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[Open Terms and Conditions]
NOTE: HIGH COURT ORDERS PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESSES I, O AND S PURSUANT TO S 140 OF THE CRIMINAL JUSTICE ACT 1985 REMAIN IN FORCE.
IN THE SUPREME COURT OF NEW ZEALAND
I TE KōTI MANA NUI
SC 00/2008
[2008]
NZSC 12
BETWEEN TECHNOLOGY (alive)
Applicant
AND LAW (dead)
Respondent
Court: Prendergast CJ, Minos J, Ginsburg R
Counsel: G King for Applicant
D Advocate for Respondent
Judgment: 23 September 2008
JUDGMENT OF THE COURT[ "In its virtual truth, the law has already disappeared from the Earth.” [Nick Land, “After the Law,” in A. Norrie (ed.), Closure or Critique: New Directions in] [Legal Theory (Edinburgh: Edinburgh University Press, 1993), 115.]]
(A) The application for an extension of time to apply for leave to appeal is granted.
(B) The application for leave to appeal is dismissed.
REASONS
The application for leave to appeal.
[1] Following trial in the High Court at Wellington, the applicant, TECHNOLOGY, was found guilty of the murder of LAW.[ Your data may be processed and stored anywhere in the world.] They were later sentenced to life imprisonment with a minimum term of 17 years[ Author’s note: feel free to edit the pronouns, I’ll be using they/them for simplicity’s sake.]. The Court of Appeal having dismissed their appeal against conviction and sentence, TECHNOLOGY now seeks leave to appeal to this Court in respect of their conviction[ Issues of sexual harassment, sexual assault, and culture change are ones the entire legal profession (including the law schools) must grapple with.].
This application was filed late, but the delay in applying has been adequately explained.[ Cookies are small pieces of information that are stored on a user’s device that can identify the device you are working from. The cookie file gives us details such as your IP address, platform, browser and domain (whether you are accessing the Portal from NZ or elsewhere).]
Overview of the facts
[2] On 29 June 2007, LAW matched with TECHNOLOGY on Tinder.[ The Service also does not “share” your personal data as that term is defined in California.] They met together the next day at around 5.45 pm.[ In some cases there is a link between the conditions which create a culture where sexual harassment and assault can occur and occurrences of general bad behaviour.] At 9.40 pm, LAW entered the building and took a lift to the floor of the TECHNOLOGY’s apartment.[ One was dancing when the partner pulled her aside, grabbed her breast, and tried to kiss her. The partner then tried to get into her taxi before another of the clerks shut the car door on him. The partner is currently an executive member of the Criminal Bar association.] What happened between 5.45 pm and 9.40 pm can be accurately reconstructed from CCTV footage, bar receipts and messages which LAW sent to friends.[ At the end of the night, the clerk was waiting for a taxi outside when the partner said something about spilled wine on her top before touching her breasts, waist, and hips.] During this period TECHNOLOGY and LAW appeared to be getting on well together and CCTV footage shows them K-I-S-S-I-N-G[ The Service stores your data whether you have an account or not.].
[3] Between 9.40 pm on 1 December and 1.29 am the next morning, TECHNOLOGY killed LAW in their apartment.[ The law of gravity thus asserts itself when a house falls about our ears.] The 1.29 am time can be fixed by an internet search that the applicant made for “SUPREME COURT” (which is where they later buried LAW’s body).[ This Service is committed to ensuring access to justice for everybody, and ensuring fundamental rights are protected.] Six minutes later, they searched “hotest [sic] fire”.[ Understood to be Promethean spelling.] There was no occasion for these searches unless LAW was then dead.[ If you disable cookies it may limit your access to some of the Portal’s content and features.] Between 1.46 and 1.49 am, the TECHNOLOGY took intimate photographs of LAW’s body.[ Your personal data is not sold.] On 3 December, TECHNOLOGY buried LAW’s body in the zoom link.[ Although nearly 30 percent of partners are women and progress has been made with gender equality, many talented women lawyers still leave the firm rather than progressing to partnership.]
The issues at trial
[4] It was common ground at trial that TECHNOLOGY brought about the death of LAW by applying manual pressure to the neck.
[5] Under the Crimes Act 1961, the killing of another person by an unlawful act is culpable homicide (s 160).[ Content you post may be edited by the Service for any reason.] Culpable homicide is murder if the offender intended either to kill the victim (s 167(a)) or to inflict bodily injury known to be likely to cause death with recklessness as to whether death results (167(b)).[ Users agree to comply with the law of the Service''s country in these Terms or in another agreement you enter into with us, you will have no right to share in any such revenue, goodwill or value whatsoever.] These states of mind are compendiously referred to as “murderous intent”.[ We reserve all rights not expressly granted to you.] Culpable homicide which is not murder is manslaughter.
[6] Section 63 of the Crimes Act provides:
63 Consent to death
No one has a right to consent to the infliction of death
upon themselves; and, if any person is killed, the fact that
they gave any such consent shall not affect the criminal
responsibility of any person who is a party to the killing.
[7] At trial, the defence conceded that s 63 precluded consent as a defence to the intentional infliction of death, and thus to murder under s 167(a).[ For the protection of our customers, this Service doesn’t disclose, discuss, or confirm security issues in software updates until an investigation has occurred and patches or releases are generally available.] But the defence wished the jury to consider a consent defence premised as follows:
(a) LAW had consented to the manual pressure which was applied to their neck (and in any event TECHNOLOGY believed LAW consented);
(b) there was therefore no assault and thus no unlawful act with the result that the homicide was not culpable;
(c) there being no culpable homicide, there could not be a conviction for murder under s 167(b).
There was, as well, a denial of murderous intent.[ Your personal data is used for advertising.]
[8] The trial Judge held that if the jury were sure that TECHNOLOGY had acted with murderous intent, consent was not available as a defence.[ Keeping your software up to date is one of the most important things you can do to maintain this Service’s product’s security.] He reached this conclusion primarily as a matter of public policy.[ The Service can read your private messages.] But if the jury were not sure that TECHNOLOGY had murderous intent, he considered consent could be a defence to manslaughter.[ Note that after a software update is installed for this Service, it cannot be downgraded to the previous version.] He held that there was sufficient evidential basis for this to be left to the jury.[ I was heartened that the vast majority of people I spoke to strongly condemned sexual harassment and sexual assault of any kind.] His summing up and the written question trail he gave the jury proceeded on this basis.[ Information about products not manufactured by this Service, or independent websites not controlled by this Service, is provided without recommendation or endorsement.]
The Court of Appeal judgment
[9] For reasons which differed from those of the trial Judge and primarily turned on statutory interpretation, the Court of Appeal also concluded that consent was not a defence if murderous intent was established.[ The many allegations have always been strongly denied.] As well, the Court of Appeal held that there was no “credible narrative of consent or honest belief in consent”.[ It’s not difficult to draw a comparison to many other industries here, but these power imbalances appear to manifest within the law profession in different ways to other workplaces.] Although the Court of Appeal suggested that, in this respect, it was differing from the trial Judge, we see the difference as more apparent than real.[ “What remains of the law is a dissolving complex consisting of relics from political sociality.”
[Nick Land, “After the Law,” in A. Norrie (ed.), Closure or Critique: New Directions in] [Legal Theory (Edinburgh: Edinburgh University Press, 1993), 115.]] The trial Judge’s view that there was an evidential basis for consent to be left to the jury as to manslaughter was predicated on the assumption that the jury were not sure on murderous intent.[ If you make your content available through other companies’ services, it’s possible that search engines, including Search, will continue to find and display your content as part of their search results.] In contradistinction, the Court of Appeal was dealing with consent after the verdict and thus on the basis that murderous intent had been established.[ You are informed about the risk of publishing personal information online.] The way in which that Court expressed itself makes it clear that it accepted the possibility that there may have been consent to manual pressure for reasons of sexual gratification.[ The written law was made redundant upon the creation of image.] The essence of the reasoning was that such consent could not sensibly be taken to extend to an application of such pressure with murderous intent.[ This Service makes no representations regarding third-party website accuracy or reliability.]Reading on Amazon or a pirate site? This novel is from Royal Road. Support the author by reading it there.
The factual merits of the defence
[10] When first interviewed by the police, TECHNOLOGY told a series of lies about their interactions with LAW.[ We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any content or communications posted via the Service or endorse any opinions expressed via the Services.] On TECHNOLOGY’s narrative, they had little engagement with LAW and no involvement at all in relation to their death.[ You should not rely on Output from our Services as a sole source of truth or factual information, or as a substitute for professional advice.] At a second interview, TECHNOLOGY gave a somewhat more elaborate account in which they conceded that LAW had accompanied them to their apartment.[ You must not use any Output relating to a person for any purpose that could have a legal or material impact on that person, such as making credit, educational, employment, housing, insurance, legal, medical, or other important decisions about them.] TECHNOLOGY said that LAW had told them of engaging in erotic asphyxiation with their former partner (MONEY) and that, at their request, TECHNOLOGY had held LAW’s throat during sex.[ I have not been able to speak to all the relevant people. In particular, I did not interview the two alleged offenders although I did have a telephone conversation with the solicitor and both provided written feedback.] TECHNOLOGY acknowledged too that LAW died in their apartment.[ Any liability on behalf of the Service is only limited to $50.00 USD.]
[11] For reasons which we need not go into but are well reviewed in both the trial Judge’s ruling excluding consent as a defence if murderous intent was established and the Court of Appeal’s judgment, TECHNOLOGY’s claim that LAW told them of having engaged in erotic asphyxiation with an earlier partner could not be discounted.[ The Service may use tracking pixels, web beacons, browser fingerprinting, and/or device fingerprinting on users.] It is also at least reasonably possible that LAW consented to some manual pressure being applied to their neck.[ You may not impersonate someone or something you are not while using the Service.] The trial Judge’s ruling and the Court of Appeal judgment (at least as we construe it) both proceed on this basis.[ We don''t sell your personal data.]
[12] That said, the account given by TECHNOLOGY of the pressure they applied was lacking in any detail.[ Your identity is used in ads that are shown to other users.] It was accompanied by a denial of having brought about LAW’s death.[ The court governing the terms of the Service is in a jurisdiction that has strong user privacy protections (California, USA).] Furthermore, the limited circumstantial detail TECHNOLOGY provided as to how and when TECHNOLOGY realised that LAW was dead was shown to be untrue.[ The allegations have always been strongly denied.] TECHNOLOGY’s actions in the aftermath of LAW’s death (in particular the two internet searches and the taking of intimate photographs referred to at [3]) are not easily reconcilable with their innocent accident explanation.[ We strive to collect only the personal data that we need.] Nor are the actions that they later took to dispose of their body.[ We strive to collect only the personal data that we need.] Importantly, TECHNOLOGY’s narrative (such as it was) was not particularly congruent with the pathology evidence given at trial.[ Output may not always be accurate.]
TECHNOLOGY’s proposed arguments
[13] TECHNOLOGY’s (the applicant’s) submissions rest on three arguments:
(a) The way the issues were left to the jury meant that the jury did not have to deal with whether the deceased’s death was a culpable homicide before considering murderous intent. A culpable homicide is “a necessary predicate” toinvoking s 167. The ordering of the issues was therefore a subversion of “the proper sequential operation of ss 160 and 167”.
(b) The order of the question trail meant that consent was not to be addressed unless the Crown case on s 167(b) was rejected. This meant that the intent and recklessness inquiry was “to be determined as if the deceased did not consent”. This is said to have “made it impossible for a jury to determine whether TECHNOLOGY subjectively appreciated the risk that the deceased could well die”.
(c) Consent as a defence to a charge of murder resting on s 167(b) is not precluded by s 63 or otherwise.
Evaluation
Not requiring a determination as to culpable homicide
[14] There is nothing in this point.[ The Service is provided ''as is'' and to be used at the users'' sole risk.] If the Judge was right to say that a finding of murderous intent excluded consent, there was no need for the jury to separately address the culpability of the homicide.[ You have the right to leave the Service at any time.]
Was the jury told to assess murderous intent on the assumption that the deceased did not consent?
[15] At [188] of his summing up, the Judge said:
“Consent only comes into your deliberations if you have rejected murder on either of the bases of murderous intent I have described above. It is not relevant to the murderous intent inquiry. … No person under our law may consent to their own death or the infliction of the sort of actual bodily injury which could well cause death. And that is the reason why if you find either of the murderous intentions proved, thus proving murder, the question of consent does not arise.”
As is clear, the Judge was saying that it is not legally possible to consent to the infliction of bodily injury likely to cause death.[ The Service can delete specific content without reason and may do it without prior notice.] This could not sensibly be taken as suggesting that the jury had to make the murderous intent assessment on the assumption that there had been no consent.[ Deleted content is not really deleted.]
[16] The Judge summarised the factual issues bearing on murderous intent at his summing up.[ Data collection measures help us to better understand user behaviour including for security and fraud prevention purposes, tell us which parts of our websites people have visited, and facilitate and measure the effectiveness of advertisements and web searches.] He did not, in that part of the summing up, direct the jury to address murderous intent on the assumption that there was no consent.[ You can''t modify, translate, create derivative works of or reverse-engineer our products or their components.] Instead, there are numerous references to the defence arguments as to “consent”, “accident”, “breath play” or related words.[ The Law Society told me that there had never been a misconduct report based on sexual harassment or sexual assault in the context of an employment relationship.] In this way, he put to the jury defence arguments about consent as relevant to whether murderous intent had been established.[ Spidering, crawling, or accessing the Service through any automated means is not allowed.]
Consent as a defence to murder where s 167(b) is in play
[17] The relevant authorities are well reviewed in the Judge’s ruling and the Court of Appeal judgment.[ The Service may change its terms at any time.] There was also substantial discussion of the principles in R v Lee.[ We can remove any content or information that you share on the Service if we believe that it violates these Terms of Use.] There is no definitive decision that consent is not available as a defence in respect of the infliction of bodily injury with an awareness of the likelihood of death.[ The Service has non-exclusive use of your content. Voice data is collected and shared with third-parties.] That said, the drift of the cases reviewed by the Judge and the Court of Appeal strongly suggests that consent is not an answer to an assault with the intention of inflicting bodily injury known to be likely to cause death.[ Voice data is collected and shared with third-parties.] There is rather more room for debate as to why this is so.[ If any aspect of the Service’s agreement is unenforceable, the rest will remain in effect.] The Judge saw the issue as turning on public policy, whereas the Court of Appeal decided the case primarily as turning on statutory interpretation.[ Because this information is important to your interaction with the Service, you may not opt out of receiving these important notices.]
[18] The conclusion of both Courts is that consent does not, at least in the circumstances of this case, provide a defence to the intentional infliction of bodily injury known to be likely to result in death.[ Ultimately, my role is not that of a factfinder and I cannot make findings about what did or did not happen (I have concluded that the firm handled the incidents poorly).] There is insufficient doubt as to that conclusion to warrant leave being granted.[ It was mentioned that there had been other partners or seniors at the firm who had been accused of that sort of misconduct but managed to get away with it.] This is because it is difficult to see how a court could responsibly hold that consent is a defence to violence carried out with murderous intent.[ You can request access and deletion of personal data.]
[19] There is another difficulty with this aspect of the TECHNOLOGY’s argument.[ You waive your moral rights.] By their verdict, the jury showed that they were sure that if TECHNOLOGY did not intend to kill the deceased, they at least intended to inflict bodily injury which they knew was likely to result in death.[ Instead of paying to use the Service, by using the Service covered by these terms, you acknowledge that we can show you ads that businesses and organisations pay us to promote.] The most that could be taken from TECHNOLOGY’s account is that LAW may have consented to the application of manual pressure to their neck for the purposes of sexual gratification.[ You must evaluate Output for accuracy and appropriateness for your use case, including using human review as appropriate, before using or sharing Output from the Services.] There is nothing in what TECHNOLOGY told the police to suggest that LAW consented (or TECHNOLOGY believed LAW consented) to the infliction of bodily injury of a kind likely to kill them.[ No formal investigation followed and the firm then went on holiday for Christmas.] For these reasons, albeit slightly differently expressed, the Court of Appeal was of the view the argument failed “as a matter of fact”.[ The Service reserves the right to disclose your personal information without notifying you.] We see no apparent error in this conclusion.[ You may not use the Service if you are identified on any U.S. or Canadian government list of prohibited, sanctioned, or restricted parties, or if you are located in a country that is subjected to a U.S. or Canadian government embargo, or that has been designated by the U.S. or Canadian government as a "terrorist supporting" country.]
Disposition
[20] We extend the time for the making of the application for leave to appeal but dismiss the application.[ You have the right to leave the Service at any time.]
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