Seiuli v Police - [2018] NZHC 369

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-001

[2018] NZHC 369

BETWEEN
TONY SEIULI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 February 2018

Appearances:

R Roy for the Appellant I Ko for the Respondent

Judgment:

9 March 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on 9 March 2018 at 3.00 pm Pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:…………………………

Counsel/Solicitors:
R Roy, Public Defence Service, Manukau I Ko, Kayes Fletcher Walker, Manukau

SEIULI v NEW ZEALAND POLICE [2018] NZHC 369 [9 March 2018]

Introduction

[1] On 12 December 2017 Mr Seiuli was convicted of doing an indecent act in a public place.1 He was sentenced to six months’ supervision. He now appeals his conviction.

Background and District Court decision

[2] Before the District Court, the complainant alleged that while driving in the left lane of two lanes on Flatbush Road, Ormiston with her four year old daughter, Mr Seiuli, with whom she was unacquainted, drove his vehicle alongside her tooting, waving and otherwise trying to gain attention and that when he pulled up next door to her at the intersection of Ormiston Road and Te Irangi Drive this continued. At that point she looked across at the defendant who she said took his hands off the steering wheel, lent back in his seat and started masturbating his semi-erect penis while looking at her and smiling.

[3] The defendant’s case was that he had not attempted to gain the complainant’s attention and that although he did have his penis outside his trousers and was handling it, this was on account of itchiness resulting from a fungal infection (thrush) and that, in any event, he believed that neither the complainant nor anyone else was in a position to see it because, among other things, the centre armrest in his vehicle (which in the upright position forms the back of a third front seat) was in the down position and because of his car’s relatively high “waistline”. His defence was therefore twofold: that he had not wilfully committed an indecent act and that, in any event, he had established, for the purposes of the defence identified in s 125(2) of the Crimes Act 1961 (the Act), reasonable grounds for believing he would not be observed.

[4] In a reserved decision, Judge Lovell-Smith reviewed at length the respective contentions and identified the credibility of the parties as the critical issue. She found the complainant a reliable and careful witness and, by contrast, that she was “not impressed” by the defendant’s evidence and did not accept what he said.2 She

1 Crimes Act 1961, s 125.
2 His evidence included a stated belief that he did not think anyone would see him although he did acknowledge it was “not impossible” if such person was “high enough” as for example seated in a truck or bus.

considered it established beyond reasonable doubt that the defendant 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 Seiuli v Police

Details

AGLC: Seiuli v Police [2018] NZHC 369
Case: [2018] NZHC 369
Decision Date: 9 March 2018

CaseChat Overview and Summary

The case of Seiuli v Police involves an appeal by Tony Seiuli against his conviction for doing an indecent act in a public place. The conviction was handed down by Judge Lovell-Smith in the District Court, who found that Seiuli had stroked his penis outside his trousers in a manner that was visible to the complainant, who was driving alongside him, and that he had attempted to gain her attention. Seiuli argues that he had reasonable grounds to believe he would not be observed and that the District Court erred in its assessment of the evidence. The legal issues before the High Court were whether the District Court Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice occurred. The High Court found that the District Court Judge did not err in her assessment of the evidence and dismissed the appeal. The Court held that the District Court Judge was correct in finding that the surrounding circumstances did not support a genuine and reasonable belief in the absence of potential observation and that the defence under s 125(2) was implausible. The Court also found that the District Court Judge was entitled to reject Seiuli’s evidence in respect of his claim to have thrush and that there was no realistic prospect of a miscarriage of justice on the basis of her decision to decline to take a view of the vehicles. The appeal is dismissed.

Orders