Nishant v Police - [2019] NZHC 18

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE CHILD COMPLAINANT

PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2018-463-31

[2019] NZHC 18

BETWEEN
NISHANT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 December 2018

Counsel:

C Horsley for appellant A J Pollett for respondent

Judgment:

21 January 2019

JUDGMENT OF KATZ J

This judgment was delivered by me on 21 January 2019 at 4.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Pollett Legal Limited, Office of the Crown Solicitor, Tauranga Counsel: C Horsley, Barrister, Tauranga

NISHANT v NEW ZEALAND POLICE [2019] NZHC 18 [21 January 2019]

Introduction

[1] On 2 March 2018 the appellant, who goes by the single name Nishant, was tried in a Judge-alone trial at the Tauranga District Court before Judge T R Ingram. He was acquitted of two charges of assault on a child and found guilty of one charge of male assaults female and one charge of assault on a child.1 Nishant now appeals against his convictions.

Background

[2] Nishant faced one charge of male assaults female, relating to Ms A, and three charges of assault on a child – Ms A’s child (referred to as “the child” to protect her identity). The child was aged eight at the time of the offending, and nine when she gave evidence at trial.

[3] Nishant was in a relationship with Ms A for several years. It came to an end in early July 2017. During the course of the relationship, Nishant applied for and was granted a temporary residence permit, based on his relationship status. Ms A’s evidence was that once Nishant had obtained New Zealand residence status, his attitude to her and her daughter changed to one of indifference. He no longer played a meaningful part in family life. He wanted the child to leave the household and to go and live with her father.

[4] Nishant faced four charges, arising out of two incidents of alleged offending, on 20 and 21 March 2016. The Judge summarised the evidence of Ms A and the child relating to the 20 March 2016 incident as follows:2
The evidence was that both the defendant and [Ms A] were seated on a couch…The essence of the allegation is that the defendant lost his temper with [Ms A], as a result of which he put his hands around her neck and began to choke her. Thereupon the child… came across the room and hit the defendant, who then used one hand to slap her about the head, which caused her to bleed from the mouth and blood was left on the carpet.

[The child] also alleged that the defendant gave her what are known as Chinese burns, which in New Zealand is widely understood to mean two hands

1 New Zealand Police v Nishant [2018] NZDC 21250.
2 At [3] and [4].

being…

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 Nishant v Police

Details

AGLC: Nishant v Police [2019] NZHC 18
Case: [2019] NZHC 18
Decision Date: 21 January 2019

CaseChat Overview and Summary

The appeal before the court was brought by Nishant, who was convicted of male assaults female and assault on a child, but acquitted of two other charges of assault on a child. The central issue was whether the trial judge erred in his assessment of the evidence to such an extent that a miscarriage of justice had occurred. The court considered three grounds of appeal: whether the judge failed to give proper weight and consideration to all of the evidence, whether the verdicts were inconsistent with the evidence, and whether the judge’s rhetorical question about the child's motive to lie amounted to an error that resulted in a miscarriage of justice. The court found that the judge’s assessment of the evidence was appropriate and open to him based on the evidence presented. The court also held that the judge's consideration of the child’s motive to lie did not amount to an error that resulted in a miscarriage of justice, as it was permissible for the judge to take into account the apparent absence of motive when assessing the credibility of a witness. The appeal was therefore dismissed.

Orders