Kovalenko v Police - [2012] NZHC 1184

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000014 [2012] NZHC 1184

BETWEEN IVAN KOVALENKO Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 29 May 2012

Counsel: H F Croft for Appellant
S A Bishop for Respondent

Judgment: 29 May 2012

ORAL JUDGMENT OF COLLINS J

[1] The appellant was convicted in the Wellington District Court on 13 February

2012 of assaulting his wife. The charge was laid under s 9 of the Summary Offences

Act 1981.

[2] The events which resulted in the appellant’s conviction arose from a dispute between the appellant and his wife on 16 August 2011 at approximately 7.30am. The police case was that the appellant assaulted his wife in two distinct ways:

(1) by slapping her four or five times with his hand; and

(2) by “flipping a cup of tea at her”.

[3] The evidence which the District Court considered is recorded in 111 pages of transcript.

[4] After considering the evidence the District Court Judge concluded:

KOVALENKO V NEW ZEALAND POLICE HC WN CRI-2012-485-000014 [29 May 2012]

(1)that the police had not proven to the requisite standard that the appellant had slapped his wife;

(2)that the evidence established beyond reasonable doubt that the appellant had flung the contents of a cup of tea at his wife.

The appellant was therefore convicted and ordered to appear for sentence if called upon within six months.

Grounds of appeal

[5] Ms Croft, counsel for the appellant in this Court helpfully distilled the grounds of appeal to two issues, namely that:

(1)the appellant did not receive a fair trial because he was not able to adequately speak English; and

(2)the District Court Judge misinterpreted the evidence concerning the trajectory of the contents of the teacup.

[6] I will traverse the evidence in more detail when analysing each ground of appeal.

Procedure on appeal

[7] Appeals of this nature are conducted as a general rehearing pursuant to ss 115 and s 119(1) of the Summary Proceedings Act 1957.

[8] In Austin, Nichols & Co Inc v Stichting Lodestar, the Supreme Court said that when considering a general appeal from a decision of the Trade Marks Commissioner, the High Court is required to:1

... come to its own view on the merits. The weight it gives to the decision of the Commissioner is a matter of judgment [sic]. If the High Court is of a

different view from the Commissioner and is, therefore, of opinion that the
Commissioner’s decision is wrong, it must act on its own view.

[9] The Court went on to say:2

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment [sic]. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might…

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.

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Details

Case: [2012] NZHC 1184
Decision Date: 29 May 2012

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Ivan Kovalenko against his conviction for assaulting his wife. The appellant was found guilty in the Wellington District Court of assaulting his wife under section 9 of the Summary Offences Act 1981. The appellant raised two grounds of appeal: first, that he did not receive a fair trial because he was not able to adequately speak English; and second, that the District Court misinterpreted the evidence concerning the trajectory of the contents of the teacup. The Court considered the evidence presented in the District Court and the arguments made by counsel for both parties. The Court found that the appellant had been provided with appropriate translation services, as required by the New Zealand Bill of Rights Act 1990, and that the appellant's decision not to use the translation service was rational, informed, and voluntary. The Court also found that the District Court had carefully scrutinised all relevant evidence and reached the only rational conclusion that was available to it. Therefore, the Court dismissed both grounds of appeal and upheld the conviction.

The Court's decision in this case highlights the importance of ensuring that an accused person receives a fair trial and is able to understand all aspects of their trial. The Court found that the appellant had been provided with appropriate translation services, and that the appellant's decision not to use the translation service was rational, informed, and voluntary. The Court also found that the District Court had carefully scrutinised all relevant evidence and reached the only rational conclusion that was available to it. This decision demonstrates the Court's commitment to ensuring that justice is served and that the rights of all parties are protected.

Orders