Bees v Police - [2017] NZHC 272

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2016-425-000031 [2017] NZHC 272

JAMES GORDON BEES

v

NEW ZEALAND POLICE

Hearing: 2 February 2017

Appearances:

L S Collins for the Appellant
S N McKenzie for the Respondent

Judgment:

27 February 2017

JUDGMENT OF NATION J

[1] In the early hours of the morning, a young shop assistant was putting some items on the shelf of a shop in which she was working. Mr Bees approached her from behind and put his right hand on her left buttock. He was convicted in the District Court of indecent assault.1 He appeals against the conviction and, in the alternative, his fine of $1,000. He argues he should have been discharged without conviction.

Appeal against guilty decision

Jurisdiction

[2] Section 232 Criminal Procedure Act 2011 provides that the High Court may

only allow an appeal if satisfied that the trial judge “erred in his or her assessment of

1 Police v Bees [2016] NZDC 20444, [2016] NZDC 19619.

BEES v POLICE [2017] NZHC 272 [27 February 2017]

the evidence to such an extent that a miscarriage of justice has occurred”, or that “a

miscarriage of justice has occurred for any other reason.”

[3] A miscarriage of justice means any error, irregularity or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.2

[4] Section 232 makes clear that not every error or irregularity causes a miscarriage of justice. Instead there must be a “real risk” that the outcome was affected. R v Sungsuwan defines a “real risk” as “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone
wrong.”3

[5] The appeal proceeds by way of rehearing, and the court on appeal must

examine the Judge’s reasoning carefully and come to its own decision on the facts.4

The evidence

[6] There was no dispute over the relevant evidence which both the District Court Judge and I have to consider. The Judge heard evidence from the complainant and the arresting constable. He saw the DVD interview of Mr Bees and had a transcript of the arresting officer’s interview with Mr Bees. He also had two clips from the CCTV camera in the Night ‘n Day Store in Wanaka where the incident occurred.

[7] On the night of 17/18 January 2015, Mr Bees was out drinking with friends in Wanaka. The complainant was working in a Night ‘n Day shop as a sales assistant. She was the only worker there between 3.00 am and 6.00 am. She was 19 years old at the time of this offending. Mr Bees was then aged 28.

[8] While the complainant was on her own, Mr Bees and two associates came into the shop. They were all unknown to her. The two associates then left. Mr Bees

2 Section 232(4).
3 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per…

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 Bees v Police

Details

AGLC: Bees v Police [2017] NZHC 272
Case: [2017] NZHC 272
Decision Date: 27 February 2017

CaseChat Overview and Summary

In the High Court of New Zealand, James Gordon Bees appeals against his conviction and sentence for indecent assault. The facts are that Bees approached a shop assistant from behind and put his hand on her left buttock. The District Court Judge found that Bees had deliberately applied force to the complainant and that he had intended to do so when she had rebuffed his advances and made it clear that she was not interested in doing anything of a sexual nature with him. The District Court Judge also found that Bees knew that the complainant was significantly younger than him and that she was alone in the shop in which she was working. The Judge found that Bees could not have held an honest belief that the complainant consented. The legal issues before the High Court were whether the Judge erred in his assessment of the evidence and whether the sentence imposed was manifestly excessive. The High Court found that the evidence was sufficient for the Judge to conclude that Bees did not honestly believe the complainant was consenting to what he was doing. The High Court also found that the sentence imposed was not manifestly excessive and dismissed the appeal.

Orders