Richter v Police - [2021] NZHC 1165

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…

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 Richter v Police

Details

AGLC: Richter v Police [2021] NZHC 1165
Case: [2021] NZHC 1165
Decision Date: 24 May 2021

CaseChat Overview and Summary

Bence Balazs Richter appeals his conviction by the District Court for breaching a protection order. The appeal was heard by Isac J in the High Court. The appeal was dismissed. The appellant was convicted for entering a swimming pool when he knew or expected his former partner to be there, in breach of a protection order. The appellant's grounds of appeal were that the District Court Judge erred in failing to set out the elements of the charge, and burden and standard of proof. The Judge also failed to properly assess the evidence against the elements of the offence. The appellant also submitted there was no proper evidential foundation for the finding that he had seen the complainant enter the Pool a week earlier. The Judge was also said to have erred in rejecting the appellant's evidence as implausible when he had provided explanations for his activities on the evening in question. The appeal was dismissed. The Judge did not err in his approach to the evidence or the inferences he drew. The Judge correctly identified the issues he had to determine, and his reasons supported the conclusion he reached. The complainant's evidence, when taken altogether, established that the appellant had observed the complainant enter the pool on 14 March. The Judge was entitled to rely on the complainant's opinion evidence that the appellant saw her enter the pool. The Judge was also not in error for not putting to the appellant the complainant's evidence so that he could deny it. The Judge had clearly recognised where the burden of proof remained, and applied the process by assessing the complainant's evidence against the charges.

Orders