Rossi v The Queen - [2015] NZCA 539

IN THE COURT OF APPEAL OF NEW ZEALAND

CA373/2014
[2015] NZCA 539

BETWEEN	JUSTIN MICHAEL ROSSI Appellant
AND	THE QUEEN Respondent

Hearing:	2 November 2015
Court:	Stevens, Fogarty and Mallon JJ
Counsel:	J A Dean and J D Dallas for Appellant M J Lillico for Respondent
Judgment:	13 November 2015 at 10.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

The appellant, Mr Rossi, was charged with five counts, comprising assault with intent to injure, male assaults female, two counts of common assault and one count of assaulting a constable. Following his trial before a jury, Mr Rossi was acquitted of all but the charge of assault with intent to injure. The acquittals all related to events at a party on 2 June 2013. The charge on which he was convicted related to an altercation taking place between himself and his then fiancée, Ms Meiring, earlier in May 2013. Mr Rossi was convicted and sentenced for that offence to eight months’ imprisonment by Judge Barry in the Nelson District Court.[1]
[1]R v Rossi DC Nelson CRI-2013-042-1358, 9 July 2014. He has served his sentence and since been deported.
Mr Rossi now appeals against his conviction on that charge. He contends Judge Barry erred in allowing a key witness to refresh his memory with reference to the statement he gave police and that the Judge erred in his summing-up as to the directions he gave to the jury.

Background

The complainant, Ms Meiring, gave evidence that at some point during May 2013, Mr Rossi came into the cabin where he and the complainant were staying in Motueka. He was angry and had an outburst in relation to a co-worker of the complainant with whom he thought she was sleeping. He then placed the complainant in a “sleeper” or choke-hold. He restrained her by pushing her onto a bed and applied pressure to her throat from behind. The complainant had trouble breathing and then blacked out. Another person present, Mr Harte-West, witnessed these events.
The later events on 2 June 2013 also involved allegations of Mr Rossi arguing with the complainant and assaulting her. Mr Harte-West and his brother (Daniel Harte‑West) tried to intervene, leading to a fight giving rise to the common assault charges. Upon the police arriving, Mr Rossi attempted forcibly to resist arrest, leading to the charge for assaulting a constable.
Mr Harte-West gave a written statement to the police about both instances. In his statement, he described first the events on 2 June, then described how he saw Mr Rossi placing the complainant in a choke-hold on the earlier occasion. At trial, Mr Harte‑West gave evidence for the Crown. In the course of his evidence-in-chief, he was questioned by the prosecutor about the June events. It became clear to the prosecutor and to the Judge that Mr Harte-West could not recall the answers to a number of questions put to him. The Crown applied and was…

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 Rossi v The Queen

Details

AGLC: Rossi v The Queen [2015] NZCA 539
Case: [2015] NZCA 539
Decision Date: 13 November 2015 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Justin Michael Rossi, appeals against his conviction for assault with intent to injure, arguing errors in the trial judge's direction to the jury and the allowance of a witness to refresh his memory with a police statement. The respondent contends that there were no errors in the trial process. The court must determine whether the trial judge erred in permitting the witness to refresh his memory and in the directions given to the jury. The court finds that there was no error in the trial judge's decision to allow the witness to refresh his memory with his police statement. The witness's statement was made when his memory was fresh, and the need for refreshment was established. The court also finds that the trial judge properly directed the jury on the elements of the offence, including intent to injure and self-defence. The court concludes that the jury's verdict was not unreasonable and affirms the conviction.

The appeal is dismissed.

Orders