Holdgate v Police - [2024] NZHC 184

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-000084

[2024] NZHC 184

ANDREW NICHOLAS HOLDGATE

v

NEW ZEALAND POLICE

Hearing: 28 November 2023

Appearances:

S Wimsett for the Appellant P Patanasiri for the Crown

Judgment:

15 February 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 15 February 2024 at 1.15 pm Registrar/Deputy Registrar

Solicitors/counsel:

Gordon Pilditch, Crown Solicitor, Rotorua S Wimsett, Auckland

HOLDGATE v NEW ZEALAND POLICE [2024] NZHC 184 [15 February 2024]

[1] Following a defended hearing in the District Court, Judge E P Paul found Andrew Holdgate guilty on charges of injuring with intent to injure and threatening to kill.1 On 8 August 2023, Judge Paul sentenced Mr Holdgate to five months’ community detention. Mr Holdgate appeals against both conviction and sentence.2

[2] The charges came about following an altercation between the then 72-year-old Mr Holdgate and the complainant, his 76-year-old neighbour, on 11 May 2022. There is a history of animosity between the pair arising out of disputed water and electricity easements. Suffice it to say that the relationship was not neighbourly.

Background

[3] On 11 May 2022, the complainant went onto the property of Mr Holdgate, broke into a locked pump shed and connected what was required to pump water to his own property. Mr Holdgate was not at home at the time. He later discovered the entry to his pump house and water being pumped next door. He disconnected the power cord and water pipe from his pump and destroyed both. He reported this incident to the Police a short time later.

[4] Sometime between 4 and 5 pm, the complainant went to Mr Holdgate’s property in his van, apparently to retrieve his electrical cord and pipe. There was a heated exchange.

[5] Here the version of events narrated by the complainant and Mr Holdgate diverge. The complainant gave evidence that Mr Holdgate grabbed him by the shirt and punched him, threatened to kill him, grabbed at his keys, ripping the tags and subsequently struck him with a steel waratah.

[6] Mr Holdgate’s version of events was that the complainant never got out of the van; they had words; he told him to leave, and the complainant reversed his van into Mr Holdgate’s tractor before driving out of the property. The Judge, faced with these

1 Police v Holdgate [2023] NZDC 11426.
2 I am informed by counsel that the sentence has not yet been served for various reasons.

conflicting versions and no other witnesses to the event, had to assess whether the prosecution had proved the charges beyond reasonable doubt.

Approach on appeal

[7] This is a first appeal against a conviction entered by the District Court. This Court must allow an appeal against conviction if satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred,3 or a miscarriage of justice has occurred for any reason.4

[8] A…

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: [2024] NZHC 184
Decision Date: 15 February 2024

CaseChat Overview and Summary

The case of Holdgate v Police involves an appeal against both conviction and sentence by Andrew Holdgate following his conviction for injuring with intent to injure and threatening to kill. The charges arose from an altercation with his neighbour, who had previously entered Holdgate’s property and tampered with his water pump. Following this incident, a heated exchange occurred between Holdgate and the complainant, resulting in conflicting accounts of what transpired. The complainant alleged that Holdgate punched him, threatened to kill him, and struck him with a steel waratah, while Holdgate claimed that the complainant never exited his van and that he merely told him to leave. The District Court found Holdgate guilty on both charges and sentenced him to five months' community detention. Holdgate appealed against both the conviction and the sentence.

The key legal issues in this appeal were whether the District Court erred in its assessment of the evidence, particularly in rejecting Holdgate’s account and accepting the complainant’s version of events, and whether the sentence imposed was manifestly excessive. The Court examined whether the District Court properly considered the medical evidence relating to Holdgate’s rotator cuff injury and whether it adequately addressed the context of the confrontation. In terms of sentencing, the Court assessed whether the sentence was within the acceptable range considering the principles of sentencing and the nature of the offences.

The Court found that the District Court had adequately considered the credibility of the witnesses and the evidence presented. The Judge explicitly assessed the reasonableness, coherence, and probability of the events as described by both parties, and concluded that the complainant's account was more credible, supported by photographs of the injuries and the constable's observations. The Court held that the Judge was entitled to conclude that the injuries were consistent with the complainant's version of events and that the medical evidence did not exclude some limited movement of Holdgate’s arm. Regarding the threat to kill charge, the explicit nature of the threats and the context of the assault supported the complainant's account.

Regarding the sentence, the Court found that the sentence of five months' community detention was within the acceptable range and appropriately considered Holdgate's health and personal circumstances. The Judge had also properly weighed the mitigating factors and the seriousness of the offences. The Court concluded that the sentence was not manifestly excessive and found no error in the Judge's approach to sentencing.

As a result, the appeal against both conviction and sentence was dismissed.

Orders