Kingi v Police
[2021] NZHC 1475
•21 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-142
[2021] NZHC 1475
BETWEEN MELANIE KINGI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 21 June 2021 Appearances:
R J Wilson and M J English for the appellant T S Jenkin for the respondent
Judgment:
21 June 2021
ORAL JUDGMENT OF JAGOSE J
Counsel/Solicitors:
Public Defence Service, Waitākere
Meredith Connell, Crown Solicitor, Auckland
KINGI v NEW ZEALAND POLICE [2021] NZHC 1475 [21 June 2021]
[1] Melanie Kingi appeals the decision of Judge J M Jelaš in the North Shore District Court on 10 July 2020,1 finding her guilty of assault2 and wounding with intent to injure.3 On 17 March 2021, in the District Court at Auckland, the Judge sentenced Ms Kingi concurrently to one and six months’ community detention respectively.4 She now appeals her conviction on the latter charge.
Background
[2] On 6 February 2019, Ms Kingi went to a property at which [Redacted], lived with his then partner, the victim. Understanding the victim had hit her eldest child (then aged 18 years), Ms Kingi was agitated and aggressive, and “marched” into the residence, saying “Don’t touch my fucking kid again”. She was described “bowling into the house, swearing blue murder”.5 In the ensuing mêlée— in which the three struggled and fell to the floor, and from which Ms Kingi then retreated — the victim received a cut to her arm.
Judgment under appeal
[3] The Judge considered Ms Kingi’s actions were “disproportionately aggressive and confrontational” and “unwarranted”.6 She concluded from the evidence, when the three were on the floor, Ms Kingi took a plate from the victim and hit [Redacted] on the head with it, breaking the plate. The victim then noticed blood on [Redacted], which she realised was coming from a cut on her arm. The Judge inferred the cut was inflicted by Ms Kingi with the broken plate, considering she did so “to strike out at the [victim]”.7
[4] For Ms Kingi, Rachel Wilson argues “there were no proved facts that allowed for the drawing of an inference as to the wound being caused by the plate”,8 or
1 Police v Kingi [2020] NZDC 13414 [“Conviction decision”].
2 Crimes Act 1961, s 196. Maximum penalty: one year’s imprisonment.
3 Section 188(2). Maximum penalty: seven years’ imprisonment.
4 Police v Kingi [2021] NZDC 4927.
5 Conviction decision, above n 1, at [25].
6 At [14].
7 At [34].
8 Relying on Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 (HL), endorsed by
R v Kinghorn [2014] NZCA 168 at [20].
necessarily being intended by Ms Kingi. Accordingly her conviction on the charge of wounding with intent to injure was a miscarriage of justice.
Approach on appeal
[5] Ms Kingi has a first appeal right against her conviction to this Court.9 I must allow the appeal if satisfied the Judge “erred in … her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or if I am satisfied “a miscarriage of justice has occurred for any reason”. Otherwise, I must dismiss the appeal.10
[6] By ‘miscarriage of justice’ is meant something has occurred in relation to trial to create a real risk against a more favourable outcome for Ms Kingi, or has resulted in an unfair trial or a nullity.11 The appeal proceeds by way of rehearing, in which I am to form my own view of the facts and determine the appeal accordingly,12 while taking into account any advantages the trial judge may have had.13 Ms Kingi must show error has been made. The threshold is high; not every error will amount to a miscarriage of justice.14
Discussion
[7] The precise mechanism by which the victim was wounded is not determinative of the charge. Rather, the prosecutor was to establish beyond reasonable doubt Ms Kingi inflicted the wound,15 intending to cause actual bodily harm to the victim.16
[8] I closely have read the Judge’s notes of evidence and her decision made on it. There is a multiplicity of circumstantial support for her conclusion Ms Kingi intentionally wounded the victim, including her aggressive demeanour hostile to the
9 Criminal Procedure Act 2011, ss 229(1) and 230(1)(b).
10 Section 232.
11 Section 232(4); Misa v R [2019] NZSC 134 at [38]–[48], citing R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110]; Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30]; and Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [47].
12 Sena v Police [2019] NZSC 55 at [32].
13 At [38]–[40].
14 Otis v Police [2019] NZCA 231 at [4], citing McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].
15 Lee v R [2019] NZCA 539 at [23].
16 Crimes Act 1961, s 2(1) definition of “injure”.
victim;17 her assault of the victim (arising in the former unchallenged conviction); her breaking of the plate against [Redacted] head (half of it then being seen by him on the floor);18 [Redacted] body partially shielding the victim from Ms Kingi;19 and the victim’s new wound.20
[9] Those are the “objective facts” on which the Judge’s inference was open to being drawn.21 The Judge’s reasoning is express.22 Going to that assessment also is the Judge’s dismissal of Ms Kingi’s alternative propositions — including she picked up the plate (or pieces of a fan) on her way out of the house then to throw back at its residents23 — substantially as lacking credibility.24 This is not a case in which the Judge can be said to have chosen between equally available inferences, or one in which I assess the evidence any more favourably for Ms Kingi. The Judge did not err.
Result
[10]The appeal is dismissed.
—Jagose J
17 Police v Kingi, above n 1, at [12] and [14].
18 At [33].
19 At [26]–[27] and [34].
20 At [31].
21 Chea v R [2016] NZCA 207 at [19], citing R v Kinghorn, above n 8, at [20] (citing Caswell v Powell Duffryn Associated Collieries Ltd, above n 8, at 169–170); Pokai v R [2014] NZCA 356 at [30]–[31].
22 Police v Kingi, above n 1, at [31]–[35].
23 At [17].
24 At [29].
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