Marsters v The Queen - [2014] NZCA 395

IN THE COURT OF APPEAL OF NEW ZEALAND

CA840/2013
[2014] NZCA 395

BETWEEN	JULIUS MARSTERS Appellant
AND	THE QUEEN Respondent

Hearing:	23 July 2014
Court:	O’Regan P, Goddard and Andrews JJ
Counsel:	A J McKenzie for Appellant J E Mildenhall for Respondent
Judgment:	15 August 2014 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Goddard J)

The appellant was convicted by a jury of three counts of male assaults female.[1] The Crown case was that the appellant assaulted the complainant on three distinct occasions while they were out on public streets shortly before 11.00 pm. Based on accounts given by eyewitnesses, the jury found the appellant had struck the complainant in the head when they were at the corner of Gloucester Street and England Street in Christchurch; that he struck her on the head again when they were further down England Street; and immediately after that he had pulled her backwards by the hair or by her hoodie or by a combination of those.
[1]R v Marsters DC Christchurch CRI-2012-009-13681, 6 December 2013.
The first two counts in the indictment charged the appellant with assaulting the complainant by striking her on the head with his hand. These charges related to the first two incidents reported by independent witnesses. The appellant denied that either of these incidents had occurred.
The third count in the indictment charged the appellant with assaulting the complainant “by grabbing her by the hair and/or her hoodie and pulling her along the street”. This was also reported by one of the independent witnesses. The defence position in relation to this charge was that the appellant was simply propelling the complainant away from his property by her hoodie and was justified in doing so by virtue of s 56 of the Crimes Act 1961.

Background facts

The appellant and complainant had been in a difficult relationship compounded by a considerable age difference. They had a daughter together who, at the time of the incident, was in the care of Child, Youth and Family Services.
On the evening in question the complainant was at the appellant’s house in England Street. According to the complainant they had an argument about a young woman flatmate who had been there earlier. The complainant stormed out of the house, followed closely by the appellant. They walked along England Street, arguing loudly. The complainant’s evidence was that she was screaming at the appellant and he was yelling at her to calm down. She slapped him and told him to back off but he still followed her as she walked down the street. They came to the intersection of Gloucester Street with England Street and the complainant said she carried on walking away from the direction of the appellant’s flat. He continued to walk with her and was grabbing at her roughly and telling her to calm down and shut up. As they approached Worcester Street, she said the appellant hit her in 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.

Continue reading Marsters v The Queen

Details

AGLC: Marsters v The Queen [2014] NZCA 395
Case: [2014] NZCA 395
Decision Date: 15 August 2014 at 10 am

CaseChat Overview and Summary

Julius Marsters appealed against his conviction for three counts of assaulting the complainant. The Crown case was that the appellant assaulted the complainant on three distinct occasions while they were out on public streets shortly before 11.00 pm. The appellant denied that either of these incidents had occurred. The third count in the indictment charged the appellant with assaulting the complainant “by grabbing her by the hair and/or her hoodie and pulling her along the street.” The defence position in relation to this charge was that the appellant was simply propelling the complainant away from his property by her hoodie and was justified in doing so by virtue of section 56 of the Crimes Act 1961. The appellant appealed against conviction on the grounds that the Judge erred by refusing to allow the section 56 defence to go before the jury and that the complainant made prejudicial accusations about the appellant during the trial which were not adequately remedied by the Judge.

The Court found that the appellant's appeal was without merit. The Court found that the alleged hair or hoodie pulling took place at least a block away from the appellant’s property and after they had been walking along and arguing for some time. Section 56 only permits force directed at preventing a trespass or removing a trespasser. The Court found that no credible or plausible narrative arose to invest the appellant’s claim with an air of reality and the Judge was correct not to allow the defence to be put to the jury. The Court found that the complainant’s statements were dealt with appropriately and adequately by the Judge at the time and that the jury were properly directed by him in summing up. The Court found that there was no prejudice to the appellant and no miscarriage of justice. The Court dismissed the appeal.

Orders