Nagel v Police - [2014] NZHC 2962

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000223

CRI 2013-404-001168 [2014] NZHC 2962

BETWEEN
NICOLAAS CHRISOFFEL GERT

PETRUS NAGEL Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 24 November 2014

Appearances:

D G Young for Appellant
L M Mills for Respondent

Judgment:

26 November 2014

(RESERVED) JUDGMENT OF ANDREWS J [Appeal against conviction and sentence]

This judgment is delivered by me on 26 November 2014 at 12 noon pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

NAGEL v NEW ZEALAND POLICE [2014] NZHC 2962 [26 November 2014]

Introduction

[1] The appellant, Mr Nagel, was convicted by Judge Hinton in the District Court at North Shore on 20 October 2013 on one count of wilfully doing an indecent act in a public place contrary to s 125(1) of the Crimes Act 1961.1 On 8 July 2014, he was sentenced to nine months’ supervision and 50 hours’ community work.2 He has appealed against both conviction and sentence.

Facts

[2] On 8 March 2013, the complainant Mrs M was walking with her dog, on her way to pick up her daughter from school. As she was walking, she noticed someone around 100 metres away riding towards her on a motorcycle. Mrs M gave evidence that this person was wearing black attire with his face obscured.

[3] The motorcyclist was standing up on his motorbike. As he approached, Mrs M saw that he had one hand on his handlebars and the other on his exposed penis. He rode past her, and at his closest was two to three metres away from her. Mrs M gave evidence that the motorcyclist then continued along Fairview Avenue, before turning around and approaching her again. This time he was seated. Mrs M noted the number plate on this occasion, before the motorcyclist drove away. She hurried home, wrote down the number plate, and called the police. The plate belonged to Mr Nagel’s motorcycle. Mr Nagel was subsequently interviewed by police. He denied exposing himself to Mrs M.

District Court judgment

Conviction

[4] The contest in the District Court was between the credibility of Mrs M and Mr Nagel, both of whom gave evidence. The Judge considered Mrs M’s evidence in detail, noting her concession that she could not be “100 per cent sure” that it was in fact Mr Nagel on the motorcycle, by virtue of his obscured face. He also noted her further concession that she had lost sight of the motorcyclist briefly, after he did his
first pass.

1 Police v Nagel DC North Shore, CRI-2013-44-1168, 21 October 2013 [Conviction judgment].
2 Police v Nagel DC North Shore, CRI-2013-44-1168, 8 July 2014 [Sentencing notes].

[5] The Judge “did not understand it to be seriously pressed that there may have been a change in driver, a rider, or alternatively a different motorcycle that came down for the second occasion”.3 He accepted Mrs M’s evidence that “the motorcycle that came up the road was the same motorcycle that [she] observed…

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.

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Details

Case: [2014] NZHC 2962
Decision Date: 26 November 2014

CaseChat Overview and Summary

In the case of Nagel v Police, the appellant, Mr. Nagel, was convicted by Judge Hinton in the District Court at North Shore on one count of wilfully doing an indecent act in a public place. Mr. Nagel was subsequently sentenced to nine months' supervision and 50 hours of community work. He has appealed against both conviction and sentence. The court was required to decide whether the conviction was supported by the evidence and whether the sentence was appropriate. The court found that the evidence did not support a verdict of guilty beyond reasonable doubt. The court noted that the complainant's sighting of the offending motorcyclist was fleeting, and on both occasions, the complainant was focused on different things. The court concluded that there was a reasonable doubt as to whether Mr. Nagel was the offending motorcyclist. The court also found that the sentence was appropriate.

In light of the finding that Mr. Nagel should not have been convicted, the court did not consider his alternative submission that he should have been discharged without conviction. The conviction and sentence on the charge of wilfully doing an indecent act in a public place are quashed.

Orders