Harris v Police - [2017] NZHC 849

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-150 [2017] NZHC 849

BETWEEN
DEVON HARRIS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 April 2017

Appearances:

K Gray for Appellant
P A Norman for Respondent

Judgment:

2 May 2017

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1] On 19 September 2016, Judge Ross found the appellant guilty of indecent assault but not guilty of theft.1

[2] On 16 November 2016, Judge Farish sentenced the appellant to pay $1,000 reparation for emotional harm.2 The appellant appeals against the conviction for indecent assault.

Facts

[3] The indecent assault is alleged to have occurred on 17 October 2015. The complainant was also the complainant in the alleged theft charge. She said that the

1 Police v Harris [2016] NZDC 18439.
2 Police v Harris [2016] NZDC 25916.

HARRIS v NEW ZEALAND POLICE [2017] NZHC 849 [2 May 2017]

appellant came into her house, unknown to her, and grabbed her from behind in a bear hug. His chest and legs were touching right against her body. She said that he asked “are you horny?” and “do you like playing with yourself?”. He also asked if she used a vibrator. She said that she was in shock and she asked him to leave her alone, and to “fuck off”.

[4] The appellant’s version of events was that the complainant asked him to come to her house to remove a trampoline. They had a conversation about the complainant missing her ex-partner, particularly at night and in bed. The appellant said he told her that she should sort herself out and get a vibrator or another man. He claimed there was no assault, but accepted the words alleged were used by him.

District Court Decision

[5] The Judge dismissed the theft charge. After describing the competing versions of events in relation to the alleged indecent assault, the Judge addressed credibility. Based on the appellant’s conduct in the witness stand and some inconsistencies in his evidence, the Judge preferred the complainant’s evidence. He noted agreement as to the words used by the appellant, but that there was contest whether the facts proved an assault and how it was “converted by the use of terms or phrases into an assault of indecency or an assault which is accompanied by
circumstances of indecency”.3

[6] The Judge had no doubt that on the complainant’s evidence this was an

indecent assault, and he found the appellant guilty.

Principles on appeal

[7] Section 232 Criminal Procedure Act 2011 provides that the High Court may only allow an appeal if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any other reason”. A miscarriage of justice means any error, irregularity, or occurrence in or in relation to 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.

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Details

Case: [2017] NZHC 849
Decision Date: 2 May 2017

CaseChat Overview and Summary

Devon Harris appeals his conviction for indecent assault. The complainant alleged that Harris came into her home, hugged her from behind, and made sexually suggestive comments. Harris claims the complainant invited him over to remove a trampoline and that he advised her to get a vibrator. The District Court Judge found Harris guilty based on the complainant's credibility. Harris argues the Judge failed to properly consider the elements of indecent assault and did not properly apply the tripartite direction when assessing the credibility of the witnesses. The Crown submits that the Judge's analysis of the evidence was thorough and there was no risk of misunderstanding the onus or standard of proof.

The Court found that the Judge's preference for the complainant's evidence was not a fine balance or to a standard less than required by law. The Court held that the absence of an explicit tripartite direction did not give rise to a miscarriage of justice as an experienced District Court Judge would have the necessary knowledge to understand what the criminal onus requires. The Court found that all elements of an indecent assault were made out. The physical and verbal components of Harris' conduct clearly established an indecent assault. Harris intended and appreciated the aspects of the assault and surrounding circumstances that rendered it indecent. The appeal was dismissed.

The Court found that the Judge properly considered the evidence and there was no other error that could result in a miscarriage of justice. This was a clear example of an indecent assault. The appeal was dismissed and the conviction stands.

Orders