (CA) at [14].}

⁷ R v Kinghorn [2014] NZCA 168 at [20] (footnote omitted).

facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.’

The drawing of an inference is itself an exercise in fact finding. It is frequently strongly contested. To deal with such a critical contested fact at a sentencing hearing, rather than a disputed facts hearing, is inappropriate. It raises a danger that the usual criminal law safeguards will not be met. And routinely a judge may have to form his or her own impression of a witness or witnesses. An inference turns on all the available evidence.”

Crown submissions

[28] Ms Yelavich, for the Crown submitted that a reasonable jury, properly directed, could convict Mr Rubie of murder. The issue on the present application is whether there is sufficient evidence of intent. The jury’s determination of murderous intent is by way of inference. Ms Yelavich submitted that as inferences are exercises of fact finding, they should be left to the jury provided they are reasonably available.

[29] In support of this submission, Ms Yelavich submitted that Mr Rubie had held Mr Mati in a hold which any reasonable person would have known was dangerous. However, given Mr Rubie’s particular knowledge and familiarity with Jiu Jitsu holds he would have been especially aware of the potential dangers. Ms Yelavich pointed out that based on the CCTV footage Mr Rubie held Mr Mati in a neck hold for any time measured between seven and 10 minutes. In making that submission she noted it was not the Crown’s case that substantial pressure was applied throughout the whole of the period of restraint but plainly the injuries to the deep underlying tissues of Mr Mati’s neck the application of pressure was substantial at some stage during the restraint.

[30] This conclusion was supported by the observations of residents, in particular Mr Mariu and Mr Aniseko, who both described the degree of pressure at a time which was probably about six to 10 minutes after the hold was first applied. Ms Yelavich submitted this was evidence from which the jury could infer Mr Rubie had applied pressure beyond the point after which Mr Mati was unresponsive which further supports a murderous intention in terms of s 167(b) of the Crimes Act 1961.

[31] Ms Yelavich also submitted it must have been plain to Mr Rubie that Mr Mati was injured, barely conscious (if conscious at all) and obviously vulnerable at the time he subjected him to the head lock. He had seen the beating by Wiremu Ormsby and the number of blows which were struck at or about Mr Mati’s head. He had seen Mr Mati kneeling and unresponsive on the floor following the attack.

[32] While realistically accepting that the Crown case for murder was not strong, Ms Yelavich submitted that taking all of these factors into account the legal test imposed by s 147 of the CPA was met and the charge of murder should have been left to the jury.

Decision

[33] Section 167 of the Crimes Act defines murder. The Crown opened on the basis that the murderous intent as defined by both s 167(a) and (b) is available on the present facts. Section 167 relevantly provides as follows:

“167 Murder defined

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;

...”

[34] In the course of argument I pressed Ms Yelavich on whether the Crown would continue to rely on the definition contained in s 167(a). While not conceding the point, Ms Yelavich properly accepted that the definition contained in s 167(b) was more appropriate on the present facts. I agree. If I was to find that there was insufficient evidence to support murder under the s 167(b) definition it necessarily meant there would be insufficient evidence to support murderous intent under s 167(a) on the present facts.

[35] Under the s 167(b) definition Mr Rubie must have an actual or conscious appreciation that death was a likely consequence of placing Mr Mati in the neck hold

he employed. That state of mind must exist at the time of the act which either caused death or was an operating and substantive cause of death.⁸

[36] The nature of the bodily injury is one which the defendant is required to know was likely to cause death. It follows the defendant must intend to cause really serious bodily injury. It is against that legal test the evidence must be examined.

[37] Of significance is the nature of the tackle which Mr Mati applied to Mr Rubie. While the descriptions given by the witnesses vary to some extent, for the reasons already discussed the tackle must have been a substantial one because it propelled Mr Rubie backwards, knocked him to the floor and left him almost completely covered by Mr Mati.

[38] Until that action Mr Mati had been kneeling on the floor all but motionless. It was only when Mr Rubie approached him and tapped him on the shoulder to inquire whether he was alright that he launched himself at Mr Rubie in what was properly interpreted as an aggressive and unexpected action. It appears that almost immediately after this Mr Rubie placed Mr Mati in the head lock. However, until that point, Mr Rubie had been solicitous and obviously concerned for Mr Mati’s health and welfare. Certainly there was no evidence of animus on the part of Mr Rubie. Indeed the very opposite appears to have been the case.

[39] The evidence suggested that at least initially Mr Mati put up some level of physical resistance and Mr Rubie admitted to the Police that he tightened his hold although he said he did not hold Mr Mati’s neck as tightly as he possibly could.

[40] The pathologist’s evidence is that given Mr Mati’s inherent vulnerability due to his pre-existing injuries exacerbated by advanced alcohol intoxication, death would have been irreversible from anytime from 30 seconds to two to three minutes after the restraint was deployed. After that, the point of no return would have been reached and any further actions on the part of Mr Rubie would not have been

_{causative of death.}

8. R v Harvey [1987] NZCA 86; [1987] 2 NZLR 576 (CA); R v Fryer [1981] 1 NZLR 741 (CA); R v Lee [2006] NZLR 42, (2006) 22 CRNZ 568 (CA).

[41] While Mr Rubie’s comment to other residents that he feared for his life if he was to let Mr Mati go are relevant to self defence, they are also relevant to an assessment of his state of mind. Furthermore, he knew that the Police had been called and he maintained the hold until shortly before they arrived.

[42] Additionally, there is evidence that he called out to others to give provide assistance. No one intervened or helped Mr Rubie in any way. No doubt for that reason he maintained the head restraint.

[43] I also regard it as noteworthy that Mr Rubie believed Mr Mati was still breathing. Understandably, it is most unlikely that he appreciated the true significance of Mr Mati’s snoring. As he later told the Police, he took this as evidence Mr Mati was still alive.

[44] Furthermore, he had every reason to be wary of Mr Mati. Mr Mati had aggressively tackled him despite the fact he posed no threat. Unsurprisingly, Mr Rubie believed that if he released his hold Mr Mati might well resume his aggressive behaviour.

[45] The relevant time at which to assess Mr Rubie’s intention is at the time the hold was applied and maintained leading to Mr Mati’s death. According to the pathology this was any time between 30 seconds and two to three minutes after the hold was first applied. This was the period immediately after Mr Rubie had been tackled to the ground and while Mr Mati was still offering resistance.

[46] I was conscious that in making this order it might appear my judgment runs contrary to the conclusions Duffy J made on the pre-trial application. However, I have had the great advantage of hearing the key evidence viva voce, fully tested through cross-examination. In particular, the evidence of the circumstances of Mr Mati’s tackle were fully explored before me. Likewise, the pathologist’s evidence was comprehensively tested in a way which was obviously not available to her Honour before trial.

[47] Not only am I not satisfied that at that point Mr Rubie intended to cause Mr Mati bodily injury which he knew was likely to cause death, I am satisfied that no reasonable jury, properly directed, could convict. In my view, it would be unsafe to leave the charge of murder to the jury. I am satisfied that a conviction for murder in those circumstances would amount to a miscarriage of justice.

Result

[48] The application is granted. Mr Rubie is discharged on the charge of murder. His criminal liability for manslaughter will be left to the jury.

Moore J

Solicitors:

Crown Solicitor, Manukau

Mr Speed, Auckland

Mr Trotter, Auckland