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…

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 D v Police

Details

AGLC: D v Police [2025] NZHC 3140
Case: [2025] NZHC 3140
Decision Date: 21 October 2025

CaseChat Overview and Summary

D appealed his conviction for assault on a child, arguing the trial Judge erred by considering his co-defendants’ police statements in violation of s 27 of the Evidence Act 2006. The respondent conceded the error but argued it did not result in a miscarriage of justice and the trial was otherwise fair. The High Court found the error did result in a miscarriage of justice, leading to the appellant’s conviction being quashed and a retrial ordered.

The key legal issue before the Court was whether the Judge’s consideration of the co-defendants’ police statements, which was impermissible under s 27 of the Evidence Act, gave rise to a miscarriage of justice. The Court considered whether there was a real risk the outcome of the trial was affected by this error. The Court concluded that there was a reasonable possibility that a not guilty verdict might have been delivered if nothing had gone wrong, thus satisfying the miscarriage of justice test.

The Court found that the error had affected two strands of the Judge’s reasoning. First, the Judge found D’s account of the second time he grabbed J was not supported by other witnesses, likely referring to the co-defendants’ statements. Second, the evidence against D was not so overwhelming that there was no reasonable prospect of a different verdict. The Court found that on a retrial, 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.

The High Court quashed D’s conviction and ordered a retrial.

Orders