Green v Police - [2017] NZHC 1551

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000135

[2017] NZHC 1551

IN THE MATTER OF an appeal against conviction and sentence

BETWEEN

DAVID NORMAN GREEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

CRI-2017-404-000136

IN THE MATTER OF

an appeal against conviction and sentence

BETWEEN

DAVID NORMAN GREEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 June 2017

Counsel:

M J Hine for the Appellant

J D Cairney for the Respondent

Judgment:

6 July 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 6 July 2017 at 12.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GREEN v POLICE [2017] NZHC 1551 [6 July 2017]

Solicitors: Families Matter Law Practice, Rotorua Meredith Connell, Auckland

Introduction

[1] Mr Green was involved in an altercation with his partner’s son as the latter was trying to leave an Auckland market by car. Mr Green did not dispute punching his partner’s son, but claimed he did so in defence of his partner who he thought was in danger of being run over.

[2] Following a judge alone trial in the Auckland District Court,1 he was convicted of one charge of common assault.2 He was subsequently sentenced to 80 hours’ community work for that offence.3

[3] After a day in Court at the trial for that charge, Mr Green said to the police officer who had just given evidence, “you’re fuckin dead”. He was convicted of one charge of intimidation,4 following a judge alone trial at the Auckland District Court.5 He was sentenced to 100 hours’ community work for that offence.6

[4] Mr Green appeals both convictions and sentences. He says both Judges made errors of fact and law in finding the charges proved beyond reasonable doubt. He says the sentences are manifestly excessive.

[5] The conviction and sentence for common assault is considered first, followed by the conviction and sentence for the intimidation offence.

1      Police v Green [2016] NZDC 21230.
2      Summary Offences Act 1981, s 9. Maximum sentence is six months’ imprisonment or a fine of
$4,000.
3      Police v Green [2017] NZDC 26987.
4      Summary Offences Act 1981, s 21(1)(a). Maximum sentence is three months’ imprisonment or a fine of $2,000.
5      Police v Green [2017] NZDC 7254.
6      Police v Green [2017] NZDC 12971.

Approach on appeal

[6] Section 229 of the Criminal Procedure Act 2011 provides a right of appeal against conviction. An appeal court must allow the appeal if satisfied that, in the case of a judge alone trial, the judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or a miscarriage of justice has occurred for any reason.7

[7] A miscarriage of justice means any error, irregularity or occurrence in relation to or affecting the trial that created a real risk that the outcome was affected or resulted in an unfair trial or a trial that was a nullity.8 A “real risk” is a reasonable…

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 Green v Police

Details

AGLC: Green v Police [2017] NZHC 1551
Case: [2017] NZHC 1551
Decision Date: 6 July 2017

CaseChat Overview and Summary

David Norman Green appeals against his convictions and sentences for common assault and intimidation. The court must allow an appeal against conviction if a miscarriage of justice has occurred. A miscarriage of justice occurs when there is a real risk that the outcome was affected or resulted in an unfair trial or a trial that was a nullity. An appeal against sentence must be allowed if there is an error in the sentence imposed on conviction and a different sentence should be imposed. The appeal against the conviction for common assault is dismissed. The court found that the appellant did not genuinely hold a subjective belief that his partner was about to be run over and even if he did, the force used was not reasonable. The appeal against the sentence for common assault is dismissed. The sentence was well within range, and may even be considered lenient in all the circumstances of the case. The appeal against the conviction for intimidation is dismissed. The court found that the appellant knew that his conduct was likely to cause the constable to be reasonably frightened or intimidated. The appeal against the sentence for intimidation is allowed. The sentence of 100 hours’ community work is quashed and substituted with a sentence of 40 hours’ community work. Leave to appeal the conviction for the common assault out of time is granted. The appeals from both convictions are dismissed. The appeal from sentence for common assault is dismissed. The appeal from sentence for intimidation is allowed.

Leave to appeal the conviction for the common assault out of time is granted. The appeals from both convictions are dismissed. The appeal from sentence for common assault is dismissed. The appeal from sentence for intimidation is allowed.

Orders