Kempson v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeKós P
Judgment Date18 December 2020
Neutral Citation[2020] NZCA 656
Docket NumberCA106/2020

[2020] NZCA 656

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Court:

Kós P, Cooper and Courtney JJ

CA106/2020

Between
Jesse Shane Kempson
Appellant
and
The Queen
Respondent
Counsel:

R S Reed QC and Y Y Wang for Appellant

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

Criminal Evidence, Criminal Sentence — appeal against conviction for murder and sentence of life imprisonment with a Minimum Period of Imprisonment of 17 years — the appellant was convicted of strangling a woman he met on a Tinder date — the appellant and victim had engaged in choking during sexual intercourse — propensity evidence — admissibility of probability evidence — issue of consent in relation to the charge of murder — Crimes Act 1961 — Sentencing Act 2002

The issues were: whether the Crown was not required to disprove consent (or an honest belief in it) as part of the s 167(b) CA charge; whether the Judge erred by failing to direct the jury adequately on propensity evidence; whether inadmissible probability evidence was before the jury giving rise to a miscarriage of justice and whether the Judge ended by finding that s104(1) Sentencing Act 2002 (“SA”) (imposition of minimum period of imprisonment of 17 years or more) was engaged.

The Court held the Crown was not required to disprove consent (or an honest belief in it) as part of the s167(b) CA (reckless murder) charge. By operation of s63 CA (consent to death), consent was unavailable as a matter of law where there was an intent to cause injury known to be likely to cause death, that risk was run, and death ensued.

The Judge was not required to give a negative propensity direction in respect of the evidence of one witness. The jury would have had no difficulty weighing that evidence and each party gained support from it: the Crown, that K was an experienced practitioner of erotic asphyxiation; the defence, that K behaved entirely appropriately with the victim.

The Judge's summing-up provided a clear summary of the competing expert opinions on the pathology evidence relating to cause and timing of death without offering detailed evaluation, analysis or endorsement given no issue of admissibility of the competing views had arisen. The evidence of a study of death arising from erotic asphyxiation in Poland was neither reliable nor relevant to a fact in issue and therefore should not have been put before the jury. Although no objection was taken to its use, it would have been preferable if a clear direction was given that it could not be used to deduce guilt on the basis of probabilistic reasoning. However, the admission of the evidence and failure to give such a direction had not given rise to a material risk of a miscarriage of justice as the proposition that death resulting from erotic asphyxiation was very rare was an accepted fact, the jury was not invited to use statistical probability reasoning to reach a finding of guilt.

Section 104(1) SA was engaged in two respects. The victim was particularly vulnerable, being intoxicated, in a strange apartment, naked, with a comparative stranger with whom she thought she could trust, and with his hands around her throat. The murder was committed with a high degree of callousness, having regard to K's attitude to the likely struggles of the victim and certain lapsing unconsciousness, failure to call for assistance, searching on the internet for methods of body disposal, looking at pornography online, taking intimate photographic images of the victim's naked body and going on another date while the victim's body remained in his room. Nor, in those circumstances, was the minimum term of 17 years manifestly unjust.

The appeal was dismissed.

  • A The appeal against conviction is dismissed.

  • B The appeal against sentence is dismissed.

  • C Unless extended by the Supreme Court, the suppression orders in favour of the appellant lapse with this judgment.

JUDGMENT OF THE COURT
REASONS OF THE COURT

(Given by Kós P)

TABLE OF CONTENTS

Para No

Summary of this judgment

[5]

Background

[12]

The appellant's account

[18]

Death, and denial

[21]

The trial

[36]

Issues

[39]

Issue 1: Did the Crown have to disprove consent (or an honest belief in it) as part of the s 167(b) (reckless murder) charge?

[41]

The ruling and summing-up

[43]

The Judge's question trail

[53]

Submissions

[55]

Analysis

[62]

Issue 2: Did the Judge's summing-up fail to direct adequately on propensity evidence?

[94]

Ms J's evidence

[95]

Ms W's and Ms M's evidence

[98]

Submissions

[105]

Analysis

[106]

Issue 3: Did the Judge's summing-up fail to direct adequately on the pathology evidence?

[110]

The cause of death

[111]

The summing-up

[122]

Submissions

[124]

Analysis

[127]

Issue 4: Was inadmissible probability evidence before the jury?

[133]

Evidence

[134]

Closing addresses

[138]

The summing-up

[140]

Submissions

[141]

Analysis

[144]

Issue 5: Was s 104 of the Sentencing Act 2002 engaged (and was the sentence imposed manifestly excessive)?

[153]

Sentencing

[156]

Submissions

[158]

Analysis

[161]

Result

[169]

1

A brief encounter; a date, with death its conclusion. A young woman, Grace Millane, died; a young man, the appellant, is now serving a life sentence for her murder. He accepts his actions caused her death. But he says he is not culpable of her murder.

2

The exact cause of death we consider later in this judgment, but it is accepted Ms Millane was strangled during sexual intercourse with the appellant. 1 On appeal at least, the Crown does not suggest he set out to kill Ms Millane. Rather, it says he intended to cause her bodily injury by strangulation, for sexual effect, knew that that was likely to cause death and consciously ran that risk. 2

3

Adopting the view most favourable to the appellant, it may be taken that the jury convicted him on that basis. Moore J sentenced him to life imprisonment with a minimum period to be served of 17 years' imprisonment. 3

4

This is an appeal against both conviction and sentence. The primary ground of appeal against conviction is that the Judge should have directed that the Crown had to disprove consent (or an honest belief in it) to obtain a conviction under s 167(b) of the Crimes Act 1961. Other conviction appeal grounds relate to the admission of probability evidence and the Judge's directions on expert and propensity evidence. The sentence appeal concerns the minimum term imposed. It is said the Judge should not have found s 104(1) of the Sentencing Act 2002 applied (compelling a minimum term of 17 years), and that the minimum term was therefore manifestly excessive.

Summary of this judgment
5

Before addressing the arguments in detail, we now provide a summary of the judgment as a whole.

6

First, the Court holds that the Crown was not required to disprove consent (or an honest belief in it) as part of the s 167(b) (reckless murder) charge on which it may be presumed the appellant was convicted. 4 Consent is not available as a matter of law where there is an intent to cause injury known to be likely to cause death, that risk is run, and death ensues. It follows the Judge did not err in removing consent from the jury other than in relation to manslaughter. 5 The Court also finds no credible narrative of consent, or honest belief in consent, established on the evidence.

7

Secondly, we find the Judge's summing-up directed the jury appropriately on propensity evidence. 6 This concerned the evidence of three witnesses who gave evidence as to the appellant's interest and/or experience with erotic asphyxiation during sexual intercourse. Two had had sexual intercourse with the appellant in the weeks before he met Ms Millane. One of these, Ms J, had been terrified by the appellant's suffocation of her and thought she was going to die. A second, Ms M, had the opposite experience and considered the appellant behaved appropriately in restricting her breath, by consent, to enhance her pleasure. We do not consider the Judge was required to give what is known as a negative propensity direction in respect of Ms M's evidence, or that a failure to do so in the context of this trial gave rise to a risk of a miscarriage of justice. The jury would have had no difficulty weighing that evidence and, as we note, each party gained support from it: the Crown, in that the appellant was an experienced practitioner of erotic asphyxiation; the defence, in that he behaved entirely appropriately with Ms M.

8

Thirdly, we find the Judge's summing-up also directed the jury appropriately on the pathology evidence. 7 Three experts were called in relation to this evidence, four potential mechanisms resulting in death were canvassed and the force and time required to effect each were explained and then tested in cross-examination. The summing-up provided a clear summary of the competing expert opinions on cause and time without offering detailed evaluation, analysis or endorsement, given no issue as to admissibility of the competing views had arisen. That was the proper course for the Judge to have taken.

9

Fourthly, evidence of a short study of death arising from erotic asphyxiation in Poland was put before the jury. 8 We consider the study neither reliable nor relevant to a fact in issue. It ought not to have been put before the jury or have been used in cross-examination of the expert witnesses. No objection was taken to its introduction or use at trial. It would have been preferable if a clear direction had been given that it could not be used to deduce guilt on the basis of probabilistic reasoning. However, we also find that its admission and the absence of such a direction did not give rise to a

material risk of a...

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4 cases
  • Jesse Shane Kempson v R
    • New Zealand
    • Supreme Court
    • 29 Junio 2021
    ...We extend the time for the making of the application for leave to appeal but dismiss the application. 1 R v K [2020] NZHC 233 (Moore J). 2 Kempson v R [2020] NZCA 656 (Kós P, Cooper and Courtney JJ) [CA 3 CA judgment, above n 2, at [84]. 4 At [91]. 5 R v Lee [2006] 3 NZLR 42 (CA). 6 CA jud......
  • Jesse Shane Kempson v R
    • New Zealand
    • Supreme Court
    • 22 Diciembre 2020
    ...2020. In that judgment, we ordered that name suppression continue until further order of the Court so that we 1 2 K (CA106/2020) v R [2020] NZCA 656. Kempson v R [2020] NZCA could address the application for leave to appeal.3 We also set a timetable for the making of submissions in relation......
  • Jesse Shane Kempson v R
    • New Zealand
    • Supreme Court
    • 29 Junio 2021
    ...states of mind are compendiously referred to as “murderous intent”. Culpable homicide which is not murder is manslaughter. 2 Kempson v R [2020] NZCA 656 (Kós P, Cooper and Courtney JJ) [CA Section 63 of the Crimes Act provides: 63 Consent to death No one has a right to consent to the inflic......
  • Jesse Shane Kempson v R
    • New Zealand
    • Supreme Court
    • 22 Diciembre 2020
    ...2020. In that judgment, we ordered that name suppression continue until further order of the Court so that we 1 2 K (CA106/2020) v R [2020] NZCA 656. Kempson v R [2020] NZCA could address the application for leave to appeal.3 We also set a timetable for the making of submissions in relation......

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