Ralph v Police - [2013] NZHC 2478

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-177 [2013] NZHC 2478

BETWEEN THOMAS EMERSON RALPH Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 September 2013

Appearances:

P L Borich for the Appellant
R J Y See for the Respondent

Judgment:

20 September 2013

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on Friday 20 September 2013 at 3.15 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:
P L Borich, Rice Craig, Papakura
R J Y See, Crown Solicitor, Auckland

RALPH v NEW ZEALAND POLICE [2013] NZHC 2478 [20 September 2013]

Introduction

[1] The appellant was convicted (having pleaded guilty) on a charge of common assault. No penalty was imposed. In a careful oral judgment dated 22 May 2013,1 delivered in the North Shore District Court, Judge Ronayne declined to discharge the appellant without conviction under s 106 of the Sentencing Act 2002. This appeal challenges that refusal.

The facts

[2] The circumstances of the offending were unusual. Both the appellant and the complainant were guests at an indoor party in July 2012. The atmosphere was undoubtedly festive. Guests were participating in a “limbo” game or dance. A stocking was used instead of a pole. One end of the stocking was attached to the appellant’s clothing. As the victim passed underneath she toppled backwards and presumably clutched or fell against the stocking with the result that both she and the appellant fell on the floor. The appellant’s forearm was (accidentally) pushed against the victim’s throat blocking her airway. The victim panicked because she could not breathe and bit the appellant hard on his upper arm. The appellant’s reaction was to punch the victim’s head twice on the right side of her face. She suffered from pain, swelling, and bruising. The physical and psychological effects of this encounter remained with her for some time.

[3] It is common ground that the first punch (like the bite) was instinctive. The second punch, however, was regarded as an over-reaction and led to the assault charge.

[4] Initially the appellant was charged under s 194(b) of the Crimes Act 1961 of being a male assaulting a female. The charge was subsequently downgraded to common assault (s 196) to which the appellant pleaded guilty.

[5] At all stages the appellant was co-operative with the police, expressed genuine remorse, and was distressed. He was a first-time offender.

1 New Zealand Police v Ralph DC North Shore CRI-2012-044-005333, 22 May 2013.

Professional ramifications

[6] The appellant practises as a physiotherapist in Northland. As such he is subject to professional oversight by the Physiotherapy Board of New Zealand (the Board). The complainant too is a physiotherapist. Although a citizen of the United Kingdom (to which she has now returned) she was at the time resident and practising in New Zealand.

[7] Of her own volition, and many months before a guilty plea was entered, the victim laid a complaint with the Board. The Board notified the appellant of…

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 Ralph v Police

Details

AGLC: Ralph v Police [2013] NZHC 2478
Case: [2013] NZHC 2478
Decision Date: 20 September 2013

CaseChat Overview and Summary

The case of Ralph v Police involved Thomas Emerson Ralph, who appealed against a decision of the North Shore District Court to refuse him a discharge without conviction under s 106 of the Sentencing Act 2002. Ralph had pleaded guilty to a charge of common assault following an incident at a party where he accidentally pushed the complainant's throat with his forearm, leading to a physical altercation. The District Court Judge, Ronayne, had declined to discharge Ralph without conviction, considering the offending to be of low to moderately serious gravity, and not out of proportion to the consequences of conviction. Ralph's appeal contested the Judge's assessment of the gravity of the offence and the consequences of conviction.

The High Court considered whether the District Court's refusal to grant a discharge without conviction was correct. The Court examined the nature of the offence, its gravity, and the direct and indirect consequences of a conviction. It found that while the appellant had acted instinctively and without malicious intent, the second punch was an overreaction, leading to the charge of assault. The Court noted that the consequences of conviction, including the impact on Ralph's professional reputation and the involvement of his professional body, were not disproportionate to the gravity of the offence. The Court concluded that, despite some flaws in the District Court's reasoning, the overall assessment was correct and dismissed the appeal.

In summary, the High Court upheld the District Court's decision not to grant Ralph a discharge without conviction, finding that the consequences of conviction were not out of proportion to the gravity of the offence. The appeal was dismissed, and Ralph remained convicted of the common assault charge.

Orders