Jesse Shane Kempson v The Queen - [2021] NZSC 74

NOTE: HIGH COURT ORDERS PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESSES J, W AND E PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011 REMAIN IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 11/2021
[2021] NZSC 74

BETWEEN	JESSE SHANE KEMPSON Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and O’Regan JJ
Counsel:	P J Shamy and S J Bird for Applicant P D Marshall for Respondent
Judgment:	29 June 2021

JUDGMENT OF THE COURT

AThe 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

Following trial in the High Court at Auckland, the applicant, Jesse Kempson, was found guilty of the murder of Grace Millane. He was later sentenced to life imprisonment with a minimum term of 17 years.[1] The Court of Appeal having dismissed his appeal against conviction and sentence,[2] he now seeks leave to appeal to this Court in respect of his conviction. This application was filed late, but the delay in applying has been adequately explained.

Overview of the facts

[1]R v K [2020] NZHC 233 (Moore J).

[2]Kempson v R [2020] NZCA 656 (Kós P, Cooper and Courtney JJ) [CA Judgment].

On 30 November 2018, Ms Millane matched with the applicant on Tinder. They met the next day at around 5.45 pm. At 9.40 pm, they entered the City Life building and took a lift to the floor of the applicant’s apartment. What happened between 5.45 pm and 9.40 pm can be accurately reconstructed from CCTV footage, bar receipts and messages which Ms Millane sent to friends. During this period the applicant and Ms Millane appeared to be getting on well together and CCTV footage shows them kissing.
Between 9.40 pm on 1 December and 1.29 am the next morning, the applicant killed Ms Millane in his apartment. The 1.29 am time can be fixed by an internet search that the applicant made for “Waitakere Ranges” (which is where he later buried Ms Millane’s body). Six minutes later, he searched “hotest [sic] fire”. There was no occasion for these searches unless Ms Millane was then dead. Between 1.46 and 1.49 am, the applicant took intimate photographs of Ms Millane’s body. On 3 December 2018, he buried Ms Millane’s body in the Waitakere Ranges.

The issues at trial

It was common ground at trial that the applicant brought about the death of Ms Millane by applying manual pressure to her neck.
Under the Crimes Act 1961, the killing of another person by an unlawful act is culpable homicide (s 160). 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)). These states of mind are compendiously referred to as “murderous intent”. Culpable homicide which…

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.

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Details

Case: [2021] NZSC 74
Decision Date: 29 June 2021

CaseChat Overview and Summary

Jesse Shane Kempson, the applicant, sought leave to appeal against his conviction for the murder of Grace Millane. The applicant was found guilty in the High Court and later sentenced to life imprisonment with a minimum of 17 years. The Court of Appeal dismissed the applicant's appeal against his conviction and sentence, leading to the present application for leave to appeal to the Supreme Court of New Zealand. The primary issues before the court were whether the trial judge erred in the way the jury was directed to consider the concept of consent as it related to the charge of murder and whether consent could be a defence to murder under section 167(b) of the Crimes Act 1961.

The court examined the legal framework and the arguments presented by the applicant. The trial judge and the Court of Appeal both concluded that consent could not be a defence to murder if murderous intent was established. The trial judge held this primarily as a matter of public policy, while the Court of Appeal reached the conclusion through statutory interpretation. The court found no substantial error in the reasoning of the Court of Appeal. The applicant's argument that the jury should have been required to determine whether the death was a culpable homicide before considering murderous intent was rejected, as there was no legal basis for such a requirement. Furthermore, the court held that consent is not available as a defence to the intentional infliction of bodily injury likely to result in death, particularly when murderous intent is present.

The Supreme Court granted the application for an extension of time to apply for leave to appeal but dismissed the application for leave to appeal. The court found that there was no substantial error in the reasoning of the Court of Appeal and that the arguments presented by the applicant did not warrant leave to appeal. Consequently, the applicant's conviction and sentence were upheld.

Orders