Stewart v Police - [2019] NZHC 1743

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2019-454-000011

[2019] NZHC 1743

BETWEEN
PHILIP LESLIE STEWART

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 23 July 2019

Appearances:

Appellant in person

J H Harvey for Respondent

Judgment:

23 July 2019

JUDGMENT OF COOKE J

[1] Mr Stewart was convicted of assault with a weapon1 and trespass2 after a Judge-alone trial before Judge Rowe in the District Court at Palmerston North on 19 October 2018.3 Mr Stewart filed a notice of appeal against his convictions on 1 May 2019. He now applies for leave to appeal out of time.

[2] On 24 June 2019, the Court gave leave for Mr Stewart’s counsel to withdraw. Mr Stewart proceeds with his application without counsel.

Summary of offending

[3] Mr Stewart had been in a relationship with the complainant for about one year, during which period both parties had resided together at a remote rural address in Ohingaiti, about 90 km of Palmerston North. That relationship had ended

1      Crimes Act 1961, s 202C; maximum penalty five years’ imprisonment.
2      Trespass Act 1980, ss 3(1) and 11(2)(a); maximum penalty three months’ imprisonment.
3      Police v Stewart [2018] NZDC 24140.

STEWART v NEW ZEALAND POLICE [2019] NZHC 1743 [23 July 2019]

approximately one month before the alleged offending. On 7 November 2017, Mr Stewart was issued with a trespass notice prohibiting him from attending the address for a period of two years.

[4] On 4 December 2017, Mr Stewart arranged to collect his belongings from the address while a police officer was present. The police officer decided that Mr Stewart could not collect any items that were claimed by both Mr Stewart and the complainant. One item claimed by both parties was a water trough.

[5] Later that day, in the absence of the police officer, Mr Stewart returned to the address, by agreement, to collect two canopies he had left behind outside the boundaries of the property. The complainant went to the front gate of the property to ensure that Mr Stewart only took the canopies before leaving. After placing the canopies on his ute, Mr Stewart climbed over the fence and entered the property. The complainant told him that he was trespassing and that he had to leave. Mr Stewart refused and started walking towards the water trough.

[6] Concerned that Mr Stewart might attempt to take the water trough, the complainant stood in front of Mr Stewart and began pushing him and grabbing at his top. Unable to physically stop him, the complainant then said she would take his keys, which had been left in the ute. She then climbed over the fence and headed for the ute. Mr Stewart ran after the complainant, picking up an aluminium tent pole along the way. After climbing over the fence, Mr Stewart waved the tent pole towards the complainant with a wild look in his eyes.

[7] Mr Stewart hit a small Jack Russell…

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.

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Details

Case: [2019] NZHC 1743
Decision Date: 23 July 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Philip Leslie Stewart, the appellant, sought leave to appeal out of time against his conviction by Judge Rowe in the District Court at Palmerston North. The appellant was convicted of assault with a weapon and trespass following a Judge-alone trial on 19 October 2018. The primary legal issues were whether the appellant's notice of appeal was filed out of time and if the appellant could demonstrate that it was in the interests of justice to grant leave to appeal.

The appellant argued that Judge Rowe failed to meet the minimum standards of criminal procedure, did not consider the pattern of prior domestic violence, and placed incorrect weight on the complainant's credibility. However, the appellant did not sufficiently detail his grounds of appeal or explain why his notice of appeal was filed out of time. The Crown submitted that the appellant's claims were not arguable and that the trial was fair and free from any irregularities.

The court considered that the appellant had not fully explained the reasons for the late filing of the notice of appeal, but the delay was not significant, and the appellant was a litigant in person with difficulties in maintaining counsel. The court focused on whether the appellant had an arguable case on appeal in terms of the offences for which he was convicted. The court found that the appellant had failed to demonstrate that the Judge's assessment of the evidence was erroneous to the extent that a miscarriage of justice occurred. The appellant's claims of self-defence and provocation were not valid defences, and the Judge's findings on credibility were proper.

The application for leave to appeal out of time was dismissed, as the appellant failed to demonstrate an arguable appeal and that it was in the interests of justice to grant leave to appeal.

Orders