Hieatt v The Queen - [2011] NZCA 637

IN THE COURT OF APPEAL OF NEW ZEALAND

CA137/2011

[2011] NZCA 637

BETWEEN GORDON WAYNE HIEATT
Appellant

AND THE QUEEN
Respondent

Hearing: 23 November 2011

Court: Chambers, Heath and Allan JJ

Counsel: P J Kaye for Appellant
M D Downs for Respondent

Judgment: 12 December 2011 at 2 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Murder or manslaughter?

On 12 May 2009 police went to the flat occupied by Gordon Hieatt, the appellant, and his girlfriend, Nuttidar Viakaew, having been told by their landlord of his concern for Ms Viakaew’s welfare. Police found Ms Viakaew’s decomposed body on the bed covered in blankets. When questioned, Mr Hieatt said little to police beyond that he had had an argument with Ms Viakaew on 17 April that had “got out of hand” and that he had “choked her”. Mr Hieatt also said their relationship had been “quite troubled”.
Police charged Mr Hieatt with Ms Viakaew’s murder. He pleaded not guilty. He was tried before Priestley J and a jury.
Just before counsel’s final addresses, Mr Kaye, who appeared for Mr Hieatt both at trial and before us, submitted to the Judge that he ought to allow the partial defence of provocation to go to the jury. The Judge declined that application, giving reasons at a later date.[1] Counsel then addressed. The jury retired. They found Mr Hieatt guilty of murder.
[1] R v Hieatt HC Auckland CRI-2009-004-11969, 18 November 2010.
Priestley J later sentenced Mr Hieatt to life imprisonment.[2] In addition, he ordered, pursuant to s 103(2) of the Sentencing Act 2002, that Mr Hieatt was to serve a minimum period of imprisonment (an MPI) of 11 years.
[2] R v Hieatt HC Auckland CRI-2009-004-11969, 25 February 2011.
Mr Hieatt has now appealed against his conviction and his sentence. As to the appeal against conviction, there is only one issue. Was the Judge wrong not to leave provocation to the jury? On the appeal against sentence, the sole issue is whether the MPI should have been ten years instead of 11.

Was the Judge wrong not to leave provocation to the jury?

Mr Kaye accepted the Judge set himself the right test when deciding whether to leave provocation to the jury. The Judge put it this way:
[14] So bundling these matters together I need to scrutinise, in assessing the s 169(3) question of law, whether there is a plausible narrative reasonably capable of leading the jury to find it a reasonable possibility that the accused Mr Hieatt, as a result of words or actions emanating from the deceased which were sufficient to deprive the ordinary New Zealander of the power of self-control, was in fact deprived of his power of self-control and thereby induced to murder the deceased.
[15] I have deliberately omitted reference to the characteristics of the accused because no such special characteristics were advanced, and I’m satisfied that no such characteristics arise from the evidence.
The Judge then…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hieatt v The Queen

Details

AGLC: Hieatt v The Queen [2011] NZCA 637
Case: [2011] NZCA 637
Decision Date: 12 December 2011

CaseChat Overview and Summary

Gordon Wayne Hieatt, the appellant, was convicted of the murder of Nuttidar Viakaew and sentenced to life imprisonment with a minimum period of imprisonment of eleven years. He appealed against both his conviction and sentence to the Court of Appeal of New Zealand. The appeal was dismissed by the Court. The central issue was whether the trial judge was correct not to leave the partial defence of provocation to the jury. The court found that the judge's reasoning was sound and that the appellant's actions were deliberate and premeditated, thus ruling out the possibility of provocation. Additionally, the court upheld the trial judge's decision to impose a minimum period of imprisonment of eleven years, considering the aggravating features of the case.

The court found that the judge had correctly applied the law and considered all relevant factors. The appellant's claim that the minimum period of imprisonment should have been ten years instead of eleven was rejected. The court considered the circumstances of the case, including the domestic nature of the murder and the appellant's actions, and found that the trial judge's decision was reasonable and in line with other comparable cases. The appeal against both conviction and sentence was ultimately dismissed.

Orders