Forbes v Police - [2025] NZHC 697

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2024-463-144

[2025] NZHC 697

BETWEEN
GARY JOHN FORBES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 February 2025

Appearances:

T Braithwaite for the Appellant

L K McMaster for the Respondent

Judgment:

28 March 2025

JUDGMENT OF ROBINSON J

[Appeal against convictions]

This judgment was delivered by me on 28 March 2025 at 12:30 pm.

Registrar/ Deputy Registrar

Solicitors:
Braithwaite Law Limited, Rotorua
Gordon Pilditch (Crown Solicitor), Rotorua

FORBES v NEW ZEALAND POLICE [2025] NZHC 697 [28 March 2025]

[1] On 27 November 2024, following a judge-alone trial in the District Court at Rotorua, Judge M N E O’Dwyer convicted Gary John Forbes on one charge of male assaults female,1 and one charge of assault on a person in a family relationship.2

[2] Mr Forbes appeals. He says the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice occurred.3

The charges

[3] Mr Forbes was charged with assaulting his cousin, Derek Leathers, and Mr Leathers’ partner, Moana Petre, at Mr Leathers’ home on 30 April 2022. They had been drinking at that address, together with Mr Forbes’ brother, Robbie Forbes, and nephew, Josh Forbes.4 Mr Forbes, Robbie and Josh were staying with Mr Leathers at the time. They argued.

[4] Mr Leathers and Ms Petre went to bed. The Police case was that at about 11:00 pm Mr Forbes entered the bedroom and yelled at the sleeping pair, waking them. Police allege Mr Forbes dragged Mr Leathers from his bed to the floor and grabbed Mr Leathers’ neck as he tried to rise to his feet. The Police say Ms Petre got out of bed and placed herself between Messrs Forbes and Leathers, trying to separate them. In response, Mr Forbes allegedly grabbed her right arm and threw her on to the bed.

[5] Mr Forbes denies the assaults. He admits instigating an altercation in the bedroom that night, but says the confrontation was only verbal.

The trial

[6] Judge O’Dwyer heard evidence from witnesses including, for the prosecution, Mr Leathers, Ms Petre, a police officer and a neighbour Ms Benson; and for the

1      Crimes Act 1961, s 194(b). Maximum penalty: two years’ imprisonment.
2      Crimes Act 1961, s 194A. Maximum penalty: two years’ imprisonment; NZ Police v Forbes
[2024] NZDC 29218.
3      Criminal Procedure Act 2011, s 232(2)(b).
4      For convenience but with no disrespect I shall refer to Mr Forbes’ brother and nephew respectively as Robbie and Josh.

defence, Mr Forbes and Josh. Her Honour was satisfied the prosecution had proven both charges beyond reasonable doubt.5

Grounds of appeal

[7] In respect of the charge of assaulting Ms Petre, Mr Braithwaite for Mr Forbes submits the Judge overlooked that neither Mr Leathers nor Ms Petre were sure that Mr Forbes was the person who assaulted her. Mr Braithwaite says Mr Forbes could not have been convicted on a proper assessment of the…

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 Forbes v Police

Details

AGLC: Forbes v Police [2025] NZHC 697
Case: [2025] NZHC 697
Decision Date: 28 March 2025

CaseChat Overview and Summary

Gary John Forbes appeals his convictions in the Rotorua District Court for assaulting his cousin, Derek Leathers, and Derek’s partner, Moana Petre. The police case was that Mr Forbes entered the bedroom where the two were sleeping, yelled at them, and assaulted them both. The primary judge found Mr Forbes guilty of both charges. Mr Forbes argues the Judge erred in her assessment of the evidence, resulting in a miscarriage of justice. The appeal was heard by Robinson J, who found that the Judge’s failure to address a significant piece of evidence led to a real risk that the verdict on one of the charges was affected. The appeal against the conviction for assaulting Moana Petre is allowed, the conviction is set aside and Mr Forbes is acquitted on that charge. The appeal against the conviction for assaulting Derek Leathers is dismissed.

In Forbes v Police, Robinson J considered whether the trial judge erred in her assessment of the evidence to such an extent that a miscarriage of justice occurred. The appellant was convicted of assaulting his cousin and the cousin’s partner. The appellant argued the trial judge overlooked evidence that neither complainant was sure that the appellant was the person who assaulted Ms Petre. The trial judge did not address this evidence in her reasons. The judge also did not explain why she rejected the complainants’ evidence that it was, or could have been, someone other than the appellant who threw Ms Petre onto the bed. The appellant’s evidence that the confrontation was only verbal was rejected as implausible and not credible. The trial judge found the complainants to be credible and consistent witnesses. Robinson J found the failure to address this important evidence from the complainants led to a real risk that the verdict on the charge of assaulting Ms Petre was affected. The appeal against the conviction for assaulting Ms Petre is allowed, the conviction is set aside and the appellant is acquitted on that charge. The appeal against the conviction for assaulting Mr Leathers is dismissed.

Orders