Egen v Police - [2015] NZHC 1359

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-60 [2015] NZHC 1359

BETWEEN
WENDY MAREE EGEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 8 June 2015

Appearances:

Appellant in Person
J V Barry for Respondent

Judgment:

16 June 2015

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on
16 June 2015 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Meredith Connell, Crown Solicitors, Auckland
Copy to:
Wendy Egen, Auckland

EGEN v NEW ZEALAND POLICE [2015] NZHC 1359 [16 June 2015]

[1] Wendy Egen was found guilty of one charge of common assault.1 She was

sentenced to nine months’ supervision and 100 hours community work.

[2] Ms Egen appeals both conviction and sentence. Ms Egen is self-represented. She appeals on the following basis:

I deny the claim of the charges that I, Wendy Maree Egen assaulted Joy Egen on the 10th July 2013.

I also observed the final summary explaining what happen from JUDGE H M TAUMAUNU was incorrect from the statement given from Faith Egen, therefore I am questioning the outcome of the case.

I am also questioning the cross-examination of the crown prosecutor Mrs H Lotriet.

The Police Officer, Constable Ryan under cross-examination evident was unsupported, and under oath gave incorrect information.

Background

[3] This matter was considered by a Judge alone. The Judge identified the disputed issues as follows:

[4] … The disputed issues of this case are:

(a) Whether the police have proved beyond reasonable doubt that the defendant assaulted the complainant.

(b) A factual dispute as to the nature and extent of the assault proved beyond reasonable doubt by the police.

(c) If the police have proved beyond reasonable doubt that the defendant assaulted the complainant, whether the defendant was acting in self-defence.

[4] As to the first question, the Judge identified a number of admissions by Ms

Egen including that:

(a) The physical exchange between herself and her daughter started in the kitchen;

1 New Zealand Police v Egen [2015] NZDC 3617.

(b)She pushed the complainant after the complainant initiated the physical exchange by pushing the defendant first;

(c) There was likely a second push, but she was not sure about that aspect of her evidence;

(d)She thought it was possible that the complainant pushed her again in the kitchen and she pushed back again a second time;

(e) She was pushed into the fridge and the wine glasses fell off the top of the fridge and smashed and she had nowhere to go because the complainant was in her face and that is why she pushed the complainant back;

(f) It was a possibility that it was one or other of those pushes that may have led to the complainant falling onto the kitchen bench;

(g) She held the complainant’s hair in the lounge when she was

attempting to retrieve her car keys from the complainant;

(h)She had a struggle with the complainant trying to retrieve her car keys, a physical struggle…

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: [2015] NZHC 1359
Decision Date: 16 June 2015

CaseChat Overview and Summary

Wendy Maree Egen appeals both her conviction and sentence for one charge of common assault against Joy Egen, which occurred on 10 July 2013. The District Court found Ms Egen guilty and imposed a sentence of nine months' supervision and 100 hours community work. Ms Egen argues that the District Court erred in its assessment of the evidence and that there was prosecutorial misconduct. Additionally, she claims that the sentence will have serious consequences for her career aspirations to become a real estate agent.

The appeal raises several legal issues. The primary issue is whether there was a miscarriage of justice in the evidence assessed by the District Court. Additionally, the court must determine if there was any prosecutorial misconduct and whether the sentence should be commuted to a discharge without conviction.

Justice Whata dismissed the appeal against conviction and sentence. The appeal against conviction was dismissed on the basis that the District Court's assessment of the credibility of Faith Egen's evidence was proper and sufficient to support the finding of guilt beyond reasonable doubt. The court found no basis to reverse the credibility finding or to conclude that the District Court erred in its assessment of the evidence. The appeal against sentence was dismissed as the sentence was within the range of sentences available to the District Court and there was no proper basis to grant a discharge without conviction.

Final orders: The appeal against conviction and sentence is dismissed.

Orders