Frew v Police - [2022] NZHC 1961

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2022-463-54

[2022] NZHC 1961

BETWEEN
MICHAELA-JO FREW

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 August 2022

Counsel:

E R Dyche for Appellant CA Bourke for Respondent

Judgment:

10 August 2022

JUDGMENT OF MUIR J

[Re: appeal on conviction]

This judgment was delivered by me on 10 August 2022 at 4.00 pm.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Pollett Legal Ltd, Tauranga

FREW v POLICE [2022] NZHC 1961 [10 August 2022]

Introduction

[1] On 11 February 2022 Judge T R Ingram found the appellant, Michaela-Jo Frew, guilty of assault with a weapon,1 following a judge-alone trial in the Tauranga District Court.2

[2] Judge Ingram sentenced Ms Frew to 80 hours’ community work for the assault, and convicted and discharged her for breaching bail, apparently inadvertently.3

[3] Ms Frew now appeals against her conviction. She submits the Judge erred by disallowing the cross-examination of a witness on her own statements under s 21 of the Evidence Act 2006.

Facts

[4] The Police summary of facts records that on 27 July 2021 Ms Frew was at her address. She saw the victim, her neighbour, leaving home on her bicycle. Ms Frew went to the rear gate of her property, waited for the victim to ride past, and struck her on the head with a coffee mug, causing her to fall from the bike.

[5] The victim, in her evidence, explained the background to the assault. She said two of Ms Frew’s friends had moved into Ms Frew’s address, with two “vicious dogs”.4 On the day of the assault, as the victim was leaving her address, she was surprised by one of the dogs running loose. She confronted Ms Frew’s friends about the dog. One of Ms Frew’s friends picked up a fallen branch and attempted, unsuccessfully, to hit the victim with it. The victim got on her bicycle and left around the corner, but as she passed the back of Ms Frew’s address, Ms Frew stepped out of her gate and struck the victim with the coffee mug.

[6] The victim suffered a gash and bruising on her forehead, and was taken to hospital.

1      Crimes Act 1961, s 202C.
2      Police v Frew [2022] NZDC 14565.
3      Police v Frew [2022] NZDC 8889.
4      Notes of evidence at 4, line 30.

Trial

[7] The prosecution called two witnesses, the victim and Constable Redman, the officer in charge. The victim referred to a single exhibit, a book of photographs of the scene and her head wound.

[8] Mr Pawson, counsel for Ms Frew, put to the victim that in her original statement she described not knowing what had happened to her after she was hit with the mug. The victim clarified that she was at least sure of who had hit her.

[9] Mr Pawson also suggested the victim’s wound appeared to have been caused by hitting a fence, not being hit with a coffee…

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 Frew v Police

Details

AGLC: Frew v Police [2022] NZHC 1961
Case: [2022] NZHC 1961
Decision Date: 10 August 2022

CaseChat Overview and Summary

Michaela-Jo Frew appealed against her conviction for assault with a weapon, following a judge-alone trial in the Tauranga District Court. Frew submitted the trial judge erred in law by disallowing the cross-examination of a witness on her own statements under section 21 of the Evidence Act 2006. The appeal court found the trial judge's exclusion of the statements did not lead to a miscarriage of justice. The court found that the rationale for the exception in the previous case law was not engaged. Allowing cross-examination by defence counsel on the statement would, as the Police submit, simply allow Frew to elaborate on her version of events without being subject to cross-examination. The appeal was dismissed.

Orders