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Keats v The Queen

Keats v The Queen

Case [2021] NZHC 3155 22 November 2021

Appeal

Causation

Judicial Review

Counter-intuitive Evidence

Negligence

Criminal Law

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NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) WORKPLACE OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-8

[2021] NZHC 3155

BETWEEN
DWAYNE DOUGLAS KEATS

Appellant

AND

THE QUEEN

Respondent

Hearing: 4 November 2021

Appearances:

D J More for the Appellant J A Eng for the Respondent

Judgment:

22 November 2021

Reissued:

1 February 2022

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 22 November 2022 at 3.30 pm

Registrar/Deputy Registrar Date:

KEATS v R [2021] NZHC 3155 [22 November 2021]

[1] Dwayne Douglas Keats was convicted on six charges of rape1 and four charges of unlawful sexual connection2 by Judge M A Crosbie after a judge-alone trial.3 He was acquitted on one charge of unlawful sexual connection. One further charge each of rape and unlawful sexual connection were dismissed and Mr Keats was deemed acquitted.

[2] Mr Keats was sentenced to 15 years’ imprisonment with a minimum period of imprisonment of eight years by Nation J earlier this year.4

[3]Mr Keats appeals his convictions.

Factual background

[4] Mr Keats was from October 2016 on electronically monitored parole flowing from a sentence of eight years’ imprisonment imposed on 12 March 2010 for sexual violation by rape.

[5] The Crown alleged Mr Keats sexually violated the complainant (Ms A) on numerous occasions between 2 February 2017 and 16 March 2017. She was 45 years old. Mr Keats met Ms A through his work in November 2016. He developed intimate feelings for her and began asking her out on dates. There was no dispute that Ms A had been sexually attacked by an unrelated third party prior to the offending. Initially Ms A declined Mr Keats’ advances as she did not want a relationship. The following summary relates the findings made in the District Court.

Charges 1 and 2 “the couch incidents”

[6] The first tranche of offending, “the couch incident”, occurred on 2 February 2017 when Mr Keats went to Ms A’s home address in Dunedin after phoning her beforehand to say that he was coming around for a cup of coffee. Ms A was on the couch in the lounge and Mr Keats began kissing her. He pulled her tights and pants off and began raping her. She fought him and protested but he persisted. Eventually

1      Crimes Act 1961, ss 128(1)(a) and 128B; maximum penalty 20 years’ imprisonment.
2      Crimes Act, ss 128(1)(b) and 128B; maximum penalty 20 years’ imprisonment.
3      R v Keats [2020] NZDC 15884 [the Judgment].
4      R v Keats [2021] NZHC 359.

he pulled out before ejaculating. He put his penis in her mouth and forced her to perform oral sex on him by grabbing her head with his hands and moving it. He then began raping her again. He finally stopped when she said “please Dwayne stop!”. From “the couch incident” Mr Keats was charged with charge…

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 Keats v The Queen

Details

AGLC: Keats v The Queen [2021] NZHC 3155
Case: [2021] NZHC 3155
Decision Date: 22 November 2021

CaseChat Overview and Summary

Dwayne Douglas Keats appeals his convictions on six counts of rape and four counts of unlawful sexual connection. The High Court considered whether the District Court judge erred in his assessment of the evidence and whether a miscarriage of justice had occurred. The court found that the appellant failed to establish his grounds of appeal and dismissed the appeal. The court also dismissed the appellant's application to adduce fresh evidence. The appellant's argument that the District Court judge erred in his assessment of the evidence was rejected. The court found that the judge did not misapply counter-intuitive evidence principles, which are used to dispel myths about how complainants behave when they have been sexually abused. The court found that the judge had correctly identified the principles emerging from counter-intuitive evidence and had used them to enable the fact-finder to consider the complainant's credibility on a neutral basis. The court also found that the fresh evidence sought by the appellant was not new and would not have impacted the outcome of the appeal.

Orders