Cotter v Police - [2021] NZHC 1532

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2021-442-000012

[2021] NZHC 1532

BETWEEN
JOHN DAVID MCPHEE COTTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 November 2021

Appearances:

M J Vesty for the Appellant

A R Goodison for the Respondent

Judgment:

10 December 2021

JUDGMENT OF GRICE J

(Conviction Appeal)

Solicitors:
O’Donoghue Webber, Whakatū | Nelson for the Respondent.

COTTER v POLICE [2021] NZHC 1532 [10 December 2021]

Introduction

[1] This is an appeal against convictions following a Judge alone trial on 5 March 2021.1 The convictions relate to three charges of strangulation,2 and one charge of assault against a person in a family relationship.3

[2] The grounds for appeal relate to, first, issues concerning competence of counsel for the appellant at trial and, in particular, in relation to failure to cross- examine the complainant on a number of points. The second main ground is that the trial Judge failed to give adequate reasons for rejecting the appellant’s evidence.

Background and factual background

[3] The background, as accepted by the Judge, was based on Ms Riley’s (the complainant’s) formal statement of 2 August 2020.4 She said both she and her partner, Mr Cotter, had been drinking with friends in Māpua. She walked home to put her phone on charge with the intention of re-joining them later. She then walked onto the street to see where the group had gone but saw no one and tried to call Mr Cotter.

[4] The complainant walked further down the street and met Mr Cotter who was angry. They argued. Mr Cotter then swung his hand at her, causing her to fall onto the road (leading to the charge of assault of a person in a family relationship). Mr Cotter then choked her while she was on the road (the first strangulation charge). Ms Riley got up and hit Mr Cotter in the face.

[5] The confrontation continued at their home. There, Mr Cotter grabbed Ms Riley by the neck and dragged her to the ground (leading to the second strangulation charge). He continued to verbally abuse Ms Riley. At this point, she kicked him, and he kicked her back in response.

1      Police v Cotter [2021] NZDC 4030 [“District Court Decision”].
2      Crimes Act 1961, s 189A: maximum penalty of seven years’ imprisonment.
3      Section 194A: maximum penalty of two years’ imprisonment.
4 District Court Decision, above n 1, at [41].

[6] Mr Cotter continued to choke the complainant. She struggled to breathe. He dragged her around the kitchen. Fearing for her life, Ms Riley then ran away to a friend’s house for safety.

Law on conviction appeals

Conviction appeal

[7] Section 232(2) of the Criminal Procedure Act 2011 provides that the High Court must allow an appeal if the Court is satisfied that a miscarriage of justice has occurred (subs (b)) or a “miscarriage of justice has occurred for any reason” (subs (c)).

[8] A “miscarriage of justice” is defined in s 232(4)…

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 Cotter v Police

Details

AGLC: Cotter v Police [2021] NZHC 1532
Case: [2021] NZHC 1532
Decision Date: 10 December 2021

CaseChat Overview and Summary

Cotter appealed his convictions for three charges of strangulation and one charge of assault against a person in a family relationship. The appeal was heard by Grice J in the High Court of New Zealand. The primary issues in the appeal were whether the trial counsel's competence was deficient and whether the trial judge failed to provide adequate reasons for rejecting the appellant's evidence. The court found that the trial counsel's competence was not deficient, as the tactical decisions made by counsel were within the bounds of reasonable judgment. The court also found that the trial judge provided adequate reasons for rejecting the appellant's evidence, and therefore, the appeal was dismissed. The judge concluded that even if the alleged errors were made, no miscarriage of justice had occurred due to the conduct of the defence. The court dismissed the appeal, and the convictions were upheld.

Orders