King v R - [2011] NZCA 664

IN THE COURT OF APPEAL OF NEW ZEALAND

CA120/2011
[2011] NZCA 664

BETWEEN KEVIN ROBERT KING
Appellant

AND THE QUEEN
Respondent

Hearing: 7 November 2011

Court: Ellen France, Miller and Asher JJ

Counsel: G J King and L S Collins for Appellant
C L Mander and C A Brook for Respondent

Judgment: 20 December 2011 at 11.00 am

JUDGMENT OF THE COURT

A The appeal is allowed.

B The conviction is quashed.

C A retrial is ordered.

REASONS OF THE COURT

Miller and Asher JJ	[1]
Ellen France J (dissenting)	[50]

MILLER AND ASHER JJ
(Given by Asher J)

Introduction

Matthew Patrick Heagney died as a result of head injuries that he suffered when he fell to the ground while being removed from a bar by the appellant Kevin Robert King and others. Following a jury trial Mr King was convicted of the manslaughter of Mr Heagney. He appeals against that conviction.

A forcible removal

On 23 August 2009 Mr Heagney was 24 years old. Following a party that he had organised he went to the Shapeshifters bar in Blenheim shortly after 2.20 am. He went to join his girlfriend and he appears to have been in a somewhat emotional state. After being there about 15 minutes he left. Having gone outside he then changed his mind and decided to re-enter the bar. By then the bar had closed its doors to new entrants because of the late hour. Mr Heagney was refused re-entry. Nevertheless, he managed to slip past the bouncer and go inside for a short period before deciding again to leave. As he was on his way out he was recognised by the bouncer who had observed him slip past earlier. The bouncer confronted Mr Heagney with the intention of serving him with a trespass notice and something of an altercation ensued.
Mr King was the manager of the bar. He saw the confrontation unfold and went to assist the bouncer. He approached Mr Heagney from behind and pulled him backwards. The Crown case was that at this point Mr King applied a carotid hold to Mr Heagney’s neck which rendered him either unconscious or barely conscious. Mr King’s case was that no such hold was applied, although he accepted in his video interview that he held Mr Heagney at times around the neck.
A female bouncer Dewy Zuidema arrived to assist and the three staff lifted Mr Heagney and started to carry him out of the bar. As they exited the bar it was only Ms Zuidema and Mr King who were holding Mr Heagney. Mr King was walking forwards holding Mr Heagney’s upper body. On the way Mr Heagney lurched forward and Mr King hurt his back as he struggled to hold him.
Once outside Ms Zuidema and Mr King released Mr Heagney and he fell to the ground. There were various accounts by the witnesses of the exact circumstances of the releasing.
Whatever the circumstances of Mr King releasing Mr Heagney, there is no…

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 King v R

Details

AGLC: King v R [2011] NZCA 664
Case: [2011] NZCA 664
Decision Date: 20 December 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeal of Kevin Robert King against his conviction for manslaughter was heard and determined by Ellen France, Miller, and Asher JJ on 20 December 2011. The case arose from the death of Matthew Patrick Heagney, who suffered fatal head injuries after being removed from a bar by King and others. The primary legal issues addressed were whether the trial judge erred in directing the jury that unanimity on the cause of Heagney's death was not required, and whether the composite nature of the charge led to a substantial miscarriage of justice. The Court concluded that the trial judge should have directed the jury to be unanimous on the essential ingredients of the offence, specifically whether the carotid hold or the subsequent drop was the unlawful act causing death. Given the differing defences available for each act, the lack of unanimity could have prejudiced King. Therefore, the conviction was quashed, and a retrial was ordered. Ellen France J dissented, arguing that unanimity was not necessary as the scenarios presented by the Crown were not mutually inconsistent and related to the same act of dropping Heagney.

Orders