Cole v Police - [2013] NZHC 68

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000351 [2013] NZHC 68

BETWEEN STEPHEN JOHN COLE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 5 February 2013

Appearances: No appearance by Appellant
B Hamlin for Respondent

Judgment: 5 February 2013

ORAL JUDGMENT OF VENNING J

Solicitors: Crown Solicitor, Auckland
Copy to: Appellant

COLE V NEW ZEALAND POLICE HC AK CRI-2012-404-000351 [5 February 2013]

[1] The appellant Mr Cole was convicted on 6 September 2012 by Judge

McNaughton in the Pukekohe District Court on the following three charges: (a) trespass;
(b) possession of an offensive weapon; and

(c) assault.

[2] Mr Cole filed a notice of appeal on 2 November 2012 (although the notice was dated 4 October 2012). I record that the police take no issue in relation to the timing of the filing of the appeal. If leave is required I grant leave for the appeal to be lodged out of time.

[3] Mr Cole did not appear to support his appeal before this Court today. I note from the history of appearances in this Court that on occasion Mr Cole has not appeared to support the appeal at call-overs. However, I also note that on 23
November 2012, when this appeal was allocated a fixture for 10.00 am today, Mr Cole was present. I had the appeal called at 10 o’clock and the Registrar checked for Mr Cole about the premises of the Court. Mr Cole was not present. At the conclusion of other matters I again had the matter called at just after 11 o’clock. Again Mr Cole was not on the premises. The Registrar also checked his phone. There was no message from Mr Cole to explain his non-attendance.

[4] In the circumstances the appeal could be dismissed for want of prosecution. However, I choose to deal with it on its merits as well. In his typed notes in support of the appeal, which I note is restricted to his convictions in relation to common assault and possession of a weapon, Mr Cole takes issue with the police investigation and the failure of the police to locate the thistle grubber which he referred to in his evidence. He has also explained the reasons why he was at the property on the day and refers to the injuries he sustained as a result of the incident. Mr Cole set out in some detail the reasons why he was at the property and his relationship with the complainant’s partner.

[5] Mr Cole also notes that he asked his lawyer to request a full record of the 111 call. He says the tape should have had at the beginning:

HE’S ATTACKING ME HE’S ATTACKING ME! (while I was calmly saying no [Im] not no [Im] not He then yelled HE HAS BEEN TRESPASSED OFF THE PROPERTY BEFORE!

Mr Cole is concerned that did not appear on the copy of the transcript that was provided to him. Mr Cole also advances an explanation for a piece of wood found in the…

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 Cole v Police

Details

AGLC: Cole v Police [2013] NZHC 68
Case: [2013] NZHC 68
Decision Date: 5 February 2013

CaseChat Overview and Summary

In this case, Stephen John Cole appeals against his conviction by the Pukekohe District Court, presided over by Judge McNaughton, on charges of trespass, possession of an offensive weapon, and assault. Mr Cole filed a notice of appeal on 2 November 2012, and the High Court granted leave for the appeal to be lodged out of time. Despite being present for the allocation of the appeal date, Mr Cole did not appear on the day of the hearing. The appeal was heard on its merits, with the court considering Mr Cole's issues with the police investigation and his explanations for his presence at the property and the injuries he sustained.

The legal issues before the court included whether the District Court Judge was correct in preferring the complainant's evidence over Mr Cole's evidence, and whether the convictions were supported by the evidence presented. The court reviewed Mr Cole's written material, the notes of evidence, and Judge McNaughton's decision. The case hinged on the conflict between the complainant's and Mr Cole's accounts of the incident. Judge McNaughton found the complainant to be a credible witness and Mr Cole's account implausible, leading to the convictions. The High Court found that the District Court Judge's findings were open to him, given his advantage of seeing and hearing the witnesses.

The appeal was dismissed, and the convictions were upheld. The High Court emphasised the importance of the District Court Judge's assessment of witness credibility and evidence, in line with the principles set out in Austin, Nichols & Co Inc v Stichting Lodestar. The court concluded that the District Court Judge's decision was supported by the evidence and that the appeal had no merit.

Orders