Jesse Shane Kempson v R

• Jurisdiction: New Zealand
• Judge: Winkelmann CJ,William Young,O'Regan JJ
• Judgment Date: 22 December 2020
• Neutral Citation: [2020] NZSC 158
• Docket Number: SC 111/2020
• Court: Supreme Court

Between

Jesse Shane Kempson

Applicant

and

The Queen

Respondent

[2020] NZSC 158

Court:

Winkelmann CJ, William Young and O'Regan JJ

SC 111/2020

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Criminal Procedure — application for leave to appeal against a decision of the Court of Appeal which held that the applicant's name suppression should lapse — the applicant had been convicted of murder — name suppression had been granted because he faced two other trials which had taken place — the applicant sought continued name suppression on the ground he intended to appeal to the Court of Appeal dismissing his appeal to that Court against his conviction for murder — Criminal Procedure Act 2011 — Senior Courts Act 2016

Counsel:

T M Cooper for Applicant

B H Dickey, R M A McCoubrey and O S Klinkum for Respondent

R K P Stewart for Discovery NZ Ltd, NZME Publishing Ltd, Radio New Zealand Ltd, Stuff Ltd and Television New Zealand Ltd

The application for leave to appeal is dismissed.

JUDGMENT OF THE COURT

REASONS

1 The applicant was convicted of the murder of Ms Grace Millane after a jury trial in November 2019. His name was suppressed because he faced two other trials. At the time, it was anticipated those other trials would be jury trials. As it transpired, the applicant elected trial by judge alone on those other matters. Both trials have now taken place. After the first of those trials in October 2020, the applicant was convicted of threatening to kill, assault with a weapon (two charges), male assaults female (three charges) and sexual violation by unlawful sexual connection (two charges). The victim was a former partner, K. After the second trial in November 2020, he was convicted of the rape of O, a woman he met on the dating app, Tinder.

2 The applicant's appeal against his murder conviction and sentence was dismissed by the Court of Appeal on 18 December 2020. 1 Prior to the issue of its decision, the Court of Appeal advised counsel that the judgment would order that his name suppression in relation to all matters would lapse when that judgment was delivered.

3 The applicant then applied to the Court of Appeal for an order continuing the suppression of his name after the release of that Court's judgment on the murder appeal. In a judgment issued on 17 December 2020, the Court of Appeal refused to make an order continuing the suppression of the applicant's name. 2 We will call this the suppression decision.

4 The applicant then sought leave to appeal to this Court against the suppression decision and also sought an interim order suppressing his name until that application for leave to appeal was dealt with.

5 The applicant's counsel, Ms Cooper, has informed the Court that the applicant also intends to apply to this Court for leave to appeal against the decision of the Court of Appeal dismissing his appeal to that Court against his conviction for the murder of Ms Millane. He has appealed to the Court of Appeal against his October and November convictions and sentences.

6 We dealt with the applicant's application for an interim order suppressing his name pending determination of his application for leave to appeal against the suppression decision in a judgment issued on 18 December 2020. In that judgment, we ordered that name suppression continue until further order of the Court so that we

could address the application for leave to appeal. 3 We also set a timetable for the making of submissions in relation to that application for leave to appeal

7 We have now received and considered those submissions and, in this judgment, we deal with the application for leave to appeal against the suppression decision.

8 The application for leave to appeal to this Court is made under s 285(1)(b) of the Criminal Procedure Act 2011, which applies when this Court is the first appeal court under s 284 of that Act. 4 The criteria for leave to appeal to this Court are set out in s 74 of the Senior Courts Act 2016. The relevant provisions of that section are s 74(1) and (2), which provide:

74 Criteria for leave to appeal

(1) The Supreme Court must not give leave to appeal to it unless it is satisfied that it is necessary in the interests of justice for the court to hear and determine the appeal.

(2) It is necessary in the interests of justice for the Supreme Court to hear and determine a proposed appeal if—

• (a) the appeal...