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Copyright 1982 New Zealand Council of Law Reporting

New Zealand Law Reports

R v Kirikiri

High Cout, Gisborne

[1982] 2 NZLR 648; 1982 NZLR LEXIS 571

2 September 1982

DECIDED-DATE: 2 September 1982

CATCHWORDS:
=1
Criminal law -- Offences -- Homicide -- Causing injury the treatment of which causes death -- Accused shot his
wife in the hip and caused structural damage to her face by battering her with a rifle -- Wife died in hospital four days
later when endo tracheal tube was dislodged before reconstructive surgery -- Whether indictment charging accused with
murder should be presented -- Crimes Act 1961, s 166.

HEADNOTES:

The accused had shot his wife in the right hip and then battered her with a rifle about the head and face causing
very serious structural damage to her face. At a hospital a tube was inserted into her windpipe to help her breathe and
reconstructive surgery was planned as soon as the severe facial swelling subsided. Before surgery, the tube became
dislodged and the wife died. The accused was charged with murder and committed for trial. Counsel for the accused
filed a motion under s 347(1) of the Crimes Act 1961 for orders that no indictment be presented and that the accused be
discharged.

Held: On the depositions there was evidence on which a jury could decide that the original shot in the hip and the
Dbattering about the face and head were of a dangerous nature and an operating cause [*2] of death (see p 650 line 6).
Motion dismissed.

R v Smith [1959] 2 QB 35, 42; [1959] 2 All ER 193, 198, R v Evans and Gardiner (No 2) [1976] VR 523,529, R v
Blaue [1975] 3 All ER 446; [1975] 1 WLR 1411 andR v McKinnon [1980] 2 NZLR 31 referred to.

CASES-REF-TO:

Other cases mentioned in judgment

R v Burgess and McKenzie [1928] 2 DLR 694.
R v Cook (1979) 2 A Crim R 151.
R v Holland (1841) 2 Mood& R 351; 174 ER 313.
R v Lyons (1949) 95 CCC 351.
R v Malcherek [1981] 1 WLR 690; [1981] 2 All ER 422.
R v Torbiak and Gillis (1978) 40 CCC (2d) 193.

INTRODUCTION:
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[1982] 2 NZLR 648; 1982 NZLR LEXIS 571, *2

Motion
This was an application under s 347(1) of the Crimes Act 1961 for orders that no indictment be presented and that the
accused be discharged.

COUNSEL:

T G Stapleton for the Crown.

M A Bungay and A J Adeane for the accused.

JUDGES: Jeffries J

JUDGMENT BY: JEFFRIES J.

JUDGMENTS: JEFFRIES J. The accused has been charged with the murder of his wife, Yvonne Johanna Marie
Kirikiri, arising out of events that occurred on 17 February 1982 at the dwelling of the principal of Mangatuna School,
near Tolaga Bay. {649} Depositions in the lower Court were taken before [*3] Justices on 24, 25 and 26 May 1982, at
Gisborne. He was committed for trial before the High Court to commence on 13 September 1982. Counsel for the
accused has filed a motion under s 347(1) of the Crimes Act 1961 seeking an order that no indictment be presented, and
for a further order that the accused be discharged.

The circumstances leading to the death of the accused's wife as disclosed in the depositions are as follows. At the
material time the accused was employed as a shepherd on a station where he lived with his wife and two young
children. His wife was employed as a temporary school teacher in a local school. Marital discord developed and on
Sunday 14 February the deceased left the matrimonial home with her two children. Over the next few days
communications took place between the accused and his wife with him attempting reconciliation, which was
unsuccessful. On Wednesday 17 February, in the early evening, his wife went to the home of the principal of
Mangatuna School, who was her professional superior, by agreement with the accused, whom she had met by chance
along the roadway. They travelled to the property in separate cars with the deceased arriving first. Outside [*4] a
fracas developed when the accused presented a 0.22 rifle. The deceased ran towards the house. The accused fired at
her, but apparently missed. Shortly thereafter he trapped her in the laundry/toilet area of the house, fired another shot at
her, this time hitting her through the right hip. He then battered her with the rifle about the head and face causing very
serious structural damage to her face. Near the property shortly thereafter he gave himself up to the police.

Mrs Kirikiri was taken by ambulance to Cook Hospital, Gisborne. There a doctor examined her and decided she
needed assistance in breathing because of her badly damaged face, and performed a tracheostomy. This is a surgical
procedure whereby a plastic pipe airway is introduced through the neck into the patient's windpipe. He also decided the
surgery needed to her face could best be performed at Middlemore Hospital, Auckland, to where she was transferred by
air ambulance on 18 February. At Middlemore she was examined by a surgical team who decided, because of severe
facial swelling, to delay operative treatment to allow time for the swelling to subside. It is accepted by the Crown the
contemplated operation [*5] was not considered essential to save her life. For the next two days she was constantly
under the care of a special nurse but otherwise she made some progress. By Sunday 21 February the surgical team
decided the swelling had subsided sufficiently to allow them to proceed with reconstructive surgery. At about 8.45 am
Mrs Kirikiri was taken from the ward to the operating theatre. On arrival at the theatre it was noticed the endo tracheal
tube was not within the trachea because the patient was able to breath through the mouth and to speak. Attempts were
then made to return the tube back into the trachea. Because the trial is yet to take place I make no further reference to
the facts other than to record the procedures adopted by the team from then on were unsuccessful, and, tragically, the
patient died before the reconstructive operation began.

After arrest the accused was charged with attempted murder but with the death of his wife he was charged with
murder.
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[1982] 2 NZLR 648; 1982 NZLR LEXIS 571, *5

The facts of the case reveal that at the time of death there were two identifiable causes from which death could
result, namely the inflicted injuries and the treatment for the displaced endo tracheal tube. Multiple causes [*6] of
death are not infrequently met in the criminal law. See R v Holland (1841) 2 Mood & R 351; R v Smith [1959] 2 QB
35; and R v McKinnon [1980] 2 NZLR 31. On the facts the present case is distinguishable because the second cause
was probably the proximate cause of death, and stemmed from treatment administered by a surgical team. For this
situation the legislature has made special statutory provision. Section 166 of the Crimes Act states:

{650} "Every one who causes to another person any bodily injury, in itself of a dangerous nature, from which
death results, kills that person, although the immediate cause of death be treatment, proper or improper, applied in good
faith."

A person is liable in law for a killing, if he caused to another person any bodily injury, in itself of a dangerous
nature, from which death results, in spite of the fact the immediate cause of death be treatment, proper or improper,
applied in good faith. Treatment, either proper or improper, and its application in good faith are not issues in dispute at
this hearing.

At this stage counsel for the accused does not concede the injuries were "of a dangerous nature", saying that [*7]
is a jury question. The section admits, or supposes, the proximate cause of death could be treatment, but the accused
person is still liable for the death if he was responsible for a bodily injury of a dangerous nature. The words "from
which death results" means that "bodily injury in itself of a dangerous nature" must be an operating cause of death,
although not the final, or proximate, cause. The section contemplates three events. Dangerous bodily injury, treatment,
death. If there are but the two events of dangerous bodily injury and death results the situation is clear. The section is
designed to deal with the event of treatment, between dangerous bodily injury and death, which actually causes death.
If the intervening treatment causes the death does the perpetrator of the dangerous bodily injury escape criminal liability
for the death? The section's answer is "no" if the dangerous bodily injury was an operating cause of death, and
treatment was applied in good faith.

It is agreed by counsel that s 166 has not previously been judicially considered in New Zealand. Other jurisdictions
have somewhat similar provisions. See R v Burgess and McKenzie [1928] 2 DLR 694; [*8] R v Lyons (1949) 95 CCC
351; R v Torbiak and Gillis (1978) 40 CCC (2d) 193; and R v Cook (1979) 2 A Crim R 151. Of the foregoing cases R v
Cook, a judgment of the Court of Criminal Appeal of Queensland is helpful because s 298 of the Queensland Criminal
Code is near, but with material differences, to our s 166. The Queensland section specifically states the death can be
caused either by the injury, or the treatment.

The argument of counsel for the accused is that the acts of the accused did not cause the death of the deceased. In
developing that argument it was submitted the chain of causation was broken because the reasonable inference from the
evidence is that the injuries caused death only in the sense that they put the deceased in hospital and made surgery
necessary. It was said, from a physiological viewpoint, the treatment caused death independently of the injuries from
which the deceased had recovered to a satisfactory and stable condition, and it cannot be said that the treatment merely
aggravated, or accelerated, the effect of the injuries. In other words, it was argued, if treatment is an independent cause
of death [*9] the injuries may be said to be "merely part of the history" and no longer "an operating and substantial
cause". The words just quoted are taken from the English case, R v Smith [1959] 2 QB 35 and the judgment of Lord
Parker CJ, commencing at p 42:

"It seems to the court that if at the time of death the original wound is still an operating cause and a substantial
cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also
operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it
be said that the death does not result from the wound. Putting it in another way, only if the second cause is so
overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from
the wound."
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[1982] 2 NZLR 648; 1982 NZLR LEXIS 571, *9

{651} In the somewhat restricted conditions in which this argument took place, it was accepted that s 166 was
declaratory of the common law, dealing specifically with treatment cases. If that be correct the decision in R v Smith is
of importance in deciding the meaning of s 166. Smith's case was referred to in R v Evans and Gardiner (No 2) [1976]
VR 523 at p 529 [*10] as ... the most satisfactory expression of the law to be found in the authorities". On the issue
of multiple causes of death it was favourably referred to in R v McKinnon [1980] 2 NZLR 31 (CA).

A recent English case R v Malcherek [1981] 2 All ER 422 was also cited by counsel for the Crown as a helpful
decision in deciding upon the meaning of s 166. Counsel for the Crown did not dispute that the dangerous bodily injury
had to be continuing and operating at the time of death but submitted Malcherek ameliorates, to an extent, Smith's case,
which said the cause had to be substantial as well. The final decision on that particular point is better left to another
occasion.

In this Court's view the argument of counsel for the accused is answered by the assertion it is a matter of fact for the
jury to decide whether the original shot in the hip, and the battering about the face and head were of a dangerous nature,
and still an operating cause of death. As already stated they must play a part, even if another proximate cause is the
final one. The criminally relevant cause is the dangerous bodily injury. The question is whether on the depositions
there is [*11] evidence upon which a jury could decide it was a dangerous bodily injury inflicted by the accused, and it
remained an operating cause at the time of treatment and subsequent death. In this Court's view there is ample evidence
for a jury to reach that view if it chooses to do so. See R v Blaue [1975] 3 All ER 446; R v Evans and Gardiner (No 2).

For the foregoing reasons the motion is dismissed.

ORDER:

Motion dismissed.

SOLICITORS:

Solicitor for the Crown: Crown Solicitor (Gisborne).

Solicitors for the accused: Bungay Greig & Co (Wellington). #020509M001USPENK#