F v Police HC Auckland Cri-2009-404-191 - [2009] NZHC 1210

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000191

F
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 7 September 2009

Appearances: G Minchin for Appellant
N Whittington for Respondent

Judgment: 9 September 2009 at 4.00 p.m.

JUDGMENT OF VENNING J

This judgment was delivered by me on 9 September 2009 at 4.00 pm, pursuant to Rule 11.5 of the
High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Crown Solicitor, Auckland
G Minchin, Auckland

F V NEW ZEALAND POLICE HC AK CRI-2009-404-000191 9 September 2009

[1] Following a defended hearing before Judge Aitken the appellant was convicted of one charge of assault on a police constable acting in the execution of his duty and a second charge of being in possession of a knife in a public place without reasonable excuse. He was ordered to pay reparation to the constable in relation to the charge of assault and on the charge of possession of a knife was convicted and ordered to come up for sentence if called upon within 12 months. He appeals against both convictions and the sentence of reparation.

Background

[2] The appellant was one of a number of protestors demonstrating outside the Langham Hotel against the visit of the then United States Secretary of State, Condoleezza Rice. The Tactical Policing Team was there to ensure her safety and order. A barrier had been set up across the road from the hotel. The police moved the protestors across the road and behind that barrier. Most of the protestors had gone voluntarily. The appellant refused to move or to allow himself to be removed. He was forcibly lifted off the ground. The appellant took issue with the police officers’ actions in physically moving him.

[3] The appellant returned to the line of policemen, put his head back, put his finger against one nostril and expressed mucous from the other nostril towards the police, hitting Constable Clayton. Despite that assault the police did not break their line. The appellant then left the scene and went to his car to get a pen and paper in order to take details of the police who had forcibly removed him. When he returned to the scene approximately 10 minutes later he was arrested for the earlier assault. When the appellant was searched at the police station a knife was found inside his jacket.

[4] The prosecution called three police officers, an Inspector, Constable Clayton and Constable Lawrence. All three described the appellant expelling mucous from his nose deliberately towards the police and hitting Constable Clayton with it. The appellant gave evidence as did two associates. The appellant admitted expelling mucous but said that he did so because he had a cold and did so directly towards the ground, not at the police officer. One of his witnesses gave evidence to confirm that earlier he had expelled mucous in that way. Neither of the appellant’s witnesses saw the incident described by the police. The Judge preferred the evidence of…

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 F v Police HC Auckland Cri-2009-404-191

Details

AGLC: F v Police HC Auckland Cri-2009-404-191 [2009] NZHC 1210
Case: [2009] NZHC 1210
Decision Date: 9 September 2009

CaseChat Overview and Summary

The case involves an appeal by the appellant against his convictions for assault on a police officer and possession of a knife in a public place without reasonable excuse, as well as the sentence of reparation. The appellant was protesting outside the Langham Hotel during the visit of the then United States Secretary of State, Condoleezza Rice, when he was forcibly moved by police and subsequently expelled mucous towards a police officer, hitting him. The appellant was also found to be in possession of a knife. The appellant contested the charges and the sentence at the High Court.

The legal issues the court had to address were whether the District Court Judge had erred in considering irrelevant matters, failed to consider critical defence evidence, or given contradictory prosecution evidence undue weight. Additionally, the court examined if the Judge erred in her reasoning about the appellant's knowledge of the knife's possession. The court also reviewed whether the sentence of reparation was appropriate.

The court found that the District Court Judge did not err in her decision-making process. The credibility findings made by the Judge were within her entitlement, and the evidence supported her conclusion that the appellant deliberately assaulted the police officer and was in possession of the knife with knowledge. The Judge's reasoning about the appellant's actions and the timing of the arrest was consistent with the evidence presented. Furthermore, the court upheld the sentence of reparation as appropriate for the nature of the assault.

The appeals against both the conviction and the sentence were dismissed. The court found no merit in the appellant's arguments and upheld the original decisions made by the District Court.

Orders