Cantwell v Police - [2024] NZHC 3827

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-292

[2024] NZHC 3827

BETWEEN
AMBER JADE CANTWELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 December 2024

Appearances:

Appellant in person

M S Chiraag for respondent

Judgment:

13 December 2024

JUDGMENT OF JOHNSTONE J

(appeal against convictions)

This judgment was delivered by me on 13 December 2024 at 4 pm

Registrar/Deputy Registrar

Solicitors: MC, Auckland

CANTWELL v POLICE [2024] NZHC 3827 [13 December 2024]

[1] On 23 May 2024, after a Judge-alone trial that had been held that day in the District Court at Auckland, Amber Cantwell was found to have committed offences of assault and intentional damage.1 She was sentenced to undertake 12 months’ supervision, and ordered to pay $500 in reparation.2

[2] Ms Cantwell, appearing in person without legal representation, appeals against her convictions for those offences. I address her arguments below. First, I discuss: the correct approach on appeal, the course of the trial (as confirmed by audio recordings of the trial, which have been produced to form part of the materials available in the appeal), and the Judge’s oral judgment.

Approach on appeal

[3] Ms Cantwell’s appeal must be allowed if a miscarriage of justice occurred, whether because the Judge erred in his assessment of the evidence, or for any other reason.3 A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial, that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.4

[4] If I reach a different view on the evidence, it will follow that the Judge erred in a manner affecting the trial’s outcome. However, it is for Ms Cantwell to show that an error has been made, and in assessing whether an error has been made, this Court must take into account any advantages the Judge may have had, when hearing the matter at first instance.5

The trial

[5] At the beginning of the trial, Ms Cantwell faced three charges. In short, the police alleged that, following an unremarkable early evening at the home of her acquaintance, Mr Smith, Ms Cantwell left, only to return shortly after, at which point:

1      New Zealand Police v Cantwell [2024] NZDC 17939.
2      New Zealand Police v Cantwell [2024] NZDC 14318.
3      Criminal Procedure Act 2011, s 232(2)(b) and (c).
4      Section 232(4).
5      Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].

(a)Ms Cantwell took Mr Smith’s cell phone out to her car, in that way stealing it;

(b)when Mr Smith followed Ms Cantwell out to her car, she assaulted him; and

(c)when Mr Smith went inside to call the police, Ms Cantwell threw a plant pot through a glass pane in his front door.

[6] As might be inferred, the three charges Ms Cantwell faced were charges of theft,6 assault,7 and intentional…

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: [2024] NZHC 3827
Decision Date: 13 December 2024

CaseChat Overview and Summary

Amber Cantwell appeals against her convictions for assault and intentional damage, arguing the trial was unfair and the evidence was mischaracterised. The High Court assessed the appeal based on whether a miscarriage of justice occurred. The court found that the trial was conducted fairly, with evidence presented properly, and the Judge reached a view that was open to him. The audio recordings and transcribed notes of evidence matched, and there was no indication that any participant in the trial was dishonest. The complainant's account was corroborated by 111 calls, and it was implausible that he would damage his own property. The evidence did not support a claim of self-defence. The court found no miscarriage of justice, and the appeal was dismissed.

Orders