R v Keil - [2017] NZHC 2221

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-9701

[2017] NZHC 2221

THE QUEEN

v

DUANE ROGER KEIL

TRAVIS JAMES SADLER TE HERE MAIHI MAAKA

Hearing: 16 August 2017

Counsel:

B M Finn for Crown

T A Fitzgibbon for Keil

S Lack (on instructions from R M Mansfield) for Sadler A J Maxwell-Scott for Maaka

Judgment:

14 September 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 14 September 2017 at 2:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

R v KEIL & ORS [2017] NZHC 2221 [14 September 2017]

Introduction

[1] The Crown alleges that a prison guard, Mr Faapoi, smuggled contraband into Mt Eden Prison. The case is that Mr Faapoi was paid to do this by or on behalf of the prisoners who received the contraband.

[2] Among those charged for being involved in the smuggling operation are Mr Keil, Mr Sadler and Mr Maaka. However, they say there is insufficient evidence to put them on trial. This Judgment decides their applications to be discharged.

Discharge

[3] Section 147(1) of the Criminal Procedure Act 2011 empowers the Court to dismiss a charge before trial. One reason for doing so is if a Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.1

[4] In this case, the defendants contend that there simply is not enough evidence in relation to the particular charges they face to permit a properly directed jury to reasonably convict them.

[5] There is an oft quoted passage in the Court of Appeal’s judgment in Parris v Attorney-General which discusses the role of the Court when an application for discharge for insufficiency of evidence is made:2
[14] It is vital, however, to appreciate the proper compass of the word “reasonably” in this context. The test must be administered pretrial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear-cut in favour of the accused, it should be left for the jury to decide. If there is a conviction this Court on appeal has the reserve power to intervene on evidentiary grounds. The constitutional divide between trial Judge (law) and jury (fact) mandates that trial Judges intervene in the factual area only when, as a matter of law, the evidence is clearly such that the jury could not reasonably convict or any such…

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 Keil

Details

AGLC: R v Keil [2017] NZHC 2221
Case: [2017] NZHC 2221
Decision Date: 14 September 2017

CaseChat Overview and Summary

Duane Roger Keil, Travis James Sadler and Te Here Maihi Maaka were charged with offences relating to the smuggling of contraband into Mt Eden Prison. They applied to be discharged on the basis that there was no evidence upon which a jury could convict them. The Crown alleged that the defendants were involved in a joint enterprise to smuggle contraband into the prison. They sought to rely on intercepted communications between the defendants and other people to prove the case. The defendants argued that there was no evidence that they knew that an official would be the smuggler and that the intercepted communications were inadmissible. The court considered whether there was evidence upon which a properly directed jury could convict the defendants. The court held that there was reasonable evidence of a joint enterprise to smuggle contraband into the prison. There was evidence that the defendants were members of the joint enterprise and that they were aware that an official would be the smuggler. The applications of Keil and Sadler were dismissed. The application of Maaka was allowed because there was no evidence that he knew that an official would be the smuggler.

Orders