Kapene v Police - [2014] NZHC 41

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2014-416-000001 [2014] NZHC 41

BETWEEN PAKU NERA JUNIOR KAPENE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 3 February 2014

Appearances: R Donnelly for Appellant
J D Lucas for Respondent

Judgment: 3 February 2014

ORAL JUDGMENT OF VENNING J

Solicitors: Crown Solicitor, Napier
Rishworth, Wall & Mathieson, Gisborne

KAPENE v NZ POLICE [2014] NZHC 41 [3 February 2014]

Introduction

[1] Following a defended hearing on 2 December 2013 Mr Kapene was convicted on one charge of common assault. Judge Adeane sentenced him to 150 hours community work.1 Mr Kapene appeals against conviction and sentence.

Background

[2] On 14 August 2013 the complainant went to Mr Kapene’s address. He was her ex-partner. It appears that she was concerned at a new relationship he had formed. She apparently wanted to speak to him about that. She knew Mr Kapene would be at home because at the time he was subject to a sentence of home detention for unrelated offending. When the complainant arrived at Mr Kapene’s address an altercation between the two followed. It appears the incident was observed by a neighbour who took became involved by shouting out to Mr Kapene to leave her alone.

[3] Ultimately the police were called and the complainant gave to Police Constable Marshall a statement at the scene. The complainant had by this time driven down the road a little way from Mr Kapene’s property.

[4] In the written statement she completed the complainant described the altercation and said that Mr Kapene had hit her twice in the face with the back of his hand. The complainant’s lip was bleeding as a result. The police constable took a photograph of the complainant’s lip showing the injury to it. It could be described as a scratch or abrasion which was at the time currently bleeding.

[5] At the hearing before the District Court Judge the complainant sought to resile from her statement. She gave evidence different to that in her written statement. At most she said she was pushed. She was declared hostile. Her statement was then put to her which she largely denied and went so far as to say she was lying in that statement. Constable Marshall also gave evidence. He described the circumstances in which the statement was given and confirmed taking the
photograph of the complainant.

1 Police v Kapene DC Gisborne CRI-2013-016-001936, 2 December 2013.

[6] The District Court Judge found the charge proved. It appears he considered that the complainant, like a number of women in these circumstances, had sought to resile from her statement with the passage of time. The Judge said:

[4] Accordingly it can be seen that she had produced three versions of events.2 That makes it perhaps a little difficult to identify which of those is the preferred version so far as the resolution of defended allegations is concerned. But what it does demonstrate is that in three separate ways and different ways, she has alleged that the defendant…

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 Kapene v Police

Details

AGLC: Kapene v Police [2014] NZHC 41
Case: [2014] NZHC 41
Decision Date: 3 February 2014

CaseChat Overview and Summary

Kapene appeals against his conviction and sentence following a hearing in the District Court. The appellant, Kapene, was convicted of common assault after an altercation with the complainant, his former partner. The complainant sought to resile from her statement in the District Court, alleging she was merely pushed, not struck. The District Court Judge found the charge proved and sentenced Kapene to 150 hours of community work. Kapene appeals both the conviction and sentence.

The court was required to determine whether the District Court Judge erred in failing to determine the factual basis for the conviction, and whether the evidence negated the defence under section 56 of the Crimes Act 1961. The court also needed to assess whether the sentence was manifestly excessive.

The court found that the District Court Judge did not err in failing to identify which of the three versions of events he accepted to find the charge proved. Each version alleged that Kapene had used force against the complainant, which was sufficient to establish the charge of assault beyond reasonable doubt. The court noted that the District Court Judge was required to find the charge proved beyond reasonable doubt, and did so. The court also found that the appellant was not entitled to rely on section 56 of the Crimes Act, as he was not permitted to strike or cause bodily harm to the complainant. The court held that the injury to the complainant’s lip was more than a minor bruise and could be regarded as a wound, and therefore the defence was not available to Kapene. The appeal against conviction was dismissed.

Regarding the sentence, the court found that while the sentence of 150 hours of community work was at the top end of the range, it was not manifestly excessive. The court considered the appellant’s past record of relevant convictions, which showed a propensity for violence. The court held that an uplift in sentence was justified and did not find the sentence to be manifestly excessive. The appeal against sentence was also dismissed.

The final orders of the court were that the appeal against conviction and sentence be dismissed.

Orders