R v Kaienua - [2019] NZHC 1794

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF WITNESS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-5617

[2019] NZHC 1794

THE QUEEN

v

NGATAMA JAMES KAIENUA

Hearing: 15, 16, 17, 18 and 19 July 2019

Appearances:

B Dickey and L Fraser for the Crown S Tait and J Hudson for the Defendant

Verdict

29 July 2019

Reasons:

29 July 2019

REASONS FOR VERDICTS OF GAULT J

Solicitors:
Mr B Dickey and Mr L Fraser, Meredith Connell, Office of the Crown Solicitor, Auckland Mr S Tait and Mr J Hudson, Barristers, Auckland

R v KAIENUA [2019] NZHC 1794 [29 July 2019]

[1] Mr Siddhartha Patel and Mrs Gita Patel were stabbed in their family dairy in Grey Lynn, Auckland.

[2] Soon after 7:00 pm on 19 June 2018, a 16-year-old youth (Y1) entered the dairy, waited as other customers came and went, then moved behind the counter and began stabbing Mr Patel. His mother, Mrs Patel, was in her kitchen, out the back of the store. She saw the man close to her son behind the counter and came running. Mrs Patel was also stabbed.

[3] Mr Patel was stabbed in the front and side of his chest, and received other lacerations to his shoulder, head and hand. The stab wounds injured his hemi-diaphragm muscle between his chest cavity and abdomen, perforated part of his large intestine and lacerated his sternum and caused a collapsed lung. He required surgery twice and was in hospital for nearly six weeks. Mrs Patel was stabbed in the abdomen and the wound extended deeply into the edge of her rib cage.

[4] The Crown alleges Mr Kaienua and Y planned to carry out a robbery of the dairy with Y going in armed with a knife and Mr Kaienua waiting outside as a look-out. Mr Kaienua is charged, as a party, with assault (grievous bodily harm) with intent to rob and aggravated wounding. Y is not before this Court but the Crown must prove the offences to which Mr Kaienua is alleged to be a party. The defence does not dispute Y’s offending. The issues in Mr Kaienua’s trial relate to his knowledge, intention and actions.

[5] On the first morning before commencement of Mr Kaienua’s trial, I granted him leave to withdraw his election to be tried by jury. The trial proceeded as a judge alone trial and I reserved my decision.

Verdicts

[6]At a hearing today, I returned the following verdicts:

(a)On the charge of assault with intent to rob, Mr Kaienua is found guilty.

1 The youth has name suppression.

(b)On the charge of aggravated wounding, Mr Kaienua is found guilty.

[7]I am required to give reasons for my verdicts.2 These are my reasons.

Elements of each charge

Assault with intent to rob

[8]Section 236(1)(a) of the Crimes Act 1961 provides:

Every one is liable to imprisonment for a…

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 R v Kaienua

Details

AGLC: R v Kaienua [2019] NZHC 1794
Case: [2019] NZHC 1794
Decision Date: 29 July 2019

CaseChat Overview and Summary

The case of R v Kaienua involved a stabbing incident that occurred at a family dairy in Grey Lynn, Auckland, where Mr and Mrs Patel were attacked by a 16-year-old youth, Y1. Mr Kaienua, the defendant, was charged with assault with intent to rob and aggravated wounding as a party to the offences committed by Y1. The trial proceeded without a jury, and the judge delivered verdicts finding Mr Kaienua guilty on both charges. The court considered the Crown's evidence, including CCTV footage, forensic evidence, and witness testimonies, to establish the facts of the case. The judge concluded that Mr Kaienua was involved in encouraging the robbery and acting as a look-out, and that he knew Y1 had a knife. However, the judge could not be sure that Mr Kaienua knew Y1 intended to use the knife to cause grievous bodily harm or to wound Mrs Patel with the intent to facilitate flight. Nonetheless, the judge found that Mr Kaienua and Y1 had a common intention to rob the dairy with a knife as a weapon, which was clearly unlawful. Therefore, Mr Kaienua was held guilty of both charges as a party to the offences committed by Y1. The case highlights the importance of party liability in criminal law and the need to prove the essential elements of the charges beyond reasonable doubt.

Orders