Brownlee v Police - [2018] NZHC 215

IN THE HIGH COURT OF NEW ZEALAND WHANGAREIWHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2017-488-000055

[2018] NZHC 215

BETWEEN
MISHAQ BROWNLEE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 February 2018

Appearances:

Chris Muston for the Appellant Sarah Barnaart for the Respondent

Judgment:

22 February 2018

JUDGMENT OF MOORE J

[Appeal against conviction and sentence]

This judgment was delivered by me on 22 February 2018 at 2:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

BROWNLEE v NEW ZEALAND POLICE [2018] NZHC 215 [22 February 2018]

Introduction

[1] Mishaq Brownlee, the appellant, was employed as a security guard at a bar in Whangārei.

[2] In the early hours of Saturday, 19 November 2016 a fight broke out at the bar involving patrons and security officers. The principal aggressor was a Mr Tau. In the course of the fight he was knocked to the ground. While he was on the ground he was twice stomped or kicked in the head by Mr Brownlee.

[3] The events were recorded on a security camera. At his trial before Judge G L Davis in the Whangārei District Court the video footage formed the primary basis of the prosecution’s case. In his defence, Mr Brownlee said his actions were undertaken in defence of himself and others to protect them from Mr Tau’s aggression. He claimed the force used was, in the circumstances as he believed them to be, proportionate and reasonable.

[4] Judge Davis rejected this defence and convicted him of injuring with intent to injure. At the time of sentencing, in addition to the bar assault, Mr Brownlee also appeared for sentence in respect of a previous incident to which he had pleaded guilty to assault with intent to injure. The Judge imposed concurrent sentences of two years and two months’ imprisonment and six months’ imprisonment respectively.

[5] Mr Brownlee appeals his conviction on the injuring with intent charge, and both sentences.

Background facts

15 October 2016

[6] In the early hours of the morning of 15 October 2016 Mr Brownlee was in the mall area of downtown Whangārei. He was not on duty as a security guard. A fight erupted outside the Rynoz Bar. In the course of the melee one of those involved began to abuse Mr Brownlee. Mr Brownlee responded by striking the aggressor in the face with his left fist. The two men then engaged in a fight which led to them both falling to the ground, with Mr Brownlee landing on top of the other man. Mr Brownlee got

to his feet and kicked the victim twice in the head. Others pushed him away. The victim was reported as suffering from bruising to his head and face as a result of the assault on him by Mr Brownlee. In respect of these events Mr Brownlee pleaded guilty to a charge of assault with intent to injure.

19 November 2016

[7] In the early hours of 19 November 2016…

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 Brownlee v Police

Details

AGLC: Brownlee v Police [2018] NZHC 215
Case: [2018] NZHC 215
Decision Date: 22 February 2018

CaseChat Overview and Summary

Mishaq Brownlee appeals his conviction for injuring with intent to injure and the sentences imposed on him by Judge Davis in the Whangārei District Court. The appeal against conviction concerns the adequacy of the trial judge's consideration of the defence of self-defence and whether the injuries sustained by the victim were attributable to the appellant's actions. The appeal against sentence concerns the identification of aggravating and mitigating factors and whether the sentence imposed was manifestly excessive. The court found that the trial judge had not erred in rejecting the defence of self-defence or in attributing the victim's injuries to the appellant's actions. The court also found that the sentence imposed, despite an arithmetical error, was not manifestly excessive. The appeal against conviction and sentence was dismissed.

In Brownlee v Police, the appellant, a security guard, was convicted of injuring with intent to injure a patron at a bar where he worked. The appellant appealed his conviction and sentences imposed by Judge Davis in the Whangārei District Court. The appellant's grounds of appeal were that the trial judge misdirected himself on the defence of self-defence, misidentified aggravating and mitigating factors, and imposed a manifestly excessive sentence. The court found that the trial judge had not erred in rejecting the defence of self-defence or in attributing the victim's injuries to the appellant's actions. The court also found that the sentence imposed, despite an arithmetical error, was not manifestly excessive. The appeal against conviction and sentence was dismissed.

Orders