Mathieson v Police - [2015] NZHC 1056

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2014-442-000021 [2015] NZHC 1056

BETWEEN
BRYAN JAMES MATHIESON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 19 May 2015

Counsel:

S J Zindel for Appellant
J M Webber for Respondent

Judgment:

19 May 2015

JUDGMENT OF COLLINS J

Summary of judgment

[1] I am granting Mr Mathieson’s application for leave to pursue his appeal out

of time.

[2] Mr Mathieson’s appeal against conviction is, however, dismissed. I am dismissing Mr Mathieson’s appeal because none of the three grounds of appeal have been established. In particular, contrary to Mr Mathieson’s submissions:

(1) The District Court Judge properly considered whether there was a

reasonable doubt as to Mr Mathieson’s guilt.

(2)The District Court Judge properly assessed the credibility of the complainant and Mr Mathieson.

(3) There was no error because of the “composite” nature of the

allegations in the charge.

MATHIESON v NEW ZEALAND POLICE [2015] NZHC 1056 [19 May 2015]

Background

[3] Mr Mathieson was found guilty by Judge Zohrab in the Nelson District Court on 7 October 2014 of one charge of male assaults female.1 Mr Mathieson was sentenced to a period of supervision for a period of nine months with two conditions imposed.2

[4] The charge of male assaults female arose from two incidents involving Mr Mathieson and his daughter on 16 July 2014. The first incident involved Mr Mathieson allegedly throwing a hot water bottle at his daughter, which struck her on her thigh. The second incident involved Mr Mathieson allegedly placing his hands around his daughter’s throat.

Leave to appeal

[5] The appellant filed an appeal against his conviction on 24 October 2014.

That appeal was abandoned by Mr Mathieson’s then lawyer on 1 December 2014.

[6] Mr Mathieson’s former lawyer has explained in an affidavit that he abandoned the appeal without Mr Mathieson’s express instructions because he had concerns about the merits of the appeal and because he was unable to locate Mr Mathieson to take instructions.

[7] In view of the fact Mr Mathieson did not provide express instructions to abandon his appeal, and because he has advanced grounds of appeal which ought to be considered, I am allowing Mr Mathieson leave to pursue his appeal.

Reasonable doubt

[8] Mr Mathieson alleges Judge Zohrab did not properly consider and apply the test of proof beyond reasonable doubt.

1 Crimes Act 1961, s 194(b). Maximum penalty two years’ imprisonment.
2 (1) that he complete an anger management course and (2) that he be assessed by an alcohol and drug clinician.

[9] It is apparent, however, Judge Zohrab commenced his judgment by saying the charge:3

… carries with it the criminal burden and the standard, meaning that it is up to the prosecution to prove Mr Math[i]eson’s guilt to that high standard of proof beyond reasonable doubt. What that basically means is I need to be sure of his guilt.

[10] Because Mr Mathieson gave evidence Judge Zohrab was required to consider the effect of his evidence, pursuant to…

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 Mathieson v Police

Details

AGLC: Mathieson v Police [2015] NZHC 1056
Case: [2015] NZHC 1056
Decision Date: 19 May 2015

CaseChat Overview and Summary

In the case of Mathieson v Police, the appellant, Bryan James Mathieson, sought leave to appeal out of time against his conviction for male assaults female, which arose from two separate incidents involving his daughter. The appeal was initially abandoned by his former lawyer, but Mathieson subsequently sought leave to continue with his appeal on three grounds: the District Court judge did not properly consider whether there was a reasonable doubt as to his guilt; the judge did not properly assess the credibility of the complainant and Mathieson; and there was an error due to the "composite" nature of the allegations in the charge. The High Court granted Mathieson leave to pursue his appeal out of time but dismissed the appeal on the merits, finding that none of the grounds had been established.

The court found that the District Court judge had properly considered whether there was a reasonable doubt as to Mathieson's guilt. The judge had clearly outlined the high standard of proof required and had given himself a standard tripartite direction, which included considering Mathieson's evidence. Despite Mathieson's evidence, the judge found it to be incredible and unreliable and found the complainant's evidence to be truthful, credible and reliable, concluding the charges were proven beyond reasonable doubt. The court also found that the judge had properly assessed the credibility of the complainant and Mathieson. The judge provided a coherent and well-reasoned explanation for favouring the complainant's evidence over Mathieson's, and had considered and rejected Mathieson's explanations for the incidents. Finally, the court found that there was no error due to the "composite" nature of the charge, as the judge had clearly found both acts proven and had provided reasons for the conviction. The appeal was dismissed, and Mathieson's conviction stood.

Orders