Penrose v Police - [2013] NZHC 2757

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2013-416-10 [2013] NZHC 2757

BETWEEN DESMOND PENROSE Appellant

ANDPOLICE Respondent

Hearing: 18 October 2013
At Wellington (via AVL)

Counsel: Appellant in Person
K Laurenson for Respondent

Judgment: 22 October 2013

JUDGMENT OF THE HON JUSTICE KÓS (Appeals against conviction and sentence)

[1] Desmond Penrose appeals his summary conviction on charges of male assaults female1 and speaking threateningly.2 He appeals on the notified ground that the convictions were contrary to preponderance of the evidence. He appeals also the sentence imposed of 150 hours community work.

Appeal against conviction

Evidence

[2] It all happened on a Saturday morning, on 6 April 2013. The complainant is the appellant’s girlfriend. The appellant picked her up from work the night before. They drove home together. Two friends, Mr and Mrs O’Donnell, came over for dinner and stayed the night. The O’Donnells’ young children were there too, but
went to bed early.

1 Crimes Act 1961, s 194(b).
2 Summary Offences Act 1981, s 21(1)(a).

PENROSE v POLICE [2013] NZHC 2757 [22 October 2013]

[3] The appellant and complainant had been having some relationship difficulties. The complainant acknowledges that she became drunk over the course of the evening, difficult and provocative.

[4] In the early hours of Saturday morning, when everyone had gone to bed, the complainant confronted the appellant about something she had found on his laptop. She asked him to leave. He said he would do so in the morning once he had packed up his camera equipment and luggage.

[5] Come dawn that morning the bickering continued. The O’Donnells were still present. The appellant went outside and smashed some bottles of spirits on the patio, saying the complainant had a drinking problem. There was an argument about the complainant supposedly hiding the appellant’s cigarettes.

[6] At this point he took the complainant by the throat and said “Watch yourself, you don’t want to mess with me, I could snap your neck”. The appellant does not deny making that statement. But he says they were terms of endearment: he was suddenly taken by the beautiful slenderness of her neck.

[7] The complainant for her part saw no endearments. In evidence she said she

was “pretty well” frightened by these actions.

[8] The appellant admits that he stopped the complainant walking towards him by applying force to the area beneath her chin. He admits that he held her for 20 seconds and that he closed his hand around her throat. He says that he did not squeeze it. But he admits that her face became red. He did not concede that he forced her onto her toes or that her eyes were bulging.

[9] But the O’Donnells, who gave evidence, say that is exactly what happened. Mrs O’Donnell gave evidence that the appellant had the complainant by the neck for
20 to 30 seconds. She was “on her tippy toes”, looked “terrified”, her eyes were getting bulgy and her face was red. Mrs O’Donnell rang…

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: [2013] NZHC 2757
Decision Date: 22 October 2013

CaseChat Overview and Summary

Desmond Penrose appeals against his conviction for male assaults female and speaking threateningly and the sentence imposed of 150 hours community work. The appeal was heard in the High Court of New Zealand. The appellant argues that the convictions were against the preponderance of the evidence. He also argues that the trial judge failed to grant an adjournment because of the late disclosure of evidence by the police and the appellant's lack of legal representation. The appellant further alleges that the judge was biased against him.

The court dismissed the appeal against conviction, finding that the evidence was sufficient to constitute all the necessary elements of each offence. The court found that the appellant's explanation for his actions was ludicrous and that there was no reversible error by the judge in assessing the evidence. The court also dismissed the appeal against sentence, finding that the sentence was not excessive and was within the range of penalties available.

The court found that the appellant's complaints about the process issues advanced were unfounded. The court found that the appellant had not laid a foundation to conclude that there was any material omission in the record available. The court also found that the appellant had made an informed choice to proceed with the trial despite repeated invitations by the judge not to proceed that day. The court found that the judge dealt with the trial in a patient and reasonable manner and that the allegation of bias could not be sustained.

Orders