Smith v Police - [2019] NZHC 2688

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-009

[2019] NZHC 2688

BETWEEN
RUSSELL WARD SMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 September 2019

Appearances:

Appellant in person

L P Radich for Respondent

Judgment:

21 October 2019

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 21 October 2019 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors: Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau Copy for: Appellant

SMITH v POLICE [2019] NZHC 2688 [21 October 2019]

Introduction

[1] Following a judge-alone trial in the District Court at Manukau, on 11 September 2018 Judge D J McNaughton found Mr Smith guilty of two charges of male assaults female.1 Mr Smith now appeals against his conviction.

Background

[2] Both charges arose out of arguments between Mr Smith and his former partner, Ms Stanners.

[3] The first was on 11 August 2016. An argument between the two ultimately culminated in Ms Stanners hitting her head on a kitchen tile, causing a split above her eye. Mr Smith’s and Ms Stanners’ accounts of this occurrence conflicted. Ms Stanners’ account was Mr Smith pushed her when she tried to grab her handbag from him, that she fell down, made a second attempt at the handbag, and that Mr Smith “grabbed her by the shirt and flung her to the ground”, causing her to hit her head on the kitchen tile.2

[4] Mr Smith’s evidence was that Ms Stanners ran at him, knocked him off balance, that he stepped back, steadied himself, and put a hand out in front of him, palm up. He described Ms Stanners running at him, colliding with his hand(s) and falling over. The Judge thought this unlikely but said he “could not exclude it as a reasonable possibility”.3

[5] The second incident occurred on 23 December 2016. Though Mr Smith was no longer living with Ms Stanners, he had been staying at the house whilst Ms Stanners was away.

[6] On Ms Stanners’ return, an argument developed regarding, amongst other matters, the ownership of a dog. Mr Smith picked up the dog and went to put it in his van. Ms Stanners kept getting the dog out of the van. In any event, Ms Stanners’

account was that Mr Smith first pushed her into a bush next to the driveway causing her to fall over backwards. She said Mr Smith subsequently picked her up by the shirt and threw her backwards, that she landed on the front lawn, and skid three or four metres across the grass.

[7] Mr Smith denied picking up Ms Stanners or throwing her. Indeed, because of a back injury, he said it would have been impossible for him to do so. Mr Smith acknowledged he pushed Ms Stanners away while he was carrying the dog and that this caused her to trip and fall backwards over a plant next to the driveway.…

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 Smith v Police

Details

AGLC: Smith v Police [2019] NZHC 2688
Case: [2019] NZHC 2688
Decision Date: 21 October 2019

CaseChat Overview and Summary

In the case of Smith v Police, Russell Ward Smith appealed against his conviction of two charges of male assaults female following a trial in the District Court at Manukau. The two charges arose from separate incidents between Mr Smith and his former partner, Ms Stanners, on 11 August 2016 and 23 December 2016. The first charge related to an incident where Ms Stanners hit her head on a kitchen tile after an argument with Mr Smith. The second charge related to an incident where Mr Smith picked up a dog and attempted to put it in his van while Ms Stanners was away. When Ms Stanners returned, an argument ensued, and Mr Smith pushed Ms Stanners away, causing her to trip and fall backwards. Mr Smith denied picking up Ms Stanners or throwing her and claimed he was acting in self-defence or in defence of movable property. The court had to decide whether Mr Smith was guilty of the charges of male assaults female. The court found that the Judge did not make any error in relying on Ms Kumar's evidence as he did. However, the court was satisfied that the Judge erred in finding the first charge proved as he did. The court held that the Judge was unable to exclude the possibility that Ms Stanners charged into Mr Smith’s outstretched arm. The court held that the Judge was entitled to accept Ms Kumar's evidence, and the reasons he gave for doing so were sound. The court quashed Mr Smith’s conviction for male assaults female on 11 August 2016. The court dismissed Mr Smith’s appeal against his conviction for male assaults female on 23 December 2016. The court remitted this matter back to the Judge for reconsideration of Mr Smith’s application for a discharge without conviction.

Orders