Ngatai-Check v R - [2011] NZCA 543

IN THE COURT OF APPEAL OF NEW ZEALAND

CA175/2011
[2011] NZCA 543

BETWEEN RIKKI LEIGH SCOTT NGATAI-CHECK
Appellant

AND THE QUEEN
Respondent

Hearing: 29 September 2011

Court: Harrison, Fogarty and Simon France JJ

Counsel: W Lawson and G Burt for Appellant
R J Collins for Respondent

Judgment: 27 October 2011 at 10.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

The appellant, Rikki Ngatai-Check, was found guilty of murdering Karl Perigo-Check following a trial before Williams J and a jury in the High Court. He was convicted and sentenced to a term of life imprisonment with a 17 year minimum period of imprisonment.[1]
[1] R v Ngatai-Check HC Wanganui CRI-2009-083-3155, 23 February 2011.
Mr Ngatai-Check appeals against his conviction. His counsel, Mr Lawson, relies on the grounds that at trial photographs were improperly admitted, a pathologist gave inadmissible evidence, and the prosecutor was guilty of misconduct in his closing address. He says that the trial miscarried as a result.
Mr Ngatai-Check appeals separately against the minimum period of imprisonment.

Facts

The material facts were not in significant dispute at trial.
Mr Ngatai-Check, who was then aged 22 years, was in a relationship with the mother of Karl Perigo-Check. Karl was then aged 2 years. On the day of his death, Karl’s mother left him in Mr Ngatai-Check’s care.
The circumstances leading to Karl’s death were summarised by Williams J when sentencing Mr Ngatai-Check as follows:
[7]       Early in the afternoon a woman visited, a friend of yours. Karl was fast asleep on the couch when she got there – she remembered that. You and your friend spotted cannabis oil and then she left. There is no argument but that you were stoned at that point.
[8]       Some time later Karl woke up. He had wet his pants and he left a puddle on the couch seat cover. You got angry; you grabbed him and swung him around away from the puddle. His torso hit the edge of a coffee table in the middle of the lounge. This collision broke Karl’s 8th and 9th ribs on the right-hand side near his spine. The broken ribs punctured Karl’s right lung and he began to bleed into his chest cavity.
[9]       You took him into the toilet in your flat and left him sitting there while you went back to playing video games on the bed in your bedroom next door.
[10]     After five to 10 minutes Karl walked into the bedroom carrying a line of toilet paper behind him.
[11]      This time you snapped completely. You sat up on the edge of the bed and kicked Karl roundhouse style in the stomach. Karl flew back towards the wardrobe door in your bedroom and he laid there on his side. The kick was so severe that it caused the internal tissue known as the ‘mesentery’ (we were advised during trial) to tear at a place called ‘the ileo-colic junction’. Such was your fury…

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 Ngatai-Check v R

Details

AGLC: Ngatai-Check v R [2011] NZCA 543
Case: [2011] NZCA 543
Decision Date: 27 October 2011

CaseChat Overview and Summary

Rikki Leigh Scott Ngatai-Check was convicted in the High Court of murdering Karl Perigo-Check. Karl was two years old at the time of his death. The appellant had been in a relationship with Karl’s mother and had been left in sole care of Karl on the day of his death. The Crown alleged that the appellant delivered two kicks to Karl, the second of which was fatal. The appellant was found guilty of murder and sentenced to life imprisonment with a minimum non-parole period of 17 years. The appellant appealed his conviction and sentence to the Court of Appeal of New Zealand. The Court of Appeal dismissed the appeal against conviction and sentence.

The appellant’s counsel submitted three grounds of appeal. The first was that the trial judge erred in admitting three post-mortem photographs of Karl. The Court of Appeal found that the photographs had a high degree of probative value and accordingly were admissible. The second ground of appeal was that the trial judge erred in not discharging the jury after a paediatric surgeon, Professor Kevin Pringle, gave evidence that the second kick was delivered “with venom.” The Court of Appeal held that the trial judge had exercised his discretion correctly in deciding not to discharge the jury and in directing the jury to disregard Professor Pringle’s comment. The third ground of appeal was that the Crown Solicitor was guilty of misconduct in his closing address to the jury. The Court of Appeal held that the Crown Solicitor had not acted improperly in his closing address. Finally, the appellant appealed against the minimum period of imprisonment of 17 years. The Court of Appeal held that the trial judge had not erred in imposing the statutory minimum period of imprisonment.

Orders