Keil v R

Case [2017] NZCA 563 5 December 2017

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA117/2017
[2017] NZCA 563

BETWEEN	LEVI JAMES KEIL Appellant
AND	THE QUEEN Respondent

CA201/2017
BETWEEN	JOSEPHINE JANE REO Appellant
AND	THE QUEEN Respondent

CA211/2017
BETWEEN	IVORY JUNIOR PHILLIP MAURICE PAUL Appellant
AND	THE QUEEN Respondent

Hearing:	24 October 2017
Court:	Kós P, Harrison and Gilbert JJ
Counsel:	E R Fairbrother QC and G M Fairbrother for Appellant (CA117/2017) A M Simperingham and M J Lynch for Appellant (CA201/2017) N P Chisnall for Appellant (CA211/2017) J C Pike QC for Respondent
Judgment:	5 December 2017 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal against conviction (CA117/2017) is dismissed.

B The appeal against conviction (CA201/2017) is dismissed.

C The appeal against conviction (CA211/2017) is dismissed.

D The appeal against sentence (CA211/2017) is dismissed.

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REASONS OF THE COURT

(Given by Harrison J)

Following a trial before Judge Cathcart and a jury in the District Court at Gisborne, the appellants Levi Keil and Ivory Paul were found guilty of wounding Boyce Taumata with the intent to cause him grievous bodily harm.[1] Mr Keil was found guilty of an additional charge of injuring Dio Haronga, Mr Taumata’s son, with intent to cause him grievous bodily harm.[2] Mr Keil’s partner, Josephine Reo, the third appellant, was also found guilty on this latter charge. All three were convicted. Messrs Keil and Paul were sentenced to terms of five years’ imprisonment and four years and three months’ imprisonment respectively;[3] and Ms Reo was sentenced to seven-and-a-half months’ home detention.[4]
[1]Crimes Act 1961, s 188(1).
[2]Section 189(1).
[3]R v Keil [2017] NZDC 2674 at [59]; and R v Paul [2017] NZDC 5943 at [21].
[4]R v Paul, above n 3, at [25].
All three appeal against conviction. Only Mr Paul appeals against sentence.
The conviction appeals raise an issue about the availability of self-defence where multiple parties are charged with offending. Unreasonableness of the verdicts is also raised as a ground of appeal.

Facts

On 18 August 2015 Messrs Taumata and Haronga allegedly assaulted three of the appellants’ close relatives, including Mr Keil’s father at whose farm near Nuhaka they were attending a birthday celebration. The next day the appellants and six others drove some 17 kilometres in two cars to the rural property occupied by Messrs Taumata and Haronga. One car was driven by Ms Reo. Group members were armed with two wooden baseball bats, a wheel brace, a crow bar and other implements.
The group parked the two vehicles in the driveway to Mr Taumata’s property. They walked together onto the property carrying weapons. They encountered Mr Haronga who was then unarmed. They attacked him with their weapons and fists. Mr Taumata, who was sleeping in a house bus on the property, was woken by a family member. He was beaten about the head and body when he emerged to confront the group. At a later stage Mr Haronga armed himself with a slug gun and a tomahawk, and Mr Taumata armed himself…

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 Keil v R

Details

AGLC: Keil v The Queen [2017] NZCA 563
Case: [2017] NZCA 563
Decision Date: 5 December 2017

CaseChat Overview and Summary

The three appellants, Levi Keil, Ivory Paul and Josephine Reo, appeal against their convictions for offences relating to the wounding of Boyce Taumata and the injuring of Dio Haronga with intent to cause them grievous bodily harm. Mr Paul also appeals against his sentence. The appeal against conviction raises issues about the availability of self-defence where multiple parties are charged with offending and unreasonableness of the verdicts. The appeal against sentence focuses on whether the Judge erred in failing to discount sufficiently the cultural and mitigating factors presented in the s 27 report. The appeal against conviction is dismissed and the appeal against sentence is dismissed.

In relation to the appeal against conviction, the Court found that the Judge was correct not to allow self-defence to go to the jury even if his reasons were wrong. The Judge's erroneous hypothetical directions related to a defence which was never available to any defendant and therefore could not have materially affected the result. The jury's verdicts against each appellant were found to be discrete and reasonable. Finally, the appeal against sentence was dismissed because the Judge had given appropriate weight to Mr Paul's s 27 report within the overall scheme of the Sentencing Act and the sentence imposed was not manifestly excessive or wrong in principle.

Orders