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B v Police

B v Police

Case [2019] NZHC 2182 3 September 2019

Unconscionable Conduct

Admissibility of Evidence

Expert Evidence

Criminal Law

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NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PROHIBITED BY S 200 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2019-425-18

[2019] NZHC 2182

BETWEEN
B

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 August 2019

Appearances:

L S Collins for the Appellant

S N McKenzie for the Respondent

Judgment:

3 September 2019

JUDGMENT OF CULL J

[1] This is an appeal by Mr B against his convictions and the refusal by the District Court Judge to grant him a s 106 discharge without conviction. Mr B was convicted of two charges of male assaults female,1 one charge of possession of an offensive weapon2 and one charge of intentional damage3 after a judge-alone trial in the District Court at Queenstown held on 13 March 2018.4 On 13 May 2019, the Judge dismissed

1      Crimes Act 1961, s 194(b); maximum penalty two years imprisonment.
2      Section 202A(4); maximum penalty three years imprisonment.
3      Section 269(2)(a); maximum penalty seven years imprisonment.
4      Police v [B] [2018] NZDC 7655.

B v NEW ZEALAND POLICE [2019] NZHC 2182 [3 September 2019]

Mr B’s application for a discharge without conviction, sentenced him to 12 months’ supervision and ordered him to pay $1,000 in reparation to the victim.5

[2] Mr B now appeals against his conviction on the basis that the Judge erred in his assessment of the evidence in relation to the two male assaults female charges. He also appeals against his conviction and sentence on the basis he should have been discharged without conviction.

Judge-alone trial

[3] Mr B and the victim had been married since 2009 and had two children together. Mr B works as a store manager in Queenstown, while Mrs B was a stay-at- home mother. Mr and Mrs B had been experiencing marital difficulties arising from Mr B’s jealousy of a male associate of Mrs B, who I will refer to as Mr F.

[4] On an unspecified date between 5 and 15 August 2017, Mr B found a painting in a closet at their house that depicted a man and a woman, which Mrs B had painted herself. Mr B thought the woman resembled Mrs B and the man resembled Mr F. Clearly upset by this discovery, Mr B destroyed the painting by cutting it up with a pair of scissors. Mr B did not deny this particular allegation at trial, although he claimed that he thought the painting was relationship property and therefore he was entitled to destroy it. The Judge dismissed this suggestion, finding that the painting was Mrs B’s separate property.

[5] While Mr B was destroying the painting, Mrs B attempted to intervene. Mrs B’s evidence was that Mr B threatened her with the scissors, cut her hand, pinned her to the ground and punched her. The Judge was satisfied that Mr B pinned her to the ground while holding the scissors but said he could…

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 B v Police

Details

AGLC: B v Police [2019] NZHC 2182
Case: [2019] NZHC 2182
Decision Date: 3 September 2019

CaseChat Overview and Summary

The appeal by Mr B against his convictions for two charges of male assaults female, possession of an offensive weapon, and intentional damage was dismissed by the High Court. The appeal was against his convictions and the refusal by the District Court Judge to grant him a s 106 discharge without conviction. The Judge-alone trial in the District Court at Queenstown had found Mr B guilty of the charges after considering the evidence presented by both parties. The High Court found that the Judge had adequately assessed the evidence and provided adequate reasons for finding the charges of male assaults female proved. The Court also found that the Judge had correctly identified the gravity of the offending and gave proper consideration to Mr B's mental health difficulties and low risk of reoffending. The consequences of conviction were not out of all proportion to the gravity of the offence, and therefore, the appeals against conviction and against conviction and sentence were dismissed.

The case highlights the importance of adequately assessing evidence and providing sufficient reasons for findings in criminal trials. It also emphasizes the need for applicants for discharge without conviction to demonstrate specific consequences of their convictions rather than relying on generic or speculative consequences. The decision underscores the significance of giving sentences that reflect the immense social harm caused by domestic violence offending, which means that a discharge without conviction could only be granted in the most extreme circumstances.

Orders