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Police v XY

Police v XY

Case [2018] NZHC 414 13 March 2018

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ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2018-425-000003

[2018] NZHC 414

BETWEEN
NEW ZEALAND POLICE

Applicant

AND

XY

Respondent

Hearing: 7 March 2018

Appearances:

M J Thomas for Applicant L C Denton for Respondent

Judgment:

13 March 2018

JUDGMENT OF GENDALL J

Introduction

[1] The respondent, a man of 58 with a previously blameless record, was charged with three offences. The first was male assaults female, the second common assault under the Crimes Act 1961, and the third, common assault under the Summary Offences Act 1981. He applied for a discharge without conviction. On 11 December

NZ POLICE v XY [2018] NZHC 414 [13 March 2018]

2017, Judge Brandts-Giesen in the District Court at Queenstown granted the application.1

[2] On 10 January 2018 the Police applied for leave to appeal against that decision, as a ruling made in the determination of a charge pursuant to s 296 Criminal Procedure Act 2011, on two questions of law. They are:

(a)Did the Judge err in his assessment of the gravity of the offending?

(b)Did the Judge err in concluding the consequences of conviction were out of all proportion to the gravity of the offending?

[3]The respondent opposes that application

Background facts

[4] On 14 September 2017, the respondent was socialising at a bar in Queenstown with his wife, his two daughters and a male associate whom he has deposed was a long-time friend of his. He saw text messages from the associate to his wife, and she to him, declaring their love for each other. He says he was shocked and in response, he left the bar and walked away down the street.

[5] A short while later, the respondent then found the group near Starbucks in the Queenstown township. He went straight up to the associate on the street, pushed him against a pole and held him there with his arm around the associate’s neck. A struggle ensued and both men ended up on the ground. The pair were separated by one of the respondent’s daughters. The respondent then grabbed that daughter by the throat and pushed her to the ground, his hand preventing her from breathing. This resulted in bruising around her neck.

[6] Another further struggle ensued, involving pushing and shoving between the respondent and the associate. A group of people tried to separate them. This included the respondent’s daughter and wife. The respondent put up his boot and pushed at his

1 [……………………………………………………].

wife, kicking her in the ribs. This caused her to fall backwards onto the ground. Some minor injuries occurred.

[7] When spoken to afterwards by the Police, the respondent said he was cross and wanted to “get” the associate. He also said…

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 Police v XY

Details

AGLC: Police v XY [2018] NZHC 414
Case: [2018] NZHC 414
Decision Date: 13 March 2018

CaseChat Overview and Summary

In Police v XY, the High Court considered an appeal by the Police against the granting of a discharge without conviction to a man charged with three offences, including male assaults female, common assault under the Crimes Act 1961, and common assault under the Summary Offences Act 1981. The District Court had granted the application for a discharge without conviction, concluding that the consequences of conviction were out of all proportion to the gravity of the offending. The Police applied for leave to appeal on two questions of law: whether the Judge erred in his assessment of the gravity of the offending, and whether the Judge erred in concluding that the consequences of conviction were out of all proportion to the gravity of the offending.

The Court found that the Judge erred in his assessment of the gravity of the offending, which should have been assessed as medium to serious rather than moderate. The Court also found that the Judge erred in concluding that the consequences of conviction were out of all proportion to the gravity of the offending, as there was insufficient evidence to support a finding of real and appreciable consequences. The Court therefore granted leave to the Police for this appeal, set aside the decision of the District Court to discharge the respondent without conviction, and entered convictions against the respondent on each of the three charges. The matter was remitted back to the District Court for sentencing.

In addition, the Court made an order suppressing the names and identifying features of the respondent and each of the victims in this case, finding that the threshold grounds of the likelihood of undue hardship being caused to victims applied.

Orders