IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE	
CRI-2018-070-005243
[2020] NZHC 246	

THE QUEEN	

v	

JASON WHERO ANARU-EMERY	

Hearing:	18 and 19 February 2020 (held in Hamilton)	
Counsel:	A J Pollett and E Collis for Crown
A Dawson and R Stevens for defendant	
Ruling:	19 February 2020	
Reasons:	21 February 2020	

REASONS FOR RULING NO. 4 OF KATZ J

Solicitors:	Pollett Legal Limited, Office of the Crown Solicitor, Tauranga Public Defence Service, Tauranga

R v ANARU-EMERY [2020] NZHC 246 [19 February 2020]

Introduction

[1]	Following a fatal car accident near Te Puke, Jason Anaru-Emery was charged with male assaults female, kidnapping and manslaughter. The trial of those charges took place before a jury, commencing on 10 February 2020.

[2]	At the end of the Crown case the defence applied to dismiss the manslaughter and kidnapping charges. I dismissed the manslaughter charge. I declined, however, to dismiss the kidnapping charge. Rather, I gave leave to the Crown to amend the particulars of that charge. These are my reasons for those rulings.

Summary

[3]	On 21 July 2018 a young couple, both aged 17, left a party together in a car. Not long afterwards, the car crashed. Tragically, the young woman, Halayna Wagstaff, was fatally injured. She died almost instantly. A lengthy investigation followed. The young man, Mr Anaru-Emery, was eventually charged with male assaults female, kidnapping, and manslaughter by unlawful act, the unlawful act being dangerous driving.

[4]	Although Ms Wagstaff was driving when the couple left the party, CCTV footage showed that shortly afterwards she pulled the car over to the side of the road on Jellicoe Street, Te Puke. She got  out  of  the  driver’s  side  and  walked  away. Mr Anaru-Emery got out of the passenger side of the vehicle and chased after her.

[5]	The Crown case at trial was that Mr Anaru-Emery dragged Ms Wagstaff back across the road and into the car, pushing her through the driver’s door. CCTV footage indicates that he then got back into the car himself, also through the driver’s door.  An arm (which both counsel submitted belonged to Mr Anaru-Emery) then reached out and closed the passenger door. Within a few minutes of driving off, the vehicle left the road at high speed by the Waiari Bridge, went over a bank, and hit a power pole before coming to a stop.

[6]	For Mr Anaru-Emery to be convicted of manslaughter, the Crown was required to prove that he was the driver of the car, beyond reasonable doubt. Although several witnesses saw the car after it left Jellicoe Street, no-one could identify the driver. The Crown therefore relied on circumstantial evidence (summarised at [40](a) to [40](c) below) to support an inference that Mr Anaru-Emery must have been the driver.

[7]	At the end of the Crown case, the defence applied to dismiss the kidnapping and manslaughter charges1 on the basis that, as a matter of law, a properly directed jury could not reasonably convict Mr Anaru-Emery of those charges.2 I dismissed the manslaughter charge but declined to dismiss the kidnapping charge.

[8]	My key reason for dismissing the manslaughter charge was that the Crown’s expert forensic evidence  raised  a  reasonable  doubt  that  Mr  Anaru-Emery  was the driver. Diane Crenfeldt, an expert forensic scientist from the Institute of Environmental Science and Research (“ESR”) identified a number of blood stains in the vehicle after the crash. Mr Anaru-Emery’s DNA was found in almost all of the blood samples taken, including in sample AFQ1, which was taken from blood spots on the inside of the windscreen on the passenger side of the vehicle.

[9]	Ms Crenfeldt’s evidence was that sample AFQ1 was the “most critical” sample in terms of identifying where the two occupants were sitting within the vehicle. That is because the blood spots on the passenger side windscreen,  together  with  blood spots on the passenger dashboard beneath it, were identified as being a likely  “impact splatter pattern”. Ms Crenfeldt concluded that “the source of that blood was from directly in front of the passenger dashboard pocket and windscreen rather than being from the other side of the car.” She said that the relevant sample “puts somebody directly out from that passenger side when that blood was…deposited on that windscreen dashboard area” and that:

My interpretation is, as I say, the blood stain on the windscreen must have come directly out, directly in front of it, so where a passenger would be sitting.

1	No application was made to dismiss the assault charge, which related to an alleged incident earlier in the day.
2	Criminal Procedure Act 2011 s 147(4)(c).

[10]	In cross-examination, Ms Crenfeldt reiterated that her expert opinion was that the person whose blood was in the splatter pattern on the windscreen was in the passenger seat when that blood was deposited. As I have noted, Mr Anaru-Emery’s DNA was found in AFQ1, the sample taken from the splatter pattern. There were no traces of Ms Wagstaff’s DNA in that sample.

[11]	In all the circumstances of this case (including that there was no direct eyewitness evidence as to who the driver was) the Crown’s forensic evidence raised a reasonable  doubt  as  to  who  the  driver  was.  A  properly  directed  jury  could  not reasonably have concluded otherwise.

[12]	I declined, however, to dismiss the kidnapping charge. Rather, I gave leave to the Crown to amend the particulars of the kidnapping charge to focus on the period from when Ms Wagstaff left the vehicle on Jellicoe Street, until she was allegedly pushed back into it by Mr Anaru-Emery.

[13]	I set out below my full reasons for these decisions.

Dismissal of charges – the law

[14]	The dismissal application was brought pursuant to s 147(4)(c) of the Criminal Procedure Act 2011, which provides that a Judge may dismiss a charge in a jury trial if the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.

[15]	The relevant legal principles  are set out in Parris v Attorney-General3  and   R v Flyger.4 Those cases were determined under s 347 of the Crimes Act 1961, the predecessor to s 147 of the Criminal Procedure Act 2011. It is well established, however, that the principles that applied under s 347 of the Crimes Act continue to apply under s 147 of the Criminal Procedure Act.5

3	Parris v Attorney-General [2004] 1 NZLR 519 (CA).
4	R v Flyger [2001] 2 NZLR 721 (CA).
5	R v A [2018] NZCA 401 at [47]; Vector Ltd v H Construction North Island Ltd (in rec and liq)
[2019] NZCA 215, [2019] NZAR 1127 at [56]-[59].

[16]	In Parris the Court said:

[13]	… 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 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 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.

The evidence at trial

[17]	I will briefly summarise the key Crown evidence at trial. I note, however, that the Crown witnesses gave evidence for over a week. For present purposes it is not possible, or necessary, to traverse all the detail of that evidence. I keep in mind, however, that I am required to take the Crown case at its highest.

Evidence relating to the assault charge

[18]	Manaia Gourlay, a close friend of Ms Wagstaff, gave evidence that on the afternoon of 21 July 2018 Mr Anaru-Emery became very angry at Ms Wagstaff, grabbed her around the neck area, started throwing her around the room, and threw her onto the bed. She said that Ms Wagstaff brushed off the incident. These allegations gave rise to the male assaults female charge. They are relevant for present purposes to the extent that they indicate that Mr Anaru-Emery was behaving in an angry and aggressive manner that day.

Evidence relating to the period prior to Ms Wagstaff getting out of the car on  Jellicoe Street, Te Puke

[19]	Later that evening, Ms Gourlay, Ms Wagstaff and Mr Anaru-Emery went to a party in Te Puke together.  Ms  Gourlay  had  known  both  Mr Anaru-Emery  and Ms Wagstaff for about six years at the time of the accident. She said that the couple had been going out for about two years, on and off.

[20]	Ms Wagstaff, who had a learner’s licence, drove the car to the party. Ms Gourlay said that, based on her experience of driving  with  Ms Wagstaff  she was a “pretty safe” driver. When asked if she had ever seen her speeding she said “not really no”. She said that Ms Wagstaff was “very careful when she had other people in the car with her”. In all the time she had known Mr Anaru-Emery, however, Ms Gourlay had never seen him drive. She said that whenever Mr Anaru-Emery and Ms Wagstaff were together Ms Wagstaff would always drive.

[21]	Several Crown witnesses gave evidence of Mr Anaru-Emery being argumentative and aggressive with other young men at the party and “puffing up his chest”, but there was no evidence of any actual physical alterations. Ms Wagstaff decided to take him home.  Ms Wagstaff  was  driving  when  they  left  the  party. Ms Gourlay said Ms Wagstaff and Mr Anaru-Emery had been arguing in the house and he was angry by the time he got to the car  to  leave.  Another  Crown  witness, Topea Orgias, said that Ms Gourlay was not there when the car departed, and that  Mr Anaru-Emery was sleepy and leaning on Ms Wagstaff’s shoulder and that they appeared “all good”.

Evidence relating to what happened on Jellicoe Street

[22]	Not long afterwards, Ms Wagstaff pulled the vehicle over to the side of the road on Jellicoe Street and got out (the car had briefly stopped in the middle of the road prior to this). Several CCTV cameras on nearby buildings captured what happened next (although the quality of the footage is variable). In addition, three witnesses, in two different vehicles, gave evidence of what they saw.

[23]	The Crown case is that the CCTV footage shows that Ms Wagstaff stopped the vehicle and immediately got out of it and ran across to the other side of Jellicoe Street. Jellicoe Street is a wide street with a grass median strip. Mr Anaru-Emery also exited the vehicle and caught up with Ms Wagstaff on the other side of Jellicoe Street, where he grabbed hold of her. He dragged her back towards the car. Ms Wagstaff did not want to be taken back to the vehicle and resisted Mr Anaru-Emery’s efforts to take her there. Mr Anaru-Emery kept a firm hold on her, however, and would not let her go.

He was much bigger than her (one witness described her as “tiny”). She continued to resist him, all the way to the car door.

[24]	Two vehicles drove past during the incident. The driver of the first vehicle, Toni Billing, said that she saw a man forcibly try to drag a girl over the grassed area. It looked like the girl was trying to get out of it and break away and it appeared that she did not want to go with him. When they crossed in front of her, Ms Billing described the girl still trying to break free and the male still trying to drag her over to the other side of the road.

[25]	The driver of the second vehicle, Ripeka Pouwhare, was in the car following Ms Billing. She said, amongst other things, that she had seen the male push the female into the driver’s seat and that “to me she didn’t look like she wanted to be there.”

[26]	Ms Pouwhare’s son, Nevada Pouwhare, was in the passenger seat of her vehicle. Coincidentally, he is a close friend of Mr Anaru-Emery. Nevada Pouwhare initially gave a police statement saying that he had seen the male push the female into the car. He recanted that evidence in Court and said that he had not actually seen that but had simply repeated what he had overheard his mother say. Nevada Pouwhare said that the couple looked like they were wrestling, pushing each other, and arguing. They both looked angry.

[27]	When Mr Anaru-Emery and Ms Wagstaff reached the car door their actions are somewhat obscured from the CCTV cameras by the body of the vehicle. What can be seen, however, appears to be consistent with Ms Pouwhare’s evidence that Mr Anaru- Emery pushed Ms Wagstaff into the vehicle through the driver’s door.

[28]	Mr Anaru-Emery then also got into the vehicle through the driver’s side. An arm then emerged from the passenger side of the vehicle, reaching out to close the passenger door. (Mr Anaru-Emery had left that door wide open when he exited the vehicle). Although ultimately a matter for the jury, it was common ground between counsel that it is Mr Anaru-Emery’s arm that can be seen on the CCTV footage. The defence case is that he was in the passenger seat when he closed the door. The Crown

case is that he was in the driver’s seat and reached across the passenger seat to close the passenger door.

Evidence relating to what happened after the vehicle left Jellicoe Street

[29]	There was evidence from several eyewitnesses, and an expert crash investigator, that the vehicle then travelled at excessive speed, overtaking other vehicles on the painted median strip, until it crashed a short time later by the Waiari Bridge, just outside Te Puke. The crash investigator estimated the average speed of the vehicle at between 93 and 105 km per hour in the 50 km per hour zone in Te Puke township. He noted that, given this is an average speed, the car must have been travelling for a period of time above that speed. He estimated that the vehicle was travelling between 118 and 135 kilometres an hour when it passed other vehicles. The speed limit  increases to  70 km/h when leaving Te  Puke, then 100  km/h on   the open road. The crash investigator’s opinion was that neither the road conditions (wet from earlier rain) nor the vehicle condition (it did not have a current warrant of fitness) contributed to the crash.

[30]	When emergency services arrived at the scene, Ms Wagstaff was lying on the grass at the rear of the vehicle. It appears likely that she was already deceased at that time, having suffered a ruptured aorta. Mr Anaru-Emery was also outside the vehicle. It was not in dispute that Mr Anaru-Emery had dragged Ms Wagstaff from the car immediately after the accident, through the driver’s side window, as none of the doors could be opened.

[31]	Mr Anaru-Emery did not have any serious injuries but did have blood around his mouth and nose. A number of witnesses gave evidence of him being angry, abusive and combative, as well as distraught over Ms Wagstaff’s condition, at the accident scene. He told a number of witnesses that Ms Wagstaff had been driving the vehicle.

The forensic evidence

[32]	I now turn to the forensic evidence. Ms Crenfeldt, a forensic scientist with the ESR, gave evidence of her examination of the crash vehicle. She referred to various apparent blood stains she identified on the interior of the vehicle, as well as possible

impact marks on the windscreen. She also identified two human hairs on the inside of the windscreen, on the passenger side. Both were dark in colour. A 10cm hair was located near an area of radiating cracks. A 2 cm hair was located higher up on the windscreen, closer to the passenger door.

[33]	The next Crown witness was another ESR forensic scientist, Nicholas Curnow. He gave evidence of the DNA analysis he undertook of samples taken from the car. Mr Anaru-Emery’s DNA was identified in almost all of the blood samples taken from the interior of the vehicle. Ms Wagstaff’s DNA was identified in only one sample, being a swab taken from an area of radial cracking on the passenger side     of the windscreen.  That  swab  returned  a  mixed  DNA  profile,   including  both Mr Anaru-Emery and Ms Wagstaff’s DNA. Ms Crenfeldt’s evidence in relation to that sample was that she had initially believed that the cracking was on the inside of the windscreen and therefore thought that “somebody had contacted the windscreen there”. However, as she took the sample she realised that the glass on the inside was not cracked, and the cracking was therefore on the outside “but we’d already collected the sample from the inside area”. In her view, the cracking was most likely caused by an impact to the outside of the windscreen, not the inside.

[34]	Ms Crenfeldt also identified a blood stain (AFQ4) on the left-hand side of the driver’s seat, near the seatbelt receiver, which she said could only come from someone in the driver’s area of the vehicle, because of its particular location. Ms Crenfeldt described it as a drip type stain (of a type that could come from something like a cut finger) coming from above and to the right. It was not an impact stain, so it could have been deposited sometime after the impact. Mr Anaru-Emery’s DNA was found in this sample.

[35]	There were also numerous other blood stains in the vehicle, many of which were described as “transfer” staining, which did not assist in determining the location of the occupants of the vehicle.

[36]	Of particular significance was a series of small spots of blood on the inside of the windscreen, and also on the dashboard and front pocket, on the passenger side. The small spots of blood were immediately below the area of radial cracking on the

windscreen. Ms Crenfeldt’s evidence was that, in her expert opinion, the small spots of blood on the windscreen were an “impact splatter pattern.” She could not exclude that they were expirated (for example by a cough or sneeze) but thought this was unlikely as there was no evidence of any dilution, saliva or mucus. The shape of the spots of blood indicated that “the source of that blood was from directly in front of the passenger dashboard pocket and windscreen rather than being from the other side of the car.” Mr Anaru-Emery’s DNA was identified in a sample of blood (“AFQ1”) taken from the apparent impact splatter pattern.

[37]	Ms Crenfeldt’s evidence was that, of all of the samples, AFQ1 was “the most critical one” because “AFQ1 puts somebody directly out from that passenger side when that blood was, a force was applied to the blood and it broke up and was deposited on that windscreen dashboard area”. She subsequently reiterated that:

My interpretation is, as I say, the blood stain on the windscreen must have come directly out, directly in front of it, so where a passenger would be sitting.

[38]	Even if the driver of the vehicle was not wearing a seatbelt and having regard to the forces involved in a high impact accident, Ms Crendfeldt thought it unlikely that the driver’s head could have ended up that far across the vehicle and then, in effect, impacted with the windscreen on a trajectory straight out from the passenger seat. The blood spots were not consistent with someone’s head impacting the windscreen at an angle.

[39]	In cross-examination Ms Crenfeldt said that her expert opinion was that the person whose blood was in the splatter pattern on the windscreen was in the passenger seat when that blood  was deposited and that the source of the blood splatter on      the windscreen was directly out from that windscreen, in the passenger area. She noted, however, that you cannot age blood to closer than a matter of weeks and she could not therefore say that the blood was deposited at the time of the accident. (There was no evidence, however, of any previous incidents that could have caused the blood splatter).

Is there sufficient evidence on which a properly directed jury could reasonably convict Mr Anaru-Emery of manslaughter?

[40]	There is no direct evidence that Mr Anaru-Emery was driving at the time of the accident, for example, a witness who saw him driving. Rather, the Crown relied on several strands of circumstantial evidence which it submitted prove, beyond reasonable doubt, that Mr Anaru-Emery was driving, namely:

(a)	First, the manner in which the vehicle was driven after it left Jellicoe Street (speeding and passing other cars on the painted median) was said to  be  consistent  with  Mr  Anaru-Emery  being  the   driver   than Ms Wagstaff. Ms Gourlay described Ms Wagstaff as a careful driver and she was driving carefully prior to getting out of the car on Jellicoe Street. Mr Anaru-Emery was heavily intoxicated, whereas Ms Wagstaff was under the adult alcohol limit (albeit over the nil limit permitted for an under 20 driver). Mr Anaru-Emery was angry and aggressive, as demonstrated by his conduct throughout the afternoon and evening (both before and after the accident). Despite Nevada Pouwhare’s evidence that both Mr Anaru-Emery and Ms Wagstaff both looked angry on Jellicoe Street, the overall weight of the evidence indicates that it was Mr Anaru-Emery, not Ms Wagstaff, who was in a heightened emotional state. He had been aggressive and angry (on and off) for a period of hours.

(b)	Second, the CCTV footage shows that Mr Anaru-Emery got in the driver’s door, after first pushing Ms Wagstaff through that door. What appears to be Mr Anaru-Emery’s arm is then seen closing the passenger door. The Crown case is that he reached over to do this, from the driver’s side.

(c)	Third, from the CCTV evidence and the testimony of the three eyewitnesses that Ms Wagstaff did not want to be in the vehicle and was manhandled back into it, against her will. Ms Pollett submitted that this makes it highly improbable that she would then have driven off.

[41]	Ms Pollett acknowledged that the ESR evidence raised difficulties for the Crown. She advised that, prior to trial, the Crown had understood that the most significant sample was AFQ4 (discussed at [34] above), which the Crown believed would support an inference that Mr Anaru-Emery was the driver. At trial, however,  it became apparent that the critical sample was AFQ1. Ms Pollett submitted, however, that the jury could find that, given the forces involved in the crash, both occupants could  have ended up on the passenger side.  This  might  explain how   Mr Anaru-Emery’s DNA was found in an apparent impact splatter stain on the passenger windscreen.

[42]	I was not persuaded by this submission. The Crown is required to prove its case beyond reasonable doubt. Ms Crenfeldt was a key Crown witness. Her evidence regarding the significance of sample AFQ1 was consistent and compelling. It raises a reasonable doubt that Mr Anaru-Emery was the driver, and the jury could not have reasonably concluded otherwise, having regard to the totality of the evidence in the case. The circumstantial evidence adduced by the Crown is not sufficiently strong to support a finding of guilt beyond reasonable doubt, in light of Ms Crenfeldt’s forensic evidence.

Is there sufficient evidence on which a properly directed jury could reasonably convict Mr Anaru-Emery of kidnapping?

[43]	Mr Anaru-Emery will be guilty of kidnapping Ms Wagstaff if he is found to have unlawfully taken away or detained her, without her consent (or with consent obtained by duress) with intent to cause her to be confined.6

[44]	As Ms Pollett noted, the offence is complete when the victim is seized and carried away against her will.7 Kidnapping is not a continuing offence requiring concealment of the person seized.8 Rather, it is the carrying off or detention that is essential.9

6	Crimes Act 1961, s 209.
7	R v Reid [1973] QB 299, [1972] 2 All ER 1350 (CA). See also Wiley v R [2016] NZCA 28.
8	R v Reid [1973] QB 299, [1972] 2 All ER 1350 (CA) at 1351-1352.
9	R v D [1984] 2 All ER 449 (HL).

[45]	Mr Dawson submitted that the kidnapping charge should be dismissed because the Crown case was that any detention or confinement had occurred in the motor vehicle. It follows, he submitted, that if the Crown cannot prove beyond reasonable doubt that Mr Anaru-Emery was the driver of the motor vehicle, Ms Wagstaff cannot have been detained in it. Mr Dawson noted that the particulars of the kidnapping charge stated:

Dragging her back to the motor vehicle, pushing her into the motor vehicle, preventing her from exiting the motor vehicle, driving off at high speeds.

[46]	Mr Dawson rejected the proposition that the events on Jellicoe Street, up until Ms Wagstaff was allegedly pushed into the car, could constitute a kidnapping in their own right (independently of who then drove the vehicle). He submitted that kidnapping is a serious offence. An incident that lasts for less than a minute, even if it involves restraining a person and pushing them into a car, is not of sufficient gravity to warrant a charge of kidnapping.

[47]	Ms Pollett did not accept that the Crown case was predicated on the only relevant detention or confinement being within the motor vehicle. Rather, the Crown relied on everything that occurred from the time that Ms Wagstaff exited the vehicle.

[48]	I am satisfied that the evidence as to what took place on Jellicoe Street (taking the Crown case at its highest) is sufficient to meet all of the elements of the charge of kidnapping.

[49]	First, there is clear evidence that Mr Anaru-Emery intentionally took away or detained Ms Wagstaff by dragging her back to the vehicle and pushing her in it, without her consent. To detain a person means to prevent that person from leaving, should they wish to do so. Any detention must be more than trifling10, but the assessment of whether what occurred is trifling (as the defence alleged) is ultimately a matter for the jury.

10	Boyd v R (1992) 8 CRNZ 661 (HC).

[50]	“Taking away” is a form of detention where the defendant compels a person to accompany him or her so that the person is compelled to go where he or she did not want to go.11 Any significant removal of the victim from where he or she wants to be will suffice.12 The Crown has adduced evidence that, if accepted, meets this definition. There is also clear evidence to support an inference that Mr Anaru-Emery knew that Ms Wagstaff did not consent to being  detained  or  taken  away and,  further,  that Mr Anaru-Emery intended to cause Ms Wagstaff to be confined.

[51]	I reject Mr Dawson’s submission that the defence would be prejudiced by allowing the Crown, for the purposes of the kidnapping charge, to now focus solely on the events on Jellicoe Street and not the subsequent alleged confinement in the car. The Crown’s allegations as to what occurred on Jellicoe Street  have  been clear  from the  outset.  Indeed,  what  happened  on  Jellicoe  Street  formed  a  critical  part of the Crown case in relation to both the  kidnapping  and  manslaughter  charges (probably the most critical part of the Crown case). The CCTV footage speaks for itself. It is ultimately for the jury to decide what it shows.  As for the  three eye witnesses, Ms Billings,  Ms Pouwhare,  and  Nevada  Pouwhare,  they  were each cross-examined at some length on what they saw. The defence would not be prejudiced by now reducing the scope of the  particulars  to  focus  solely  on  what happened on Jellicoe Street.

Katz J

11	See for example Davis v R [2006] NSWCCA 392 at [64].
12	As in R v Wellard [1978] 1 WLR 921, where the victim was taken 100 yards and placed in a car.