Stitt v Police - [2020] NZHC 676

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-382

[2020] NZHC 676

BETWEEN
DION NIKOLAS STITT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 February 2020

Appearances:

I M Brookie and C G Farquhar for Appellant H J Musgrave for Respondent

Judgment:

2 April 2020

JUDGMENT OF PETERS

This judgment was delivered by Justice Peters on 2 April 2020 at 8.30 am pursuant to r 11.5 of the High Court Rules

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

Solicitors: Meredith Connell, Crown Solicitor, Auckland Counsel: I M Brookie, Auckland
C G Farquhar, Auckland

STITT v POLICE [2020] NZHC 676 [2 April 2020]

[1] Following a Judge-alone trial before Judge Sainsbury, the appellant, Mr Dion Stitt, was convicted of one charge of assault and two of male assaults female.1 The Judge sentenced Mr Stitt to one year’s intensive supervision and 60 hours’ community work.2

[2] Mr Stitt appeals against conviction on the basis a miscarriage of justice has occurred, that is, there was an error, irregularity or occurrence in or in relation to his trial that has created a real risk the outcome of the trial was affected.3

[3] An appeal against conviction following a Judge-alone trial is conducted by way of rehearing, but it is for the appellant to show an error has been made. In assessing whether there has been an error, the appellate court must take account of any advantages the trial Judge may have had. Where the challenge is to credibility findings based on contested oral evidence, as in this instance at least in part, an appellate court will exercise “customary caution” because the trial Judge derives particular advantages from hearing the evidence.4

[4]Mr Stitt relies on two principal grounds of appeal.

[5] First, he contends a miscarriage arose because of trial counsel error. Mr Stitt contends Ms Ou, defence counsel at trial, erred in two respects, including by failing to call his father, Mr David Stitt, to give evidence.

[6] Secondly, Mr Stitt contends the Judge’s reasons for finding the offending proved were inadequate.

Background

[7] Mr Stitt and the complainant, Ms Timms, were in a relationship in September 2018, when the assaults took place or are said to have taken place. Mr Stitt was 20 years old and Ms Timms 17, and they were living with Mr Stitt’s parents.

1      New Zealand Police v Stitt [2019] NZDC 17481.
2      New Zealand Police v Stitt [2019] NZDC 16594.
3      Criminal Procedure Act 2011, s 232.
4      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].

[8] Ms Timms called the Police after the incident on 7 September 2018. Constables Tuigamala and Kiwara attended, Mr Stitt was charged and pleaded not guilty, and Ms Ou was assigned to represent him.

[9] Ms Timms and Constable Tuigamala gave evidence for the prosecution, and Mr Stitt in his defence, with the Judge giving his verdicts at the conclusion of the evidence.

5 September 2018

[10] The Police originally…

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 Stitt v Police

Details

AGLC: Stitt v Police [2020] NZHC 676
Case: [2020] NZHC 676
Decision Date: 2 April 2020

CaseChat Overview and Summary

The appeal in Stitt v Police was brought by the appellant, Dion Stitt, against his convictions for one count of assault and two counts of male assaults female, which were made following a Judge-alone trial. The appellant argued that a miscarriage of justice had occurred due to trial counsel error and that the trial Judge’s reasons for finding the offending proved were inadequate. The court had to determine whether there was an error, irregularity or occurrence in or in relation to the trial that created a real risk the outcome was affected, and whether the appellant's trial counsel had erred in a way that contributed to a miscarriage of justice.

The High Court found that the trial Judge had placed insufficient weight on certain pieces of evidence and had not provided adequate reasons for rejecting the appellant’s evidence in favour of the complainant’s. The court held that the Judge’s reliance on photographs of the complainant, which were not linked to the events in question by the complainant herself, and his acceptance of the complainant’s account based on the absence of evidence of injury to the appellant were flawed. The court held that the appellant’s evidence was not properly refuted and that the trial Judge’s reasons for rejecting it were inadequate. Consequently, the appeal was allowed, the convictions set aside, and a retrial ordered.

The final orders of the court were that the appeal be allowed, the convictions set aside, and a retrial ordered. The court did not find it necessary to address the issue of trial counsel error as the miscarriage of justice was found on other grounds.

Orders