GSB v Police - [2023] NZHC 2690

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE CHILDREN.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2023-443-029

[2023] NZHC 2690

BETWEEN
GSB

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 September 2023

Appearances:

A R Laurenson for Appellant R L Hicklin for Respondent

Judgment:

27 September 2023

JUDGMENT OF GRICE J

(Appeal against conviction)

Introduction

[1] On 6 July 2023, following a Judge-alone hearing held on 5 July 2023 before Judge Greig, the appellant, GSB,1 was convicted2 of assault on a person in a family relationship,3 and assaulting a child.4 On 6 July 2023, the appellant was sentenced to come up for sentence if called upon within the next 12 months, and protection orders were imposed in favour of the victims of the offending.

1      The appellant’s name has been anonymised to prevent identification of the children.
2      Police v [GSB] [2023] NZDC 14269.
3      Crimes Act 1961, s 194A — maximum penalty two years’ imprisonment.
4      Section 194(a) — maximum penalty two years’ imprisonment.

GSB v POLICE [2023] NZHC 2690 [27 September 2023]

[2] The two charges relate to assaults on two boys, aged 14 and 13 respectively at the time, who were effectively his stepchildren at the time.

[3] The appellant now appeals his convictions on both charges on the grounds that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred. No appeal is made against the sentence.

[4] The charge in relation to assault on a person in a family relationship relates to the older boy, who said the appellant forcefully pulled him off his younger brother while they were wrestling on the floor. The appellant does not deny that he did so but says he was acting to protect the younger boy and was therefore acting in defence of another (which is a defence to the charge pursuant to s 48 of the Crimes Act 1961).

[5] The charge in relation to assaulting a child relates to the younger boy, who alleged that the appellant assaulted him on 14 September 2022 by pushing him out of the bathroom and holding him up against a wall for approximately 20 seconds. The appellant submits there was insufficient evidence to convict the appellant, given the significant inconsistencies between the evidence of the two boys and their mother.

Submissions

Appellant's submissions

[6] In respect of the charge involving the older boy, the appellant submits there was no evidential foundation for the Judge to conclude that the reason the appellant acted in the way he did in pulling the older boy off his brother was because he was annoyed at what was happening. The appellant submits his actions were clearly those of a person acting in defence of another and using reasonable force in the circumstances as he perceived them to be, and the appellant should therefore have been found not guilty on that charge.

[7] In respect…

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 GSB v Police

Details

AGLC: GSB v Police [2023] NZHC 2690
Case: [2023] NZHC 2690
Decision Date: 27 September 2023

CaseChat Overview and Summary

GSB has appealed against their convictions for assaulting a child and assaulting a person in a family relationship. The appeal was heard in the High Court of New Zealand by Grice J, who concluded that the appellant's appeal should be dismissed. The appellant was convicted of assaulting a child, aged 13, and assaulting a boy aged 14, who was effectively his stepson at the time. The appellant submits that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred. The court found that the Judge had not erred in his assessment of the evidence. The Judge had the advantage of seeing the witnesses first-hand and making evaluations of their evidence in person. The Judge had rejected the evidence of the appellant and the appellant's partner on the basis that their evidence was not credible and reliable. The inconsistencies in their evidence allowed the Judge to make an evaluation that their evidence was not credible and reliable. The Judge accepted the evidence of the older boy and rejected the evidence of the younger boy on the basis that the older boy was an objective observer from a very short distance away. The court concluded that the Judge did not err in finding the appellant guilty of both charges. The court found there was no real risk that the outcome of the trial was affected, or any miscarriage of justice. The appellant's appeal against his convictions is dismissed.

Orders