D v Police HC Whangarei Cri-2006-488-42

[2007] NZHC 1613

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2006-488-042

BETWEEN  T  D

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 February 2007

Appearances: Appellant in person

Anna Patterson for Respondent

Judgment:      14 February 2007

JUDGMENT OF HARRISON J

SOLICITORS

Marsden Wood Inskip & Smith (Whangarei) for Respondent

COPY TO: T D 

D  V POLICE HC WHA CRI-2006-488-042  14 February 2007

[1]      On 6 March 2006 Judge James Rota sitting in the summary jurisdiction in the District  Court  at  Kaikohe  convicted  Mr T   D    of  assaulting  Mr N  E .

[2]      Mr D   was represented by Mr Steve Nicholson in the District Court. However, Mr D   has represented himself in lodging and prosecuting an appeal against his conviction.  In response to a request for points on appeal, Mr D   has filed a lengthy handwritten memorandum which, in essence, challenges Judge Rota’s findings with a widely directed attack on Mr E ’s credibility.

[3]      On 1 February the registry gave Mr D   written notice that his appeal was set down as a back-up fixture for today.  On 7 February the registry advised him that it would be heard as a firm fixture at 10 am.  I am satisfied that Mr D   was aware of this hearing.

[4]      Mr D  ’s appeal was called at 10 am but he did not respond.  It has been called twice since, the latest at 12 midday.  Again Mr D   has failed to appear.  I infer from his absence that he does not intend to pursue his appeal.  Accordingly, I dismiss it.

[5]      I should add, in fairness to the Judge and Mr D  , that I have read the careful  decision  under  appeal.    There  was  no  dispute  that  Mr D    assaulted Mr E  by punching him two or three times in the face.   The only issue for resolution at trial was whether or not the police had satisfied the Court that the defence of self defence was unavailable to Mr D  .

[6]      With respect, the Judge correctly identified the two elements of the defence: first,  the  subjective  element  of  whether  or  not  when  he  committed  this  assault Mr D   believed that he was under such a threat that he needed to defend himself; second, the objective element of whether or not the force used was reasonable in the circumstances.

[7]      Even  if  the  police  were  unable  to  establish  Mr D    did  not  have  the necessary subjective belief at the time of the assault, the Judge’s conclusion that the

force used was unreasonable is unimpeachable.  It cannot be challenged on appeal. For that reason the appeal would fail.

[Mr D   appeared just as I concluded dictating this judgment.  He accepted that he knew the fixture was scheduled for 10 am but assumed other business would take priority.  In any event, I explained to Mr D   the reasons why I was satisfied his appeal must fail. He expressed courteous appreciation of the fact that his written

arguments had been considered and accepted my decision with good grace.]

Rhys Harrison J