Nathan v Police - [2020] NZHC 3452

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-485-63

[2020] NZHC 3452

BETWEEN
BARRY TAMATI TE HAU NATHAN

Appellant

AND

THE NEW ZEALAND POLICE

Respondent

Hearing: Wednesday 25 November 2020

Counsel:

N D F Bond for the Appellant

R H De Silva for the Respondent

Judgment:

18 December 2020

JUDGMENT OF CULL J

[1] On 18 October 2019,1 Mr Nathan was convicted in the District Court of assault with intent to injure,2 assault in a family relationship3 and strangulation.4 Mr Nathan appeals his conviction on the basis that a miscarriage of justice has occurred for three reasons:

(a)the Judge failed to give adequate reasons for setting aside Mr Nathan’s evidence and preferring that of the victim;

(b)the Judge erred in permitting the Police to adduce further evidence after the close of the Police case and that the circumstances in which this occurred created the appearance of partisanship; and

1      New Zealand Police v Nathan [2019] NZDC 21214.
2      Crimes Act 1961, s 193; maximum penalty three years’ imprisonment.
3      Section 194A; maximum penalty two years’ imprisonment.
4      Section 189A(b); maximum penalty seven years’ imprisonment.

NATHAN v THE NEW ZEALAND POLICE [2020] NZHC 3452 [18 December 2020]

(c)in respect of the conviction for strangulation, the victim was not cross- examined on her prior inconsistent statement that she was unsure whether her normal breathing had been impeded.

[2] The Police oppose the appeal on the ground there has been no miscarriage of justice.

Background facts

[3] At the relevant time, Mr Nathan and the victim had been in a relationship for approximately six months. They have no children together but the victim has one three year old child.

[4] On Monday 25 February 2019, Mr Nathan and the victim were in the living room of the victim’s house, following a birthday party for Mr Nathan attended by other whānau members. After the others had left and the victim’s son was put to bed, Mr Nathan and the victim were in the lounge area together. At some point, Mr Nathan went outside, possibly for a cigarette, and on his return the victim said she noticed a change in his behaviour, because he was irritated or angry at her for what he described as “showing off”. Without warning, he straddled her on the couch and, after verbally abusing her, punched her around the upper body area. The verbal argument continued and when they were seated next to each other on the couch, he punched her several more times in her arm, this time harder. In trying to push him away the victim tried to punch him the chest when Mr Nathan leant back and her hand made contact with his nose, causing it to bleed.

[5] Mr Nathan went to the bathroom to get a towel for his bleeding nose and on his return to the lounge the victim said he punched her in the face and upper body again. Both then fell asleep…

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 Nathan v Police

Details

AGLC: Nathan v Police [2020] NZHC 3452
Case: [2020] NZHC 3452
Decision Date: 18 December 2020

CaseChat Overview and Summary

Barry Tamati Te Hau Nathan appeals against his conviction for assault with intent to injure, assault in a family relationship and strangulation. Nathan argues that a miscarriage of justice has occurred for three reasons: the Judge failed to give adequate reasons for setting aside Nathan’s evidence and preferring that of the victim; the Judge erred in permitting the Police to adduce further evidence after the close of the Police case and that the circumstances in which this occurred created the appearance of partisanship; and in respect of the conviction for strangulation, the victim was not cross-examined on her prior inconsistent statement that she was unsure whether her normal breathing had been impeded. The Police oppose the appeal on the ground there has been no miscarriage of justice. In relation to the Judge admitting the 111 call transcript after the close of the prosecution case, the Court found that the Judge erred in admitting the 111 call transcript contrary to s 98 of the Evidence Act. The Judge admitted it without listening to it and undertaking an assessment as to its reliability, relevance and/or prejudicial value. The Judge also gave the appearance that he wished to obtain inculpatory evidence against Nathan. The Court found that this was an error of law. In relation to the failure to cross-examine on a prior inconsistent statement, the Court found that the failure to cross-examine the victim on her prior inconsistent statement risked a wrong finding of guilt on the charge of strangulation and constituted a miscarriage of justice. In relation to the failure to give adequate reasons for preferring the evidence of the victim, the Court found that the Judge erred by not giving adequate reasons for rejecting Nathan’s evidence in its entirety, in respect of all three charges. The appeal against conviction is upheld. The convictions are set aside and a new trial is directed.

Orders