R v Sila

Case [2009] NZCA 233 5 June 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA404/2008
[2009] NZCA 233
THE QUEEN
v
LIPENE SILA
Hearing:20 April 2009

Court:O'Regan, Hugh Williams and MacKenzie JJ
Counsel:P H B Hall and K H Cook for Appellant

B M Stanaway and A M Toohey for Crown

Judgment:5 June 2009 at 3 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
Table of Contents
Para No

Introduction  [1]
Grounds of appeal  [2]
Principal issues on appeal  [5]
Factual background  [6]
Ruling on self-defence and provocation  [15]
Should self-defence have been left to the jury?  [17]
      Ruling No 8  [20]
      When should self-defence be put to a jury?  [28]
      (a) Circumstances as Mr Sila believed them to be  [32]
      (b) In those circumstances, was Mr Sila acting in self-defence?       [40]
      (c) Was the force used reasonable in the perceived circumstances? [41]
Should provocation have been left to the jury?  [51]
      Ruling No 8  [53]
      The argument put forward on appeal  [55]
      Our analysis  [64]
Evidence as to Mr Sila’s boxing experience  [66]
Jury deliberation  [69]
Sentence appeal  [76]
Result  [88]~~[88]~~
Introduction
[1]        After a jury trial at the High Court in Christchurch, Mr Sila was convicted on two counts of murder and eight counts of causing grievous bodily harm with intent to cause grievous bodily harm. The trial Judge, Fogarty J, sentenced him to life imprisonment, with a minimum period of imprisonment of 17 years for the murder charges and lesser concurrent terms for the other charges. Mr Sila appeals against both conviction and sentence.
Grounds of appeal
[2]Mr Sila bases his appeal against conviction on three grounds:
(a)The trial Judge erred in fact and law by refusing to allow the defence of self-defence and the partial defence of provocation to be left to the jury;
(b)The trial Judge erred by permitting the Crown to lead evidence about Mr Sila’s boxing experience;
(c)The trial Judge implicitly encouraged or condoned a compromise verdict by allowing the jury to continue to deliberate after they indicated they had reached an impasse.

[3]        Other grounds mentioned in the notice of appeal were abandoned.
[4]        The sentence appeal is pursued on the basis that the minimum period of imprisonment was manifestly excessive.
Principal issues on appeal
[5]        The principal issues on appeal are whether the Judge ought to have allowed self-defence and/or provocation to be left to the jury. We will deal with the two defences separately.
Factual background
[6]        Before doing so, it is necessary to traverse the factual background. We endeavour to do so in neutral terms, but it is right to record that there were over 40 eyewitness accounts given at trial, which differed from each other in a number of respects. We will return to those conflicts later.
[7]        On 5 May 2007 a party was held at 95 Edgeware Road in the Christchurch suburb of St Albans. At approximately 10.30 pm, Mr Sila drove his brother, Ben Sila,…

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 Sila

Details

AGLC: R v Sila [2009] NZCA 233
Case: [2009] NZCA 233
Decision Date: 5 June 2009

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Lipene Sila appeals against his conviction and sentence for two counts of murder and eight counts of causing grievous bodily harm with intent. The trial judge, Fogarty J, convicted Mr Sila after a jury trial and sentenced him to life imprisonment with a minimum period of 17 years for the murder charges and lesser concurrent terms for the other charges. The primary issues on appeal are whether the trial judge ought to have allowed self-defence and/or provocation to be left to the jury. The Court found that the jury could not possibly think Mr Sila was responding reasonably to the circumstances as he perceived them, and that the trial judge was correct in ruling that neither defence was to be left with the jury. The Court also rejected the argument that the sentence was manifestly excessive, finding that the offending was extremely serious and the sentence was within the range available to the Judge. The appeal against conviction and sentence is dismissed.

Orders