Awatere v Police - [2019] NZHC 194

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI 2018-485-77

[2019] NZHC 194

BETWEEN
CHRISTINA WHILIMINA AWATERE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 February 2019

Counsel:

C Thorburn and T Luders for Appellant T G Bain for Respondent

Judgment:

18 February 2019

JUDGMENT OF SIMON FRANCE J

[1] Ms Awatere appeals her conviction for common assault, it being alleged she spat at the victim during an altercation over a disability parking space.1 Difficulties with the Court’s recording system means that part of Ms Awatere’s evidence, and the Judge’s oral reasons, were not recorded.

[2] Counsel are agreed that the authorities make it plain the imperfect written record does not mean the appeal must be allowed.2 It remains necessary to show an irregularity or error.

1 New Zealand Police v Awatere CRI-2018-096-000527, trial commencing 08 October 2018. The charge was originally Crimes Act assault. At the Judge’s invitation, prior to delivering the decision, the charge was amended to Summary Offences Act assault.
2 Kingi v R [2016] NZCA 160.

AWATERE v NZ POLICE [2019] NZHC 194 [18 February 2019]

[3] In the present case the prosecutor took a written note of the decision. It is accepted by the parties that it is an accurate albeit incomplete record. As for Ms Awatere’s evidence, she made a recorded statement to the police which was available at trial. Such of her evidence-in-chief as was recorded is consistent with what she told the police. I will proceed on the basis that under cross-examination she remained consistent in her version of events, and no significant damage was wrought through cross-examination.

Facts

[4] Ms Awatere and her partner were parked in a manner that obstructed part of a disability parking space. It seems the positioning of their car, in an adjacent park, was the product of how other people had parked, thereby rendering unusable part of the general parking space adjacent to the disability space.

[5] When Ms Awatere and her partner returned to their car, they encountered the complainant’s son videoing the situation. He was using his cellphone. An altercation ensued. It became heated, then quietened, and then a comment provoked anger in Ms Awatere. She unleashed a verbal barrage at the complainant whilst approaching her so as to be very proximate.

[6] It seems common ground that some spittle from Ms Awatere hit the complainant. The complainant and her son allege that Ms Awatere deliberately spat at the complainant. It was noted several items of spit landed in the same spot on the complainant’s dress. Ms Awatere accepted some spittle may have hit the complainant but denied spitting at her. She explained she has no teeth, and when agitated and yelling, spit can fly out.

[7] The video taken by the son records the early stages and the yelling but does not record a spit. It does record the son saying to Ms Awatere not to spit at his mother. The video…

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 Awatere v Police

Details

AGLC: Awatere v Police [2019] NZHC 194
Case: [2019] NZHC 194
Decision Date: 18 February 2019

CaseChat Overview and Summary

In Awatere v Police, Christina Whilimina Awatere appealed against her conviction for common assault, stemming from an incident involving a dispute over a disability parking space. During an altercation with the complainant, Awatere was alleged to have spat at the complainant. Due to technical difficulties, part of Awatere's evidence and the judge's oral reasons were not recorded, leading to an incomplete record of the trial.

The legal issues in the appeal centred around whether the District Court provided adequate reasons for rejecting Awatere's evidence, especially given that some aspects of her testimony were accepted. Additionally, there was an argument that the prosecution's case contained inconsistencies that needed addressing. The appeal court had to determine if the insufficient record necessitated a new trial or if the appeal court should make its own determination.

The High Court found that while the judge likely based his credibility assessment on the unlikelihood of random spitting hitting the same spot, the incomplete record made it difficult to discern the exact reasoning. The Court acknowledged that some parts of the prosecution's evidence did not align well and required explanation, but without a complete record, it was inappropriate for the appeal court to assess the case itself. Consequently, the appeal was allowed, and the conviction was quashed.

Orders