Jesse Shane Kempson v R

• Jurisdiction: New Zealand
• Judge: William Young,Glazebrook,O'Regan JJ
• Judgment Date: 29 June 2021
• Neutral Citation: [2021] NZSC 74
• Docket Number: Sc 11/2021
• Court: Supreme Court

Between

Jesse Shane Kempson

Applicant

and

The Queen

Respondent

[2021] NZSC 74

Court:

William Young, Glazebrook and O'Regan JJ

Sc 11/2021

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Criminal — application for leave to appeal a conviction of murder — victim had died through manual pressure to her neck — erotic asphyxiation — consent and an assault with the intention of inflicting bodily injury known to be likely to cause death — culpable homicide — manslaughter — murderous intent — Crimes Act 1961

Counsel:

P J Shamy and S J Bird for Applicant

P D Marshall for Respondent

• A The application for an extension of time to apply for leave to appeal is granted.

• B The application for leave to appeal is dismissed.

JUDGMENT OF THE COURT

REASONS

The application for leave to appeal

1 Following trial in the High Court at Auckland, the applicant, Jesse Kempson, was found guilty of the murder of Grace Millane. He was later sentenced to life imprisonment with a minimum term of 17 years. 1 The Court of Appeal having

dismissed his appeal against conviction and sentence, 2 he now seeks leave to appeal to this Court in respect of his conviction. This application was filed late, but the delay in applying has been adequately explained

Overview of the facts

2 On 30 November 2018, Ms Millane matched with the applicant on Tinder. They met the next day at around 5.45 pm. At 9.40 pm, they entered the City Life building and took a lift to the floor of the applicant's apartment. What happened between 5.45 pm and 9.40 pm can be accurately reconstructed from CCTV footage, bar receipts and messages which Ms Millane sent to friends. During this period the applicant and Ms Millane appeared to be getting on well together and CCTV footage shows them kissing.

3 Between 9.40 pm on 1 December and 1.29 am the next morning, the applicant killed Ms Millane in his apartment. The 1.29 am time can be fixed by an internet search that the applicant made for “Waitakere Ranges” (which is where he later buried Ms Millane's body). Six minutes later, he searched “hotest [sic] fire”. There was no occasion for these searches unless Ms Millane was then dead. Between 1.46 and 1.49 am, the applicant took intimate photographs of Ms Millane's body. On 3 December 2018, he buried Ms Millane's body in the Waitakere Ranges.

The issues at trial

4 It was common ground at trial that the applicant brought about the death of Ms Millane by applying manual pressure to her neck.

5 Under the Crimes Act 1961, the killing of another person by an unlawful act is culpable homicide (s 160). Culpable homicide is murder if the offender intended either to kill the victim (s 167(a)) or to inflict bodily injury known to be likely to cause death with recklessness as to whether death results (167(b)). These states of mind are compendiously referred to as “murderous intent”. Culpable homicide which is not murder is manslaughter.

6 Section 63 of the Crimes Act provides:

63 Consent to death

No one has a right to consent to the infliction of death upon himself or herself; and, if any person is killed, the fact that he or she gave any such consent shall not affect the criminal responsibility of any person who is a party to the killing

7 At trial, the defence conceded that s 63 precluded consent as a defence to the intentional infliction of death, and thus to murder under s 167(a). But the defence wished the jury to consider a consent defence premised as follows:

There was, as well, a denial of murderous intent.

• (a) Ms Millane had consented to the manual pressure which was applied to her neck (and in any event the applicant believed she consented);

• (b) there was therefore no assault and thus no unlawful act with the result that the homicide was not culpable;

• (c) there being no culpable homicide, there could not be a conviction for murder under s 167(b).

8 The trial Judge held that if the jury were sure that the applicant had acted with murderous intent, consent was not available as a defence. He reached this conclusion primarily as a matter of public policy. But if the jury were not sure that the applicant had murderous intent, he considered consent could be a defence to manslaughter. He held that there was sufficient evidential basis for this to be left to the jury. His summing up and the written question trail he gave the jury proceeded on this basis.

The Court of Appeal judgment

9 For reasons which differed from those of the trial Judge and primarily turned on statutory interpretation, the Court of Appeal also concluded that consent was not a defence if murderous intent was established. 3 As well, the Court of Appeal held that there was no “credible narrative of consent or honest belief in consent”. 4 Although the Court of Appeal suggested that, in this respect, it was differing from the trial Judge, we see the difference as more apparent than real. The trial Judge's view that there was an evidential basis for consent to be left to the jury as to manslaughter was predicated on the assumption that the jury were not sure on murderous intent. In contradistinction, the Court of Appeal was dealing with consent after the verdict and thus on the basis that murderous intent had been established. The way in which that Court expressed itself makes it clear that it accepted the possibility that there may have been consent to manual pressure for reasons of sexual gratification. The essence of the reasoning was that such consent could not sensibly be taken to extend to an application of such pressure with murderous intent.

The factual merits of the defence

10 When first interviewed by the police, the applicant told a series of lies about his interactions with Ms Millane. On his narrative, he had little engagement with her and no involvement at all in relation to her death. At a second interview, he gave a somewhat more elaborate account in which he...