Tipene v Police - [2020] NZHC 2165

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-247

[2020] NZHC 2165

BETWEEN
BROOKLYN TIPENE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 August 2020

Appearances:

L J Grbavac for the appellant M K Regan for the respondent

Judgment:

25 August 2020

REASONS FOR JUDGMENT OF JAGOSE J

This judgment was delivered by me on 25 August 2020 at 3.00pm.

………………………… Registrar/Deputy Registrar

Solicitors:
Public Defence Service, Manukau
Kayes Fletcher Walker, Crown Solicitor, Manukau

TIPENE v NEW ZEALAND POLICE [2020] NZHC 2165 [25 August 2020]

[1] Brooklyn Tipene appeals against the decision of Judge D J Harvey in the District Court at Manukau on 17 June 2020,1 finding him guilty of assault on a person with whom he was in a family relationship.2

[2] The intended virtual hearing of this appeal suffered technical difficulties. After resuming by telephone conference, counsel had few additional oral submissions to make. As an alternative to my delivery then of an oral judgment, I offered to give the result then, with reasons to follow in writing. Counsel were content with that approach. I dismissed the appeal. These are the reasons for that decision.

Background

[3] On 25 November 2019, in the garage of the property in which he lived with his mother in Auckland’s Flat Bush, Mr Tipene argued with the victim, his girlfriend. The argument escalated. The victim screamed. Attracted by the commotion, Ms Tipene went to the garage. She saw him in physical contact with the victim, when he threw an object in her direction.3 The victim left the garage but was brought back by Mr Tipene. The police were called. Both Mr Tipene and the victim left the scene.

Judgment under appeal

[4] The Judge heard evidence from Ms Tipene and the police officer responding to her call. Neither Mr Tipene nor the victim gave evidence. The Judge was satisfied beyond a reasonable doubt Mr Tipene was in a family relationship with the victim.4 He also was satisfied beyond reasonable doubt Mr Tipene touched the victim without her consent.5 He held the charge proven, reasoning:6
I am satisfied that it was more than a loving embrace, and the reason that I say that is that Constable [Conway] took some photographs of the upper arm area of the complainant … and that indicates that there is a bruising, and a redness

1      Police v Tipene [2020] NZDC 12322. In a brief separate note under the same citation, Mr Tipene was sentenced to 80 hours community work, placing him on supervision for 12 months, mandating relationship and anger management counselling, on the ground he did not “normally behave this way”.
2      Crime Act 1961, s 194A. Maximum penalty: two years’ imprisonment.
3      This action supported a charge of assault with a weapon, which was dismissed at trial on grounds of no case to answer: Police v Tipene, above n 1, at [4].
4 At [5].
5 At [9].
6 At [10].

which would…

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 Tipene v Police

Details

AGLC: Tipene v Police [2020] NZHC 2165
Case: [2020] NZHC 2165
Decision Date: 25 August 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Brooklyn Tipene appeals a District Court decision convicting him of assaulting his girlfriend, with whom he was in a family relationship. The District Court found Mr Tipene guilty of assault, despite him arguing the evidence did not support a finding of non-consensual touching beyond reasonable doubt. The High Court dismissed the appeal, finding no miscarriage of justice occurred.

The primary issue before the High Court was whether the District Court erred in its assessment of the evidence, leading to a miscarriage of justice. Mr Tipene's counsel argued that the District Court misinterpreted the evidence regarding the extent of force applied and the nature of the touching between Mr Tipene and the victim. The High Court examined whether the District Court's reliance on photographs of the victim's bruises and the mother's testimony led to an incorrect conclusion.

The High Court reviewed the evidence, including the mother's account of the incident, the victim's video statement, and the police officer's observations. The mother's testimony described Mr Tipene holding the victim against a wall, while the victim herself indicated she could have easily moved past him. Photographs showed bruising on the victim's arm, which the police officer attributed to the altercation. The High Court found that the District Court's conclusion was supported by the overall evidence and that the appeal did not demonstrate a real risk of a more favourable outcome for Mr Tipene. The High Court concluded that the District Court's decision was correct and dismissed the appeal.

Orders