Barker v The Queen - [2014] NZHC 435

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2013-063-000782 [2014] NZHC 435

TRISTAN BARKER

v

THE QUEEN

Hearing: 25 February 2014

Appearances: W Lawson for the Appellant
A Hill for the Crown

Judgment: 12 March 2014

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 12 March 2014 at 9.00 am
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

BARKER v R [2014] NZHC 435 [12 March 2014]

Introduction

[1] The appellant, Mr Barker, appeals against a conviction entered against him by Judge M A MacKenzie in the District Court at Rotorua. Judge MacKenzie convicted Mr Barker of the offence of common assault, discharged him and directed him to make an emotional harm reparation payment to the victim in the sum of $500.

[2] Mr Barker seeks a discharge without conviction, pursuant to s 106 of the

Sentencing Act 2002.

Factual Background

[3] Mr Barker has a public media website. He uses that website to comment on various issues. His counsel, Mr Lawson, advised me that he believes in free speech, and that he has a large internet following.

[4] On 5 March 2013, Mr Barker was interviewed by the victim, a Mr Eccleston, who is a journalist for 7News, based in Sydney, Australia. The interview took place in the Government Gardens in Rotorua. The interview apparently arose because of various comments Mr Barker had posted on the internet. I was told by Mr Lawson that Mr Barker’s comments had been taken out of context by the media. I was not told what comments Mr Barker posted on the internet. I do not know why they attracted media attention.

[5] According to the summary of facts, which Mr Barker accepted when he entered his guilty plea, during the interview Mr Barker became increasingly agitated and verbally abusive towards Mr Eccleston. Things escalated, and at one stage, Mr Barker struck Mr Eccleston forcefully to his left cheek with an open palm. Mr Eccleston and his film crew then ceased the interview and began walking away. Realising that the film crew had stopped filming, Mr Barker approached Mr Eccleston again, and punched him to the back of his head.

[6] As a result of the assault, Mr Eccleston received medical attention. He suffered some pain to his jaw, and mild concussion.

[7] On 11 March 2013, Mr Barker was charged with common assault, pursuant to s 196 of the Crimes Act 1961.

[8] On 27 March 2013, Mr Barker pleaded guilty to the assault, and requested the police to consider diversion. The request was declined on 2 April 2013.

[9] On 3 April 2013, Mr Barker was remanded so that a restorative justice conference could be held. He was referred to the Mana Social Services Trust. Mr Eccleston, however, did not respond to the trust’s attempts to arrange a restorative justice conference. As a result no restorative justice process occurred, and Mr Barker was not able to directly apologise to his…

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 Barker v The Queen

Details

AGLC: Barker v The Queen [2014] NZHC 435
Case: [2014] NZHC 435
Decision Date: 12 March 2014

CaseChat Overview and Summary

In Barker v The Queen, Tristan Barker appealed a conviction of common assault entered against him by Judge MacKenzie in the District Court at Rotorua. Barker was discharged and ordered to make an emotional harm reparation payment of $500 to the victim. Barker sought a discharge without conviction under s 106 of the Sentencing Act 2002. The legal issue was whether the District Court Judge erred in not discharging Barker without conviction. The court held that the Judge did not err. Firstly, the court held that the Judge did not err in her assessment of the gravity of the offence. The court noted that the assault had a number of aggravating features, including that the victim was struck twice on the head, and the consequences could have been very serious indeed. The court held that the Judge correctly assessed the gravity of the offence and concluded that, viewed in isolation, the assault was serious. Secondly, the court held that the Judge was not obliged to accept context as a mitigating factor. The court held that the Judge exercised her discretion correctly in not speculating that the assault was provoked by the victim. Finally, the court held that the Judge did not err in her assessment of the direct and indirect consequences of a conviction. The court held that the consequences of a conviction were not out of all proportion to the gravity of the offence and the Judge was right to enter the conviction against Barker. The appeal was dismissed.

Orders