Boyd v Police - [2012] NZHC 713

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-233 [2012] NZHC 713

BETWEEN PHILLIP BOYD Appellant

ANDTHE POLICE Respondent

Hearing: 26 March 2012

Appearances: P T Eastwood for appellant
F Cuncannon for the respondent

Judgment: 18 April 2012

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 9.30 am on Wednesday 18 April 2012

Solicitors:
P T Eastwood, Auckland peterea@clear.net.nz
Crown Solicitor Auckland,. Fionnghuala.cuncannon@meredithconnell.co.nz

BOYD V POLICE HC AK CRI 2011-404-233 [18 April 2012]

[1] On the morning of 29 October 2009, the appellant became embroiled in a fight with his 21 year old son, James, during which he is said to have taken James to the ground in a headlock and held him there for some seconds. He was also said to have pushed his wife. The appellant was charged with assaulting both.

[2] At the conclusion of a Judge alone trial held on 3 May 2010, Judge Wilson QC found the charge in respect of James to have been proved, but he dismissed the charge of assault against the appellant’s wife.

[3] On 11 November 2010, the appellant was sentenced to six months imprisonment. For procedural reasons, which it is unnecessary to traverse here, his subsequent appeals against conviction and sentence became separated. On
22 February 2012, Woodhouse J dismissed the appeal against sentence.

[4] Mr Boyd has served his sentence, but now pursues his appeal against conviction.

[5] Mr Eastwood argues that:

(a) The trial Judge wrongly refused to take into account the contents of a videotaped statement made by Mr Boyd to the police on the day following the incident;

(b)In the alternative, if he did take the statement into account, then he did so following a private viewing of the videotape in his chambers in circumstances constituting a breach of natural justice;

(c) The Judge ought not to have rejected the appellant’s defence of self- defence.

Offending background

[6] Although living in the same house with their children, the appellant and his wife were effectively estranged. Evidence was given before Judge Wilson of frequent arguments. Mrs Boyd preferred to be called Ms Patterson, and her children each said that the appellant often yelled abuse at his wife, whom he suspected of having a relationship with another man.

[7] On the morning of 29 October, a further argument developed. James joined his mother. What happened next is partially in dispute. The appellant says that James took a swing at him and that, although the blow did not land, the appellant placed James in a headlock and took him to the ground where he was held for some seconds. He says he was acting in self-defence. James, on the other hand, says that the appellant pushed him first, and in response he (James) made an ineffectual attempt to land a blow, following which he was, as the appellant accepts, placed in a headlock and pulled to the ground. James says that 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.

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Details

Case: [2012] NZHC 713
Decision Date: 18 April 2012

CaseChat Overview and Summary

Phillip Boyd, the appellant, was convicted of assault for his conduct during a physical altercation with his son, James. The altercation arose from a long-running dispute between Boyd and his estranged wife. The appellant was sentenced to six months imprisonment. He has now served his sentence and pursues his appeal against his conviction. Boyd argues that the trial judge should have considered the contents of a videotaped statement he made to the police the day after the incident and that the judge should have accepted his defence of self-defence. The court held that the videotaped statement was inadmissible as it was a prepared exculpatory statement and was therefore inadmissible hearsay. The court found that the exclusion of the videotaped statement did not breach the appellant's right to a fair trial. The court also found that the trial judge was entitled to conclude that Boyd was not acting in self-defence and that the degree of force he used was disproportionate to that proffered by James. The appeal was dismissed.

Orders