Robson v Police
[2025] NZHC 924
•15 April 2025
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2025-443-11
[2025] NZHC 924
BETWEEN LUKE CHARLES ROBSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 April 2025 Appearances:
D A Sutton for Appellant H Bullock for Respondent
Judgment:
15 April 2025
JUDGMENT OF McHERRON J
(Appeal against Conviction)
Introduction
[1] After a Judge alone trial on 29 November 2024, the appellant, Luke Robson, was convicted of two charges of male assaults female.1 These charges arose from an incident outside the appellant’s house. The complainant was running past the appellant’s property. His dog bared its teeth at her after she crouched to talk to it. The appellant told the complainant to leave and then chased and assaulted her.
[2] When police visited the appellant on 5 October 2023, to make inquiries about the alleged offending, he assaulted one of the constables. He was charged with a single charge of aggravated assault,2 to which he pleaded guilty mid-trial. At the end of the Crown case, the Judge issued a ruling on the charges, that one of the constables had good cause to suspect and that it followed there was a case to answer in respect of the
1 Crimes Act 1961, s 194(b). Maximum penalty of two years’ imprisonment.
2 Crimes Act, s 192(2). Maximum penalty of three years’ imprisonment.
ROBSON v NEW ZEALAND POLICE [2025] NZHC 924 [15 April 2025]
male assaults female charges (the Ruling).3 At the end of the trial the Judge issued a judgment containing his verdicts and reasons (the Judgment).4 These are the decisions under appeal.
[3] For this offending, the appellant was sentenced to 12 months’ supervision on 21 February 2025, and required to pay $500 in reparation.5
[4]The appellant now appeals his convictions. He contends:
(a)the District Court erred in finding his arrest was lawful (and therefore subsequent comments made to police as he was being driven to the police station were inadmissible);
(b)the prosecution did not meet their evidential burden; and
(c)the evidence was insufficient to sustain the charges of male assaults female.
Background
The offending
[5] On 3 September 2023, the complainant and the appellant interacted outside his property, after she stopped to talk to his black German Shepherd while jogging. The appellant confronted the complainant about her interaction with the dog. She moved away down the road, but the appellant left his property and followed the complainant onto the road, “taunting her”.6 He poked her on her shoulder and arm a number of times, slapped her cheek and barged her (connecting shoulder to shoulder and throwing her off balance) into a dip on the rural road.7 The complainant had her hands in front of her face and the appellant was attempting to video or photograph her. The complainant subsequently complained to the police, providing a visual description of
3 Police v Robson [2024] NZDC 32295 [Ruling].
4 Police v Robson [2024] NZDC 32249 [Judgment].
5 Police v Robson [2025] NZDC 4222 [Sentencing decision].
6 At [19].
7 At [19]–[23].
her assailant and the location of the property. The appellant later produced a photograph of the complainant, which matched her evidence that she felt the need to put her arms across her face as she continued walking, to try and get away from him. He was walking backwards in front of her which, as the Judge said in sentencing the appellant, “was always going to be a difficulty”.8
[6] On 5 October 2023, two constables went to the appellant’s address to discuss the reported assault. The appellant did not agree to open the gate to the property or restrain his dog. The constables did not wish to talk to the appellant over the gate in the circumstances. The constables resolved to arrest the appellant, considering from all the circumstances there was good cause to suspect he had assaulted the complainant. The appellant then punched one of the constables in the face, and was ultimately tasered twice before he could be handcuffed and taken into custody.
The trial and the decision
[7] At the close of the prosecution case, Mr Sutton, acting in a standby counsel/amicus curiae role for the appellant, made oral submissions pursuant to s 147 of the Criminal Procedure Act 2011 (CPA). Judge Hikaka declined the application, finding there was a case to answer.9 In the Ruling, the Judge concluded the constable had good cause to suspect that the appellant could have been responsible for the offending against the complainant.10 The Judge described the comments the appellant made in the police car, namely that he had had an interaction with a woman about a dog, as contributing to a “cascading effect” meaning there was a case to answer in respect of all three charges.11
[8] After the arrest by police was ruled lawful, the appellant vacated his original plea and pleaded guilty to aggravated assault. The trial continued in respect of the male assaults female charges, and the Judge found all three charges were proved beyond reasonable doubt.12
8 At [20].
9 Ruling, above n 3.
10 Ruling, above n 3, at [13].
11 At [20].
12 Judgment, above n 4.
[9] In the Judgment, the Judge noted that the evidence of the appellant and the complainant matched in many respects.13 He discussed the emotive nature of the case, given that both parties perceived a threat, or had a heightened sense of concern.14 The Judge considered this was a case where issues of credibility and reliability were paramount.15 He found, “[i]n the overall circumstances”, “looking at internal and external consistency of the accounts given”, that the complainant’s evidence was “more reliable and more credible.”16 He considered that the appellant’s explanation “stretch[ed] credibility”.17
The appeal
[10] This appeal is brought under s 229 of the CPA. I must allow the appeal if satisfied that the Judge erred in the assessment of his evidence to such an extent that a miscarriage of justice occurred or that a miscarriage of justice occurred for any other reason.18 The definition of “miscarriage of justice” is set out in s 232(4) of the CPA:
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[11] To succeed under subs (4)(a), the appellant must establish a reasonable possibility of a more favourable verdict, such as not guilty, if there was no error.19 Concerns about the process to reach the verdict will suffice for the purpose of subs 4(b); the appellant need not be concerned necessarily about the verdict itself.20 He must point to an error which is such a gross departure from good practice that the
13 Judgment, above n 4, at [13] and [56].
14 At [16].
15 At [64].
16 At [66] and [70].
17 At [70].
18 Criminal Procedure Act 2011, s 232(2).
19 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
20 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [39] adopted by the Supreme Court in Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [50].
verdict cannot be sustained.21 The error, irregularity, or occurrence must be of “sufficient seriousness to warrant the verdict being set aside without further inquiry”.22
[12] The same approach applies as for a general appeal. If this Court comes to a different view of the evidence, it follows the trial Judge has erred in his assessment of the evidence. However, customary caution must be exercised in assessing the evidence as an appellate court does not have the same advantages the trial Judge had in hearing the evidence.23 The threshold for allowing an appeal is high; not every error will amount to a miscarriage of justice.24
Parties’ positions
[13] Mr Sutton, for the appellant, submits the Judge erred in his assessment of the evidence in respect of the arrest and the identification of the appellant as the man who poked, slapped and barged the complainant. He submits that if the arrest is ruled unlawful then statements made by the appellant while being taken to the police station should be ruled inadmissible. Further, if the identification evidence is insufficient or flawed, it follows that the male assaults female charges have no basis. Mr Sutton submits the appeal should be upheld, and the convictions overturned.
[14] Ms Bullock, for the respondent, submits the appellant cannot show a miscarriage of justice has occurred given his own evidence at trial. She says the Judge did not err in determining there was a case to answer, and the evidence proves beyond reasonable doubt that the contact or infliction of force to the complainant was intentional. Ms Bullock submits the convictions should be upheld, and the appeal dismissed.
21 Wiley v R, above n 20, at [35].
22 At [41].
23 Sena v Police [2019] NZSC, [2019] 1 NZLR 575 at [38] citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at [13].
24 Otis v Police [2019] NZCA 231 at [4] citing McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].
Analysis
General observations
[15] In his Judgment, the Judge gave detailed reasons for finding that the three charges were proved beyond reasonable doubt.25 However, the Judge was not required to refer in detail to every item of evidence or issue that a party has advanced.26 Nor was the Judge obliged to refer to every aspect of a potential defence.27 Rather, an overall assessment of the evidence was required. It was entirely proper for the Judge to assess the evidence, and decide to place less weight on certain elements. I must exercise “customary caution”, to reflect the advantage the trial Judge had in assessing credibility on the basis of contested oral evidence.28 I do not consider the Judge’s assessment involved “conclusory credibility preference”.29 Rather, the Judge carefully weighed and balanced the competing accounts. He was justified in finding, as he did, that the complainant’s evidence was “more reliable and more credible” than that of the appellant.30
[16] Despite these general observations, the nature of this appeal requires me to assess the evidence with fresh eyes, while acknowledging the limitations of an appellate court and noting it is for the appellant to show that an error has been made.
Was the arrest lawful?
[17]Section 192(2) of the Crimes Act 1961 provides:
Every one is liable to imprisonment for a term not exceeding 3 years who assaults any constable or any person acting in aid of any constable, or any person in the lawful execution of any process, with intent to obstruct the person so assaulted in the execution of his or her duty.
25 Judgment, above n 4. See Webster v Police [2019] NZHC 1335 for exposition of the requirement to provide reasons, and the role of the appellate court on conviction appeal when such reasons are lacking.
26 Sena, above n 23, at [37]. I note Judge Hikaka issued a minute declining to admit the appellant’s bundle of documents in Police v Robson DC New Plymouth CRI-2023-043-1476, 1 August 2024.
27 Sena, above n 23, at [37].
28 Sena, above n 23, at [38]–[40].
29 Impermissible credibility reasoning was the issue that allowed the appeal in Webster, above n 25, at [26].
30 Judgment, above n 4, at [70] and [71].
[18] The first issue is whether the constable was acting in the “lawful execution of any process” when the appellant punched him. If so, the appellant’s fist to face contact, which was intended to obstruct the officer from arresting the appellant, will constitute an aggravated assault pursuant to s 192(2) of the Crimes Act.31
[19] It is common ground the constables had no warrant for the appellant’s arrest on the day they went to his property. To be acting in lawful execution of a process, the constables needed to comply with s 315(2)(b) of the Crimes Act. That section relevantly provides that no one may be arrested without a warrant unless a constable has good cause to suspect the person has committed an offence punishable by imprisonment.32 The material question is therefore whether the constable had good cause to suspect the appellant had committed the assault against the complainant.
[20] I conclude the arresting constable had good cause to suspect the appellant had committed the assault against the complainant at the time of arrest, based on:33
(a)the physical similarities between the appellant and the description given by the complainant;
(b)the attitude and obstructive behaviour of the appellant towards the constables, especially after they explained they were there to talk with him about the alleged assault. This behaviour aligned with the description of an aggressive man who would react disproportionately when he felt (however irrationally) his boundary/property was threatened;
(c)the similarities between the complainant’s description of the property, including its buildings, fencing and gates, and the German Shepherd dog, and the observations of the constables in respect of those features;
31 See Bailey v R [2022] NZCA 335.
32 See R v Taylor HC Hamilton T66/91, 24 February 1992; Attorney-General v Hewitt [2000] 2 NZLR 110.
33 See further cases cited by the respondent: Police v Anderson [1972] NZLR 232 (CA); Police v Cooper [1975] 1 NZLR 216 (CA); Duffy v Attorney-General (1985) 1 CRNZ 599 (HC) at 602; Seven Seas Publishing Pty Ltd v Sullivan [1968] NZLR 663 (SC); R v Thompson (1995) 13 CRNZ 546 (HC).
(d)the linking of the appellant to the property through having her label a map showing where the events leading to the offending occurred;
(e)the constable’s visit to identify the area, his checking the registration details of a car in the driveway, and running checks on the car to confirm it was registered in the name of the appellant, before attending to speak with the appellant on his property.
[21] I also accept Ms Bullock’s submission that the age discrepancy between the complainant’s reference to a man in his late 20s to early 30s, and the appellant’s actual age (early 40s), is immaterial. The complainant did not know how old the appellant was and made an assessment from her recollection in a stressful situation in which she had her vision of the appellant obscured for part of the time as she was holding her hands in front of her face to protect herself. The other aspects of the complainant’s physical description correspond with the appellant’s appearance. I agree that it was open to the police to determine the appellant matched the complainant’s description of him, despite the apparent mismatch in ages, based on an overall assessment of other similarities.
[22] I do not accept the identification issue, discussed further below, creates any basis for doubting the constable had good cause to suspect the appellant had committed the assault against the complainant. I concur with Ms Bullock that, although not expressly addressed by the District Court, the constable properly exercised his discretion to arrest. There is no suggestion of bad faith or improper purpose.
[23] I do not consider the Judge erred in his assessment of this evidence. No miscarriage of justice occurred. The act of arresting was lawful. The appellant’s assault was intended to obstruct the constable in executing his lawful duty, elevating the punches to an aggravated assault. The statements made while in police custody are admissible. There is no real risk that the outcome of the trial was affected, because no error has been identified.
[24] I also note the appellant pleaded guilty to assaulting the constable. There is no other tenable argument that could sustain a miscarriage of justice nor any suggestion
that the appellant was ill-advised. Indeed, the District Court expressed significant gratitude for the careful way in which Mr Sutton assisted in presenting the appellant’s case, as do I.
[25] Having found the arrest was lawful, a finding with which I agree, there was no need for the Judge to turn his mind to s 30 of the Evidence Act 2006. However, I accept Ms Bullock’s submission that s 30 would have afforded a further potential route for the admissibility of the statements the appellant made in custody. This is a further consideration pointing against a miscarriage of justice having occurred through the evidence’s admission.
The issue of identification
[26] Was the appellant safely identified, beyond a reasonable doubt, as the complainant’s assailant? If this element was not clear, the male assaults female charges cannot be sustained.
[27] In her written submissions, Ms Bullock helpfully articulated the distinction between visual identification evidence and description/resemblance evidence that forms a circumstantial evidentiary foundation.34 Circumstantial description or resemblance evidence does not require a warning under s 126 of the Evidence Act.35 Because the Judge was relying on resemblance evidence, rather than visual identification evidence, he was not required to warn himself of the risk of mistaken identity and proceed with caution.36 As Mander J said in Gorrie:37
The evidence of witnesses who provide a description of an observed person does not give rise to any unique concern that requires special caution. The risk that such a witness could be mistaken logically applies to all matters about which a witness purports to having previously observed. The short point is that Judge Callaghan did not rely on the correctness of a witness’s identification. He therefore was not required to caution himself as to the possibility of such a witness being mistaken.
34 Citing R v Adams and Hansen [2008] NZCA 171 at [20]; R v Turaki [2009] NZCA 310 at [58];
Joseph v R [2013] NZCA 290 at [39]–[40]; and Gorrie v R [2020] NZHC 1609.
35 Section 126 of the Evidence Act 2006 provides that in a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of visual or voice identifications of the defendant, the Judge must warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification.
36 See Te Heu Heu v Police [2014] NZHC 329 at [26].
37 Gorrie, above n 34, at [65].
[28] The Judge was entitled to determine beyond reasonable doubt that the appellant was the individual who poked, slapped and barged the complainant on the day in question. His conclusion was reached on the basis of:
(a)the encounter between the appellant and the constables;
(b)the consistencies between the description given by the complainant of the property, dog and appellant, including specifics such as the green shed on the property, from which the appellant emerged when the constables visited and arrested him;
(c)the statements made to police by the appellant;
(d)the appellant’s own evidence at the trial, in which he gave detailed descriptions of his interactions with the complainant, several aspects of which overlapped with her account and in which he produced a photograph of the complainant that he had taken. The Judge was justified in finding: “[b]y virtue of his evidence, the [appellant] confirmed consistency within the complainant’s evidence. He actually supported her evidence.”38
Did the Judge err in finding the appellant had initiated the contact with the complainant?
[29] Mr Sutton submits that the complainant could not be certain she was walking in a straight line (as her hands were crossed protectively over her face), and therefore whether she in fact, veered into the appellant, or the appellant was stationary, or they veered into each other. The argument is that there is reasonable doubt as to how the contact occurred, and such the second charge of male assaults female cannot be sustained.
[30] I reject this argument entirely. I consider this to be an issue that goes directly to the reliability and credibility of the conflicting accounts. Judge Hikaka accepted the evidence of the complainant, preferring it over the evidence of the appellant. I see
38 Judgment, above n 4, at [64].
no error in that course of action. I therefore do not accept there was a real risk the Judge erred in his assessment of the differing accounts of the interaction.
Conclusion
[31] The Judge did not err in his assessment of the evidence. He correctly ruled the arrest was lawful. No miscarriage of justice has occurred. The appellant’s convictions are upheld.
Result
[32]The appeal is dismissed.
McHerron J
Solicitors:
Resolutions Lawyers & Consultants, New Plymouth for Appellant C&M Legal, New Plymouth for Respondent
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