Hildiid v Police - [2021] NZHC 1965

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2017-085-553

[2021] NZHC 1965

BETWEEN
AHMED HIRS HILDIID

Appellant/Applicant

AND

THE NEW ZEALAND POLICE

Respondent

Hearing: 21 July 2021

Counsel:

C J Tennet for the Appellant/Applicant R E Harcourt for the Respondent

Judgment:

30 July 2021

JUDGMENT OF CULL J

[1] In 19 September 2017, Mr Hildiid was found guilty of common assault1 and convicted and fined $800, with additional court costs of $130 in the District Court at Wellington.2 He now applies for leave to appeal out of time and to adduce fresh evidence.

Background of the offending

[2] Because the appeal requires leave, being three and a half years after the conviction and sentence, no notes of evidence have yet been transcribed. The facts are therefore taken from the summary of facts, which the Judge ultimately accepted.

[3] On 16 February 2017 at around 2 pm, the complainant was walking from his café on Riddiford Street towards a dairy also located on this street. He was intending

1 Crimes Act 1961, s 196; maximum penalty one-year imprisonment.
2 New Zealand Police v Hildiid [2017] NZDC 21222.

HILDIID v THE NEW ZEALAND POLICE [2021] NZHC 1965 [30 July 2021]

to replenish supplies for his café there. He then saw Mr Hildiid driving past him as he was crossing the road. The complainant and Mr Hildiid were well known to each other. They had a long history of ill-will toward each other and were not friends. The complainant became concerned for his safety and quickly moved to the dairy, stating that he intended to seek refuge there. He said the defendant parked his car at the bus stop near the dairy and got out of the car, confronting the complainant on the footpath. When the complainant tried to get away, Mr Hildiid punched him on the back of the head and then on his back, pursuing the complainant into the dairy. The police were called.

[4] Mr Hildiid denies the offending. He said that he was driving along Riddiford Street on 16 February 2017 with his windows down. He first saw the complainant on the other side of the road, standing outside McDonalds. McDonalds is in the opposite direction from the complainant’s café and the dairy, to where the complainant said he was heading. He said the complainant began yelling abuse at Mr Hildiid and gestured at him. Mr Hildiid says he continued driving and pulled up at the dairy as he needed a new phone card. At that time, the complainant had run from McDonalds to the rear of Mr Hildiid’s car and hit the car with his hands. They had an argument by the driver’s door about the complainant touching his car and approaching him. They proceeded to the back of the car for a minute or so. Mr Hildiid says that he may have been gesturing with his hand raised but did not touch the complainant or assault him.…

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 Hildiid v Police

Details

AGLC: Hildiid v Police [2021] NZHC 1965
Case: [2021] NZHC 1965
Decision Date: 30 July 2021

CaseChat Overview and Summary

Hildiid was convicted of assault in the District Court. He now applies for leave to appeal out of time and to adduce fresh evidence. The District Court found Hildiid guilty of assaulting the complainant, accepting the eyewitness account of a witness, Mr Cocker, who saw Hildiid punch the complainant. Hildiid's application is based on three grounds: that the District Court Judge erred in his findings, that the inferences drawn by the Judge led to the guilt of the applicant, and that there is a miscarriage of justice due to fresh evidence. The fresh evidence includes a further eyewitness, Mr Yandall, and evidence obtained by a private investigator, Mr Lyde, about the GPS location of Hildiid's car and the distance between the McDonalds and the dairy. The court found there was merit in Hildiid's appeal, particularly the interpretation issues and the fresh evidence of Mr Yandall and Mr Lyde. The court also accepted the reasons for the delay in filing the appeal, and concluded that the application for leave to appeal should be granted. The court granted Hildiid leave to appeal his conviction out of time and to adduce fresh evidence.

Orders