Shadrock v R

• Jurisdiction: New Zealand
• Judge: Stevens J
• Judgment Date: 12 August 2011
• Neutral Citation: [2011] NZCA 388
• Docket Number: CA490/2010
• Court: Court of Appeal
• Date: 12 August 2011

[2011] NZCA 388

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

O'Regan P, Stevens and Wild JJ

CA490/2010

Between

Christopher Jacob Junior Shadrock

Appellant

and

The Queen

Respondent

Counsel:

K P Brosnahan for Appellant

R J Collins for Respondent

JUDGMENT OF THE COURT

A The appeal against conviction is allowed and the conviction on the charge of murder is quashed.

B The case is remitted to the High Court for a re-trial.

C Order prohibiting publication of the reasons for judgment in news media or on the internet or other publicly available database until final disposition of retrial. Publication in Law Report or Law Digest permitted.

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

	Para No
A bag snatch gone wrong	[1]
Some further detail on the background	[5]
Issue one: applicability of s 167(d)	[16]
Definition of murder	[22]
Section 167(d): the competing arguments	[23]
Origins of s 167(d)	[28]
Is a criminal offence required	[40]
Relationship of fatal act to the other offence	[49]
Factors relevant to whether act for any unlawful object	[64]
Distinction between the unlawful object and its aftermath	[74]
Was s 167(d) available in this case?	[77]
Issue two: error in directions and question trail	[84]
Submissions on issue two	[88]
Discussion	[91]
Issue three: failure to sever trial of the appellant	[96]
Discussion	[101]
Issue four: absence of intoxication direction	[108]
Discussion	[114]
Result	[117]

A bag snatch gone wrong

1 The appellant, Christopher Shadrock, was convicted of murdering Joanne Wang as a result of events that took place in a shopping mall car park in South Auckland in June 2008. Mr Shadrock and four associates planned and embarked on a criminal enterprise to snatch a bag from a member of the public returning to a vehicle in the car park and then flee the scene and divide up the proceeds of the theft.

2 On this occasion the bag snatch went badly wrong. Mrs Wang died from injuries received when she pursued Mr Shadrock and was hit by the vehicle he was driving as he attempted to leave the scene of the crime. At his trial the Judge, Rodney Hansen J, directed the jury that they should find Mr Shadrock guilty of murder if the Crown had established that the elements of either s 167(b) or s 167(d) of the Crimes Act 1961 were met. A key ground in the appeal is whether the trial Judge was correct to leave the case for the jury on the alternative basis by allowing the Crown to rely on s 167(d): that for an unlawful object the accused did an act that he knew to be likely to cause death, and thereby killed a person, though he may have desired that his object should be effected without hurting anyone.

3 In this part of the appeal the focus is on the meaning of the words in s 167(d) “for an unlawful object”. The circumstances of the case give rise to two subsidiary questions in relation to this ground, namely:

• (a) Whether the unlawful object in s 167(d) must be a criminal offence; and

• (b) If so, does the act causing death have to occur during the commission of the offence, or is it enough for the act to take place at a time and in a place sufficiently proximate to the commission of the offence?

4 Mr Shadrock's appeal raises three further grounds. These are first, whether the directions on s 167(d) contained in the question trail and the summing up were erroneous. Next, did a miscarriage of justice occur from Mr Shadrock's trial being heard jointly with two of his associates Mr Vita Lemanu and Mr Terrence Tere. Finally, there is a challenge on the basis that the Judge did not give a direction to the jury on the issue of intoxication.

Some further detail on the background

5 Both counsel accepted that a convenient summary of the factual background is to be drawn from the remarks of the Judge on sentencing. 1 For Mr Shadrock, Mr Brosnahan emphasised that at trial Mr Shadrock disputed that he saw Mrs Wang in the vicinity of his vehicle just prior to the point of impact. However, we are satisfied that the jury must have accepted that Mr Shadrock saw Mrs Wang in front of, or very near, the vehicle prior to impact in order to return a verdict under either

s 167(b) or s 167(d) of the Crimes Act. We therefore proceed on that basis, whilst acknowledging Mr Shadrock's denial.

6 On the morning of 16 June 2008, Mr Shadrock stole a Nissan Regulus from a car park in Glen Innes. The specific purpose of the theft was that the stolen vehicle was to be used in a bag snatch involving the appellant and his four associates. It seems to have been well known in the criminal fraternity that a Nissan Regulus is easy stolen. The proposed modus operandi for the bag snatch is apparently in common use in South Auckland as a means of perpetrating the theft of handbags in shopping mall car parks. The stolen vehicle carries the intended thief who is usually a passenger. A legitimate car waits close by to provide support if required and to facilitate the thief's escape. The High Court was told that women of Chinese and Indian ethnicity are often targeted as they are seen as being more likely to carry significant sums of money and less likely to resist. Typically, the plan is that after a bag is stolen, both vehicles leave the car park. The stolen vehicle is abandoned and its occupants are picked up by the following legitimate vehicle. If the two vehicles are separated, text messaging is used to determine where to meet up.

7 On 16 June 2008, the appellant and his associates sought to use this modus operandi. But the appellant decided to depart from the plan. He was driving the stolen Nissan and decided to snatch the bag himself without waiting to be joined by an associate from the legitimate vehicle. Why the plan was changed is not known. The trial Judge hypothesised that Mr Shadrock may have seen an opportunity and jumped the gun. For whatever reason, the appellant did it alone.

8 At about 3.30 pm, Mrs Wang and her eight year old son emerged from the shopping mall. Mrs Wang was carrying a handbag containing the takings from one of the bakeries she and her husband operated. Mrs Wang and her son returned to the van that Mrs Wang had parked in the car park. She got into the driver's seat. Mrs Wang's son got into the front passenger seat. Mrs Wang placed her handbag on the console between the front seats of the van. Before the front passenger door could be closed, the appellant reached inside the van in front of Mrs Wang's son, seized the handbag and ran back to the stolen Nissan that he had left in an adjoining aisle of the car park.

9 There then followed what the Judge described as a “second unexpected event”. Instead of acquiescing in the loss of the handbag and calling for help, Mrs Wang pursued Mr Shadrock to where the stolen vehicle was parked. There is evidence from the closed-circuit surveillance film that Mrs Wang could be seen running to the front driver's side of the Nissan. As the vehicle reversed at speed, Mrs Wang could be seen (and was also seen by witnesses) in front of the vehicle, possibly with her hands on the bonnet, until the stolen vehicle driven by Mr Shadrock disappeared from view behind a tree.

10 What happened next was the subject of extensive evidence and analysis at trial. 2 The Judge found that, as the vehicle reversed, Mrs Wang moved towards the other side of the bonnet. The vehicle slowed rapidly and stopped when its exit onto the access-way, which would have permitted egress from the car park, was blocked by another vehicle entering the car park. The driver of that vehicle sounded her horn and the Nissan came to a sudden halt. By this time Mrs Wang had moved towards the passenger side of the vehicle. One witness placed her close to the passenger door. By the time the Nissan moved forward, the preponderance of evidence indicated that she was level with the front of the vehicle and towards the left of the bonnet. She may well have been holding on to the mirror mounted on the front passenger mudguard.

11 The precise reasons why Mrs Wang chose to pursue Mr Shadrock will never be known. It is likely that her actions were intended to attempt to recover the stolen handbag from Mr Shadrock and prevent the removal of the handbag from the scene. As we later discuss, whatever Ms Wang had in mind, it does not affect our analysis.

12 The Judge summarised the evidence of Mrs Brown. She had driven her vehicle to the exit from the car park and blocked it in an effort to stop the Nissan from leaving. 3 Mrs Brown had a good view of what happened next. As the Nissan accelerated forward Mrs Brown saw Mrs Wang take four rapid steps backwards before the left front of the vehicle passed over her foot. The Judge found that it was probable that this caused a leveraging effect which resulted in an accelerated fall

causing Mrs Wang's head to hit the ground. She sustained non-survivable brain injuries from which she died early the following morning, 17 June.

13 The Nissan then continued to accelerate and left the car park at speed colliding as it did so with another vehicle that was backing out of a car park space. It was followed closely by the legitimate vehicle, driven by one of the appellant's associates. This vehicle had been parked nearby and its occupants had seen what had happened. The two vehicles met up away from the car park and the participants divided up the cash found in Mrs Wang's handbag.

14 After the news got out the following day, 17 June, that Mrs Wang had died, the appellant took steps to cover his tracks. That evening, the appellant...