Barber v Police - [2014] NZHC 2057

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2014-454-9 [2014] NZHC 2057

ROSS EASTON BARBER Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 29 August 2014

Counsel:

Appellant in Person
E M Fitzherbert for Respondent

Judgment:

2 September 2014

JUDGMENT OF SIMON FRANCE J

[1] Mr Barber was convicted of one charge of assaulting a child. He was sentenced to 100 hours community work, and ordered to pay $1,000 emotional harm reparation.1 He appeals conviction and sentence.

[2] The complainant was a young cousin of Mr Barber. Then aged around nine years old, the boy would visit the appellant’s farm during holidays and live there, doing odd jobs during the day.

[3] On the occasion in question something, perhaps an incident with other staff, caused the child to become upset. He was throwing things and crying, and then walked off. Mr Barber followed. Somehow the boy ended up on the ground. At that
point Mr Barber put his foot on the side of the child’s chest near the armpit, pinning

1 New Zealand Police v Barber DC Palmerston North CRI-2013-054-000585, 21 March 2014, Judge Atkins QC; sentencing 30 May 2014.

BARBER v NZ POLICE [2014] NZHC 2057 [2 September 2014]

him down. He was also at the same time pulling the near hysterical boy’s arm, as if trying to pull him to his feet. Throughout this Mr Barber was talking (some would say taunting) the boy.

[4] An unusual feature of the incident was that Mr Barber was videoing the incident. He said to police that he was doing so in order to have a record that he could show the boy for educational purposes once he calmed down. The Judge saw it quite differently, agreeing with the prosecution that it was part of Mr Barber taunting the boy.

[5] Some years after the incident the video fell into the hands of authorities, which led to this charge. The boy was interviewed, it then being some five years after the incident. He could not remember a lot, but definitely remembered the incident. He described Mr Barber pushing him to the ground, putting his foot on him and teasing him. At trial the boy’s memory was little better. Standing on its own the evidence was possibly not of a quality to sustain a conviction but it was firmly corroborated by the video record.

[6] Mr Barber was represented at trial. The boy was cross-examined but there was little headway to be made given his general lack of recall. Mr Barber did not testify but he had been interviewed by the police prior to trial and this was played. Mr Barber accepted putting his foot on the boy, but said it was just to restrain the boy to get him to talk. Of this suggestion the Judge observed:

To suggest this was behaviour designed to get the boy to talk is a proposition so extraordinary in the circumstances that it is difficult to accept it was even put forward seriously.…

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 Barber v Police

Details

AGLC: Barber v Police [2014] NZHC 2057
Case: [2014] NZHC 2057
Decision Date: 2 September 2014

CaseChat Overview and Summary

In Barber v Police, the appellant, Ross Easton Barber, appealed against his conviction and sentence for assaulting a child. Barber was convicted of one charge of assaulting a child, resulting in a sentence of 100 hours community work and a requirement to pay $1,000 in emotional harm reparation. The complainant in this case was a young cousin of Barber who was around nine years old at the time of the incident. Barber was videoing the incident, which showed him pinning the child to the ground and taunting him. The video played a crucial role in the conviction as the child could not remember much of the incident. The trial judge accepted the prosecution's argument that the video was part of Barber's taunting behaviour.

The legal issues before the court were whether the force used by Barber constituted an assault and whether the force used could be considered reasonable parental control. The court held that the duration and force with which Barber applied his foot to the child's chest made a conclusion of assault inevitable. The context of taunting and winding the boy up made reliance on s 59 of the Crimes Act 1961 hopeless. The video record was also available, which made the boy's evidence more reliable. The court also held that the sentence was appropriate given the context and purpose of the assault, as well as Barber's previous convictions.

The appeal against conviction and sentence was dismissed. The court found no merit in Barber's argument that placing a foot on the child's chest with no mark resulting could not constitute an assault. The court also rejected Barber's argument that the judgment under appeal ignored the time delay between the incident and the trial, as the video spoke for itself. The court found no basis for challenging the sentence, as the actual assault was at the lower end, but the context and purpose were very relevant, as were Barber's previous convictions.

Orders