Beaver v Police - [2014] NZHC 2746

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000130 [2014] NZHC 2746

BETWEEN
DAVID BEAVER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 November 2014

Appearances:

C J A Leys for Appellant
S R Jacobs for Respondent

Judgment:

5 November 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 5 November 2014 at 2.15 pm, pursuant to Rule 11.5 of the
High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Crown Solicitor, Auckland
Copy to: K Leys, Auckland

BEAVER v NZ POLICE [2014] NZHC 2746 [5 November 2014]

[1] Mr Beaver pleaded guilty to a charge of assault in the District Court at Manukau. His application for a discharge without conviction was rejected by Judge G A Andrée Wiltens. The Judge entered a conviction and fined him $350 together with Court costs.

Background

[2] Mr Beaver initially faced charges of burglary, male assaults female and fraudulent use of a document, all relating to the breakdown in his relationship with the complainant. The burglary charge was withdrawn at an early stage. The male assaults female charge proceeded to a hearing. During the course of that hearing before Judge Moses in the Manukau District Court, and following a discussion between the Bench and counsel, the police reduced the charge to simple assault to which Mr Beaver pleaded guilty. The charge of fraudulent use of a document was dealt with at a later date. The charge was dismissed.

[3] The agreed summary of facts to which Mr Beaver pleaded guilty recorded the complainant and Mr Beaver were in a relationship for 15 months. They separated in late November 2012.

[4] In the early hours of the morning on 19 December 2012 Mr Beaver turned up at the complainant’s address and started banging on her bedroom window. She heard him but remained quiet so he would leave. Mr Beaver was extremely angry and demanded answers as to why the complainant had disclosed information about him to his mother. Mr Beaver uplifted a can of fly spray and emptied the contents on the victim’s face and hair.

[5] In explanation Mr Beaver said he had sprayed the complainant with the fly spray only after she had sprayed him first. At the time Mr Beaver was 39 years old and had never previously appeared before the Court. He was in the process of applying to join the Corrections Department.

The District Court trial

[6] After hearing the complainant’s evidence and the first witness for the defendant and before the defendant may have given evidence, the Judge discussed the position with counsel leading to the following exchange:

THE COURT:

I think madam prosecutor bearing in mind it is a he said she said no independent evidence other than to the extent that it is independent, which simply might raise a doubt as to the overall circumstances, other than the fly spray incident. Presumably if he is saying that he was sprayed first there is going to have to be some evidence as to him…

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 Beaver v Police

Details

AGLC: Beaver v Police [2014] NZHC 2746
Case: [2014] NZHC 2746
Decision Date: 5 November 2014

CaseChat Overview and Summary

In the High Court of New Zealand, David Beaver appealed against a decision made by the District Court at Manukau, where he was found guilty of assault and subsequently fined $350 along with court costs. The District Court judge had rejected his application for a discharge without conviction. The case was heard by Venning J on 5 November 2014. Beaver's appeal hinged on the argument that the consequences of his conviction were disproportionate to the gravity of the offence, especially given that it hindered his opportunity to pursue a career with the Corrections Department. The legal issues before the court were to determine whether the gravity of the offence, the direct and indirect consequences of a conviction, and whether the consequences of conviction were out of all proportion to the gravity of the offence.

The court considered the gravity of the offence, noting that it was low-level, given that the complainant had sprayed Beaver with fly spray first, and he responded in kind. Beaver's personal circumstances, including his age, previous clean criminal record, and completion of an anger management course, were also taken into account. Regarding the consequences of the conviction, the court found that a conviction would likely bar Beaver from employment with the Department of Corrections, as the Department had already declined his application upon learning of the charges. The court concluded that the consequences of conviction were disproportionate to the gravity of the offence. The appeal was allowed, the conviction and fine were quashed, and Beaver was discharged without conviction, with an order to pay $350 to the complainant. The order for $132 in court costs remained in place. If the fine had already been paid, the Registrar was directed to pay it to the complainant.

Orders