Cooney v Police - [2025] NZHC 160

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-686 [2025] NZHC 160

BETWEEN ELIZABETH JANE COONEY
Appellant

AND NEW ZEALAND POLICE
Respondent

Hearing: 4 February 2025
Appearances: M I Hague for Appellant
J E Bragg and K A Venter for Respondent

Judgment: 13 February 2025

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 13 February 2025 at 2.30 pm
Registrar/Deputy Registrar Date: ...................................

Solicitors: Frontline Law Ltd, Wellington
Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau

COONEY v POLICE [2025] NZHC 160 [13 February 2025]

Introduction

[1] Following a Judge-alone trial before Judge Forrest, the appellant was found guilty of common assault under s 9 of the Summary Offences Act 1981.¹

[2] The Judge did not immediately enter a conviction on the assault charge and Ms Gunn subsequently applied for a discharge without conviction.² The Judge declined this application as she was not satisfied the consequences of conviction were out of all proportion to the gravity of the offending.³ Rather, the Judge convicted and discharged Ms Gunn. The Judge subsequently dismissed Ms Gunn’s application for costs under s 5 of the Costs in Criminal Cases Act 1967.

[3] Ms Gunn appeals against her conviction. I must allow the appeal if satisfied the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred.⁴

[4] Absent success on her appeal against conviction, Ms Gunn appeals against the Judge’s refusal to discharge her without conviction.

Facts

[5] On 25 February 2023, Ms Gunn was in the arrivals hall at Auckland International Airport, awaiting the arrival of friends. Ms Gunn was accompanied by a Mr Clark. Mr Clark was holding a large camera, of the type used by TV cameramen. Ms Gunn was holding a microphone.

[6] The events relevant to this appeal were recorded on the airport’s CCTV system. That footage was subsequently “synced” with audio recorded by Ms Gunn or Mr Clark. Like the Judge, I have had the benefit of watching and hearing what transpired.

¹      As the appellant prefers, I shall refer to her as Ms Gunn.
²      Sentencing Act 2002, s 106.
³      Sections 106 and 107.
⁴      Criminal Procedure Act 2011, s 232(2)(b).

[7] The complainant on the charge of assault, to whom I shall refer as C, is employed at the airport. She approached Ms Gunn, and asked whether Ms Gunn and Mr Clark had permission to film at the airport, and whether she and Mr Clark were doing so for a business purpose.

[8] Ms Gunn replied that they were not filming for a business purpose; that they were present to film people they had helped “get off an island”; they wished to get high quality footage; and that no money was being made. As it happens, the airport’s policy or bylaw regarding filming only requires permission if the filming is for a commercial purpose.

[9] Whilst Ms Gunn was…

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: [2025] NZHC 160
Decision Date: 13 February 2025

CaseChat Overview and Summary

Cooney v Police [2025] NZHC 160 involved an appeal by Elizabeth Jane Cooney, referred to as Ms Gunn, against her conviction for common assault under the Summary Offences Act 1981. Ms Gunn was found guilty of touching an individual, C, without consent, which constituted the actus reus of the assault charge. The appeal was heard by Justice Peters on 13 February 2025. The primary legal issues in the appeal were whether Ms Gunn's touch to gain C's attention constituted an assault and, if not, whether the refusal to discharge Ms Gunn without conviction was justified.

The court examined whether Ms Gunn's touch was within the bounds of generally acceptable physical contact, as discussed in Collins v Wilcock. The court determined that Ms Gunn's touch was fleeting and necessary to gain C's attention, and did not exceed what was reasonably necessary. Justice Peters found that the touch was within the generally acceptable physical contact in everyday life and did not amount to an assault under the Act. The court also considered the consequences of conviction, including the stigma and the necessity to disclose the conviction in certain circumstances. Given the trivial nature of the offence, the court concluded that the consequences of conviction were out of proportion to the gravity of the offending. As a result, the appeal against the conviction was allowed, and the conviction was set aside.

In summary, the court allowed Ms Gunn's appeal against her conviction for common assault, finding that her touch to gain C's attention was not unlawful. The court also found that the consequences of conviction were disproportionate to the gravity of the offending. Consequently, Ms Gunn's conviction was set aside, and she was discharged without conviction.

Orders