Forbes v Police
[2025] NZHC 697
•28 March 2025
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 evidence, and that the charge should have been dismissed.6
[8] In respect of the charge of assaulting Mr Leathers, Mr Braithwaite submits that the Judge’s assessment of Mr Forbes’ evidence was impacted by the error she made in dealing with the charge of assaulting Ms Petre. Mr Braithwaite submits that the Judge unreasonably discounted Mr Forbes’ evidence, and that on a proper assessment of all the evidence the Judge could not have been satisfied beyond reasonable doubt that Mr Forbes was guilty.
The evidence
Mr Leathers’ evidence
[9] Mr Leathers’ evidence was that Mr Forbes, Robbie and Josh were standing at his bedroom door. Mr Leathers said Mr Forbes entered his room and dragged him from his bed. Mr Leathers denied that he jumped out of bed when counsel put that to him in cross-examination. Ms Petre “hopped out of bed” and came to intervene. Mr Leathers said he was on the floor when that happened, and Ms Petre was pushed onto the bed. His evidence, which the Judge clarified, was that by then Mr Forbes was standing in front of Josh and Robbie.
[10]Concerning the alleged assault on Ms Petre, Mr Leathers’ evidence was:
Q. And then what happened?
5 NZ Police v Forbes, above n 2, at [37].
6 Mr Braithwaite says at the end of the prosecution case he made an oral application under s 147 of the Crimes Act 1961 which the Judge dismissed.
A. When my partner came around to the other side of the bed, she was pushed onto the bed. Yeah there was struggling there as well from my partner. Yeah it was Robbie and Josh…
[11] In cross-examination, Mr Leathers confirmed it was Robbie and Josh who pushed Ms Petre on to the bed:
Q. And you said in your evidence that your partner was pushed on the bed and you said it was Robbie and Josh. Is that something you saw?
A. You saw and, well I heard it.
Q. You heard it?
A. Yes.
Q. isn’t it the case that actually Gary came in by himself for the arguing?
A. No, there was three of them.
Ms Petre’s evidence
[12] Ms Petre’s evidence was that she saw Mr Forbes put his hand around Mr Leathers’ neck, so she jumped out of bed and tried to stop him:
Q. After you saw that what did you do?
A. I jumped out of bed ‘cos I saw – then Gary put his hand around Derek’s neck.
Q. And having seen that what did you do?
A. I jumped out of bed to try and stop him.
Q. And how did you do that?
A. To try and get between them and try and push Gary away.
Q. What did Gary do?
A. He grabbed me by the arms I think and he threw me onto the bed.
Q. How much force would you say he used?
A. A lot.
[13]The prosecutor asked Ms Petre what happened the next day. Her evidence was:
The next morning I got up and went out to the garage and Gary and Robbie were there and I asked them which one of them threw me onto the bed and Gary said: “It was me”.
[14] In cross-examination, however, Ms Petre accepted that it could have been Robbie and Josh who threw her on the bed:
Q. Okay. When it comes to the next morning you said you’d confronted, I think you confronted Gary and Robbie, is that right?
A. Yes I did.
Q. In the garage and you asked who threw you on the bed. That’s because you weren’t sure what had happened?
A. I, I wanted them to admit it.
Q. You wanted them to admit it.
A. I actually thought more than one of them was involved at the time.
Q. We’ve heard now from your partner who said that in fact it was Gary and Robbie who threw you on the bed. That’s – sorry Robbie and – let me just check that. So he said Robbie and Josh. It was Robbie and Josh who threw you on the bed.
A. I don’t think. I thought it was Gary.
Q. You thought it was Gary.
A. Yeah.
Q. You’re not sure about that are you? It could have been Robbie and Josh who threw you on the bed?
A. I guess it could have been yes.
[15] Mr Braithwaite put it to Ms Petre that there had been no discussion the following day, and that she had not asked who had thrown her on the bed. Ms Petre maintained that she had.
[16] The prosecutor re-examined Ms Petre about her conversation with Mr Forbes the next morning:
Q. That conversation the next morning can you just tell us again what happened?
A. Derek got up before me and he’d gone out to the – out, out of the bedroom and I said: “Where are they?” and he said: “They’re in the garage having a cup of coffee”. I couldn’t believe they were still there so I went out there. Got dressed, went out there and that’s when I said: “which one of you arseholes threw me on to the bed?”.
Q. And who responded?
A. And Gary said – put his head down and said: “That was me”.
Mr Forbes’ evidence
[17] Mr Forbes accepted that he had walked into Mr Leathers and Ms Petre’s bedroom, yelling “wake up, wake up” at Mr Leathers, and was using colourful language. He recalled seeing Ms Petre bouncing on the bed. He admitted he was angry and initiated the conflict with Mr Leathers, but denied touching either of them.
[18] In cross-examination Mr Forbes maintained that he did not assault Mr Leathers but accepted that in response to what was happening Ms Petre came out to prevent the assault.
[19] In terms of the conversation the following morning, Mr Forbes accepted that Ms Petre had asked who had thrown her on the bed. But Mr Forbes denied admitting it was him. His evidence was:
Q. What did you say?
A. I put my head down and I said: “I’m sorry it got to this stage but I’m not sorry it happened because now we’re moving out”.
[20] In re-examination Mr Forbes confirmed his evidence that he did not assault anybody. In answer to a question from the Court, Mr Forbes said that nobody assaulted Ms Petre or Mr Leathers that night.
The judgment
[21] As noted, the Judge was satisfied beyond reasonable doubt that the prosecution had proved both charges.
[22] The Judge found that Mr Leathers “was endeavouring to give evidence truthfully to the best of his ability”.7 She was uncertain whether Mr Forbes put his hands around Mr Leathers’ neck, but otherwise considered Mr Leathers’ evidence to be clear and consistent.8
7 NZ Police v Forbes, above n 2, at [12].
8 At [18].
[23] The Judge considered Ms Petre to be a consistent witness, able to concede when she could not remember events, and was without “obvious exaggeration”.9 She found Ms Petre to be “very clear in cross-examination” that the day after the altercation she had confronted the three men and asked who had thrown her on the bed, to which Mr Forbes answered, “it was me”.10
[24] The Judge also referred to the evidence of a neighbour who went to Mr Leathers’ house after she heard yelling. Her evidence was that Mr Leathers and Ms Petre were distressed, upset and in shock, which the Judge considered was consistent with them being victims of an event in their own home.11 The Judge also took into account photographic evidence of bruising on Mr Leathers and Ms Petre, which the Judge found supported their account of the assault.
[25] On the other hand, the Judge did not find Mr Forbes to be a credible witness.12 She considered Mr Forbes’ evidence that the confrontation was only verbal to be “implausible and not credible”,13 noting that Mr Forbes had yelled at Mr Leathers to wake up, using colourful language.14 She described Mr Forbes as being “agitated and aggressive that night”.15
[26] The Judge also found it “implausible” that Mr Leathers and Ms Petre fabricated their injuries in order to say they had been inflicted by Mr Forbes. Instead, they are consistent with Mr Leathers having been pulled physically out of bed.16 Although the Judge was unclear as to whether Mr Forbes had grabbed Mr Leathers by the throat, she was satisfied that Mr Forbes had grabbed Mr Leathers by the clothing and pulled him out of bed, causing redness to the neck and bruising to his collar and arm.17
[27] As for Ms Petre, the Judge considered she could only accept Mr Forbes’ account if she found that Ms Petre had fabricated her account that the injury to her arm
9 At [23].
10 At [22].
11 At [25].
12 At [33].
13 At [29].
14 At [30].
15 At [33].
16 At [33].
17 At [34].
and legs were caused in the assault by Mr Forbes. The Judge did not consider that Ms Petre lied and fabricated her injuries. Instead, she found they were due to Mr Forbes’ actions. The Judge considered Mr Forbes’ evidence that “Ms Petre just bounced on the bed” to be a convenient way of explaining how Ms Petre ended up on the bed.18
Submissions
[28] 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 evidence, and that the charge should have been dismissed.19
[29] Mr Braithwaite emphasises Mr Leathers’ evidence, in chief and in cross-examination, that it was Robbie and Josh who pushed Ms Petre on the bed. And Ms Petre accepted in cross-examination that it could have been Robbie and Josh. In cross-examination, Ms Petre accepted that she was not entirely sure what had happened.
[30] On the charge of assaulting Mr Leathers, Mr Braithwaite submits that the Judge’s assessment of Mr Forbes’ evidence was impacted by the error she made in dealing with the charge of assaulting Ms Petre. Mr Braithwaite submits that the Judge unreasonably discounted Mr Forbes’ evidence, and that on a proper assessment of all the evidence the Judge could not have been satisfied beyond reasonable doubt that Mr Forbes was guilty.
[31] Mr Braithwaite submits further that her Honour was wrong to reason that she could only accept Mr Forbes’ evidence if she found that Ms Petre had lied or fabricated her injuries. Mr Braithwaite submits that Mr Forbes’ evidence and Ms Petre’s injuries were not mutually exclusive, and that the Judge should have placed more emphasis on the contradictions and uncertainty raised in her cross-examination.
18 At [31].
19 Mr Braithwaite says at the end of the prosecution case he made an oral application under s 147 of the Crimes Act 1961, of which the Judge dismissed.
[32] Ms McMaster for the Crown submits that it was open to the Judge to find Mr Forbes guilty. She says that Mr Leathers was clear about the identity of Mr Forbes, and that Ms Petre’s and Mr Leathers’ evidence was consistent. Ms McMaster understandably emphasises the Judge’s credibility findings. She points out that the Judge had the advantage of hearing and observing the complainants and the appellant give evidence, which this Court does not.
Approach on appeal
[33] A first appellate court must allow an appeal if satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred.20
[34] A miscarriage of justice means any error, irregularity or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity.21 In terms of a miscarriage of justice as defined in s 232(4) of the Criminal Procedure Act 2011, a “real risk that the outcome of the trial was affected” will arise if there is a reasonable possibility that another verdict would have been reached.22
[35] In a judge-alone trial the Court must give reasons for its decision to find a defendant guilty or not guilty.23
[36] In Sena v Police the Supreme Court set out its approach to s 232(2)(b) of the Criminal Procedure Act, and the related requirement for a judge in a judge-alone trial to give reasons for his or her verdict.24 The issues arising in this appeal warrant setting out part of that judgment in full:
[36] As will be apparent, we broadly accept the second line of argument just referred to. We see s 232(2)(b) as premised on the assumption that the s 106(2) (and common law) requirement for reasons has been satisfied. Connell and Eide indicate the kind of reasons which judges should provide. They should show an engagement with the case, identify the critical issues in the
20 Criminal Procedure Act s 2011, s 232(2)(b).
21 Criminal Procedure Act, s 232(4).
22 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1; Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at
[48].
23 Criminal Procedure Act, s 106(2).
24 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575; Criminal Procedure Act, s 106(2).
case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to suffice. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial. Failure to provide a reasoned resolution of a significant evidential dispute may, alternatively, suggest a misapprehension of the effect of the evidence, for instance a misapprehension of the significance of the dispute. As we explain later in these reasons, this case involves such a misapprehension.
[37] In saying all of this, we accept that imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompted determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved. What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessary referring in detail (or sometimes at all) to every issue or argument which that party has advanced.
[37] If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed. It is for the appellant to show there has been an error. Where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “‘customary’ caution”.25
Discussion
[38] It was an essential element of the charge of assaulting Ms Petre, that Mr Forbes grabbed her arm and threw her on the bed. It was for the Police to prove that element of the charge beyond reasonable doubt.
[39] Mr Leathers’ evidence was that it was Robbie or Josh who threw Ms Petre on the bed. In cross-examination, Ms Petre’s accepted that it could have been them. This was important evidence from the complainant — who the Judge found to be credible and consistent — which directly contradicted the prosecution case about an essential element of the charge against Mr Forbes. However, the Judge did not refer to this evidence in her reasons for convicting Mr Forbes of assaulting Ms Petre.
25 Sena v NZ Police, above n 45, at [38], citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] (footnote omitted).
[40] With all respect to the Judge, I consider this was an error which created a real risk that the verdict for this charge was affected. In all the circumstances, I do not consider the Judge could be sure that Mr Forbes threw Ms Petre on the bed when Mr Leathers’ evidence was that it was Robbie and Josh; and Ms Petre accepted that it could have been. This was important identification evidence from witnesses who the Judge found generally credible. At the very least, the Judge’s reasons should have included her assessment of this evidence.
[41] Ms McMaster submitted that the Judge must have placed more weight on Ms Petre’s evidence that the next day Mr Forbes admitted the assault. But Mr Forbes denied that admission. I consider the Judge should have explained how and why she resolved this important evidential conflict. 26
[42] That conflict also shows why it was important the Judge explain why she rejected Mr Leathers’ and Ms Petre’s evidence that it was, or could have been, someone other than Mr Forbes who threw her onto the bed. Reasoning which consists of a conclusory credibility preference would not suffice. And, as juries are routinely directed in cases such as this where a defendant elects to give evidence, if a Court rejects a defendant’s evidence on key issues, it must not automatically conclude that the defendant is guilty. The Court must still examine all the evidence that they do accept and decide whether it establishes the defendant’s guilt beyond reasonable doubt.27
[43] For these reasons I accept Mr Braithwaite’s submission that Mr Forbes appeal of his conviction on the charge of assaulting Ms Petre should be allowed and the conviction set aside. Having found that the conviction was not sustainable given the evidence of both complainants, I also consider that a judgment of acquittal should be entered on that charge.28
26 I have reached this conclusion with the benefit of the notes of evidence, which I understand were not available to the Judge when she delivered her oral reasons for verdict.
27 R v McL [1998] 1 NZLR 696 (CA) at 708.
28 Criminal Procedure Act, s 233(3)(a); Reid v R [1980] AC 343 (PC, Jam), H (SC49/21) v R [2022] NZSC 42 at [39].
[44] However, I do not accept Mr Braithwaite’s submission that the Judge’s error in relation to that charge renders unsafe his conviction on the charge of assaulting Mr Leathers. Mr Leathers was clear in his evidence that Mr Forbes assaulted him. All the other evidence, including of Mr Leathers’ injuries, was consistent with that, save for Mr Forbes’ evidence that he did not. Mr Forbes accepted he was the aggressor, and identification was not in dispute. It was clearly open to the Judge to find Mr Forbes guilty on that charge.
Result
[45] Mr Forbes’ appeal of his conviction for assaulting Ms Petre is allowed. The conviction is set aside and Mr Forbes is acquitted on that charge.
[46]Mr Forbes’ appeal of his conviction for assaulting Mr Leathers is dismissed.
Robinson J
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