Forster v Police - [2018] NZHC 2365

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000041

[2018] NZHC 2365

BETWEEN
SHAUN FORSTER

Appellant

AND

THE NEW ZEALAND POLICE

Respondent

Hearing: 30 August 2018

Appearances:

L C Denton for the Appellant S J Mallett for the Respondent

Judgment:

7 September 2018

JUDGMENT OF NATION J

[1] The appellant, Mr Forster, appeals against his conviction for male assaults female. He challenges both the finding which was made on the evidence and the Judge’s refusal to grant him a discharge without conviction under s 106 Sentencing Act 2006.

[2] These days it is not uncommon for the Courts to have to deal with allegations of domestic violence when relationships are under stress and somehow an argument develops over a cell phone. This case has elements of that.

Background

[3] On 11 March 2017, Mr Forster was almost 29. He was from Newcastle in the United Kingdom and had been living in New Zealand since November 2013. On 10 March 2017, he was issued a residence class visa which allows him to remain in New Zealand indefinitely. He had been in a relationship with the complainant for almost

FORSTER v POLICE [2018] NZHC 2365 [7 September 2018]

two years and had lived with her in Queenstown and Christchurch. In March 2017, Mr Forster said that, over recent times, he had not been feeling “loved as much” as he would have liked and felt the complainant was not doing much about it.

[4] On 11 March 2017, after work, he started to talk to the complainant about this. To him, it seemed she did not take him seriously. He walked out and went to a local club. There was some text messaging between them in which he said he thought the way she had reacted to him was a disgrace. He said that things had got to a point where he was at the end of his tether.

[5] Mr Forster ended up going back to their home. The complainant also came back from where she had gone bringing a pizza. Mr Forster came out to the living area from having a shower to see the complainant sitting on the couch on her phone. She did not act towards him the way he wanted. Mr Forster said he tried to talk to her again but she was negative about that so he took her phone.

[6] At the Judge alone trial, there were two versions of what happened at that point. The complainant said they had an argument and Mr Forster took her cell phone from her. She said she managed to get the cell phone back and tried to get away. He grabbed her from behind, put his foot on her right foot and threw her to the ground. She said she was thrown about two metres and landed on her front. She was holding her phone to her stomach. Mr Forster was on her back trying to get it and ended…

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 Forster v Police

Details

AGLC: Forster v Police [2018] NZHC 2365
Case: [2018] NZHC 2365
Decision Date: 7 September 2018

CaseChat Overview and Summary

Shaun Forster appealed against his conviction for male assaults female, challenging both the finding made on the evidence and the Judge’s refusal to grant him a discharge without conviction under s 106 Sentencing Act 2006. The central issue in the appeal was whether there had been a miscarriage of justice because the Judge failed to consider the potential defence of movable property under s 53 Crimes Act 1961. The Court held there was an error in that the Judge did not turn his mind to the potential for a s 53(1) defence. The error was explicable because Mr Forster was self-represented and the defence was not clearly raised. There was thus an error in the trial which has created a real risk that the outcome of the trial was affected. This gives rise to a miscarriage of justice in terms of s 232(4). The appeal against conviction has to be allowed. The Court quashed the conviction and dismissed the charge.

Orders