Eketone v The Queen

[2005] NZCA 66

IN THE COURT OF APPEAL OF NEW ZEALAND

CA151/04
CA152/04

THE QUEEN

v

WALLY JOCK EKETONE
MARIE LUCIENNE EKETONE

Hearing:19 April 2005

Court:Hammond, Robertson and Potter JJ

Appearances:  No appearance for Appellants

R M Lithgow for Crown

Judgment:27 April 2005 

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.

REASONS

(Given by Hammond J)

Introduction

[1]        On 24 March 2004 the appellants were found guilty by a District Court jury in Napier on one count of abduction pursuant to s 210(1)(a) and s 66(1) of the Crimes Act 1961.

[2]        The appellants were separately represented by counsel throughout that trial. 

[3]        On 25 March 2004 both appellants were convicted and sentenced to 200 hours community work.

[4]        On 20 April 2004 both appellants lodged a joint appeal against their convictions and sentence, in this Court.

[5]        The appeal was filed out of time.  That was satisfactorily explained, and subsequently this Court gave leave to extend the time for filing of the appeal.

[6]        On 12 July 2004 a Judge of this Court determined that this appeal could properly be dealt with on the papers, pursuant to s 392A of the Crimes Act 1961.

[7]        The appellants were notified accordingly and filed relatively extensive submissions.  Because of the nature of those submissions - essentially that further evidence should be taken on the appeal - on 4 August 2004 the Crown, by memorandum, sought directions as to the future management of this appeal.

[8]        Certain directions were given by this Court.  Supplementary “submissions” were then received from the appellants.  In the view of the Crown those submissions were once again (inappropriately) directed at putting “new” information before the Court.

[9]        In the meantime, the appellants took legal advice from experienced counsel.  But they then elected to represent themselves on the appeal.

[10]      In view of the various procedural difficulties which had arisen, by Minute delivered on 9 December 2004, this Court directed that the mode of hearing on the appeal should be changed to an oral hearing.

[11]      It was then, in this context, that the appeal was listed for hearing before us as an oral hearing. 

[12]      In the result, the appellants did not appear.  We take the view that, the appeal having been extant for over 12 months, we should determine it.  We proceed to do so, on the papers.

The background to the substantive appeal

[13]      At the relevant time, Wally Jock Junior Eketone was nine years of age.  He is the natural son of the appellant, Wally Eketone, and his mother, Alison Gibson, formerly Eketone.

[14]      Wally Junior had lived with his mother for his previous eight years.  The appellant, had not seen his son during that time; Wally Junior evidently did not even know what his father looked like.

[15]      On 16 December 1993, the District Court at Hamilton granted interim custody of Wally Junior jointly to his mother, Alison Gibson, to his father, and also to a Mr Raymond Eketone of Raglan.

[16]      Then, in 1994, the District Court at Hamilton granted a non-molestation order in favour of Alison Eketone.  One of the (standard) conditions of that order was that the appellant was not to follow or waylay any child of Miss Gibson’s family in any public place.

[17]      It appears that about six months or so prior to this, the appellants had started planning the abduction of Wally Junior.  On Mr Eketone’s evidence, they planned to “thieve him or pinch him” while he was en route to school in Hastings.  A friend, a Mr Eric Gray, who was apparently a man with an unsavoury past, was enlisted to assist in this enterprise.  He knew what Wally Junior looked like, and could identify him and his address for the appellants.

[18]      Mr Gray made an initial approach to Wally Junior prior to the day of the abduction to tell him that his father wanted to talk to him.  The appellants had also been down to Hastings some three months prior to the abduction incident.  The appellants “sussed the place out” and Eric Gray showed them where the boy lived.

[19]      It is convenient to interpolate here that Mr Gray subsequently pleaded guilty to his part in this abduction.  He was sentenced to a term of 350 hours community service for his part in what was subsequently to transpire.

[20]      On 22 January 2002 this nine-year-old was on his way to school when a “lady” he did not know “sneaked at the back of me” and then pushed him into an awaiting vehicle.  Mr Eketone was driving.  Wally Junior told the police that after he was pushed into the vehicle, Mrs Eketone slammed the door, and the car then drove off.  The driver and passenger swapped positions.  Mr Eketone got into the back with Wally Junior, at which time he told him he was his father.  Wally Junior at this time did not know who this man was.  In what was likely understated, he later told the police he was “scared”.

[21]      The appellants travelled back to Hamilton.  When they got there with Wally Junior, as it transpired, his sister Tammy was staying at the house.  She asked what was going on.  She was told that Wally Junior was staying there “forever”.  Tammy Gibson then rang her mother, Alison Gibson, who contacted the police.

[22]      The usual investigations followed.  Mr Eketone told the police he was “prepared to break the law”, “because [I] wanted [my] son to know me” and he wanted to tell him that he loved him.  Mr Eketone raised issues about the fitness of the child’s mother, and the fairness of his situation. 

[23]      Mr Eketone also claimed that at some stage a Family Court Judge had told him that he could pick up his baby “at any time” (which, in passing, seemed somewhat at odds with his statement that he knew he was breaking the law).

[24]      At his trial Mr Eketone relied on that statement, and the fact that the interim joint custody order dated 16 December 1993 was still in force as at 22 February 2002.  Mrs Eketone, the other appellant, took a similar line but admitted that the appellants had been to see two lawyers in Hastings before the abduction to discuss their rights.  Both lawyers had counselled them against the action that they did ultimately take.

The trial

[25]      From our perusal of the trial record, it is evident that the trial focused essentially on the “good faith” defence.  There was no contest that the appellants had taken Wally Junior away.  Judge Rea, an experienced District Court Judge, correctly directed as to the elements of the offence, the onus and standard of proof, and as to the “good faith” defence.  The jury was invited to consider whether the Crown could prove beyond a reasonable doubt "that at the time young Wally was issued into that car, both Mr Eketone on the one hand and/or Mrs Eketone on the other, knew full well that they were not entitled to be doing what they were doing, and that it was against the law and unlawful for them to do it, and if you found that yes the Crown had proved that, then they are not acting in good faith, they are simply doing it for their own purposes and that is a different thing.  So that is the key issue here.”

[26]      Given that the issue was squarely put to the jury, in very plain terms, it must have rejected the claimed “good faith” defence.  That is, both appellants knew that they were not entitled to take Wally Junior as they did, whether as a result of the non-molestation order or other knowledge.

[27]      The view that the jury formed seems to have been shared by the trial Judge. In his sentencing notes His Honour indicated that in his view there could be “no doubt” that the pair “knew full well” that they were not allowed to take Wally Junior, and that the way in which they went about it spoke volumes.

The appeal

[28]      The appeal turns on two points. 

[29]      First, it is said that this Court should receive further evidence.  In particular, that it would be “interesting” if Alison Gibson could be “called to the stand”.  Also, in their written submissions the appellants essentially re-traverse their version of events.

[30]      On an appeal of this character it is not open to this Court to reopen the proceeding in this manner.  The proposed fresh evidence does not meet the requisite tests:  it is not fresh, that is, it could have been put forward at the trial; it was available at the time; and it is not cogent.  And the appellants are not entitled simply to reassert their version of events, which had already been squarely placed before the jury.

[31]      The second ground of appeal relates to the “good faith” defence.  The first point to be made here is that there is no suggestion that the jury was not correctly directed in this respect.  There was evidence before the jury on which it could take the view that the appellants were not acting in good faith, in the sense that they had had their situation enquired into, and had been cautioned against doing what they did.  But they nevertheless proceeded.  The application of the relevant law - which is not in question before us - was correctly put to the jury, and the application of that law to the facts of the given case was a matter for the jury.

[32]      That said, we observe that the unfortunate overlay of a non-molestation order over a subsisting joint custody agreement can be troublesome.  We would not wish to be taken as saying that a good faith defence could never exist in such a case, particularly where there is an apparent conflict between the two orders.  However, we are satisfied that in this instance there was an evidential basis, which was explicitly before the jury, on which it could hold that there was not here good faith on the part of the Eketones.

[33]      In the result, the appeals against the convictions are dismissed.

The sentence appeal

[34]      No submissions were received under this head.  But no notice of abandonment has been filed. 

[35]      What happened in this case is that essentially the Eketones were given a “dressing down” by Judge Rea after the trial.  The sentence of 200 hours community work, imposed immediately after trial, was substantially less than the sentence on Mr Eric Gray, who had a lesser degree of involvement.

[36]      The sentence actually imposed was a minimal one, having regard to the seriousness of what actually occurred.  It cannot be said to have been wrong in principle or manifestly excessive.

Conclusion

[37]      In the result, the appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington