MacFarlane v Police
[2025] NZHC 1861
•9 July 2025
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2025-419-000014
[2025] NZHC 1861
BETWEEN IAIN MICHAEL MACFARLANE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 July 2025 Appearances:
H Bell for Appellant
A S C Alcock for Respondent
Judgment:
9 July 2025
JUDGMENT OF LANG J
[on appeal against conviction]
This judgment was delivered by Justice Lang On 9 July 2025 at 12.00 noon
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
H Bell, Hamilton
Hamilton Legal, Office of the Crown Solicitor, Hamilton
MACFARLANE v POLICE [2025] NZHC 1861 [9 July 2025]
[1] Mr MacFarlane was charged with assaulting a person with whom he was in a family relationship.1 Following a defended hearing on 4 February 2025, Judge W Lawson found that charge proved beyond reasonable doubt.2
[2] Mr MacFarlane appeals against conviction. He contends that errors by the Judge in the assessment of the evidence have led to a miscarriage of justice.3
Approach
[3] It is common ground that this Court must make its own assessment as to the correctness of the Judge’s decision. However, Mr bears the onus of establishing the errors on which he relies to give rise to a miscarriage of justice.4 In assessing whether the trial Judge has erred in assessing the facts, an appellate court must take into account any advantage the trial Judge may have had for being able to see and hear the witnesses.5
Background
[4] At the time of the alleged offending, Mr MacFarlane was in a relationship with the complainant although they did not live together. On 13 July 2024, the complainant visited Mr MacFarlane’s address where her children were living. During the evening an argument occurred when Mr MacFarlane said that he was leaving the address to assist his son to deal with problems relating to his vehicle. A verbal altercation occurred within the house. Mr MacFarlane then removed himself from the scene by going to a garage, which was a short distance away from the house.
[5] The complainant subsequently followed him and continued the argument from the doorway leading into the garage. This escalated into a physical altercation that initially involved both Mr MacFarlane and the complainant pushing each other in and around the doorway. It culminated in Mr MacFarlane striking the complainant twice on the face with his fists. He used his left fist for the first blow and his right fist for the second. The complainant then left the garage and went back into the house, from
1 Crimes Act 1961. S 194A.
2 R v MacFarlane [2025] NZDC 5483.
3 Criminal Procedure Act 2011, s 232(2)(b).
4 Senna v R [2019] NZSC 55, [2019] 2 NZLR 68.
5 At [38]-[40].
where she called the police. When the police arrived, the complainant showed them CCTV footage taken from a camera that covered the doorway at which the altercation had occurred. Having viewed the footage, the police arrested Mr MacFarlane and transported him to the police station. At or about the same time, they recorded an evidential interview with the complainant in which she described what had occurred.
The hearing
[6] The complainant was the principal witness for the prosecution at the hearing. The CCTV footage was also played on several occasions. One of the police constables who attended the scene was called to give evidence. She produced the evidential interview she had carried out with the complainant at the scene. A transcript of this was also produced for the Judge’s assistance.
[7] Mr MacFarlane elected not to give or call evidence. Instead, he argued that the CCTV footage, combined with the complainant’s oral evidence, raised the issue of self-defence. Mr Bell, who appeared for Mr Macfarlane at the hearing in the District Court, contended that the prosecution had failed to prove beyond reasonable doubt that Mr MacFarlane was not acting in self-defence at the time he struck the complainant.
The Judge’s decision
[8] The reasons for the Judge’s decision are encapsulated in the following passage of his remarks:
[15] What is clear is that there was an argument and clearly both parties were angry. It is, as I have said, for the police to prove beyond a reasonable doubt that the defendant was not acting in self-defence and what I refer to here is that he was not acting in self-defence after the left/right punch. As I have said it is for the police to prove that beyond a reasonable doubt.
[16] Given the material that I have seen it is clear that [the complainant] was engaged in that exchange. She was not removing herself from the incident or the event where Mr McFarlane approached and in the circumstances I have reached the conclusion that the police have not proved beyond a reasonable doubt that the defendant was not acting in self-defence, in other words I am not sure of that. He may have been acting in self-defence, he may not have been, it is difficult for me to assess on the CCTV footage but the way the law works he is entitled to the benefit of that doubt. The question then becomes whether the force he used was reasonable in the circumstances as he believed them to be.
[17] Whatever he believed the circumstances to be, I do not accept that he considers he was significantly under threat. He was the one who moved towards the doorway where [the complainant] was located. Yes there was an exchange between the two of them which was initiated by his chest contact on her, but her responses seem to have been as a response to that event or to subsequent applications of force. The left/right punch in my view were entirely unnecessary. [The complainant] in my view was no threat to the extent it would justify a stronger, larger more powerful male to punch her in the face with a combination left/right punch immediately and even if I accept there was a significant strike to the throat, which I do not, I accept that there was contact to the throat I do not accept it was a significant contact.
[18] What is clear is that Mr McFarlane had the opportunity to retreat, there was a garage door at the other end. More than that, the one/two punch were entirely unnecessary. At that point he was not under any immediate threat and so I am satisfied that the police have proven beyond a reasonable doubt that the force used was not reasonable in the circumstances as he believed them to be.
The appeal
[9] Mr Bell advances two grounds in support of the appeal. First, he contends the Judge erred in concluding that there was a doorway at the other end of the garage that Mr MacFarlane could have used to depart from the scene of the altercation. Secondly, he argues that the Judge failed to deal with a defence submission that the complainant had punched Mr MacFarlane in the face before he struck the two blows that led to the charge.
Decision
The Judge’s finding about the alternative exit from the garage
This issue arises from the following paragraphs of the Judge’s decision:
[10] [The complainant] gave evidence that there was a garage door which could be opened at the other end of the building and what eventually happened was that Mr McFarlane, after the left/right punches, moved away to the other part of the garage. The opportunity to retreat or move away was obvious. There was, on the evidence that I have heard which has not been contested, a garage door at the other end of the building which would mean the detention could not have been affected by [the complainant] standing in the doorway on her own. In those circumstances I do not accept the argument that there was a detention which would justify an assault used. That does not necessarily deal with the issue of self-defence.
…
[18] What is clear is that Mr McFarlane had the opportunity to retreat, there was a garage door at the other end. More than that, the
one/two punch were entirely unnecessary. At that point he was not under any immediate threat and so I am satisfied that the police have proven beyond a reasonable doubt that the force used was not reasonable in the circumstances as he believed them to be.
[11] For the respondent, Ms Alcock accepts that the Judge erred in stating that there was a door at the other end of the garage. However, she contends no material error has occurred because the CCTV film footage clearly shows a roller door to the left of the doorway where the altercation occurred.
[12] I accept the respondent’s submission on this issue. The location of the alternative exit from the garage was not material. The important point was that an alternative exit existed.
[13] In any event, the Judge’s observations in [18] demonstrate that this was a subsidiary finding. His principal conclusion was that Mr MacFarlane had used more force than was necessary to deal with such threat as the complainant posed at the time he landed the blows to her face.
The failure by the Judge to determine the issue raised by the defence about an initial punch by the complainant
[14] During cross-examination of the complainant, Mr Bell suggested on several occasions that she had punched Mr MacFarlane and that this led to the two blows by him that formed the basis of the charge. However, the complainant denied she had punched Mr MacFarlane at any stage during the altercation.
[15] Having viewed the CCTV footage with counsel during the hearing of the appeal, I note that some of the physical altercation took place inside the doorway and out of view of the camera. However, this appears to consist of both parties pushing and shoving each other. There is nothing in the film footage to suggest that the complainant punched Mr Macfarlane before he punched her.
[16] In her evidential interview the complainant told the police that she “went for” Mr Macfarlane’s throat. The Judge found that this may well have occurred. However, she did not say that she punched Mr MacFarlane and she strenuously denied in cross- examination that this was the case.
[17] Mr MacFarlane did not give evidence. As a result, the Judge was left only with the evidence adduced by the prosecution. For the reasons I have given, this did not provide an evidential basis to support an argument that the complainant had punched Mr Macfarlane before he punched her. It follows that the Judge was not required to make any determination regarding the issue that Mr Bell raises on appeal.
Result
[18]The appeal against conviction is dismissed.
Lang J
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