IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-A-TARA ROHE
CRI-2021-485-7
[2021] NZHC 1165
BETWEEN BENCE BALAZS RICHTER
Appellant
AND
THE NEW ZEALAND POLICE
Respondent
Hearing: 12 May 2021 Appearances:
L C Ord and E T Blincoe for Appellant D P Neild for Respondent
Judgment:
24 May 2021
JUDGMENT OF ISAC J
Summary
[1] Mr Richter was convicted in the District Court on one charge of breaching a protection order following a judge alone trial.1 Due to his behaviour after a break-up, his former partner, the complainant, obtained a temporary protection order. At trial it was alleged Mr Richter entered a mezzanine area at the Freyberg Pool one evening when he knew or expected the complainant would be there. He stood for a short time watching the pool area where the complainant was undertaking a kayaking lesson. She found his conduct disturbing and called the Police.
[2]Mr Richter appeals against conviction on three grounds:
1 Police v Richter [2020] NZDC 14117. Mr Richter was acquitted of a separate charge relating to an encounter with the complainant on Oriental Parade said to have occurred a month after the events in issue under appeal.
RICHTER v THE NEW ZEALAND POLICE [2021] NZHC 1165 [24 May 2021]
(a)First, he says the Judge erred by failing to set out the elements of the charge and the burden and standard of proof.2 This led to an error of application when assessing the evidence against the elements of the offence.
(b)Second, he says there was no proper evidential foundation for a finding that he had seen the complainant enter the Pool one week earlier, which was central to the District Court’s finding that he was guilty of breach of the protection order when he entered the pool on the day of the offence. A key element of this challenge was the submission that Mr Richter was never cross-examined about the complainant’s version of the earlier encounter at the Pool in breach of s 92 of the Evidence Act 2006.
(c)Third, the Judge erred in rejecting his evidence as implausible when he had provided explanations for his activities on the evening in question.
[3] At the hearing of the appeal Ms Ord accepted that the first and second grounds are related, and I propose to deal with them together in this judgment.
[4] I have concluded there was no error in the trial that may have resulted in a miscarriage of justice. First, while the oral judgment of the District Court does not record the elements of the offence or the burden and standard of proof, it is clear from the judgment as a whole that the Judge was aware where the burden of proof lay, and the standard of proof required. He correctly identified the issue(s) he had to determine, and his reasons supported the conclusion he reached.3
[5] Second, it was clearly open to the Judge to prefer the complainant’s evidence and reject Mr Richter’s on the…
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