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…
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- Tipene v Police [2020] NZHC 2165
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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