Cottman v Police - [2013] NZHC 598

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000100 [2013] NZHC 598

BETWEEN GUY CHARLES COTTMAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 18 March 2013

Appearances: Appellant in Person
J A Ongley for the Respondent

Judgment: 27 March 2013

RESERVED JUDGMENT OF GODDARD J

This judgment was delivered by me on 27 March 2013 at 4 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, PO Box 10357, Wellington
Copy to: G Cottman, 8/457 Adelaide Road, Berhampore, Wellington

COTTMAN V POLICE HC WN CRI-2012-485-000100 [27 March 2013]

[1] On 27 September 2012, after a defended hearing in the District Court at Wellington, Judge A E Gaskell found Mr Cottman guilty on charges of possession of an offensive weapon and threatening to kill.[1] On 24 October 2012, Mr Cottman was sentenced to nine months’ supervision, subject to special conditions, and to 60 hours’ community work.

[1] Police v Cottman DC Wellington CRI-2012-085-001598, 27 September 2012.

[2] Mr Cottman was represented by counsel in the District Court, but has pursued his appeal against conviction in this Court on his own behalf.

[3] He was originally given notice of a date of hearing for this appeal of

18 December 2012. No submissions in support of the appeal were however filed and there was no appearance by Mr Cottman or on his behalf on that date. Accordingly, the appeal was dismissed for want of prosecution.

[4] Mr Cottman then applied to the Court of Appeal for leave to appeal from the dismissal of his appeal, stating that his non-appearance was due to his not having received notification of the hearing date. In the event he was permitted to proceed by way of a re-hearing of his original appeal in this Court, rather than by having to seek leave to appeal to the Court of Appeal. Mr Cottman has now pursued that course.

[5] The Crown did not oppose the appeal being heard on its merits but argued that it is without merit.

Background

[6] The events leading to the charges occurred in a residential flat in Newtown, suburban Wellington. The version of events given by the complainant, and preferred by the Judge, was to the effect that she had been visiting the flat of a female friend, Ms Sinclair, and had stayed sufficient time to have a cup of tea and then a glass of
wine with Ms Sinclair. Mr Cottman arrived at the flat. He had never previously met

the complainant but was a friend of Ms Sinclair. An argument between Ms Sinclair and Mr Cottman ensued leading the complainant to go into the bathroom, hoping to avoid the argument. When it did not cease, the complainant came out of the bathroom intending to leave the flat. She was then accosted by Mr Cottman, who she said wielded a small kitchen knife and threatened to kill her. The complainant grabbed her bag and ran from the flat.

[7] The complainant then made a 111 call to…

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 Cottman v Police

Details

AGLC: Cottman v Police [2013] NZHC 598
Case: [2013] NZHC 598
Decision Date: 27 March 2013

CaseChat Overview and Summary

The appellant Guy Charles Cottman sought to appeal his conviction and sentence by the District Court for possession of an offensive weapon and threatening to kill. The appeal was initially dismissed for want of prosecution, but later re-heard following the appellant's application to the Court of Appeal. The Crown did not oppose the appeal being heard on its merits but argued that it was without merit. The case involved a dispute over the events that occurred in a flat in Newtown, Wellington, where the complainant alleged that the appellant threatened her with a knife and said he would kill her. The appellant denied the allegations. The District Court Judge accepted the complainant's version of events and convicted the appellant. The appellant raised several grounds of appeal, including that the Judge should have heard the 111 call made by the complainant, that his counsel should have called evidence from a witness, that his counsel should have cross-examined the Police officer, that the Judge should have questioned the reliability of the complainant's evidence, and that the Judge should not have based her decision on the credibility of the witnesses. The High Court found that none of the grounds of appeal were made out and dismissed the appeal. The Court found that the Judge's reasons for declining to hear the 111 call were sound, that the absence of evidence from a witness would not have caused any miscarriage of justice, that the Judge had already queried the Police officer's evidence and accepted it, that the colour of the belt worn by the appellant was not material to the offence, and that it was open to the Judge to prefer the evidence of the Police officer and the complainant over the appellant's evidence. The appeal was dismissed.

Orders