Davey v Police - [2016] NZHC 2506

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CRI-2016-483-15 [2016] NZHC 2506

BETWEEN
HAMISH JOHN DAVEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing (AVL): 18 October 2016

Counsel:

S J Ross for Appellant
J M Woodcock for Respondent

Judgment:

21 October 2016

JUDGMENT OF WILLIAMS J

Introduction

[1] Mr Davey was found guilty of an assault on his ex-wife following a defended hearing before Judge Cameron on 23 June 2016.1 He was sentenced to 80 hours’ community work.

[2] He appeals against the conviction and sentence.

District Court conviction decision

[3] The Judge noted the background which was that Mr Davey and the complainant, his ex-wife, had been separated for about three years, and there had been ongoing issues relating to care of children and relationship property. There was an arrangement for fortnightly contact, which had not been working well.

1 Police v Davey [2016] NZDC 12347.

DAVEY v NEW ZEALAND POLICE [2016] NZHC 2506 [21 October 2016]

[4] On 14 February 2016, Mr Davey went to the complainant’s property with the intention of taking the children for the day. She was not there, so he went to her new partner’s house. When he arrived there, she was in the driveway cleaning her car.

[5] The complainant’s account was that she was sitting on the edge of the passenger seat of the vehicle with the door open, cleaning the console. She was sitting on the edge of the passenger’s seat with her left leg out the door and her foot on the ground. Mr Davey approached from behind. The left-hand door slammed on her leg, causing her considerable pain. Then she turned around and saw Mr Davey through the glass window, saying words to the effect of “Where are the kids?” He then went towards the property, but she ran past and went inside, locking the front door, and then the back door. He then peered through a window and called out to one of the children, before leaving the property. As he was leaving, he had an unpleasant exchange with the complainant’s partner.

[6] Mr Davey’s position was that the complainant had fabricated the account. He gave evidence that he had taken two photographs of the vehicle as he left the property. Judge Cameron found that if the incident had not happened, there would have been no reason for him to take the photos, and that his doing so points to being a first step in preparing a defence.

[7] Mr Davey also produced photos of himself sitting in another vehicle to try to disprove the complainant’s account of how she was sitting in the car. The Judge, however, found that the complainant was much shorter than Mr Davey; it was a different vehicle; and his body was positioned differently to her account in at least one of the photos. For these reasons, he found that the photos did not create any reasonable doubt.

[8] Constable Ericson, who attended the scene, gave evidence that the complainant had demonstrated…

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 Davey v Police

Details

AGLC: Davey v Police [2016] NZHC 2506
Case: [2016] NZHC 2506
Decision Date: 21 October 2016

CaseChat Overview and Summary

The case of Davey v Police was heard in the High Court of New Zealand. The appellant, Hamish John Davey, appealed his conviction and sentence for assault on his ex-wife and threatening behaviour. The District Court found Mr Davey guilty of assault, but not guilty of threatening behaviour. He was sentenced to 80 hours of community work. Mr Davey contended that the District Court erred in its assessment of the evidence and that a miscarriage of justice had occurred. The primary legal issue for the High Court was whether the District Court erred in finding Mr Davey guilty of assault. The court considered the evidence presented and the District Court’s assessment of that evidence, particularly in relation to the complainant’s credibility and the consistency of her evidence. The High Court found that the complainant’s evidence was consistent and credible, and the District Court’s assessment of the evidence was not in error. The High Court also rejected Mr Davey’s arguments about the positioning of the complainant and the photos he took, finding that these did not undermine the complainant’s evidence. The High Court dismissed the appeal against the conviction. Regarding the sentence, Mr Davey argued that the sentence of 80 hours of community work was manifestly excessive, and he had since broken his leg, making it impossible for him to perform the sentence. The Crown accepted that the sentence was no longer appropriate, and the High Court substituted a fine of $700 and ordered Mr Davey to pay emotional harm reparations of $1,000 within seven days.

The final orders of the court were to dismiss the appeal against the conviction, quash the original sentence, and substitute a fine of $700 and order emotional harm reparations of $1,000.

Orders