R v Williams CA512/95 [1996] NZCA 248 (29 March 1996)

Last Updated: 21 January 2019

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.512/95}

THE QUEEN

v

_{KELVIN JOHN WILLIAMS}

Coram: McKay J Thomas J Temm J

Judgment: 29 March 1996 (ex parte)

_{JUDGMENT OF THE COURT DELIVERED BY McKAY J}

Kelvin John Williams appeals against his conviction of murder. He had admitted striking the victim, knocking him to the ground and then kicking him several times in the head. He denied intending to kill. The only issue in the trial was the proof of murderous intent.

Two grounds were put forward in support of the appeal. The first was that the verdict was unreasonable having regard to the evidence, particular evidence as to the appellant's actions following the victim's death. There was evidence as to the cause of the victim's death and the force necessary to inflict the fatal injury and other injuries. It was open to the jury to infer the requisite intent from that evidence. The evidence of subsequent conduct by the appellant is not inconsistent with the jury's finding that at the time of the admitted fight and the admitted kicking of the victim in the head while on the ground the appellant had the intent required by section 167(a)

or (b) of the Crimes Act 1961. Culpable homicide is murder if the offender means to cause the death of the person killed, or means to cause that person any bodily harm that is likely to cause death, and is reckless whether death ensues or not.

The second ground put forward was miscarriage of justice in that part of a videotaped interview of the appellant by the police disclosed his previous convictions and previous imprisonment. This information would not have been material in the context of the trial, however, where the only issue was the question of intent.

The appellant was refused legal aid after the file had been perused by three members of the Court, who were of the view that the grounds of appeal did not show an arguable case. The appellant was given the opportunity to lodge submissions in writing, and has done so. These submissions have been considered by the Court as at present constituted.

In his submissions, the appellant claims first that there was too much doubt for the jury to have been satisfied of guilt beyond reasonable doubt. There was, however, sufficient evidence for them to properly reach that conclusion. The assessment of the evidence was a matter for the jury, and it cannot be said that there was insufficient evidence to support the verdict. The appellant next refers to another case where he says a man was originally charged with the murder of his wife by stabbing. Apparently the murder charge was not pursued, and this caused a public outcry. The appellant claims that this put public pressure on the jury in his case. There is no basis, however, for suggesting that the jury were influenced by any such pressure. They would have received the usual direction to decide the case on the evidence before them and to ignore extraneous matters. There is no criticism of the summing up.

Next it is said that the victim died from loss of blood due to a rupture of the liver, but out of three pathologists none had previously encountered a homicide involving this injury. The pathologists were not, however, unfamiliar with deaths caused by similar injuries, for example, in a head on motor collision. The jury was entitled to accept the evidence of the pathologists, including the pathologist called by the defence, that such an injury could be caused by a kick and would be fatal. The fourth matter raised was the disclosure of previous convictions, but this could not have been material in this case. The fifth submission raises provocation, but that was a matter for the jury, if it was raised as a defence at the trial. Sixthly, the appellant claims that the evidence showed he was unaware until the next day that the victim had died, and so death could not have been premeditated. Premeditation is not, however, a necessary element in murder.

Finally, the appellant says it was not proved that he was aware that the kick delivered in the dark to the victim while he was standing was likely to cause death. This was a question for the jury. In the event, they were satisfied that the appellant either meant to cause death, or meant to cause bodily harm likely to cause death, being reckless whether death ensued or not. There was evidence on which that conclusion was open to them.

No grounds have been shown which would justify this Court in interfering with the jury's verdict, or which would suggest that the trial was in any way unfair. The appeal is dismissed.