Spicer v Police - [2014] NZHC 861

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-412-000023 [2014] NZHC 861

JASON TIMOTHY SPICER

v

NEW ZEALAND POLICE

Hearing: 1 April 2014

Appearances:

J A Westgate for Appellant
R D Smith for Respondent

Judgment:

30 April 2014

JUDGMENT OF DUNNINGHAM J

Introduction

[1] Following a defended hearing in the District Court at Dunedin, Mr Spicer was found guilty on one charge of indecent assault and was sentenced to 150 hours community work.

[2] Mr Spicer appeals against conviction and sentence.

Grounds of appeal

[3] The grounds of appeal have developed somewhat organically, as the facts of what occurred during the hearing have come to light.

[4] Mr Spicer lodged his own notice of appeal against conviction and sentence claiming simply that the District Court had erred in fact and law.

SPICER v NEW ZEALAND POLICE [2014] NZHC 861 [30 April 2014]

[5] He subsequently instructed new counsel, and the grounds of appeal as they emerged in counsel’s initial submissions, were as follows:

(a) there was a miscarriage of justice because the Judge, in rejecting the appellant’s evidence, wrongfully took into account a video transcript of an interview of the appellant by the police that was not legally before him, as it was never formally produced; and

(b)in respect of sentence, this was low level offending and the sentence of 150 hours community work was manifestly excessive.

[6] As the details of how the transcript came to be before the Judge were relevant to those asserted grounds of appeal, a full transcript of the hearing was produced, including legal discussion. That transcript revealed that counsel acting for Mr Spicer at the time, had consented to the Judge reading the transcript of the video interview, rather than viewing the video interview which was proposed to be produced by a police witness.

[7] As a consequence, the grounds of appeal shifted to focus on the appropriateness of the tactical decision to agree to the transcript being admitted by consent and, more importantly, the failure to review the appellant’s decision to give evidence in light of evidence of the video interview being introduced via a hand up of the transcript only.

Background

[8] The charge of indecent assault arises out of events taking place on the night of 23 January 2013 in the house that both Mr Spicer and the complainant were staying at.

[9] After the complainant had gone to bed, Mr Spicer asked to join her and she agreed. Although she was in bed naked, she got up and put underpants on and Mr Spicer gave her a top to put on. They then sat in bed for a number of hours discussing the fact that Mr Spicer had been betrayed by his then partner. There was some comforting of Mr Spicer, including cuddling.

[10] Mr Spicer at one stage took off his jeans so that he was then dressed in shorts and the complainant then told him she did not want any sexual contact and nothing further happened at…

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 Spicer v Police

Details

AGLC: Spicer v Police [2014] NZHC 861
Case: [2014] NZHC 861
Decision Date: 30 April 2014

CaseChat Overview and Summary

The case of Spicer v Police involved an appeal against conviction and sentence for the appellant, Mr Spicer, who had been found guilty of indecent assault in the District Court at Dunedin. Mr Spicer appealed against both his conviction and the sentence imposed, arguing that the District Court had erred in fact and law. The primary grounds of appeal were that the Judge had wrongfully considered a video transcript of Mr Spicer's police interview, which had not been formally produced as evidence, and that the sentence of 150 hours community work was manifestly excessive for the low-level nature of the offence. The case centred on events that occurred on the night of January 23, 2013, where the complainant alleged that Mr Spicer indecently assaulted her while they were staying in the same house.

The court examined whether the admission of the video transcript by consent constituted an error that led to a miscarriage of justice. It was noted that trial counsel for Mr Spicer had consented to the Judge reading the transcript rather than viewing the video interview itself. The court concluded that while it might have been irregular to handle the evidence this way, it was not an error of law. The focus then shifted to whether trial counsel had failed to revisit the decision for Mr Spicer to give evidence in light of the transcript being admitted by consent. The court found that even if trial counsel had advised against giving evidence, the outcome would likely have been the same, as the Judge would have needed to decide on the credibility of the evidence regardless of the form in which it was presented.

The appeal against conviction was dismissed as the court found that based on the video transcript evidence alone, it was reasonable for the Judge to conclude that the complainant's version of events was more credible, and that Mr Spicer did not believe she was consenting. The appeal against sentence was also dismissed as the court determined that a sentence of 150 hours community work was not manifestly excessive given the circumstances of the offence. The sentence was seen as a substantial imposition but appropriate, taking into account the nature of the offence and the lack of aggravating factors.

Orders