K v Police - [2019] NZHC 1258

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2018-485-80

[2019] NZHC 1258

BETWEEN
K

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 May 2019

Appearances:

S A Thistoll for Appellant

A R T Garrick for Respondent

Judgment:

5 June 2019

JUDGMENT OF GRICE J

Introduction

[1] Mr K has been charged with three counts of breaching a protection order by engaging in behaviour which amounts to psychological abuse of the protected person, his ex-partner.1 At his trial in the District Court Mr K did not dispute that he was present on the three occasions giving rise to the charges, but contended that his mere presence in the vicinity of the ex-partner could not amount to psychological abuse in the circumstances.

[2] At the trial on 24 May 2018 in the Porirua District Court counsel appeared for Mr K. The Judge delivered a reserved judgment finding Mr K the guilty on 13 August 2018.2 Mr K was convicted on 5 November 2018 and sentenced to community work, supervision and to come up for sentencing if called upon.

1 Domestic Violence Act 1995, ss 19(1)(a) and 49(1)(a).
2 Police v [K] [2018] NZDC 16092.

K v NEW ZEALAND POLICE [2019] NZHC 1258 [5 June 2019]

[3] Mr K appeals against his convictions on the ground he was denied an effective defence due to trial counsel error on the basis:

(a)his election not to give evidence was not a fully informed decision; and

(b)trial counsel failed to cross-examine a witness (the complainant) on all matters relevant to the available positive defence of “reasonable excuse”.

[4]Both Mr K and counsel at trial filed affidavits for the purposes of the appeal.

Summary of offending

[5] Mr K and his ex-partner met when they worked for the same employer in Paraparaumu. They commenced a relationship in 2014. This continued on-and-off for approximately three years. Incidents during their relationship led to the ex-partner being granted a protection order against Mr K on 7 September 2015. That order became final on 5 December 2015.3 Their relationship then resumed for about a year during 2016, but they separated again in February 2017.

[6] The first charge arose in circumstances where Mr K’s ex-partner was on her bike working on the morning of 3 February 2017. She turned into a street and saw Mr K driving past in his car. They saw each other, made eye contact and continued on their separate ways. However, a couple of minutes later, Mr K’s car drove past her again. She recognised the car the second time by its number plate. She did not look up or make eye contact with the driver.

[7] The second charge arose in the following week, on 9 February 2017. His ex- partner had just been to the airport to pick up her friend and on the way back they decided to stop for a glass of wine at a bar at the beach. They were sitting on…

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 K v Police

Details

AGLC: K v Police [2019] NZHC 1258
Case: [2019] NZHC 1258
Decision Date: 5 June 2019

CaseChat Overview and Summary

In the High Court of New Zealand, K, the appellant, appealed against his convictions for breaching a protection order by engaging in behaviour which amounted to psychological abuse of his ex-partner. The central issue in the appeal was whether the trial counsel’s actions amounted to a miscarriage of justice under s 232(2)(c) of the Criminal Procedure Act 2011. Specifically, the appellant argued that the trial counsel’s advice regarding his election not to give evidence and the failure to cross-examine a witness on all matters relevant to the available positive defence of “reasonable excuse” deprived him of an effective defence.

The court found that trial counsel had not erred in advising the appellant not to give evidence. The defence strategy, based on the appellant being innocently in the vicinity, was fully discussed with the appellant, who was aware of the risks of not giving evidence. Furthermore, the court noted that the tactical decisions made by trial counsel were within the scope of a competent lawyer’s judgment. While hindsight suggests a different outcome might have been possible, the court concluded that the appellant’s decision not to give evidence was informed and deliberate.

Regarding the cross-examination, the court held that trial counsel exercised appropriate judgment in deciding which questions to ask and which to avoid. The cross-examination was deemed competent, as it was designed to elicit responses in support of the appellant’s version of events. The court found that even if there were omissions in the cross-examination, they did not amount to material errors or create a real risk that the outcome of the trial was affected.

Ultimately, the court concluded that the alleged errors in the trial counsel’s conduct did not give rise to a real risk of a miscarriage of justice. Therefore, the appeal was dismissed.

Orders