Keepa v The Queen - [2014] NZCA 79

IN THE COURT OF APPEAL OF NEW ZEALAND

CA237/2013
[2014] NZCA 79

BETWEEN	WILLIAM KELVIN KEEPA Appellant
AND	THE QUEEN Respondent

Hearing:	12 February 2014
Court:	White, MacKenzie and Mallon JJ
Counsel:	D A Ewen for Appellant M E Ball for Respondent
Judgment:	20 March 2014 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

Background

The appellant appeals against his conviction on one count of aggravated robbery following his second trial in March 2013, jointly with his co-offender M.[1] There are two grounds of appeal:
(a)that an earlier trial in November 2012 was wrongly aborted, resulting in a miscarriage of justice; and
(b)that the trial Judge at the appellant’s second trial did not adequately direct the jury that the charge against the appellant must be proved only on evidence admissible against the appellant.
[1]Crimes Act 1961, s 235(b).
The Crown case was that the appellant and M had travelled from the Hutt Valley to Wellington. In Manners Street, they invited the victim and his associate (who had travelled to Wellington on the same bus as the offenders) to share a cannabis cigarette. The victim was not known to either offender. The four men walked to an alleyway and shared a cannabis cigarette. The victim and his associate then started walking back along the alleyway when the appellant tackled the victim rugby‑style from behind. He held the victim on the ground while M stomped, punched and kicked the victim. The appellant also punched the victim. The assailants took a cellphone and an iPod from the victim and that property was not recovered. The victim suffered significant injuries.

Aborting the earlier trial

Both men stood trial in the District Court at Wellington before Judge Tuohy and a jury in November 2012. M elected to give evidence. In that evidence, M raised an alibi defence for the first time. The victim’s associate had identified both the appellant and M as having been on a bus from the Hutt Valley with him earlier in the day of the robbery. M acknowledged that as correct. However, M said there was a third person with him and the appellant when they met the victim and his associate. M said that when the group went down the alleyway, he did not go with them, but got into a car with two friends (whom he named) and drove away immediately before the robbery must have taken place.
When M gave that evidence, Judge Tuohy adjourned the trial to give police a chance overnight to see what they could do with the new information. They were able to interview one of the two people named but not the other. The Judge also noted that M’s evidence had not been put to either of the relevant Crown witnesses, one of whom was the complainant. Counsel for the Crown asked the Judge to declare a mistrial. That was opposed by counsel for both accused. In particular, counsel…

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 Keepa v The Queen

Details

AGLC: Keepa v The Queen [2014] NZCA 79
Case: [2014] NZCA 79
Decision Date: 20 March 2014 at 2.30 pm

CaseChat Overview and Summary

William Kelvin Keepa appealed against his conviction for aggravated robbery, arguing that the trial judge improperly aborted the initial trial and misdirected the jury in the second trial. The Court of Appeal dismissed the appeal, holding that the judge properly exercised his discretion to abort the trial due to an unforeseen circumstance affecting the trial's fairness and that the jury directions were sufficient. The appellant and his co-offender were jointly charged with aggravated robbery. During the first trial, the co-offender unexpectedly presented an alibi defence, leading the judge to abort the trial. The appellant argued that the judge should have excluded the alibi evidence and continued the trial against him alone, but the court found that the judge's decision to abort the trial was a valid exercise of discretion. The court also rejected the appellant's claim that the judge misdirected the jury in the second trial by not specifically excluding certain text messages when considering the appellant's case. The court held that the jury's assessment of the victim's credibility was necessary for both defendants and that any potential misdirection did not result in a miscarriage of justice.

The appeal was dismissed, and the conviction was upheld.

Orders