Malster v Police - [2020] NZHC 1444

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-000043

[2020] NZHC 1444

BETWEEN
REBEKKA JOANNE MALSTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 June 2020 (at Rotorua)

Appearances:

A A R Pell for the Appellant

A S Alcock for the Respondent

Judgment:

24 June 2020

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 24 June 2020 at 4.00 pm
Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:
A A R Pell, Hamilton Crown Solicitor, Hamilton

MALSTER v R [2020] NZHC 1444 [24 June 2020]

Introduction

[1] On 16 March 2020, the appellant, Ms Malster, was convicted of one charge of common assault in the Hamilton District Court by Judge Marshall. She was discharged on another charge – also of common assault.1 On the same day, Judge Marshall entered a conviction against Ms Malster, and sentenced her to 80 hours’ community work.2

[2] Ms Malster has filed a notice of appeal against both conviction and sentence. The appeal was filed out of time, through no fault of Ms Malster or her counsel, but rather because of the lockdown due to the COVID-19 crisis. Ms Alcock, for the Crown, did not oppose an extension of time, and the same is granted.

[3] Ms Malster asserts that trial counsel erred by failing to advance an application for a discharge without conviction on her behalf. It is said that had such application been made, it would likely have succeeded, because the entry of a conviction impacts significantly upon Ms Malster’s ability to earn an income from operating a passenger vehicle service and providing driver training services.

[4] It was argued on behalf of the Crown that there was no trial counsel error, that a discharge without conviction was, in effect, sought, and that there has been no miscarriage of justice because a discharge without conviction would not have been granted in any event.

Background facts

[5] Ms Malster was contracted to an entity known as the Settlement Centre, Waikato, which is based in Hamilton. It assists refugees and migrants coming into New Zealand to settle in the Waikato region. Ms Malster was contracted as a driving instructor. She assisted the refugees and migrants to obtain drivers licences. She was paid a fee for this work. In addition, Ms Malster works as a bus driver and in the provision of other transport related services.

1 Police v Malster [2020] NZDC 8316.
2 Police v Malster [2020] NZDC 8302.

[6] There were concerns about Ms Malster’s services and in March 2019, the Settlement Centre sought to terminate her contract. Representatives of the Centre discussed the matter with Ms Malster. The situation became tense. Ms Malster decided to leave and she went into an open plan area and gathered up her belongings. She then attempted to leave the building.

[7] Staff at the Settlement Centre believed that Ms Malster was taking files that belonged to the Centre. A door was closed by someone. Ms Malster thought that…

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 Malster v Police

Details

AGLC: Malster v Police [2020] NZHC 1444
Case: [2020] NZHC 1444
Decision Date: 24 June 2020

CaseChat Overview and Summary

The appellant, Ms Malster, appealed against her conviction and sentence in the Hamilton District Court for one charge of common assault, while the other charge was dismissed. The appeal was heard by Wylie J in the High Court. Ms Malster was sentenced to 80 hours of community work and appealed on the basis of trial counsel error for not seeking a discharge without conviction. Ms Malster argued that the entry of conviction would significantly impact her ability to earn an income from operating a passenger vehicle service and providing driver training services. The court examined whether trial counsel erred and if there was a real risk that the error affected the outcome. The court found that counsel did not err by not making an application for a discharge without conviction prior to the sentence indication, but should have better appreciated Ms Malster's position and discussed the issue with her. However, the court concluded that even if an application for a discharge without conviction had been filed, it would not have succeeded. Consequently, the appeal was dismissed, and no miscarriage of justice occurred as a result of the trial counsel's error.

Orders