Tait v Police - [2015] NZHC 1601

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000111 [2015] NZHC 1601

BETWEEN
TOD GRAHAM TAIT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 30 June 2015

Counsel:

S Khan for Appellant
S McKone for Respondent

Judgment:

9 July 2015

JUDGMENT OF ASHER J

This judgment was delivered by me on Thursday, 9 July 2015 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Fortune Manning Lawyers, Auckland.
Meredith Connell, Auckland.

TAIT v NZ POLICE [2015] NZHC 1601 [9 July 2015]

Introduction

[1] This is an appeal arising out of expressed driver anger at the conduct of another driver, known as road rage. On 2 September 2013 the appellant Mr Tait had been driving home along Huia Road, Pt Chevalier. His two year old daughter was in the back seat in her car seat. The complainant in her car drove up behind him and, in his perception, drove too close behind him in an aggressive way indicating that she wished to get past.

[2] Mr Tait pulled over and the complainant passed him. He then pursued her down the road and she turned into her home address. Mr Tait followed her to that home address and parked outside. Mr Tait wound down his window and lent out and shouted at the complainant about her driving.

[3] In response the complainant came up to the passenger side of Mr Tait’s vehicle. The window was down. She leant into the vehicle and began shouting at Mr Tait, disputing his accusations about her driving. As she shouted at Mr Tait, he shouted back. He then struck her across the face with his open hand.

[4] This action caused her to withdraw from the car and come around to the driver’s side of the vehicle. She reached in and tried to wrestle the car keys from Mr Tait. There was then something of a struggle between the two as she sought, ultimately successfully, to take the car keys. Mr Tait ultimately had to walk home with his daughter leaving the car where it was.

[5] It is common ground that the culpability of the offending must be limited to Mr Tait’s action in striking the complainant with his open hand to the face, rather than the mutual physical struggle that took place later in relation to the car keys. The charge only relates to that action.

[6] The matter came before Judge E M Thomas in the District Court at Auckland on 19 January 2015. The point at issue was whether there should be a discharge without conviction. The Judge did not deal with the issue of what sentence would be appropriate if a discharge was refused. The Judge declined to discharge Mr Tait without conviction.

The decision

[7] The Judge observed that Mr Tait was guilty of a crime of violence, and that his actions involved an assault on a female who was unlikely to be able to physically compete with him. He put to one side…

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: [2015] NZHC 1601
Decision Date: 9 July 2015

CaseChat Overview and Summary

In Tait v Police, the appellant, Mr. Tait, appealed against the decision of the District Court to decline a discharge without conviction for a charge of assault. The incident arose from an altercation between Mr. Tait and another driver on Huia Road, Auckland, where Mr. Tait struck the complainant in the face after she shouted at him from her car. The District Court had declined to grant a discharge without conviction, but later sentenced Mr. Tait to 100 hours of community work and 12 months of supervision. The appeal was focused solely on the refusal to discharge without conviction.

The legal issue before the High Court was whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence, as required by s 107 of the Sentencing Act 2002. The court noted that while Mr. Tait's actions were impulsive and reactive, the gravity of the offence was relatively minor. The court also considered the significant personal and community-related consequences Mr. Tait faced due to the conviction, including difficulties in employment and community involvement. Ultimately, the High Court found that the consequences of conviction were out of proportion to the relatively minor nature of the assault and allowed the appeal. The conviction was quashed, and Mr. Tait was discharged without conviction.

The final orders of the court were that the appeal was allowed, the conviction was quashed, and Mr. Tait was discharged without conviction under s 106 of the Sentencing Act 2002.

Orders