Kay v Police - [2015] NZHC 3274

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-347 [2015] NZHC 3274

REGINALD KAY

v

NZ POLICE

Hearing: 14 December 2015

Appearances:

M English and R Song for the Appellant
R Thompson for the Respondent

Judgment:

17 December 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 17 December 2015 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Public Defence Service, Waitakere. Meredith Connell, Auckland.

KAY v NZ POLICE [2015] NZHC 3274 [17 December 2015]

Background

[1] On 20 October 2015, following a defended hearing in the Waitakere District Court, the appellant, Reginald Kay, was convicted of two charges of contravening a protection order, one of burglary and one of male assaults female in relation to an incident which occurred on 7 June 2015. He now appeals against those convictions.

Facts

[2] A summary of the allegations is as follows. The appellant is the ex-partner of the complainant. On the evening of 7 June 2015, he threw an object at the top window pane of the front door of the complainant’s home, causing it to shatter, in order to gain entry. He entered and approached the complainant.

[3] The appellant then grabbed the complaint and pinned her up against the wall. He then left the house and when the complainant followed him out, the appellant ran towards her, shouting at her. He pushed her, causing her to fall to the ground. He then left the property and began to walk onto the road.

[4] The complainant stood toward the end of the driveway to wait for the Police. He saw her and ran towards her. He punched her from behind on the side of her face.

[5] The complainant suffered cuts and grazes as a result of being pushed over. She also sustained swelling and cuts to her face as a result of being punched.

[6] At some point during the offending, the complainant called 111. A transcript of the call was put in evidence.

The District Court decision

[7] The Judge acknowledged that the matter boiled down to a factual issue with two competing versions of events.

[8] The case for the defence was that the evidence of the complainant was unreliable because her statements were at variance with her evidence in Court and so she did not tell the full story.

[9] The Judge was of the view that the complainant was in shock when she made her statement to the constable and that, despite the inconsistencies, she was firm as to the essential elements of the offences. The Judge made the following factual findings:1

The defendant became angry at having been asked to leave after an argument had escalated. He went outside then came back, I find, and broke the glass in the door, reaching and letting himself in, which was the burglary allegation, and then forced the complainant… up against the wall. He went outside again and when the complainant went outside, rather than…

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 Kay v Police

Details

AGLC: Kay v Police [2015] NZHC 3274
Case: [2015] NZHC 3274
Decision Date: 17 December 2015

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, presided over by Thomas J, heard an appeal from Reginald Kay against his convictions in the Waitakere District Court for contravening a protection order, burglary, and male assaults female. The appellant, who is the ex-partner of the complainant, was convicted following a defended hearing on 20 October 2015 for events that transpired on 7 June 2015. The appellant threw an object at the complainant's front door window, causing it to shatter, and then entered the house. He pinned the complainant against the wall and subsequently pushed and punched her when she followed him outside. The complainant sustained cuts, grazes, and swelling as a result of the assault.

The appeal raised several legal issues, including whether the inconsistencies in the complainant's account of the events led to an error in the District Court Judge's assessment of the evidence that resulted in a miscarriage of justice. Another issue was whether the District Court Judge erred by considering matters not put to the complainant. The court had to determine if the inconsistencies in the complainant's version of events undermined her credibility and if the Judge's approach to matters not put to the complainant led to a miscarriage of justice.

The High Court found that the inconsistencies in the complainant's account did not detract from her credibility, and the Judge was correct to rely on her version of events. The photographic evidence of the complainant's injuries and the broken door glass corroborated her account. Regarding the 111 call to emergency services, the recording supported the complainant's version of events rather than contradicting it. The court also found that the Judge appropriately considered the appellant's evidence and did not err in his assessment. Consequently, the High Court dismissed the appeal, finding no miscarriage of justice had occurred.

Orders