De La Harpe v Police - [2018] NZHC 1080

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-19 [2018] NZHC 1080

BETWEEN
CAMERON BRETT DE LA HARPE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 May 2018

Appearances:

A J Bailey for Appellant

S R D D Bicknell Young for Respondent

Judgment:

17 May 2018

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1] The appellant, Mr de la Harpe, was charged with common assault, and wilful damage to a vehicle. His Honour Judge Saunders found him guilty on both charges. The Judge imposed fines totalling $650, with $250 reparation and court costs. Mr de la Harpe appeals against these convictions.

Background facts

[2]On 7 June 2017, Mr de la Harpe was at the Equestrian Hotel in Hornby,

DE LA HARPE v NEW ZEALAND POLICE [2018] NZHC 1080 [17 May 2018]

Christchurch, with three work colleagues, Mr Barlow-Simpson, Mr Light and Ms James. Ms Sellars was the bar manager. The group drank alcohol until about 9:30 pm when they decided to go home. The complainant, Mr Highsted, had been drinking at the bar with a Mr Brookes. Mr Highsted decided to drive home as he had drunk less.

[3] Mr Highsted left the bar and got into Mr Brookes’s car. Ms James knocked on the passenger window. Mr Highsted let her in as he thought she wanted a ride, but she began attacking him. Mr Highsted tried to ward off her blows.

[4] Mr Brookes came out of the hotel and saw the altercation. He said that one of Ms James’s male friends went to the driver’s door and appeared to be trying to get at Mr Highsted from that side. Mr Brookes went up and tapped the man with his cane to try and have him desist.

[5] At some point, Mr Highsted was pulled, or got out, of the vehicle and was struck again. He and Mr Brookes returned to the bar. There were further altercations, and members of Mr de la Harpe’s group struck Mr Brookes’s vehicle and took items from it.

District Court decision

[6] Mr Highsted, Mr Brookes, Ms Sellars and the attending police officer, Constable Collins, gave evidence for the prosecution. Mr de la Harpe gave evidence in his own defence.

[7] The Judge had to address contradictory evidence. Witnesses were clear that Ms James and one of her companions did most of the “attacking”. However, Ms Sellars thought that Mr de la Harpe was that man, while Mr Highsted and Mr Brookes thought it was Mr Barlow-Simpson.

[8] The Judge brought to account that most of the witnesses were under the influence of alcohol, which affects memory. He considered that Ms Sellars was best placed to give a coherent version of the incident. She was quite clear about the “other” attacker and her description fitted Mr de la Harpe rather than Mr Barlow-Simpson.

[9] The Judge accepted Ms Sellars evidence, finding that she was clear about her description of the attacker, which matched the appellant.…

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.

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Details

Case: [2018] NZHC 1080
Decision Date: 17 May 2018

CaseChat Overview and Summary

The appellant, Mr de la Harpe, was convicted of common assault and wilful damage to a vehicle by Judge Saunders, who imposed fines totalling $650, with $250 reparation and court costs. Mr de la Harpe appeals against his convictions. The key issue for the Court was whether the District Court Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. Mr de la Harpe's counsel argued that the Judge erred by making assumptions and preferring the evidence of certain witnesses based on their apparent levels of intoxication, failing to consider whether Mr de la Harpe's evidence was honest and reliable, failing to consider all the evidence, and finding him guilty of damaging the vehicle despite there being no evidence to support this. The Court found that there was sufficient evidence for the Judge to find, beyond reasonable doubt, that Mr de la Harpe assaulted Mr Highsted. While the Judge could have reasoned in more detail, none of the grounds raised on appeal impinges the conclusion reached on the available evidence. Regarding the wilful damage charge, the Court found that the evidence was sufficient to show, beyond reasonable doubt, that Mr de la Harpe was involved in damaging the vehicle. The appeal is dismissed.

Orders