McAlister v Police

Case [2022] NZHC 1247


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-98

[2022] NZHC 1247

IN THE MATTER OF an appeal against refusal to discharge without conviction

UNDER

the Criminal Procedure Act 2011

BETWEEN

JOHN MCALISTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 May 2022

Appearances:

A Wei for the Appellant

CL Wilkinson for the Respondent

Judgment:

24 May 2022

Reasons:

31 May 2022


REASONS FOR RESULT JUDGMENT OF FITZGERALD J


This judgment was delivered by me on 31 May 2022 at 3.00pm

Registrar/Deputy Registrar

Date……………………………

Solicitors:           Meredith Connell, Auckland To:       A Wei, Auckland

MCALISTER v NZ POLICE [2022] NZHC 1247 [24 May 2022]

Introduction

[1]                  The appellant, John McAlister pleaded guilty to charges of assault with intent to injure,1 possession of an offensive weapon2 and behaves threateningly.3 He applied for a discharge without conviction. On 10 March 2022, Judge K Lummis in the North Shore District Court declined his application.4 Mr McAlister appealed that decision.

[2]                  At the conclusion of the appeal hearing before me, I delivered a result judgment allowing Mr McAlister’s appeal. These are my reasons for doing so.

Facts

[3]                  On 27 June 2020, Mr McAlister and his wife were at a birthday party in Dairy Flat. The two victims, C and B, were also at the party. The two couples did not know each other.

[4]                  The party was held in a private bar set up on a rural property, which had a high- quality CCTV system that recorded both audio and video. The footage recovered by police formed the basis of the summary of facts to which Mr McAlister pleaded guilty.

[5]  The party continued on well into the early hours of the morning. Everyone had been drinking heavily and was intoxicated. Mr McAlister especially had been drinking to excess, and went off to sleep in his vehicle parked outside.

[6]                  At about 5 am on 28 June 2022, Mr McAlister’s wife and the two victims were the only people left talking in the bar. Everyone else had either left or gone to bed. An argument developed between Mr McAlister’s wife and the male victim, C. As noted by the Judge, the CCTV footage suggests that the argument was over the way C had been treating his dog. The Judge observed that Mr McAlister’s wife was insistent and persistent and “in C’s face” for a significant amount of time, while he and the female victim B were trying to diffuse the situation.


1      Crimes Act 1961, s 193. Maximum penalty 3 years’ imprisonment.

2      Crimes Act 1961, s 202A(4)(b) (representative). Maximum penalty 3 years’ imprisonment.

3      Summary Offences Act 1981, ss 21(1)(a) and (3). Maximum penalty 3 months’ imprisonment or

$2,000 fine.

4      Police v McAlister [2022] NZDC 4109.

[7]                  The argument developed to a point where Mr McAlister’s wife went to strike C and he grabbed her arms as she continued trying to punch him. The Judge recorded that this was accompanied by lots of…

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McAlister v Police [2022] NZHC 1247
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[2022] NZHC 1247
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CaseChat Overview and Summary

The appellant, John McAlister, appealed against the District Court's decision to refuse his application for a discharge without conviction following his guilty pleas to charges of assault, possession of an offensive weapon, and behaving threateningly. The appeal was heard by Fitzgerald J in the High Court of New Zealand Auckland Registry. The court had to decide whether the consequences of a conviction would be out of all proportion to the gravity of Mr McAlister’s offending, and whether the court should decline to grant a discharge without conviction. The High Court allowed the appeal, quashed the convictions, and granted a discharge without conviction.

The court considered the aggravating and mitigating factors of Mr McAlister's offending and concluded that once personal mitigating factors were taken into account, the gravity of the offending was moderate. The court then assessed the consequences of a conviction and found that because of the nature of the visa that Mr McAlister holds, he is as a matter of statute liable to deportation, and there is a real and appreciable risk of deportation. The court concluded that the consequences of a conviction would be out of all proportion to the gravity of Mr McAlister’s offending, as it would be a real and appreciable risk that he will be permanently separated from his wife and young children. The court also noted that the District Court had placed too little weight on personal mitigating factors in describing the offending for the purposes of the proportionality assessment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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