Church v Police - [2019] NZHC 38

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2018-406-9

[2019] NZHC 38

GRAHAM DONALD CHURCH

v

NEW ZEALAND POLICE

Hearing: 18 December 2018

Appearances:

F M Kelly for the Appellant

J W Cameron for the Respondent

Judgment:

30 January 2019

JUDGMENT OF CULL J

[1] On 2 August 2018, Mr Church was convicted of one charge of assault following a judge-alone trial before Judge S J O’Driscoll.1 He was later sentenced on 18 September 2018 by the Judge to a $400 fine and reparation of $800.2

[2] Mr Church appeals his conviction on five grounds. Ms Kelly, counsel for Mr Church, broadly submits the Judge erred by rejecting Mr Church’s testimony, unfairly favouring and not appropriately considering the inconsistencies in the prosecution’s witnesses, displaying bias towards Mr Church and not following proper process during the trial. Mr Church argues these errors denied him a fair trial, led to a miscarriage of

1 New Zealand Police v Church [2018] NZDC 16052 [Conviction decision].
2 New Zealand Police v Church [2018] NZDC 19720 [Sentencing decision].

CHURCH v NEW ZEALAND POLICE [2019] NZHC 38 [30 January 2019]

justice and an unsafe conviction. Mr Church also applies for leave to appeal out of time, having filed his notice to appeal four working days out of time.

[3] The Crown opposes the appeal. Mr Cameron, for the Crown, submits the trial Judge was faced with a variety of disputed matters and rightly focused on the factual allegations that supported the elements of the offence. He found corroboration on those matters and, the Crown submits, entered a safe conviction.

[4] The key issue is whether any of the alleged errors pleaded by Mr Church caused a miscarriage of justice, namely, whether there was a real risk that the outcome was affected or that there was an unfair trial.

Factual background

[5] The summary of facts alleges that on 23 April 2017 Mr Church assaulted the victim, Mr Holmes. Both men were riding on their quad bikes and met as Mr Holmes was coming up from the beach at Kekerengu South, in Marlborough. Mr Church allegedly began abusing Mr Holmes over an existing neighbourhood dispute and then punched Mr Holmes once in the head while he had turned his head away. Mr Holmes was knocked backwards onto his bike and then tried to defend himself when Mr Church allegedly punched him again in the head. The assault stopped when a neighbour intervened.

[6] Mr Holmes suffered several loosened and knocked-out teeth, a black eye, swelling and redness to the left side of his face. Mr Church was charged with assault with intent to injure.

[7] There was a history of animosity between Mr Church and Mr Holmes. There have been several previous incidents among Mr Church, Mr Holmes and Ms Ratter (Mr Holmes’ girlfriend), who are all neighbours. As Mr Church describes it, the incidents have included Ms Ratter’s dog attacking Mr Church’s…

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: [2019] NZHC 38
Decision Date: 30 January 2019

CaseChat Overview and Summary

Graham Donald Church appeals his conviction for assault following a judge-alone trial in the Marlborough District Court. The appellant was sentenced to a $400 fine and reparation of $800. The respondent, the New Zealand Police, opposes the appeal. The appellant argues the trial Judge erred in several respects, including by rejecting his self-defence claim, failing to properly consider inconsistencies in the prosecution’s witnesses and unfairly restricting defence counsel in cross-examination. The appellant also applies for leave to appeal out of time. The appeal court finds that the trial Judge was entitled to assess the credibility of the witnesses and make findings on the evidence. The court also finds the trial Judge did not display bias against the appellant. The appeal is dismissed.

Orders