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King v Police

King v Police

Case [2016] NZHC 977 16 May 2016

Appeal

Burden of Proof

Standard of Proof

Miscarriage of Justice

Reasonable Excuse

Self-Defense

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-65 [2016] NZHC 977

BETWEEN
REECE KING

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 April 2016

Counsel:

T J Darby for Appellant
N Dobbs for Respondent

Judgment:

16 May 2016

JUDGMENT OF DUFFY J

This judgment was delivered by me on 16 May 2016 at 11.30 am pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Solicitors:
Point Chevalier Law, Point Chevalier, Auckland
Crown Solicitor, Manukau

KING v NEW ZEALAND POLICE [2016] NZHC 977 [16 May 2016]

[1] Mr King was charged with being in possession of a knife in a public place without a reasonable excuse. Following a defended hearing on 31 July 2015, Judge Simpson found the charge proved.1 At a later hearing she refused Mr King’s application for a discharge without conviction, and sentenced him to come up for sentence if called upon. Mr King appeals against his conviction and the Judge’s refusal to discharge him without conviction.

Factual background

[2] At the defended hearing, Mr King and his grandmother gave evidence to the effect that he suffers from a number of medical ailments including foetal alcohol syndrome, aspergers syndrome, post-traumatic stress syndrome and epilepsy. He also suffers from a developmental delay which leads to him behaving immaturely.

[3] Mr King said that whenever he goes out, he is picked on by others and that this has caused him to fear for his safety. So he carried a knife for his own protection.

[4] Mr King said that on the day of the offending, 11 November 2014, he visited his partner Ms Pio at her home in Papakura. Some alcohol was consumed and it appears there was an argument. Mr King became upset at Ms Pio’s consumption of alcohol as she was pregnant with their child. She was drinking Bourbon and Cola. He did not want his child to suffer from foetal alcohol syndrome as he does. There was an argument. Others in the house told him to leave Ms Pio alone. They seemingly were not concerned about her drinking alcohol while pregnant.

[5] Mr King left Ms Pio’s home and went for a walk to a lookout where he sat for approximately 30 minutes. Before he left Ms Pio’s home, he removed a knife from the kitchen.

[6] Then Mr King decided to return to Ms Pio’s home and to confront her again
about the potential harm her behaviour posed to their child. He found an empty one litre vodka bottle lying on the footpath near to her home. He recognised the bottle as

1 Summary Offences Act 1981, s 13A.

one of the bottles the persons partying at Ms Pio’s house had used. He said he saw the empty bottle as a symbol of what was going on in Ms Pio’s house. He was upset. He kicked it several times, causing the bottle to break so that shards of glass were scattered across the road.

[7] A woman in a neighbouring house,…

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 King v Police

Details

AGLC: King v Police [2016] NZHC 977
Case: [2016] NZHC 977
Decision Date: 16 May 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Reece King appealed against his conviction and the Judge's refusal to discharge him without conviction. Mr King was charged with being in possession of a knife in a public place without a reasonable excuse. The legal issues the court was required to decide were whether the Judge misdirected herself regarding the element of “without reasonable excuse” as to both burden of proof and standard of proof, and consequently erred in her finding that the charge against Mr King was proved. The court held that the Judge erred in her approach to determining whether Mr King had committed the offence of possessing a knife under s 13A of the Summary Offences Act. The court found that the Judge’s misapplication of the burden of proof would have meant that her enquiry proceeded from the wrong perspective. The result of any enquiry to exclude the existence of a reasonable excuse will be fact specific. The appeal is allowed and the conviction entered in the District Court is set aside. The matter is remitted back to the District Court for re-hearing in accordance with the law as the Court has found it to be.

The court found that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice had occurred. The court found that the Judge’s misapplication of the burden of proof would have meant that her enquiry proceeded from the wrong perspective. This may have affected the outcome that she reached. The court found that there was a real possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong. The court found that there was a real possibility that the verdict would be unsafe. The court found that the error or irregularity must lead to either of the consequences listed in s232(4)(a) or (b). The court found that the error or irregularity must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision. The court found that the Judge’s misapplication of the burden of proof would have meant that her enquiry proceeded from the wrong perspective. This may have affected the outcome that she reached. The court found that the Judge’s misapplication of the burden of proof would have meant that her enquiry proceeded from the wrong perspective. This may have affected the outcome that she reached. The court found that the Judge’s misapplication of the burden of proof would have meant that her enquiry proceeded from the wrong perspective. This may have affected the outcome that she reached.

Orders