R v Kingsbeer - [2007] NZCA 300

THE JUDGMENT AND REASONS THEREFOR ARE NOT TO BE PUBLISHED IN THE NEWS MEDIA OR ON THE INTERNET OR IN ANY OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA352/06 [2007] NZCA 300

THE QUEEN

v

ALWYN KINGSBEER

Hearing: 11 June 2007
Court: Ellen France, Ronald Young and Keane JJ Counsel: N Levy for Appellant
M F Laracy for Crown

Judgment: 11 July 2007

Reasons: 19 July 2007

JUDGMENT OF THE COURT

R V KINGSBEER CA CA352/06 11 July 2007

AThe appeal is allowed to the extent that the convictions on counts three and four are quashed.

B A retrial is ordered on counts three and four.

CThe concurrent sentences of 18 months imprisonment on each of the assault charges (counts two, five and six) are affirmed.

E Bail with respect to counts three and four is to be dealt with in the

District Court.

FThe judgment and reasons therefor are not to be published in the news media or on the internet or in any other publicly accessible database until final disposition of trial. Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] In a judgment delivered on 11 July 2007 we allowed the appeal in part and we now give our reasons.

[2] The appellant was convicted after trial of various charges arising out of a number of injuries to a boy, J. The incidents giving rise to the charges occurred over a one month period in June and July 2006 during which J’s mother and the appellant lived together with J.

[3] The most serious of the charges, sexual violation by unlawful sexual connection, arose from one incident in which J was found with a pen inserted some three to four centimetres into his anus (count four). Counts two, five and six

involved a series of assaults on J in the course of which his head was flushed in the toilet, his face rubbed on a carpet, and his ears and face were bruised. Count three, assault with a weapon, arose from an incident in which J had a map pin inserted into his penis. The appellant was acquitted of a further charge of assault (count one).

[4] The appellant appeals against his convictions. There are two grounds of appeal, namely:

(a)The verdicts on the counts of sexual violation and assault with a weapon are unsafe because relevant evidence was not called for the defence; and

(b)A propensity warning should have been given. This ground affects all of the convictions.

The first issue: failure to call expert evidence

[5] The issue under the first ground of appeal is whether a miscarriage has arisen because of trial counsel’s approach to the expert evidence.

[6] Prior to the trial, the defence decided not to call its…

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 Kingsbeer

Details

AGLC: R v Kingsbeer [2007] NZCA 300
Case: [2007] NZCA 300
Decision Date: 19 July 2007

CaseChat Overview and Summary

The appellant, Alwyn Kingsbeer, appealed his convictions on various charges, including sexual violation by unlawful sexual connection, assault with a weapon, and multiple counts of assault on a child. The charges arose from incidents involving a young boy, J, over a month in 2006. The appeal was heard by the Court of Appeal of New Zealand, and the court issued its judgment on 19 July 2007. The appeal was partially allowed, and the convictions on counts three and four were quashed. A retrial was ordered on these counts, while the concurrent sentences of 18 months imprisonment on the assault charges were affirmed. Bail with respect to counts three and four was to be dealt with in the District Court.

The court identified two main issues in the appeal: (a) whether the verdicts on the counts of sexual violation and assault with a weapon were unsafe due to the failure to call expert evidence, and (b) whether a propensity warning should have been given, affecting all of the convictions. The court found that trial counsel's failure to call expert evidence when the Crown expert's evidence changed at trial led to a miscarriage of justice. The court held that trial counsel should have consulted the appellant about the changed evidence and the potential impact on the case. The court concluded that the failure to do so led to a miscarriage of justice and ordered a retrial on counts three and four.

Regarding the second issue, the court found that the trial judge's summing up adequately directed the jury against propensity reasoning, and no further direction was necessary. The court concluded that the jury had been properly directed and found no merit in the appellant's argument that the directions allowed propensity reasoning.

The court affirmed the concurrent sentences of 18 months imprisonment on the assault charges, as the appellant had already served half the sentence. The court also ordered that the judgment and reasons therefor are not to be published in the news media or on the Internet until the final disposition of the trial, but publication in law reports or digests was permitted.

Orders