Burrows v Police - [2014] NZHC 2594

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF THE COMPLAINANT/PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-31 [2014] NZHC 2594

BETWEEN
MAURICE LEONARD BURROWS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 October 2014

Appearances:

T J Darby for Appellant
E Woolley for Respondent

Judgment:

22 October 2014

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on
22 October 2014 at 2.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Meredith Connell, Auckland
Copy to:
T J Darby, Auckland

BURROWS v NEW ZEALAND POLICE [2014] NZHC 2594 [22 October 2014]

[1] This is an appeal against conviction and against the subsequent decision to refuse to grant the appellant a discharge without conviction pursuant to s 106 of the Sentencing Act 2002.

[2] The appellant was found guilty of indecent assault (pursuant to s 135 of the

Crimes Act 1961) in a reserve judgment delivered by Judge Aitken on 17 September

2013, after a trial that took place on 18 June.

[3] The prosecution had alleged that the defendant had indecently assaulted the complainant on two occasions, on 29 March 2013 — by touching her on her upper right thigh while she was seated in his car, and by kissing her prior to leaving her at school.

[4] The defendant denied touching the complainant at all in the car. He admitted kissing her, but claimed, in effect, that in the context that did not amount to an indecent assault.

[5] There is no dispute that on 29 March 2013, the defendant, who is a 66 year old, offered the complainant, then a 16 year old school girl, and unknown to him at the time, a lift from her bus stop to school.

[6] The journey was a brief one — a matter of less than or around five minutes. During that time the defendant offered to take the complainant for a ride to Pukekohe on another day, suggesting that she miss school to do this with him.

[7] As the defendant’s car approached the complainant’s school, the complainant asked the defendant to come into the school office to “sign me in”. The defendant was then described by the girl at the school office as her father. It is not clear orally by whom, anyway he signed her in as her father. She was late for school and needed an excuse.

[8] They both then left the school office and walked back to his car. Before he left her he said words to the effect that she owed him a kiss and kissed her on the right cheek.

[9] None of these matters are in dispute.

[10] The material factual dispute is whether or not, during the ride to the school, the defendant put his hand in the region…

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 Burrows v Police

Details

AGLC: Burrows v Police [2014] NZHC 2594
Case: [2014] NZHC 2594
Decision Date: 22 October 2014

CaseChat Overview and Summary

Maurice Leonard Burrows appealed against his conviction for indecent assault and the subsequent decision to refuse to grant him a discharge without conviction. Burrows was found guilty by Judge Aitken of indecently assaulting the complainant on two occasions on 29 March 2013. The first occasion was when he touched her on her upper right thigh while she was seated in his car, and the second was when he kissed her before leaving her at school. Burrows denied touching the complainant at all in the car but admitted kissing her, claiming that in the context, it did not amount to an indecent assault. The material factual dispute was whether or not, during the ride to the school, Burrows put his hand in the region of the complainant’s upper right inner thigh. The other matter in issue was whether he was aiming for her mouth when he went to kiss her. The appeal against conviction hinged on whether the trial Judge erred in finding that the complainant’s evidence was credible and consistent, and whether the defendant’s account might reasonably be true. The appeal against sentence focused on whether the Judge erred in not discharging Burrows without conviction under s 106 of the Sentencing Act. The High Court held that the trial Judge’s findings of fact could not be disturbed and that there was no error of principle in the Judge’s reasoning. The court also held that the Judge undertook a detailed assessment of the criteria for applying ss 106 and 107 of the Sentencing Act, and there was no basis for reversing her decision. Therefore, the appeal against conviction and the appeal against sentence were both dismissed.

Orders