Horscroft v Police - [2021] NZHC 2934

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2021-443-31

[2021] NZHC 2934

BETWEEN
BRANDON MAXWELL HORSCROFT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 October 2021

Appearances:

N P Bourke for Appellant

L A Blencowe for Respondent

Judgment:

1 November 2021

REASONS JUDGMENT OF ISAC J

[Appeal against conviction]

[1] Mr Horscroft was convicted following a judge-alone trial in the District Court of two charges of assault on a person with whom he was in a family relationship.1

[2] He appeals his convictions. In a results judgment of 20 October 2021, I upheld the appeal.2 My reasons follow.

The trial

[3] Mr Horscroft, who prefers to be known as Mr Winter, originally faced trial on four charges. The two assault charges were said to have arisen in early March 2020. The other two charges — threatening to kill and breach of a protection order — involved the same complainant and were alleged to have arisen sometime later, in November 2020.

1 Crimes Act 1961, s 194A — maximum penalty two years’ imprisonment.
2 Horscroft v New Zealand Police [2021] NZHC 2816.

HORSCROFT v NEW ZEALAND POLICE [2021] NZHC 2934 [1 November 2021]

[4] The evidence in relation to the first set of charges was that on 4 March 2020 Mr Winter and his then partner, the complainant, separated. It appears that the decision to end the relationship was Mr Winter’s. Previously they had been living together with their infant son and a Mr Korey Dew, who was serving a sentence of home detention in the same home. It seems after the separation the complainant moved out of the house.

[5] The complainant alleged that the very next day, 5 March 2020, while she was visiting Mr Winter’s home he assaulted her during a heated argument by headbutting her. The second charge of assault was alleged to have arisen the following day, 6 March, when, during another heated argument at his home, it was alleged Mr Winter had punched her.

[6] The remaining charges of threatening to kill and breach of a protection order were alleged to have arisen eight months later, on 10 November 2020, involving the same complainant.

[7] The prosecution case involved one witness; the complainant. She had given brief video interviews at a police station on 7 March and 10 November 2020. The videos were played as the complainant’s evidence-in-chief, and she was then cross- examined.

[8] The defence called three witnesses. The first was Mr Winter, who admitted there had been heated arguments but denied assaulting the complainant. He also denied the November incident. The second was Mr Winter’s flatmate, Mr Dew. Mr Dew was present at the time of the alleged March assaults and while he did not observe all of the argument, he could certainly hear it. He said nothing he heard was consistent with the complainant’s claim that she had been assaulted. Finally, Mr Winter called his current partner, Ms Lumsden. She…

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.

Keep reading for free

Create a free CaseChat account to read Horscroft v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NZHC 2934
Decision Date: 1 November 2021

CaseChat Overview and Summary

The appellant, Brandon Maxwell Horscroft, was convicted following a judge-alone trial in the District Court of two charges of assault on a person with whom he was in a family relationship. He appeals his convictions. The court upheld the appeal, finding a miscarriage of justice had occurred. The court found that the District Court judge failed to provide adequate reasons for rejecting the appellant's evidence and for finding the complainant's evidence credible. The court also found that the judge erred in concluding that the flatmate's evidence was consistent with the complainant's account. The court found that the evidence did not establish beyond reasonable doubt that the punch was deliberate. The court found that the evidence did not support a finding beyond reasonable doubt that the appellant's account was untrue. The court quashed the appellant's conviction and resentenced him on the charge of breach of a protection order to one month’s home detention.

Orders