Appeal allowed, new trial ordered for Epitaph Rider

Press, Volume CXV, Issue 33967, 7 October 1975, Page 2

Appeal allowed, new trial ordered for Epitaph Rider

(New Zealand Pre 3/ Association) WELLINGTON, October 6. The two sections in the Crimes Act dealing with selfdefence had been a source of concern to judges for many years, and should be replaced by some simpler form of legislation, Mr Justice Richmond said in a judgment delivered in the Court of Appeal today.

Juries must find the varying tests and distinctions laid down by the two sections quite incomprehensible, and would tend to deal with a case in a common sense way, his Honour said. Nigel Wayne Kerr had been found not guilty in the Christchurch Supreme Court of the murder of Gregory Slack, but guilty of manslaughter. The Court of Appeal allowed an appeal by Kerr against his conviction, which was quashed, and ordered a new trial on the charge of manslaughter only. The Court comprised Sir Thaddeus McCarthy (president), Mr Justice Richmond, and Mr Justice Cooke. Mr C. A. McVeigh, with him Mr S. P. Graham, appeared for Kerr, and Mr D. L. Mathieson for the Crown. No dispute “The sole ground of appeal against conviction is that the trial judge erred in declining to allow the question of selfdefence to be put to the jury. At the trial there was no dispute that the deceased, Slack, died as a result of a knife wound in the abdomen inflicted by the appellant,” the Court’s judgment, delivered by Mr Justice Richmond, said. “It is well settled that when a judge has to rule whether , there is sufficient evidence 1 to justify a defence of self-defence being submitted to a jury, he must consider the matter on the view of the evidence most favourable to the accused. There is, of course, no onus on an accused to establish such a de-

fence affirmatively, but he must be able to point to material in the evidence which could induce a reasonable doubt. “With the passage of time the common law has contented itself with the simple test whether the force which was used in self-defence was both reasonably necessary and no more than reasonably necessary. Gorge incident “This wounding took place in Fitzgerald Avenue, Christchurch, late in the afternoon of December 24, 1974. The background was that at that time there were two motorcycle gangs in Christchurch, one of which was called Epitaph Riders and the other the Devil’s Henchmen. The appellant was a member of the Epitaph Riders. “There had been an incident at Ashley Gorge on the previous Sunday, December 22, when, it was said, another member of the Epitaph Riders, whose name was Hopkins, had been attacked and severely beaten up by members of the Devil’s Henchmen. “It was also said that one of this latter gang had removed and taken the Epitaph Rider’s badge of insignia which Hopkins was wearing on his back. The appellant, both in his police statement and in evidence at the trial maintained that he was anxious to recover the badge which had been taken from Hopkins, this apparently being regarded as a matter affecting gang prestige. He believed that the .member of the Devil’s Henchmen who had removed the badge was a young man called Graham Stone who lived in a flat in Fitzgerald Avenue. “We feel sure that many juries must find the varying tests and distinctions laid down by Section 48 (1) 48 (2) and 49 of the Crimes Act quite incomprehensible, and further that in that situation they would tend to deal with the case in a common sense ■way. I “This question is in the

hands of the Criminal Law Reform Committee. It has been a source of concern to the judges for a considerable number of years,” his Honour added.