D v Police

[2025] NZHC 3140

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT UNDER THE AGE OF 18

PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2025-485-53

[2025] NZHC 3140

BETWEEN

D

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

16 October 2025

Appearances:

S R Clarke for Appellant

V E Squires for Respondent

Judgment:

21 October 2025

JUDGMENT OF ISAC J

[Conviction appeal]

Introduction

[1]    Following a judge-alone trial before Judge Warburton, D was found guilty of one charge of assault on a child.1  He now appeals his conviction on the basis that  the Judge wrongly took into account his co-defendants’ police statements contrary  to s 27 of the Evidence Act 2006.

[2]    The respondent accepts there was an error of approach but submits it has not given rise to a miscarriage and that the trial was otherwise fair.

1      Crimes Act 1961, s 194(a), maximum penalty two years’ imprisonment.

D v POLICE [2025] NZHC 3140 [21 October 2025]

[3]    I must allow the appeal if satisfied  a miscarriage of justice has occurred.2    A “miscarriage of justice” is defined to include any error that has created a real risk that the outcome  of  the  trial  was  affected.3  A  “real  risk”  exists  when  “there  is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong”.4

[4]    I have concluded that the appeal should be allowed and a re-trial ordered. This judgment sets out my reasons.

The prosecution

[5]    Two other defendants faced separate allegations arising from the events in issue. They were A, who is D’s partner, and G, who is A’s adult daughter. D, A and G were all tried together.

[6]    J and his younger brother, L, were cared for by A and D from June 2020.5     At the time of offending J was 12 years old, and his brother was 10. J had previously been living in a home affected by domestic violence and addiction.6 There is evidence that J was not easy to manage and was receiving specialist counselling for children affected by trauma.

[7]    One evening G and A were attempting to discipline J who was behaving erratically in his bedroom. D was initially in the shower, but entered the bedroom in the middle of  a commotion. He told Police that  as he  entered the  room  he saw     J punching G. In response D pulled J up on to the bed by his t-shirt, causing it to rip.7 This was one of the episodes giving rise to the assault charge.

[8]    D then threw J twice up against a chest of drawers, leaving a bruise on his chest and scratches and a bump on his head. These were the two acts constituting an assault

2      Criminal Procedure Act 2011, s 232(2).

3      Section 232(4).

4      R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

5      Police v [D] [2024] NZDC 27762, at [3]–[5] [Conviction decision].

6 At [4].

7 At [10].

on which D was found guilty. I will return later to the manner in which the charge was left to the Court.

[9]    The principal evidence for the respondent to support the charges came from   J and his younger brother L. L was not in the room but said he was able to observe some of the events either through the doorway or through the bedroom window after he went outside. It appears he could not have seen the second alleged occasion when J was thrown into the set of drawers. At the time L was outside but had moved away from the window before it was broken by J.

The District Court decision

[10]   Section  27(1)  of  the  Evidence  Act  provides  that  evidence  offered  by  the prosecution of a statement made by a defendant is only admissible against a co-defendant if it is admitted under s 22A, which relates to the co-conspirators rule. That rule does not apply in the present case, so the effect of s 27, consistent with    the common law, is that the out-of-court statements of D’s co-defendants were not admissible as evidence in his trial.

[11]   After setting out the allegations  against  the  defendants,  the  Judge  gave  the following self-direction about the defendants’ out of court statements:8

The defendants were interviewed by police. I have directed myself in relation to their out of court statements.

[12]   The respondent argued this direction suggested the Judge correctly turned her mind to the requirements of s 27. While that seems most likely, it could be taken to refer to the standard direction  concerning  a  defendant’s  out  of  court  statement, or potentially the tripartite direction.9 Nothing ultimately turns on this.

[13]   In regard  to  D,  the  Judge  summarised  the  police  case  as  an  assault  on a “continuing basis” by pulling J down on the bed with enough force to rip his t-shirt;

8      Conviction decision, above n 5, at [17].

9      The benchbook specimen directions distinguish between the standard direction for single and multi-defendant trials. The direction for trials involving two or more defendants includes the following statement: “When you are assessing whether each defendant is guilty or not guilty, you must ignore anything the other defendant has said about them on video”.

and twice throwing J into a chest of drawers.10 As became evident at the appeal, rather than proffering three separate  assault  charges  in  accordance  with  R  v  Mason,  the prosecution advanced a single charge relying on the three identified acts.11 Ordinarily a charge must relate to a single offence and contain sufficient particulars to fully and fairly inform the defendant of the  substance of the offence alleged.12  The approach taken in this case by the prosecutor was irregular, given different defences were available and run to the different acts said to constitute the offence. However, given the Judge’s decision clearly identifies the discrete acts in question and considers the evidence on each separately, Mr Clarke for D quite properly took no issue with the duplicitous nature of the charge.

[14]   Having identified the elements of the offence, the Judge outlined the defence for all defendants. D’s defence was that in respect of the first assault (pulling J onto the bed), the force was used in self-defence or defence of another, and was justified as parental control. In respect of the second and third episode (throwing J into the chest of drawers) the defence was outright denial.13

[15]   The Judge observed that J’s credibility was central, as he was the only person to witness the events other than the defendants and, to a limited extent, L.14 Overall the Judge found J was a credible witness. He remembered details, including details that were confirmed by independent evidence.15 J conceded points that “did not reflect well on him” but was clear when he denied propositions put to him.16

[16]   Turning to the defendants’ police statements, the Judge twice relied on them collectively to find they were inconsistent  with  each other  and lacked credibility.  In a section of the decision dealing with her credibility assessment of the accounts of J and the defendants the Judge said:

[47]   I have also had the opportunity to consider the defendants' police video interviews. I found their statements as  to what  happened on the  night  of  22 March 2023 were inconsistent with each other in some important respects

10 At [31].

11     Mason v R [2010] NZSC 129, [2011] 1 NZLR 296 at [12].

12     Criminal Procedure Act, s 17(1).

13     Conviction decision, above n 5, at [36].

14 At [41].

15 At [42].

16 At [42].

in relation to how J received the bump and bruise to his forehead and what happened when [A] and [G] left the lounge and went into J's bedroom. [D] is inconsistent about the number of times he physically grabbed J.

[48]    In addition, their recall of events is less accurate than J. They denied blocking L at the bedroom door or seeing him at the window. L recounted trying to get into the bedroom and CCTV footage confirms he went outside to look in the window. J recalled both these events as well as [A] recording the incident. Only when asked by police did [A] admit to making the recording but stated she had deleted it.

[17]   Later when considering the charge against D specifically, the Judge repeated her conclusion that there was an inconsistency between the co-defendants’ accounts relevant to her consideration. She made reference to G’s account in particular when finding D was responsible for the injury to J’s forehead:

[81]  The defendants' accounts in relation to the injuries to J's forehead are not consistent. [A] and [D] denied seeing any injuries on J over the few days after the incident. [D] said that the forehead bump and bruise was not from them, but J may have received the chest bruise when [D] grabbed him. [A] was clear that during the incident, nothing connected with J's head. Accordingly, there was no reason J would have a bump and bruise on his forehead. In relation to the chest bruise, [A] suggested this could have occurred when J was banging his chest of drawers and they bounced back into him on several occasions. J denied he banged his chest of drawers.

[82]   In contrast, [G], in her police interview, said that she did not notice any injuries on J when she cooked the boys' dinner on the Thursday night. When asked how J got the bump/bruise on his forehead, [G] initially told police that she did not know. She then said: "Oh no I do know, cos he was smashing his head against his drawers and the wall". She repeated this statement and concluded that she did not cause those injuries. I do not find [G]'s statement credible in relation to how J received a bruise and bump to his forehead.

[18]   It is for this reason the respondent accepts there was an error in the Judge’s approach to the evidence. When assessing the case against each defendant, the Judge was not permitted to have regard to inconsistencies between the co-defendants’ out of court statements.

[19]   I therefore turn to the issue on appeal,  namely whether the error  gave rise   to a miscarriage of justice.

Has there been a miscarriage of justice?

[20]   For the police, Ms Squires submits that in relation to the allegations on which D was convicted, his defence was a simple denial of the act. Self-defence and parental control under s 59 of the Crimes Act 1961 did not arise.

[21]   Against that context, the respondent argues the Judge relied on three strands of evidence, only one of which was affected by error. Those strands were:

(a)J’s own evidence, accepted by the Judge as credible;

(b)D’s account, which contained internal inconsistencies, and which the Judge found was also inconsistent with the evidence of the “other witnesses”;17 and

(c)J’s injuries, which included scratch marks on his forehead, a bump and bruising on his forehead, as well as other marks and injuries on the front of his chest and neck, consistent with J’s account of the assault.

[22]   Ms Squires in written submissions argued it was only the third element of  the District Court’s reasoning where the Judge strayed into error.  In  light of this,  the respondent argued there was ample evidence proving D’s guilt even if the co-defendants’ statements are ignored. The respondent argued J’s evidence was:

…consistent with independent evidence such as the photographs and the CCTV footage. [D’s] police statement remains both internally inconsistent and at odds with the evidence of other witnesses on this issue. It was correct for the learned trial Judge to accept J’s evidence and reject [D’s] unsworn and untested account to police. J’s evidence itself is capable of establishing the charge.

[23]   I am not satisfied, however, that even without the error there is no reasonable possibility a different verdict might have been delivered.

[24]   First, the Judge’s finding that D’s account of the second time he grabbed J was not supported by other witnesses is dealt with in [76] of the decision, where she said:18

17     Referring to paragraph [76] of the judgment.

18     At [76] (emphasis added).

In his police interview, [D] was inconsistent when he described how many times he grabbed J. [D] initially told police there were two occasions when he grabbed J. One occasion related to seeing J punch G. The second time was after J threw the piggybank and broke the window. [D] said he grabbed J the second time to stop J destroying anything else. No other witnesses described the second event. J told police that [D] grabbed him only once, when he ripped J's t-shirt and pulled him on to the bed.

[25]   However, as Mr Clarke pointed out, there were no other witnesses to the second incident. L did not observe it according to his evidence. So, it appears the reference is likely to be to the co-defendants’ statements, and a second strand of the Judge’s reasoning may have been affected by the error.

[26]   Second, the evidence against D cannot be said to be so overwhelming that there is no reasonable prospect of a different verdict.

[27]   The Judge relied on J’s injuries and his report of them to a friend as evidence corroborating his account. While the respondent accepts this aspect of her decision was affected by error, it may have further relevance to the possibility of a different verdict on a retrial. In particular, it is possible a different view might be taken of the significance of the injuries and whether they support, or contradict, J’s account, given their location and J’s description of the assault.

[28]   J is a child with complex needs and became highly dysregulated during the incident. It stemmed from an argument with his younger brother in which J threatened to punch L and was sent to his bedroom. From that point J’s behaviour deteriorated. It included shouting and swearing, attempts to punch his caregivers, pulling drawers out and emptying their contents, flipping his mattress and smashing the bedroom window by throwing an object through it. On one view the injuries he sustained are not inconsistent with the account of D and his co-defendants that they used a level of force to prevent damage and injury to members of the household.

[29]   There were also important inconsistencies in J’s  evidence and as between     J and L. Some of these resulted in reasonable doubt in relation to some of the acts the prosecution relied on as constituting an assault.

Conclusion and result

[30]   The appeal against conviction is allowed and the appellant’s conviction is quashed.

[31]A retrial is ordered.

Isac J

Solicitors:

Melanie Baker, Hutt Valley for Appellant

Luke Cunningham Clere, Wellington for Respondent