Neketai v The Queen - [2014] NZCA 502

IN THE COURT OF APPEAL OF NEW ZEALAND

CA826/2013
[2014] NZCA 502

BETWEEN	WITERI AHOMIRO NEKETAI Appellant
AND	THE QUEEN Respondent

Hearing:	19 August 2014 (further submissions received on 5 September 2014)
Court:	O’Regan P, Simon France and Mallon JJ
Counsel:	C J Tennet for the Appellant P D Marshall for the Respondent
Judgment:	15 October 2014 at 10 am

JUDGMENT OF THE COURT

A The appeal against conviction is allowed.

B The conviction for murder is quashed.

C In its place a conviction for manslaughter is substituted.

D The sentence on the conviction for murder is quashed.

EMr Neketai is to be re-sentenced on the manslaughter conviction in the High Court by the trial Judge.

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REASONS OF THE COURT

(Given by Mallon J)

Introduction

Mr Neketai was convicted of murder following a jury trial before Brewer J at the High Court at Hamilton. He was sentenced to life imprisonment with a minimum period of imprisonment of 13 years.[1] He appeals his conviction contending that the only reasonable verdict was manslaughter. If he is unsuccessful in his conviction appeal, he also appeals against his sentence contending that the minimum period of imprisonment is manifestly excessive.

Background

[1]R v Neketai [2013] NZHC 2711.

Mr Neketai was instructed by an associate, who was in prison at the time, to collect a debt from the victim, Mr Kimura. Violence was planned. In a text message the associate proposed that Mr Neketai “hammer him 1st” then have a “good long talk” and Mr Neketai responded that “he deserves it best thing shut his fat ass dwn an clean him dwn”. Mr Neketai was a big, powerfully built man. There was evidence that he had some knowledge of kick-boxing and how to use his body to create power.
Mr Neketai enlisted two other associates, who went with him to Mr Kimura’s house. One of Mr Neketai’s associates knocked on the door and asked for him. Mr Kimura came outside to the front of his house. There he was confronted by Mr Neketai. There was a brief exchange. Mr Neketai then punched Mr Kimura in the face. Mr Kimura fell to the ground. His head smashed onto concrete. While Mr Kimura lay on the ground Mr Neketai kicked him in the face. They left Mr Kimura lying on the ground in an unresponsive state. Mr Kimura’s wife and daughter found him lying in a pool of blood struggling to breathe. He was taken to hospital.
After leaving the scene, Mr Neketai sent a number of texts. It was apparent from these texts that he was aware of the state in which he had left Mr Kimura. He described Mr Kimura as being “in a coma” and “a pool of blood”. He also said that Mr Kimura was “fckd cuzy n hospital myt b a vege dnt no yet….hahaha tha fat fucker”. The text messages also indicated that Mr Neketai viewed Mr Kimura as having “desrespectd bratha T an tha Club” and that…

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 Neketai v The Queen

Details

AGLC: Neketai v The Queen [2014] NZCA 502
Case: [2014] NZCA 502
Decision Date: 15 October 2014 at 10 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Mr. Neketai against his conviction and sentence for murder. The appeal against the conviction was allowed, the conviction for murder was quashed, and a conviction for manslaughter was substituted in its place. The sentence on the conviction for murder was quashed, and Mr. Neketai was to be re-sentenced on the manslaughter conviction in the High Court by the trial Judge. The appeal raised two main legal issues: whether the only reasonable verdict was manslaughter and, if not, whether the minimum period of imprisonment was manifestly excessive. The Court found that the evidence did not support a conviction for murder, as there was insufficient evidence to conclude that Mr. Neketai knew that the injury inflicted by the punch was likely to cause death. Additionally, there was no evidence that the kick was a cause of death. The Court concluded that the appeal must be allowed, and a substituted verdict of manslaughter was appropriate. Both counsel agreed that it was appropriate for Mr. Neketai to be re-sentenced by the trial Judge in the High Court.

The Court of Appeal reviewed the evidence and submissions from both parties, including the expert evidence from Dr. Morrow, a forensic pathologist. The Court found that the punch was the operative cause of Mr. Kimura's death, and there was no evidence to support that Mr. Neketai knew that the punch was likely to cause death. Additionally, the Court found that there was no evidence that the kick was a cause of death. The Court concluded that the only proper verdict was manslaughter, based on the punch causing death. The appeal against conviction was allowed, and the conviction for murder was quashed, with a conviction for manslaughter substituted in its place. The sentence for murder was quashed, and Mr. Neketai was to be re-sentenced on the manslaughter conviction in the High Court by the trial Judge.

Orders