McNabb v Police - [2019] NZHC 1448

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2019-419-0002

[2019] NZHC 1448

BETWEEN
MARIE McNABB

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 June 2019

Appearances:

RAB Barnsdale for the appellant ASC Alcock for the respondent

Judgment:

25 June 2019

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
Richard Barnsdale, Barrister, Hamilton Almao Douch, Hamilton

McNABB v NEW ZEALAND POLICE [2019] NZHC 1448 [25 June 2019]

[1] On 5 December 2018, after a judge-alone trial, Judge D C Clark in the District Court at Hamilton convicted Marie McNabb on one charge of breaching a protection order.1 Ms McNabb was ordered to pay witness expenses of $916.2

[2]Ms McNabb appeals on grounds:

(a)there was a miscarriage of justice because of trial counsel’s conduct, which may have prevented a successful defence being raised; and

(b)the Judge erred in her assessment of the evidence.

Although Ms McNabb formally also appeals her sentence, no submissions are addressed to that and, given the absence of any penalty, I disregard it.

Background

—the incident

[3] Ms McNabb was in a relationship with the complainant for 12 years. They separated in December 2015. Initially, the complainant had a protection order issued against him, in favour of Ms McNabb. This was discharged on 15 April 2016. A temporary protection order then was issued in favour of the complainant against Ms McNabb, on 28 April 2016.

[4] The complainant’s evidence was Ms McNabb had campaigned against him for some time. The incident giving rise to the breach occurred on 16 September 2016, when the company’s return of a call to its 0800 number was responded to with allegations of his methamphetamine use. As a result, the complainant was drug-tested, to negative results. Police identified the called number as Ms McNabb’s.

—procedural history

[5] Ms McNabb initially faced two charges, one of breaching the protection order and one charge of theft. The Judge heard them on 11 December 2017, dismissing the theft charge and adjourning the other for defence evidence to be led. After a variety of

1 Domestic Violence Act 1995, ss 19(1)(d), 49(1)(b) and 49(3).
2 Police v McNabb [2018] NZDC 25680 at [28].

adjournments, including Ms McNabb’s replacement of her trial counsel, trial concluded on 4 October 2018, the Judge reserving her subsequent conviction of Ms McNabb.

[6] Ms McNabb’s appeal was brought on grounds the Judge erred in fact and misapplied the law. On 13 April 2019, Duffy J adjourned its hearing to enable argument also of counsel error.

[7] Ms McNabb’s counsel, Richard Barnsdale, takes no issue with the Judge’s legal reasoning. But he says evidence relating to the complainant’s alleged drug use should have been put to relevant witnesses, and he disputes the Judge had sufficient evidence to attribute the original call to Ms McNabb.

Approach

[8] If I am satisfied these errors are made out, and there is a “real risk” the outcome of the trial was affected – “a reasonable possibility that a not…

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 McNabb v Police

Details

AGLC: McNabb v Police [2019] NZHC 1448
Case: [2019] NZHC 1448
Decision Date: 25 June 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Marie McNabb appealed her conviction for breaching a protection order against the New Zealand Police. McNabb was found guilty by Judge D C Clark in the District Court at Hamilton, and was ordered to pay witness expenses. McNabb's appeal was based on two grounds: the alleged misconduct of her trial counsel, and the judge's assessment of the evidence. The court needed to determine if there was a miscarriage of justice due to the conduct of McNabb's counsel and whether the judge's assessment of the evidence was correct. The court held that McNabb's counsel made a reasonable tactical decision in not pursuing the drug issues with the complainant, and therefore, there was no real risk that the outcome of the trial was affected. As such, McNabb's appeals against conviction and sentence were dismissed.
The court's decision was based on the evidence presented and the circumstances of the case. The court held that McNabb's counsel made a reasonable tactical decision in not pursuing the drug issues with the complainant, and there was no real risk that the outcome of the trial was affected. The court also held that the judge's assessment of the evidence was correct. Therefore, McNabb's appeals against conviction and sentence were dismissed.

Orders