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 WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CRI-2018-085-000433
[2018] NZHC 3061	

THE QUEEN	

v	

PADDY JONATHAN WOODS	

Hearing:	23 November 2018	
Counsel:	G J Burston for Crown
K F Preston for Defendant	
Judgment:	23 November 2018	

JUDGMENT OF COLLINS J
[Application under s 147 Criminal Procedure Act 2011]

Introduction

[1]	At about 12.30 pm on Sunday 11 February 2018, Zenith (Zena) Campbell was reported dead by her boyfriend, Mr Woods.1 Mr Woods said that he and Ms Campbell had fallen asleep in his vehicle in the early hours of 11 February 2018. He said that when he woke up at about 12.30 pm he was in the driver’s seat, in a reclined position

1	The deceased was born a male and was transitioning to becoming a female at the time of her death. I will refer to the deceased as Ms Campbell.

R v WOODS [2018] NZHC 3061 [23 November 2018]

and that Ms Campbell was partially draped over him but was mainly positioned in the front passenger seat and footrest area of the vehicle.

[2]	The key post-mortem findings, which I shall examine in more detail in this judgment, may be summarised in the following way:

(1)	Bruising to Ms Campbell’s neck and a fracture of the right side of the hyoid bone in her neck with associated petechial-type haemorrhaging.

(2)	A blood alcohol reading of 170 mg/100 ml and a urine alcohol level of 264 mg/100 ml.

(3)	The presence of methadone, oxazepam, Ritalin and cannabis in her blood.

(4)	A fracture to her nose caused by a “sharp force” and other bruising to areas around her eyes and lower lip.

[3]	Ms Campbell was on a methadone programme. She had been warned on 29 and 30 January 2018 about the risks of overdose caused through using methadone with alcohol and other medications, such as sedatives. Ms Campbell had been administered methadone on Saturday 10 January 2018. The level of methadone found in her blood was reported by the ESR to be in the “overlap range” associated with both normal use of methadone, such as administered through a methadone programme, and quantities consistent with “methadone related deaths”.

[4]	Mr Woods has been charged with murder. He has applied to have the charge dismissed under s 147 of the Criminal Procedure Act 2011 (the Act) on the basis that a properly directed jury could not reasonably convict him of murder.

Background

[5]	Mr Woods is 31 years old. Ms Campbell was 21 years old at the time of her death.   The couple attended a party together on 10 February 2018 at  a home in    Aro Valley, Wellington. Ms Campbell became involved in altercations with two men

at the party over some comments she made that were perceived as racist. As a consequence of those altercations, Ms Campbell sustained injuries after being punched and hit in the face with a bottle. In particular, she suffered a laceration and fracture to her nose, which caused bleeding. Ms Campbell was then asked to leave the party, which she did.

[6]	Ms Campbell was in the company of Mr Woods and several others after she left the party. At 1.12 am that night, Ms Campbell went to Aro Park with Mr Hill for approximately eight minutes. At 1.56 am, Ms Campbell  walked with Mr Hill  and Mr Woods to his vehicle, which was parked nearby. Throughout this time, the witnesses describe Ms Campbell’s mood as fluctuating between euphoric and deep depression. Her behaviour included wailing loudly and sobbing inconsolably. At
2.28 am, Mr Rawls arrived at the vehicle. He described Ms Campbell as incoherent and “next level wasted”. He says it took six attempts at telling Ms Campbell who he was before she recognised him. At 2.40 am, Mr Rawls and Mr Hill left Ms Campbell and Mr Woods alone in the vehicle. This was the last time Ms Campbell was seen alive by anyone other than Mr Woods.

Governing principles

[7]	Section 147 of the Act sets out the jurisdiction of the Court to dismiss a charge at any time before a verdict or guilty plea is entered. To dismiss a charge that is to be tried by a jury, the Court must be satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant. The provisions of s 147 of the Act substantially replicate s 347 of the Crimes Act 1961. As a consequence, the leading authorities decided under s 347 continue to apply to applications brought under s 147 of the Act.

[8]	The following principles can be extracted from the authorities:

(1)	It is for the jury to determine whether evidence is, or is not, sufficient to establish guilt; it is not for the Judge to predict what the jury will find.2

2	R v Flyger [2001] 2 NZLR 721 (CA) at [13].

(2)	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.3

(3)	Questions of credibility and weight must, in all but exceptional cases, be determined by the jury. For the purposes of argument, the Crown case must be taken at its highest.4

(4)	Where the Crown case depends on inferences, the focus is on whether the evidence, if accepted by the jury, establishes facts that are capable of supporting those inferences. Whether those inferences should be drawn, or not, is also a matter for the jury.5

Basis for the application

[9]	Mr Preston, counsel for Mr Woods, submits that the evidence in this case is insufficient for the jury to be sure that Mr Woods killed Ms Campbell. He submits that the Crown case, at its highest, is not able to:

(1)	exclude the possibility that death was a consequence of methadone and alcohol toxicity alone;

(2)	establish that the hyoid bone was fractured in the vehicle; or

(3)	establish  any  suggestion  of   ill-will   between   Mr   Woods   and  Ms Campbell.

[10]	In those circumstances, Mr Preston submits that “a jury would simply be speculating as to the cause of death”. He refers to the conclusory remarks of Baragwanath J in R v Lua that “no-one should be exposed to risk of verdict when the evidence is so slender that a conviction would be unsafe”.6

3	Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [10].
4	R v Flyger, above n 2, at [17] and [25].
5	At [18] and [25].
6	R v Lua HC Auckland CRI-2006-092-4336, 24 April 2007 at [4].

Crown response

[11]	The Crown opposes the application on the basis that there is sufficient evidence for a reasonable jury to be sure that Mr Woods strangled Ms Campbell in his vehicle and in doing so fractured her hyoid bone. Mr Burston, on behalf of the Crown, responds to Mr Preston’s three main challenges in the following way:

(1)	There is convincing evidence to support the inference that the hyoid bone fracture occurred in the vehicle, including that:

(i)	Ms Campbell did not display any symptoms of such an injury prior to being left in the vehicle with Mr Woods; and

(ii)	the external bruising to Ms Campbell’s neck is consistent with the injury occurring by strangulation rather than by vomiting or the altercation she was involved in earlier that night.

(2)	If the hyoid bone fracture occurred in the vehicle, then it is likely strangulation   played   a   “not   insignificant   part”    in    causing  Ms Campbell’s death.

(3)	There is convincing evidence to support the inference that Mr Woods was the one who fractured Ms Campbell’s hyoid bone when strangling her. That evidence is:

(i)	he was the last person seen with her while she was alive;

(ii)	it would be highly unlikely that a stranger entered the vehicle, strangled Ms Campbell, and then arranged her body on top of Mr Woods while he was sleeping; and

(iii)	Mr Woods acknowledged in his interview that he “couldn’t handle” Ms Campbell when she was starting trouble, as she had with the altercation at the party earlier that night.

[12]	Mr Burston submits that a s 147 discharge should only be granted in “clear cut” cases, and that this is not one of them.

Discussion

Cause of death

[13]	The  central  uncertainty  underpinning  this  application  is  the  cause  of   Ms Campbell’s death. Professor Drummer, a forensic pharmacologist and toxicologist,  describes  in  the  following  way  the  role  of  the   intoxicants   in   Ms Campbell’s death:

It is impossible from toxicology and prescription data alone to be certain over the role if any of the drugs detected at death. It is possible that the deceased died from toxicity (largely) from the alcohol and methadone through the development of respiratory depression. When this occurs, which it invariably does in susceptible individuals at night in their sleep, they lapse into a steadily increasing coma. If not awakened and resuscitated they will die in their sleep.

[14]	Dr Ferguson, an otolaryngologist and head and neck surgeon, states that the “most common cause of a fractured hyoid bone is manual strangulation (throttling or homicidal ligature)”, but there are other causes such as “intense muscle contractions in vomiting”, “consensual choking” and “external blunt impact to the neck”. She goes on to say that:

In my expert opinion, it is unlikely but possible that Ms Campbell’s hyoid bone was fractured prior to her getting into Mr Woods vehicle with him at around 2am. My reason for this is that there are no reports of any complaints of neck pain and no observed difficulty swallowing or reported pain on swallowing. However, Professor Drummer’s report comments on the high levels  of  alcohol  and  methadone,   as   well   as   other   substances,   in  Ms Campbell’s blood which could reduce the degree of pain experienced by Ms Campbell.

In my expert opinion, there is a reasonable possibility that Ms Campbell’s fracture hyoid bone was not a substantial and operative cause of death if:

i)	the injury occurred prior to her getting into the vehicle with Mr Woods

ii)	but if the injury occurred after she got into the vehicle with Mr Woods on the morning of 11 February 2018, it would have been a contributory factor, combined with respiratory depression caused by the combination of alcohol and methadone. However, the detailed post mortem report describes bruising in the anterior right neck and an 8mm

subcutaneous haemorrhage in the left neck, without any evidence of swelling or bleeding into the deeper tissues or strap muscles and no evidence of petechial haemorrhage in the tissues of the airway that might be expected if strangulation was the primary cause of death. This may need comment from the pathologist as this is not my area of expertise.

[15]	Dr Spark, a pathologist, concludes:

Death is likely due to methadone and alcohol toxicity, or neck compression, or some combination of the two. The relative contributions of each factor are unable to be determined by pathological and toxicological examination alone.

[16]	Dr Spark has also responded to Dr Ferguson’s observations. Dr Spark makes the following three additional points:

(1)	She agrees that it is unlikely but possible that Ms Campbell’s hyoid bone was fractured prior to her getting into Mr Woods’ vehicle with him at about 2.00 am.

(2)	The fracture to the hyoid bone did not in itself cause Ms Campbell’s death. The fracture to the hyoid bone “is merely an indication that pressure was applied to the neck”.

(3)	“Whilst strangulation may result in bleeding in the deeper tissues and strap muscles, and petechial haemorrhage within the airways, it does not always cause this. [That is to say] the lack of these findings does not mean that strangulation did not occur, and does not mean that strangulation could not be entirely responsible for death.” Dr Spark also says that if strangulation was the primary cause of death, then that would fit with her findings in this case.

[17]	The law does not require the defendant’s conduct to be the sole cause of death, it must merely be a “substantial and operative cause of the death”.7 A substantial and operative cause is one that played a “not insignificant part” in the death of the deceased.8

7	R v Myatt [1991] 1 NZLR 674 (CA) at 682–683.
8	R v Tomars [1978] 2 NZLR 505 (CA) at 510.

[18]	I also note that the test for causation I have set out at [17] is a legal test. Medical practitioners do not normally use legal concepts when commenting on cause of death. Instead, they normally talk in terms of probabilities.9

[19]	The preponderance of the expert opinions appears to support the proposition that whatever caused the hyoid bone fracture was also likely to have played a “not insignificant part” in Ms Campbell’s death if that fracture was sustained after she was left alone in Mr Woods’ vehicle. It is a matter for the jury to determine whether in fact it played that role, but I accept that it would be open to a reasonable jury to arrive at the conclusion that it did.

[20]	The question then is whether there is sufficient evidence for it to be open to a reasonable jury to infer that the hyoid bone fracture occurred after Ms Campbell was left alone with Mr Woods, and to infer that it was Mr Woods that inflicted that injury.

Timing of the hyoid bone fracture

[21]	While  there  is  evidence  that  Ms  Campbell  vomited  on  the  evening  of  9 February 2018, the night before her death, Dr Spark dismisses the possibility that the hyoid bone fracture occurred due to vomiting:

There is a single study in the forensic literature which describes a fractured hyoid bone after prolonged vomiting. However, this scenario does not offer an explanation for the external/soft tissue neck bruising seen. And whilst [Ms Campbell] vomited there was no evidence that there was pronged, repetitive vomiting.

[22]	The witness statements in relation to the altercation at the party suggest that Ms Campbell was hit in the face, not the neck. That is consistent with the injury to her nose and the bruising in the areas around her eyes and lower lip. It seems unlikely that the hyoid bone fracture was caused by an assault to the face.

[23]	Another possibility is that the hyoid bone fracture occurred as the result of consensual choking, either earlier that night, or the previous day. One of the witnesses, an associate of Ms Campbell, mentions that Ms Campbell spoke about how she liked

9	R v Little HC Christchurch T17/01, 12 June 2001 at [109]; R v Kuka [2009] NZCA 572 at [25]; and S (CA632/2015) [2016] NZCA 367 at [20]–[34].

to be choked while having sex. This was corroborated by another witness. In his formal written statement, Mr Woods admitted to choking Ms Campbell during consensual sex on 9 February 2018, the night before Ms Campbell’s death. He said that this was the first time they had done that type of activity during sex, and that he only did it for about five seconds before deciding it was too dangerous.

[24]	Another  witness  describes  in  her  statement  walking  into  the  party  on  10 February 2018 to what looked to her like Mr Woods and Ms Campbell having sex. She describes Ms Campbell as being undressed except for tights and underwear and straddling Mr Woods while kissing him. In his statement, however, Mr Woods denied having sex with Ms Campbell that night.

[25]	For any of these alternative theories to be likely, an explanation would be required as to why there is no report of Ms Campbell exhibiting the symptoms referred to by Dr Ferguson — neck pain, difficulty swallowing and pain on swallowing. Dr Spark also refers to the following further symptoms that would be expected: pain on neck rotation, abnormal voice when speaking, increased breathing noise, cough and restricted neck rotation.

[26]	One explanation, offered by Dr Ferguson, could be that the various intoxicants reduced the pain Ms Campbell was experiencing. However, there is no suggestion this would mask other symptoms, such as restricted neck rotation, abnormal voice when speaking and increased breathing noises. It is also possible that Ms Campbell did have those symptoms but none of the other party-goers noticed in their intoxicated states, or at least did not recall when interviewed by police.

[27]	The fact remains that, as things stand, no one recalls Ms Campbell exhibiting symptoms of a hyoid bone fracture during  the  party,  and  both  Dr Ferguson  and Dr Spark express the opinion that Ms Campbell would likely have been exhibiting symptoms if the injury occurred prior to when she was last seen in Mr Woods’ vehicle at about 2.40 am. They also both agree that it is “unlikely” that the injury occurred prior to Ms Campbell reaching the vehicle. If those matters were accepted by a jury, then as a matter of law they would be capable of supporting an inference that the injury occurred in the vehicle.

Mr Woods’ responsibility for the hyoid bone fracture

[28]	If the jury concludes that the hyoid bone fracture occurred in the vehicle, then the inference is clearly open that Mr Woods was the person who inflicted the injury, and that it was inflicted by strangulation. Mr Woods was the only person known to have been in the vehicle at the time. That alone provides a sufficient evidential basis to leave the issue to the jury. While there are still some lingering questions that might require an answer, such as Mr Woods’ motive for strangling his intimate partner and the possibility that a third party entered the vehicle to inflict the injury, I accept that those are properly issues for the jury to determine.

Conclusion

[29]	Accordingly, although, as the Crown acknowledges, there are some rather difficult evidential questions to answer in this case, I am persuaded that as a matter of law there is sufficient evidence to support the inferences the Crown case relies upon to allow the charge of murder to be considered by a jury.

Result

[30]	The application under s 147 is dismissed. This decision does not, however, prevent a further application being made should the evidence change in any material respect.

D B Collins J

Solicitors:
Crown Solicitor, Wellington
Public Defence Service, Wellington for Defendant