Everiss v Police - [2012] NZHC 1926

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-48 [2012] NZHC 1926

BETWEEN JAMES WILLIAM EVERISS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 31 July 2012

Counsel: E Hall for appellant
M J Ferrier for respondent

Judgment: 2 August 2012

RESERVED JUDGMENT OF DOBSON J

[1] At the conclusion of a defended hearing in the Porirua District Court on

2 April 2012, the appellant (Mr Everiss) was convicted on one charge of assault. On

27 April 2012, he was sentenced on this charge. He was fined $400 and ordered to

pay Court costs of $132.89 and witnesses’ expenses.

[2] Mr Everiss now appeals both his conviction and sentence.

[3] The circumstances of the alleged offending are as follows. The complainant in this matter (Mr Ellis) lives with his family in a property at or near the top of a hill in the suburb of Whitby. Immediately adjacent to Mr Ellis’s property is a vacant section, apparently treated by teenagers, including Mr Everiss and his friends, as a “lookout” because of its commanding views. That section is apparently privately
owned, but is undeveloped.

EVERISS v NEW ZEALAND POLICE HC WN CRI 2012-485-48 [2 August 2012]

[4] Mr Ellis described a history of drunken and disorderly behaviour by young people visiting the adjoining section. He had identified Mr Everiss as “a ringleader” of those going to the adjoining section. There had been at least one prior confrontation that involved Mr Ellis asking a group including Mr Everiss to leave, and remonstrating with them for not doing so.

[5] Sometime after midnight on the night in question, Mr Ellis was in bed, asleep, when he was woken by what he thought was knocking on the windows of his property and kicking of the door, as well as people making barking sounds outside. He got partly dressed (he remained bare-chested) and went outside to confront the people knocking on his property.

[6] Mr Ellis was head-butted by one of the group, causing, on his account, his nose to bleed profusely. Paramedics attended and provided first aid. Mr Ellis named Mr Everiss as the man who assaulted him on the night in question. Some six weeks later, he was immediately able to identify Mr Everiss as his assailant in a photo montage identification arranged by the Porirua Police.

[7] Identity of the assailant was the issue at the summary trial. Mr Everiss gave evidence that he was out of sight when the assault occurred and therefore did not see who did it. A friend (Mr Greg) who had been with him gave evidence that they were within sight of the assault when it occurred. Mr Greg confirmed that it was not Mr Everiss who assaulted Mr Ellis, but was not prepared to name the assailant, for fear of his own safety.

Appeal against conviction

[8] Ms Hall did not appear for Mr Everiss in the District Court. In pursuing the appeal against conviction on his behalf, she raised the prospect of fresh evidence from…

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: [2012] NZHC 1926
Decision Date: 2 August 2012

CaseChat Overview and Summary

James William Everiss appealed against his conviction and sentence for assault following a hearing in the Porirua District Court. The complainant, Mr Ellis, had confronted a group of people, including Mr Everiss, who were on a vacant section adjacent to his property. The confrontation resulted in Mr Ellis being head-butted, causing him to bleed profusely. Mr Ellis identified Mr Everiss as his assailant. However, Mr Everiss claimed that he was out of sight when the assault occurred, and another friend, Mr Greg, corroborated this claim, though he did not identify the assailant due to fear for his safety.

The court considered the appeal against the conviction, focusing on the potential fresh evidence from another witness, Jade Livesey, who was present at the scene. Ms Livesey's affidavit stated that the assailant was someone other than Mr Everiss, but she was unwilling to identify the actual assailant due to safety concerns. The court assessed the criteria for admitting fresh evidence, as established in R v Bain, which requires the evidence to be sufficiently fresh and credible. The court found that Ms Livesey's evidence was fresh enough, though there was some debate about the extent of attempts made to contact her before the trial. The court also considered the credibility of Ms Livesey's evidence, despite her state of inebriation at the time of the incident, and concluded that it was sufficiently credible to warrant a new trial.

The court concluded that Ms Livesey's evidence, along with that of Mr Everiss and Mr Greg, created a realistic prospect of doubt regarding the identification of the assailant, sufficient to warrant a new trial. Therefore, the court quashed the conviction and ordered a new trial on the charge of assault. The court did not comment on the appeal against the sentence.

Orders