Chavez v Police - [2016] NZHC 1111

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-73 [2016] NZHC 1111

BETWEEN
DIEGO LEONARDO CHAVEZ

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 23 May 2016

Appearances:

K J Patterson for Appellant
L E Meade for Respondent

Judgment:

25 May 2016

JUDGMENT OF LANG J

[on appeal against conviction and sentence]

This judgment was delivered by me on 25 May 2016 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CHAVEZ v NEW ZEALAND POLICE [2016] NZHC 1111 [25 May 2016]

[1] Mr Chavez defended a charge of common assault in the District Court.1 In a reserved judgment delivered on 2 October 2015, Judge D J Sharp found Mr Chavez guilty of the charge.2

[2] On 15 February 2016, the Judge sentenced Mr Chavez to 200 hours community work and ordered him to pay emotional harm reparation to the victim of his offending in the sum of $250.3 Mr Chavez had also pleaded guilty to an unrelated charge of wilful damage. The Judge ordered Mr Chavez to pay reparation in the sum of $632.50 in respect of that charge.

[3] Mr Chavez appeals against conviction on the assault charge and against the sentence imposed on both charges.

Issue on appeal against conviction

[4] The sole issue on the appeal against conviction is whether the Judge wrongly admitted evidence of two police officers who said they identified Mr Chavez as being the person responsible for the assault with which he was charged. If that evidence is inadmissible, it is common ground that there was insufficient evidence to enable the prosecution to prove the charge. Conversely, if the evidence of either witness was admissible, it is common ground that the Judge was entitled to find the charge proved.

Background

[5] The assault charge was laid as a result of an incident that occurred in central Auckland on 22 May 2015. On that date the Prime Minister was scheduled to give an address at the Sky City Convention Centre in connection with the Budget. The police were aware that a number of protestors were likely to be in the vicinity of Sky
City to protest against Government policy. As a result, the police sent about 50

1      Crimes Act 1961, s 196.
2      New Zealand Police v Chavez [2015] NZDC 21410.
3      New Zealand Police v Chavez [2016] NZDC 4326.

uniformed officers to the entrance of the Sky City Casino in Federal Street at about 9 am. They were under the command of Sergeant David Mayes.

[6] By midday a group of approximately 50 protestors had arrived at Sky City and commenced their protest. During the course of the protest, the police became aware that Mr Paul Henry, a well-known media personality, was in the vicinity with a friend whom he had agreed to meet for lunch. They intended to dine at one of the bars and restaurants on the opposite side of Federal Street from the Sky City Casino.

[7] The protestors recognised Mr Henry…

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 Chavez v Police

Details

AGLC: Chavez v Police [2016] NZHC 1111
Case: [2016] NZHC 1111
Decision Date: 25 May 2016

CaseChat Overview and Summary

In Chavez v Police, the High Court considered an appeal against conviction and sentence. The appellant, Diego Leonardo Chavez, was convicted in the District Court of assaulting a man with whom he had no prior relationship, and of wilfully damaging property. The High Court found that the evidence given by two police officers, who identified the appellant as the person responsible for the assault, was admissible. The Court also held that the sentence imposed by the District Court was not manifestly excessive. The appeal against conviction and sentence was dismissed. The appellant was convicted in the District Court of assaulting Paul Henry, a well-known media personality, and of wilfully damaging property. He appealed against both the conviction and sentence. The central issue on the appeal against conviction was whether the Judge wrongly admitted the identification evidence of the two police officers. The appellant argued that the police had not followed a formal identification procedure, and that the prosecution had not proved beyond reasonable doubt that the circumstances in which the police officers made their identifications produced a reliable identification. The High Court found that the Judge had conflated the admissibility issue with the ultimate issue of whether or not the prosecution had proved the charge beyond reasonable doubt. The Court reconsidered the issue of whether or not the identification evidence of the two police officers was admissible, and found that it was. The Court also found that the sentence imposed by the District Court was not manifestly excessive. The appeal against conviction and sentence was dismissed.

Orders