Emmerson v Police - [2015] NZHC 361

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-430 [2015] NZHC 361

BETWEEN
PERRY EMMERSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 March 2015

Counsel:

B L Sellars and C S Fredric for Appellant
R K Thomson for Respondent

Judgment:

5 March 2015

JUDGMENT OF KEANE J

This judgment was delivered by me on 5 March 2015 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Belinda Sellars (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

EMMERSON v POLICE [2015] NZHC 361 [5 March 2015]

[1] On 1 June 2013, shortly after 1:00 am, D made a 111 call. He said that he had just been indecently assaulted by a man, identified shortly afterwards to be Perry Emmerson. He had been walking in Glendene, Auckland; Mr Emmerson had pulled up in his truck and been friendly; he had climbed into the passenger side of the cab, for what reason he did not then say; and then, completely unexpectedly, Mr Emmerson had taken hold of his genitals.

[2] He had reacted, he said, by assaulting Mr Emmerson. He had pulled him out of the truck and continued to assault him, kicking him in the head. As he was speaking, he said Mr Emmerson was lying curled up to the side of the road. But he himself was still angry. To ensure he did not assault Mr Emmerson further he had hailed down a passing car. The occupants were with him. He was holding Mr Emmerson for the Police. He claimed to have acted in self-defence.

[3] One of the passers-by spoke to the operator. He confirmed D had hailed him down, together with his father and brother. They were at the roadside. Four officers arrived just as the call ended. Two spoke to D and arrested him for assault. Two spoke to Mr Emmerson, who was taken to North Shore Hospital. In a video interview at 2:26am D again admitted his assault on Mr Emmerson, with greater detail.

[4] D explained that shortly before the incident he and a friend of his, whom he proved reluctant to name, had been told to leave his uncle’s and aunt’s house. He and his uncle had argued. He was inconsistent about whether his friend was still with him, when Mr Emmerson pulled up. But finally he said that they had parted close to his aunt and uncle’s house and he was by himself. Mr Emmerson asked him for directions and offered him a lift.

[5] He climbed into the passenger seat, pushing to one aside Mr Emmerson’s possessions and spreading his legs to cope with more items in the foot well. He recalled that Mr Emmerson was drinking a can of bourbon or something alcoholic. Then, as they were pulling away from the kerb, to turn back up the road, and Mr Emmerson was apparently engaging the gear…

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 Emmerson v Police

Details

AGLC: Emmerson v Police [2015] NZHC 361
Case: [2015] NZHC 361
Decision Date: 5 March 2015

CaseChat Overview and Summary

In the case of Emmerson v Police, the appellant, Perry Emmerson, was convicted of indecent assault by the District Court. Emmerson appealed against his conviction, arguing that the trial Judge had erred in his assessment of the evidence, effectively reversing the onus of proof, and that the Judge should have rejected the complainant's evidence as unworthy of belief. The appeal was heard by Keane J in the High Court of New Zealand. The central issue was whether the Judge had erred in his evaluation of the evidence to such an extent that a miscarriage of justice had occurred.

Emmerson's primary argument was that the Judge had required him to negate the complainant's evidence that he indecently assaulted Emmerson only because Emmerson had touched him indecently first. Emmerson also argued that the Judge should have rejected the complainant's evidence due to inconsistencies and the complainant's history of violence and anger at the time of the incident. The court examined whether the Judge's evaluation of the evidence was flawed and whether there was a reasonable possibility that a more favourable verdict might have been delivered if nothing had gone wrong.

The court found that the Judge had not erred in his understanding of the onus of proof and that he had correctly identified the reasons why the defence contended that the complainant's evidence was inconsistent. The court also held that the inconsistencies pointed out by the defence did not relate to the central issue of whether Emmerson had indecently assaulted the complainant. The Judge's rejection of Emmerson's evidence as implausible, when set against the evidence as a whole, was deemed correct. The court concluded that Emmerson's appeal should be dismissed and upheld the conviction and sentence.

In summary, the High Court found no miscarriage of justice in the trial Judge's assessment of the evidence and upheld Emmerson's conviction and sentence for indecent assault. The court affirmed the trial Judge's credibility assessments and found that the evidence supported the complainant's account of events.

Orders