Bradshaw v Police - [2017] NZHC 346

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2016-425-000041 [2017] NZHC 346

BETWEEN
CRAIG ROBERT BRADSHAW

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 February 2017

Appearances:

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

Judgment:

6 March 2017

JUDGMENT OF NATION J

Introduction

[1] On 13 June 2014, in the early hours of the morning, there was an altercation outside a bar in Queenstown. The victim, who was a security officer at the bar, was punched and kicked. Mr Bradshaw was arrested and charged with assault with intent to injure on 16 June 2014.

[2] On 17 May 2016, Mr Bradshaw’s counsel filed submissions in support of an application for dismissal of the charge against him because of undue delay. That application was argued at a hearing on 10 June 2016. The application was refused in a judgment of 13 June 2016.

[3] On 14 June 2016, after a Judge alone trial, Mr Bradshaw was found guilty of one charge of assault with intent to injure.

BRADSHAW v POLICE [2017] NZHC 346 [6 March 2017]

[4] On 17 October 2016, his application to be discharged without conviction was refused. He was fined $500 and was ordered to pay Court costs of $130 and an emotional harm payment to the victim of $750.

[5] Mr Bradshaw has appealed against sentence and conviction. Effectively, it is an appeal against each of the three decisions just referred to.

Appeal out of time

[6] The notice of appeal was filed six days out of time. The reasons given for the delay were counsel’s other commitments and the geographic separation of the appellant who was based in Auckland and counsel who was based in Queenstown. The Police do not oppose the application for leave to appeal out of time. There does not appear to be any prejudice. Leave to appeal out of time is accordingly granted.

Jurisdiction and principles on appeal

[7] Mr Bradshaw has a right of appeal to this Court pursuant to s 229 Criminal Procedure Act 2011 (CPA). I must allow an appeal only if satisfied that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred.1 Alternatively, that a miscarriage of justice occurred for “any other reason”.2 Section 232(4) CPA defines “miscarriage of justice” as:

… any error, irregularity, or occurrence in or in relation to or affecting the
trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

[8] In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair”.3 Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so
prejudicial, or so irremediable” that the court must quash the decision.4

1 Criminal Procedure Act 2011, s 232(b).
2…

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 Bradshaw v Police

Details

AGLC: Bradshaw v Police [2017] NZHC 346
Case: [2017] NZHC 346
Decision Date: 6 March 2017

CaseChat Overview and Summary

Craig Robert Bradshaw appeals against his conviction and sentence in the Queenstown District Court for assault with intent to injure. He argues that the delay in the proceedings and the manner in which the Judge alone expressed a view on the evidence during the trial were errors that resulted in a miscarriage of justice. He also argues that the District Court erred in not discharging him without conviction. The Court grants leave to appeal out of time. The appeal is dismissed.

The Court found that the delay in the proceedings was not undue and did not prejudice Mr Bradshaw. The Court found that the Judge alone's expression of a view during the trial did not affect the outcome of the trial and was not an error that resulted in a miscarriage of justice. The Court found that the District Court properly considered the application for discharge and reached the right conclusion.

Orders