Gabriel v Police - [2013] NZHC 1721

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-460 [2013] NZHC 1721

BETWEEN BRIAN GABRIEL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 8 July 2013

Appearances: D Hoskin for Appellant
W Fotherby for Respondent

Judgment: 12 July 2013

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 12 July 2013 at 2:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

BRIAN GABRIEL v NEW ZEALAND POLICE [2013] NZHC 1721 [12 July 2013]

Introduction

[1] Brian Gabriel was convicted by Judge Sinclair in the North Shore District Court on 12 March 2012 on one charge of male assaults female1 and was sentenced to 12 months’ intensive supervision. He has appealed, out of time, against the conviction. The delay in filing the notice of appeal was not the fault of the appellant; the respondent not objecting, leave to file out of time is granted accordingly.

[2] Mr Gabriel asks that his conviction be quashed on the grounds of a miscarriage of justice, submitting that he was not competently defended by counsel and that Judge Sinclair’s finding of guilt was against the weight of evidence.

Brief factual background and issues

[3] On 26 May 2011, the appellant and the complainant, who was then his partner, were at their home in Takapuna. They had each consumed alcohol. The complainant told Mr Gabriel that on the previous Saturday she had slept with another man who belonged to the appellant’s rugby team. An argument followed. The complainant alleged the appellant slapped her across the face in the course of it, causing minor injuries to the right side of her nose and bottom lip. Police officers who responded to the complainant’s call immediately following the alleged assault observed the injuries which were little more than small marks or abrasions. The appellant denied the allegation and claimed that it had been fabricated. He suggested other possible causes of the complainant’s injuries.

[4] Judge Sinclair rejected the appellant’s denials and accepted that the evidence

of the complainant proved the assault beyond reasonable doubt.

Grounds of appeal

[5] The appellant appeals his conviction on the grounds that:

1 Police v Gabriel DC North Shore CRI-2011-044-3606, 12 March 2012.

(a) the decision of the District Court was against the weight of evidence;

(b)there has been a miscarriage of justice in that his defence was prejudiced because –

(i)his trial counsel did not follow his instruction to produce evidence that supported his position that he never assaulted the complainant; and

(ii)trial counsel did not follow his instructions in putting his defence adequately to the complainant in cross-examination.

[6] The evidence which the appellant says was available and should have been produced at trial is a collection of voice messages that the complainant left on the appellant’s phone, collected on a CD. The appellant says that in one message the complainant allegedly said “I’m going to tell the police you beat me up”.

[7] I am required to decide:

(a) whether there was an error or irregularity on 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 Gabriel v Police

Details

AGLC: Gabriel v Police [2013] NZHC 1721
Case: [2013] NZHC 1721
Decision Date: 12 July 2013

CaseChat Overview and Summary

Brian Gabriel appeals against his conviction for male assaults female, arguing that there was a miscarriage of justice because his trial counsel was incompetent and that the evidence did not justify the conviction. The appeal was filed out of time but leave to file was granted as the delay was not the fault of the appellant. The court found that there was no merit in either ground of appeal. Counsel's conduct did not result in a miscarriage of justice because it did not lead to a real risk of an unsafe verdict. There was ample evidence to justify the conviction, including the complainant's credibility, marks on her face consistent with the alleged assault, and the appellant's admissions to police. The appeal is dismissed.

Orders