Rakich v Police - [2017] NZHC 101

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-341 [2017] NZHC 101

BETWEEN
JOHN RAKICH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 February 2017

Appearances:

C Fredric for Appellant
D M A Wiseman for Respondent

Judgment:

8 February 2017

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 8 February 2017 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Meredith Connell, Auckland

RAKICH v POLICE [2017] NZHC 101 [8 February 2017]

Introduction

[1] On 5 October 2016 following a Judge alone trial in the District Court, the appellant, Mr John Rakich, was convicted and sentenced on one charge of male assaults female.1

[2] He now appeals the conviction on the ground that the decision was erroneous because the Judge failed to adequately recognise a number of significant inconsistencies in the prosecution evidence given by the complainant, Jennifer Rakich (the appellant’s sister), and Mrs June Rakich (the appellant’s mother). The appellant says that the Judge’s decision was unreasonable in that it minimised and glossed over very significant inconsistencies, both in his sister’s account, and between her account and his mother’s account, and these inconsistencies were of such number and degree as to render the evidence incapable of satisfying the standard of proof required to establish the charge.

[3] The appellant further submits that the Judge failed to address the standard of proof, and failed to provide adequate reasoning for his rejection of the appellant’s evidence.

Factual background

[4] Following the death of the appellant’s father, family differences and disharmony had arisen between the appellant and other members of the family relating to the deceased’s estate. The charge of male assaults female arose from an incident that occurred on 24 July 2015 at the appellant’s residence when the appellant’s mother and sister went to his house to seek his assistance.

[5] On the morning of 24 July 2015, Jennifer and her mother arrived at the late Mr Rakich’s house with a removal truck, intending to remove some rubbish from the house. Upon arrival they found that a neighbour’s car had been parked across the
garage door and that as a result it could not be opened. The neighbours who they

1 Crimes Act 1961, s 194(b); maximum penalty two years’ imprisonment. The appellant was sentenced to six months supervision with a special condition that he undertake an anger management programme as directed by his Probation Officer. He was also ordered to pay $300 reparation to his sister, the victim of the offence, by 31 January 2017. Police v Rakich [2016] NZDC 20699; Police v Rakich [2016] NZDC 20700.

understood owned the car were not home, and so Jennifer and her mother went to the

appellant’s house, two doors away, to seek his assistance in moving the car.

[6] What happened next is disputed. The appellant gave evidence that when he answered the door to his mother and sister, Jennifer asked him about moving the car parked in the driveway, and he…

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 Rakich v Police

Details

AGLC: Rakich v Police [2017] NZHC 101
Case: [2017] NZHC 101
Decision Date: 8 February 2017

CaseChat Overview and Summary

John Rakich appeals his conviction in the District Court for assaulting his sister, Jennifer Rakich, following a family dispute over their deceased father’s estate. The appellant contends that the District Court Judge failed to adequately recognise and address significant inconsistencies in the prosecution evidence, both in his sister’s account and between her account and that of his mother. The appeal was heard by Justice Davison in the High Court of New Zealand.

The appeal hinges on whether the Judge adequately considered the inconsistencies in the prosecution evidence and whether these inconsistencies were sufficient to undermine the reliability of the evidence and prevent the prosecution from establishing the charge beyond reasonable doubt. The appellant argues that the inconsistencies were of such number and degree that they rendered the evidence incapable of satisfying the standard of proof required to establish the charge. The respondent submits that the inconsistencies were either not inconsistencies at all, easily reconciled, or immaterial to the central issue of whether and how the complainant was forced onto the ground. The respondent also contends that the Judge adequately considered the inconsistencies and provided sufficient reasons for preferring the prosecution evidence over the appellant’s evidence.

Justice Davison found that many of the supposed inconsistencies were not inconsistencies at all and were easily reconciled or were immaterial as regards the central issue of whether and how the complainant was forced onto the ground. The discrepancies in the accounts were natural consequences of circumstances where the incident involved both motion and emotion. The Judge had the benefit of seeing and hearing the witnesses give their evidence before him at trial, and it appears that he formed a positive view as to the credibility and reliability of the complainant. The Judge’s consideration of the evidence was thorough, and addressed all the material criticisms and challenges to the prosecution case raised by the defence. The conclusion the Judge reached to prefer the account of the complainant and to find the charge proven was well supported by the evidence he found to be credible and reliable. The appellant has failed to show that the Judge erred in his consideration and assessment of the evidence such as created a real risk that the outcome of the trial was affected or that a miscarriage of justice occurred.

The appeal is dismissed.

Orders