Moore v Police - [2018] NZHC 879

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-334

[2018] NZHC 879

BETWEEN
SHANE THOMAS MOORE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 May 2018

Appearances:

P H H Tomlinson for Appellant M Mortimer for Respondent

Judgment:

1 May 2018

ORAL JUDGMENT OF JAGOSE J

Solicitors:
Peter H H Tomlinson, Auckland Meredith Connell, Auckland

MOORE v NEW ZEALAND POLICE [2018] NZHC 879 [1 May 2018]

Introduction

[1] On 10 April 2017, Shane Thomas Moore was convicted of one charge of common assault under s 9 of the Summary Offences Act 1986.1 Mr Moore was ordered, under s 110, to come up for sentence if called on over the following six months.2 He was not called on in that time period.

[2] Mr Moore’s conviction followed his direct discussion with Judge Collins in the Waitakere District Court. After the Judge gave what could be described as an informal sentence indication, Mr Moore begrudgingly accepted the outcome laid out by the Judge, which the Judge took to be his guilty plea.

[3] Mr Moore now seeks to appeal his conviction. Although he filed the appeal himself, he is represented by new counsel, Peter Tomlinson.

The offending

[4] The incident occurred at 10am on Sunday, 24 July 2016, at the Glen Eden Baptist Church on Glendale Road, Glen Eden. The events were captured on CCTV, from which the recording and stills were shown to Judge Collins.

[5] Mr Moore was present at the church with the two victims. He became verbally abusive towards people at the service, and was soon asked to leave the church. As the two victims were leading him out of the building, he continued to verbally abuse them, while knocking containers off a side table and upturning another table.

[6] Mr Moore then punched one victim on his left cheek, who sustained a small bruise to the cheek. Mr Moore began trying to throw punches at random, none of which connected. When the second victim attempted to stop him, Mr Moore responded by grabbing him by the shirt, causing him to fall to the ground and hitting his head against the door frame. The second victim was left with a bruise and lump on his forehead. Mr Moore was held by the victims until police arrived.

1 Maximum penalty is 6 months’ imprisonment or $4,000 fine.
2 Sentencing Act 2002, s 11(1)(c).

[7] Mr Moore’s explanation was he had been verbally abused by the victims, and they started attacking him.

Events in the Waitakere District Court

[8] Mr Moore came before the Court on 10 April 2017 on two charges of common assault under the Summary Offences Act. The matter was set down for a judge-alone trial, which Mr Moore attended with his then counsel, Mr Kidd. Ultimately only one charge of common assault (relating to the punch of the first victim) was withdrawn by the prosecutor, leaving only the other assault charge (relating to the second victim).

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 Moore v Police

Details

AGLC: Moore v Police [2018] NZHC 879
Case: [2018] NZHC 879
Decision Date: 1 May 2018

CaseChat Overview and Summary

The appellant, Shane Thomas Moore, was convicted of common assault in the Waitakere District Court and now seeks to appeal his conviction. The court must decide whether the appeal is time-barred and, if not, whether there was a miscarriage of justice that warrants leave to appeal. The appellant argues that he did not consent to the Judge's proposed outcome and that his counsel acted unreasonably. The court found that the appellant did consent to the Judge's proposed outcome, and that his counsel's conduct was not objectively unreasonable. The court also found that there was no miscarriage of justice as the outcome of the trial was not affected, and the trial was not unfair or a nullity. The court held that the Judge considered the possibility of a discharge without conviction and rejected it, and that the appellant's history of similar low-level offending was relevant to the sentencing decision. The court declined leave to appeal out of time.

The court found that the appellant's appeal was time-barred as he had not filed the notice of appeal within the 20 working days required by section 231(2) of the Criminal Procedure Act 2011. However, the court considered whether leave should be granted out of time, which requires a miscarriage of justice or some other compelling reason. The court found that there was no miscarriage of justice as the outcome of the trial was not affected, and the trial was not unfair or a nullity. The court also found that the appellant's counsel's conduct was not objectively unreasonable, and that the appellant had not advanced any plausible or consistent defence narrative to controvert the CCTV evidence on which the Judge based his conviction. The court held that the Judge considered the possibility of a discharge without conviction and rejected it, and that the appellant's history of similar low-level offending was relevant to the sentencing decision. The court declined leave to appeal out of time.

Orders