Cheeky Racing Pty Ltd v Terumi Iwagami and Jason Sanger

The High Court of New Zealand considered an appeal by Ms. Elizabeth Jane Cooney against her conviction for common assault under section 9 of the Summary Offences Act 1981. The appellant had been found guilty following a judge-alone trial. The court also considered an appeal against the judge's refusal to grant a discharge without conviction and the subsequent dismissal of an application for costs.

The legal issues before the High Court were whether the trial judge erred in her assessment of the evidence, leading to a miscarriage of justice, specifically concerning the conviction for assault. This involved determining whether the physical contact made by the appellant constituted an unlawful assault, or if it fell within the category of generally acceptable physical contact in ordinary daily life. Additionally, the court was required to consider whether, if the conviction were upheld, the consequences of a conviction were out of all proportion to the gravity of the offending, justifying a discharge without conviction.

The court allowed the appeal against conviction, finding that the appellant's touch of the complainant's arm was a fleeting act to gain attention, using no more force than reasonably necessary. Applying the principles from *Collins v Wilcock*, such contact is generally considered acceptable and not an unlawful assault. The court disagreed with the trial judge's assessment of the interaction as confrontational and hostile, viewing the appellant as polite and assertive. Consequently, the conviction was set aside. The court also indicated that, had it not allowed the appeal against conviction, it would have allowed the appeal against the refusal to discharge without conviction, finding the offending to be trivial and the consequences of conviction disproportionate.