Kiri v The Queen - [2021] NZCA 155

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA633/2020
[2021] NZCA 155

BETWEEN	RAWIRI TAKUIRA KIRI Appellant
AND	THE QUEEN Respondent

Hearing:	16 March 2021
Court:	French, Ellis and Muir JJ
Counsel:	A J McKenzie for Appellant B F Fenton for Respondent
Judgment:	3 May 2021 at 9 am

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by French J)

Introduction

Following a District Court jury trial, Mr Rawiri Kiri was found guilty of being a secondary party under s 66(2) of the Crimes Act 1961 to an offence of injuring with intent to cause grievous bodily harm.[1]
[1]Crimes Act 1961, s 189(1).
The presiding Judge, Judge Garland, sentenced Mr Kiri to a term of imprisonment of three years and seven months.[2]
[2]R v Kiri [2020] NZDC 21748 [Sentencing notes].
Mr Kiri now appeals both his conviction and sentence.

Background

The key factual allegations of the Crown case

The complainant’s partner had sold a member of the Kiri family a cell phone that turned out to be faulty.
On 7 October 2019, Rawiri Kiri and his brother Lee Kiri travelled along with other members of the Kiri family to the complainant’s address. They were both wearing gang patches and colours. On arrival at the address, Rawiri Kiri got out first carrying a baseball bat. As they walked up the driveway, he handed Lee the baseball bat.
Lee Kiri entered the house and demanded to know the whereabouts of the girls who had “ripped [him] off”. The complainant approached and said the girls were not there. He gave Lee $15 and a small bag of cannabis indicating that was what had been received for the phone. Lee swung the bat at the complainant. The first swing missed and hit the doorframe. The second swing missed again.
The complainant then picked up a hammer and chased Lee outside. Rawiri who had remained outside the whole time advanced towards them. Lee swung the baseball bat at the complainant’s head. The complainant raised his hand to protect himself. The bat struck his elbow, fracturing it.
The brothers then returned to the vehicle and left. They were stopped soon afterwards by police. When the vehicle was searched, police found a baseball bat and a firearm.

The history of the charges

The brothers were initially jointly charged with aggravated robbery and unlawful possession of a firearm.
Both men entered pleas of not guilty to all charges.
In May 2020, there was a sentencing indication based on a proposed plea deal whereby Lee would only be charged with injuring with intent to cause grievous bodily harm and Rawiri would be charged with presenting a prohibited firearm.[3]
[3]There was a suggestion in some of the witness statements that a person had been seen carrying a firearm.
On 15 May 2020, Lee accepted the sentencing indication and pleaded guilty to injuring with intent to cause grievous bodily harm.…

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 Kiri v The Queen

Details

AGLC: Kiri v The Queen [2021] NZCA 155
Case: [2021] NZCA 155
Decision Date: 3 May 2021 at 9 am

CaseChat Overview and Summary

In this appeal, Rawiri Kiri challenged both his conviction and sentence for being a secondary party to the offence of injuring with intent to cause grievous bodily harm. The case arose from an incident in which Mr Kiri and his brother Lee Kiri went to the complainant's house to confront him about a faulty cell phone they had previously purchased. A physical altercation ensued, resulting in the complainant sustaining a fractured elbow when Lee struck him with a baseball bat. The jury acquitted Mr Kiri of the firearms charge but found him guilty of being a secondary party to Lee's offence. The appeal against conviction centred on the Judge's response to a jury question regarding the common purpose required to establish secondary liability under s 66(2) of the Crimes Act. The Court of Appeal held that the Judge's response was correct as a matter of law, and while the prosecution's formulation of the common purpose may have been overstated, it did not result in unfair prejudice to Mr Kiri. Regarding the appeal against sentence, the Court found that the starting point adopted by the Judge was appropriate, and the final sentence was not manifestly excessive.

Final orders: The appeal against conviction is dismissed. The appeal against sentence is dismissed.

Orders