Byrt v Police - [2012] NZHC 340

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-241 [2012] NZHC 340

BETWEEN JAMIE JONTHAN BYRT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 27 February 2012

Appearances: T J Darby for the Appellant
B Hamlin for the Respondent

Judgment: 5 March 2012

JUDGMENT OF GILBERT J [Appeal against conviction and sentence]

This judgment was delivered by me on 5 March 2012 at 4.45 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ………………….

Counsel: T J Darby, Barrister, Auckland: tjdarby@xtra.co.nz

Solicitor: Crown Solicitor, Auckland: ben.hamlin@meredithconnell.co.nz

BYRT V NZ POLICE HC AK CRI 2011-404-241 [5 March 2012]

[1] Mr Byrt, the appellant, was convicted on 5 April 2011 of an offence under s 125(1) of the Crimes Act 1961 for wilfully committing an indecent act in a public place.1 He appeals against his conviction on the grounds:

(a) The evidence gave rise to a reasonable doubt and Judge Hinton erred in finding that the charge was made out; and

(b)He was not informed of his right to elect trial by jury in terms of s 66 of the Summary Proceedings Act 1957.

Factual background

[2] At about 3.30 pm on 10 September 2010 the appellant was driving a friend’s car along Watea Road in Torbay. He stopped the car. The complainants were two school girls who were walking home from school along Watea Road at that time. They gave evidence of seeing the appellant masturbating while seated in the car. The appellant denied this. He gave evidence that he was trying to extinguish a cigarette that had fallen between his legs using a drink bottle.

The decision under appeal

[3] Judge Hinton preferred the evidence of the complainants. He said at [6] of his judgment that the complainants:

... were not shaken in cross-examination. They seemed to me reasonably self-assured and specific. They seemed to be most probably not mistaken with respect to the core relevant pieces of their evidence.

By contrast he found that the appellant “could not remember a lot of what had happened that day”.2

[4] The Judge was satisfied that the complainants saw the appellant masturbating in the car. He accepted their evidence and found that the charge was proved beyond
reasonable doubt. After summarising the evidence the Judge concluded at [14]:

1 Police v Byrt DC North Shore CRI-2010-044-006772, 5 April 2011.
2 At [8].

I am satisfied beyond reasonable doubt, which is the standard in a criminal prosecution, that this charge is proven, which means that [the appellant] must be, and is accordingly, convicted of it.

Ground 1 – reasonable doubt

[5] The appellant criticised a number of aspects of the trial process and the

Judge’s reasoning in support of his first ground of the appeal. These were:

(a) The prosecutor elicited evidence on critical and contentious issues with leading questions during examination in chief and re- examination.

(b)The Judge wrongly permitted these leading questions and wrongly relied on the answers in finding the charge proved beyond reasonable doubt.

(c)…

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 Byrt v Police

Details

AGLC: Byrt v Police [2012] NZHC 340
Case: [2012] NZHC 340
Decision Date: 5 March 2012

CaseChat Overview and Summary

The appellant, Jamie Jonthan Byrt, appeals against his conviction and sentence for committing an indecent act in a public place. The case was heard in the High Court of New Zealand, Auckland Registry. The appellant was convicted on 5 April 2011 by Judge Hinton in the North Shore District Court. The legal issues in this appeal are whether the evidence gave rise to a reasonable doubt and if the appellant was informed of his right to elect trial by jury. The court found that the appellant's first ground of appeal, regarding reasonable doubt, must fail as there was no error in the trial process or the Judge's reasoning. The second ground of appeal, concerning the right to elect a jury trial, was successful as the court found that the appellant was not informed of this right, leading to a miscarriage of justice. Consequently, the appeal is allowed, and the conviction and sentence are set aside. The matter is remitted to the District Court for a rehearing.

Orders