R v Karaitiana - [2007] NZCA 47

ORDER: NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF NEW TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST
PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA201/06 [2007] NZCA 47

THE QUEEN

v

KILEY GALVIN KARAITIANA

Hearing: 22 February 2007
Court: Chambers, Chisholm and MacKenzie JJ Counsel: G J King and T D Sagaga for Appellant
P K Feltham for Crown

Judgment: 6 March 2007 at 11 am

JUDGMENT OF THE COURT

A The appeal is allowed.

B The conviction is quashed.

CA new trial is directed on the charge on which the appellant was convicted.

DAn order is made that the reasons for judgment are not to be published in the news media or on the Internet or in any publicly accessible

R V KARAITIANA CA CA201/06 6 March 2007

database until completion of the new trial. Publication in a law report or

law digest is, however, permitted.

REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

[1] The appellant was tried in the District Court at Palmerston North before

Judge Garland and a jury on three counts arising out of an incident at Dannevirke on

5 June 2005:

(a) Possession of an offensive weapon;

(b)Causing grievous bodily harm, with intent to cause grievous bodily harm, to Manuel Waihape;

(c) Wounding Nicholas Pene with intent to injure him.

The appellant was acquitted on the first and third counts, and convicted on the second. He was sentenced to seven years’ imprisonment, with a minimum term of three and a half years. He appeals against both conviction and sentence.

[2] The appeal against conviction raises three grounds:

(a)the verdict was unreasonable and cannot be supported having regard to the evidence;

(b) the verdicts were inconsistent and/or compromised;

(c) the Judge misdirected the jury as to, or failed to put to the jury, available defences.

The appeal against sentence is on the grounds that the sentence was manifestly excessive, and that no minimum non-parole period should have been imposed.

The Crown case

[3] On the morning of Sunday, 5 June 2005, the appellant went to the Dannevirke domain to speak to Mr Waihape’s 13 year old son about some property which the appellant believed the son had stolen. The appellant assaulted the son (an action for which he was subsequently convicted). He then took the boy home and told the boy’s mother (the appellant’s aunt) what had happened. Mr Waihape appeared and was advised of what had happened. Mr Waihape and a neighbour, Mr Pene, accompanied the boy and his mother to hospital, but Mr Waihape then asked Mr Pene to drive him to the appellant’s home to speak to the appellant. The appellant was waiting on the front lawn with an axe when Mr Waihape and Mr Pene arrived; Mr Waihape chased the appellant but was unable to catch him; Mr Pene picked up a child’s bicycle, which he used to dodge the axe which the appellant was swinging. The evidence…

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 Karaitiana

Details

AGLC: R v Karaitiana [2007] NZCA 47
Case: [2007] NZCA 47
Decision Date: 6 March 2007

CaseChat Overview and Summary

The appellant, Kiley Galvin Karaitiana, appealed against his conviction and sentence in the Court of Appeal of New Zealand. Karaitiana was convicted of causing grievous bodily harm, with intent, to Manuel Waihape, but acquitted of possession of an offensive weapon and wounding Nicholas Pene with intent to injure him. The appeal raised issues regarding the reasonableness of the verdict, the consistency of the verdicts, and alleged misdirections regarding available defences. The appeal also challenged the excessiveness of the sentence and the imposition of a minimum non-parole period.

The court considered the evidence presented in the Crown case and the arguments raised by Karaitiana's counsel. The Crown's case involved an incident on 5 June 2005, in which Karaitiana assaulted Manuel Waihape's son, then engaged in a confrontation with Waihape and Pene, during which Waihape was struck with a hammer and Pene was struck with a hammer while attempting to defend himself with a child's bicycle. The court noted that the various accounts of the incident differed in some details but did not require a detailed examination of those differences.

The court found that the verdict was supported by the evidence, as the jury could reasonably conclude that self-defence was not available, or that the force used by Karaitiana was unreasonable. The court also found that the inconsistent verdicts could be reasonably explained, as the three counts related to separate actions of the accused and events at different locations. However, the court did find that the judge misdirected the jury as to the available defences, specifically the defence of another and defence of a dwellinghouse, pursuant to sections 48 and 55 of the Crimes Act 1961. The court concluded that the appellant's evidence created a plausible narrative that required the Crown to exclude the possibility that Karaitiana was acting in defence of his son. The court found that separate consideration of defence of a dwellinghouse was not required, as the incident had already concluded by the time the blow was struck.

As a result, the appeal against conviction was allowed in relation to the defence of another issue, and the conviction was set aside. A new trial was ordered, making it unnecessary to consider the appeal against sentence. The court ordered that the reasons for judgment were not to be published in the news media, on the internet, or in any publicly accessible database until completion of the new trial, but publication in a law report or law digest was permitted.

Orders