Lowe v Police - [2022] NZHC 2672

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-485-37

[2022] NZHC 2672

UNDER Criminal Procedure Act 2011

BETWEEN

LOWE

Appellant

AND

NEW ZEALAND POLICE

Police

Hearing: 5 October 2022

Appearances:

C H Shade and M S Alexander for Appellant L R van der Lem for Police

Judgment:

14 October 2022

JUDGMENT OF McQUEEN J

[1] On 7 December 2021 Ms Lowe was convicted following a judge-alone trial on one charge of assaulting a child.1 She was subsequently sentenced to supervision on the charge.2

[2]Ms Lowe now appeals her conviction and sentence and seeks:3

1      Police v [Lowe] [2021] NZDC 24136. The maximum penalty for assaulting a child under s 194(a) of the Crimes Act 1961 is two years’ imprisonment. The names of the appellant and the child have been anonymised to protect the child’s identity.
2      Police v [Lowe] [2022] NZDC 20030.
3      Ms Lowe filed an affidavit in support of her appeal dated 13 September 2022. The Police objected to the affidavit as being largely inadmissible other than paragraphs [15]–[18] which related to the opportunity to apply to be discharged without conviction. At the hearing, the appellant indicated that she would rely only on those paragraphs. An affidavit from trial counsel, Mr Dawson, dated 4 October 2022, was filed by the Police. Mr Dawson was not required to be available for cross examination.

LOWE v NEW ZEALAND POLICE [2022] NZHC 2672 [14 October 2022]

(a)for her conviction to be set aside and to be acquitted of the charge;

(b)in the alternative, for her conviction to be set aside and to be retried on the charge; or
(c)if her conviction is not set aside, to be given the opportunity to make an application for a discharge without conviction.

Background

[3] This is a matter where there is dispute in relation to some key facts as to what occurred on Thursday 11 February 2021 when Ms Lowe and her daughter Sophie were walking home from school. I set out the evidence below, as taken from the notes of evidence from the hearing in the District Court, first setting out the Police case (which relies on the evidence of a Ms Sprozen and a Police Constable) and then Ms Lowe’s evidence.

Ms Sprozen’s/Police version of event

[4] On Thursday 11 February 2021 at approximately 3.15 pm, a Ms Sprozen saw a small girl (later identified as Sophie) walking quite fast up Devon Street. Ms Sprozen gave evidence that the girl looked quite upset and was crying. Shortly after, she saw a woman (later identified as Ms Lowe) wearing a red singlet, carrying a red tote bag on her right shoulder and something, perhaps another bag, on her left-hand side, walking about 100 metres behind the child at an average speed. Ms Sprozen was about 50 metres from the child at the time.

[5] Ms Sprozen stated that the…

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: [2022] NZHC 2672
Decision Date: 14 October 2022

CaseChat Overview and Summary

Ms Lowe appealed against her conviction and sentence for assaulting a child, arguing that the District Court Judge made errors in assessing the evidence that led to a miscarriage of justice. The High Court found that there were flaws in the Judge's reasoning, including the possibility that the witness misheard what Ms Lowe said, the possibility that the hammer was not at the bottom of the bag as the Judge assumed, and the characterisation of Ms Lowe's evidence as inconsistent. The Court found that these flaws went beyond issues of credibility and amounted to a miscarriage of justice. Given the limited evidence to sustain a conviction and the relatively minor nature of the offending, the Court decided that an acquittal was in the interests of justice. The appeal was therefore allowed, Ms Lowe was acquitted of the charge, and her sentence of supervision was set aside.

Orders