Thompson v Police - [2019] NZHC 3241

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000156

[2019] NZHC 3241

BETWEEN
GRANT LESLIE THOMPSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 December 2019

Appearances:

Appellant Appears in Person

J H Whitcombe for Respondent

Judgment:

10 December 2019

JUDGMENT OF GENDALL J

This judgment was delivered by me on 10 December 2019 at 11:00 a.m. pursuant to Rule
11.5 of the High Court Rules Registrar/Deputy Registrar Date: 10 December 2019

THOMPSON v NEW ZEALAND POLICE [2019] NZHC 3241 [10 December 2019]

Introduction

[1] Mr Thompson, the appellant, was found guilty at a judge-alone trial of resisting police and assaulting a police officer.1 He was subsequently sentenced to 65 hours’ community work.2 The appellant appeals both his conviction and sentence. It appears the appeal may have been filed one day out of time. No objection to granting of leave is taken by the respondent. No prejudice is occasioned by this short delay. Leave to appeal out of time is granted accordingly.

Facts

[2] The appellant and his associate Ms Kelly were at The Warehouse retail shop on 14 July 2018. Constables Johnston and Smart were called to The Warehouse because of a complaint of shoplifting. They had with them a Mr Dixon at the time, who was a young person interested in joining the police.

[3] When the constables arrived at The Warehouse, they were directed to the appellant and Ms Kelly. The appellant denied shoplifting any items. He then purchased a can of drink and, according to the prosecution, produced three cosmetic items from his pockets and placed them on the counter, making a comment along the lines of “I suppose you want these back”. He then left The Warehouse and was followed out by Constable Johnston and Mr Dixon.

[4] Constable Johnston arrested the appellant for shoplifting, handcuffed him, and took him towards the police car. According to the Constable, the appellant did not co- operate, but tried to pull away from him as they got closer to the police car. He was forced up against the police car as the Constable tried to restrain him, then attempted to knee the Constable in the groin twice while trying to pull away from him.

[5] The appellant was placed into the back of the police car with the help of Constable Smart. Constable Johnston leaned across the appellant to plug in the seatbelt, with Constable Smart assisting from the other side. The appellant is alleged to have spat at Constable Johnston in the face. He was then heard to “hoick” more

1 Police v Thompson [2019] NZDC 20743.
2 Police v Thompson [2019] NZDC 20735.

spittle into his mouth, at which point Constable Johnston punched him in the side of the mouth, afraid he would spit at him again.

District Court decision

[6] The appellant represented himself at trial. After satisfying himself that the appellant understood his rights to legal representation and legal aid, Judge Spear considered an issue…

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 Thompson v Police

Details

AGLC: Thompson v Police [2019] NZHC 3241
Case: [2019] NZHC 3241
Decision Date: 10 December 2019

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Grant Leslie Thompson against both his conviction and sentence for resisting police and assaulting a police officer. The appeal was heard by Gendall J on 10 December 2019, following a hearing on 5 December 2019. The appellant appeared in person while the respondent was represented by J H Whitcombe. The appellant had been found guilty at a judge-alone trial and was subsequently sentenced to 65 hours of community work. The appeal against conviction was filed one day out of time, but the respondent did not object to the granting of leave, and no prejudice was occasioned by the short delay. Leave to appeal out of time was granted accordingly.

The legal issues the court was required to decide were whether the trial judge had erred in his assessment of the evidence, resulting in a miscarriage of justice, and whether there had been an error in the imposition of the sentence. The court examined the evidence presented in the trial, the appellant's complaints, and the respondent's submissions.

The court found that the appellant's first two grounds of appeal, which related to the evidence of Mr Dixon and the alleged misspelling of the appellant's middle name, had no substance. The court also found that the appellant's arrest could not be described as unlawful, as the charge in question had been dismissed or withdrawn. The court considered the justification for the punch delivered by Constable Johnston and found no issue with the Judge's conclusion regarding the order of events. The court held that the Judge had ample evidence to conclude that the appellant spat at the Constable and that there was no real risk of a miscarriage of justice. Lastly, the court found that there was no CCTV footage available to support the appellant's claim, and the appellant made no submissions regarding his appeal against sentence.

In conclusion, the court found no basis to conclude that the trial judge had erred in his factual findings, that Mr Thompson's trial was unfair, or that some other error occurred, resulting in a miscarriage of justice. The court dismissed both the appeal against conviction and sentence.

Final orders: Mr Thompson's appeals against both conviction and sentence are dismissed.

Orders