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Abraham v Police

Abraham v Police

Case [2018] NZHC 2685 17 October 2018

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ORDER PROHIBITING PUBLICATION OF A REQUEST FOR DISCHARGE WITHOUT CONVICTION (AT PARAGRAPHS [3], [20], [21] AND [39]

HEREIN) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

NOTE: PUBLICATION OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-485-61

[2018] NZHC 2685

BETWEEN
MARCUS AOTEA ABRAHAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 October 2018

Counsel:

J C Hughson for Appellant

T G Bain and M A Shaw for Respondent
T G H Smith for NZME. Publishing Limited

Judgment:

17 October 2018

JUDGMENT OF THOMAS J

ABRAHAM v NEW ZEALAND POLICE [2018] NZHC 2685 [17 October 2018]

[1] The appellant, Mr Abraham, is charged with one count of common assault.1 He now appeals the decision of Judge Tompkins declining to continue interim name suppression.2

Factual background

[2] The following are the allegations taken from the police summary of facts. The appellant and the complainant were in a relationship which ended in the days leading up to 21 April 2018. On that day, the appellant was asleep in bed. The complainant let herself into his house at 5.45 am and tried to wake him. He told her to leave. She got into his bed and went to sleep. She awoke and again tried to wake him. He pushed her, causing her to fall off the bed. The complainant kicked the appellant in the stomach and pushed him away. He then punched her to the right side of her forehead and left the address.

[3] The appellant maintains he acted in self-defence. He is, however, seeking a discharge without conviction in a sentence indication.

[4] Unknown to the District Court at the time name suppression was considered, the complainant allegedly broke into the appellant’s home on 19 August 2018 and assaulted the appellant, his flatmate and the police when they arrived to remove her. She has also allegedly continued a pattern of harassment against the appellant, including through text and social media messages, calls, messages left with mutual friends, and intercepting him at music concerts. The complainant is apparently being prosecuted in relation to some of this behaviour. The appellant applied for and was granted a without-notice protection order against the complainant on 3 September 2018.

[5] The appellant was, up until 22 April, the lead singer in a well-known Wellington band (the band). He was suspended from the band on account of the charge, other band members not wishing to bring the band into disrepute.

1 Crimes Act 1961, s 196, maximum penalty one year imprisonment.
2 Police v Abraham DC Hutt Valley CRI-2018-096-1277, 6 August 2018 (minute of Judge Tompkins).

[6] The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abraham v Police

Details

AGLC: Abraham v Police [2018] NZHC 2685
Case: [2018] NZHC 2685
Decision Date: 17 October 2018

CaseChat Overview and Summary

Marcus Abraham is appealing the decision of the District Court to lift interim name suppression. He argues that continuing the suppression is necessary to prevent extreme hardship to both himself and his former band, given the financial implications of his alleged involvement in domestic violence. The New Zealand Police oppose the appeal. The Court of Appeal must decide whether the appellant has made out the statutory criteria for extreme hardship under s 200 of the Criminal Procedure Act 2011.

The Court found that the appellant had not demonstrated extreme hardship to either himself or his former band. It noted that the appellant had already been publicly identified in connection with the allegations against him. Given the publicity already generated, the Court was of the view that suppression was futile. The Court was also of the view that the financial loss to the band was speculative and insufficient to meet the threshold of extreme hardship. Accordingly, the Court dismissed the appeal and made an order prohibiting publication of the request for discharge without conviction until final disposition of the trial. However, publication in a law report or law digest is permitted.

Orders