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 be consistent with the application of force and I am satisfied for those reasons that the charge is proven beyond reasonable doubt.

[5]    For Mr Tipene, Luka Grbavac argues the Judge erred by inferring the application of force from the photograph  of  a  mark  on  the  victim’s  arm  when Ms Tipene’s evidence was he was holding her at the top of her shoulders, and discounting Ms Tipene’s allowance under cross-examination Mr Tipene may not have been using force and the touching may have been consensual. Each error means the Judge otherwise would not have found the charge proven (as the Judge had not in relation to the other assault charge,  based  on  Mr Tipene  throwing  an  object  in Ms Tipene’s direction as she came to enter the garage, which the Judge found was neither intended nor apprehended as being directed at her). A miscarriage of justice thus has occurred.

Approach on appeal

[6]    Mr Tipene has a first appeal right against his conviction to this Court.7 I must allow an appeal against conviction if I am satisfied the Judge “erred in [her] … assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or if I am satisfied “a miscarriage of justice has occurred for any reason”.

Otherwise I must dismiss the appeal.8

[7]    By ‘miscarriage of justice’ is meant something has occurred in relation to trial to create a real risk against a more favourable outcome for Mr Tipene, or has resulted in an unfair trial or a nullity.9 The appeal proceeds by way of rehearing, in which I am to form my own view of the facts and determine the appeal accordingly,10 while taking into account any advantages the trial judge may have had.11 Mr Tipene must show error has been made. The threshold is high; not every error will amount to a miscarriage of justice.12

7      Criminal Procedure Act 2011, ss 229(1) and 230(1)(b).

8      Section 232.

9      Section 232(4); Misa v R [2019] NZSC 134 at [38]–[48], citing R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110], R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145, and Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.

10     Sena v R [2019] NZSC 55 at [32].

11     At [38]–[40].

12     Otis v Police [2019] NZCA 231 at [4], citing McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].

Discussion

[8]    I have read the notes of evidence taken before the Judge, as well as the transcript of his discussions with counsel. The evidence before the Judge included Ms Tipene’s video statement recorded by Constable Conway on her attendance at the scene. It is not available to me but I have read its transcript. The police officer also took scene photographs, which I have seen. She explained Mr Tipene and the victim later attended at the police station. She asked if the “very upset, sort of distraught” victim had been injured in the incident, and the victim showed her “an injury, a bruising, a redness, up on her arm”. The police officer took photographs of that also, which I also have seen, and then arrested Mr Tipene for assault.

[9]    The evidence overall suggests some altercation between Mr Tipene and the victim. Photographs and Ms Tipene’s evidence illustrate the garage, which may have been providing accommodation, was in some disarray, with items knocked over. In the contemporaneous video interview, Ms Tipene explained she saw Mr Tipene “keeping [the victim], pushing her back to the wall so that she couldn’t get out, so like, up against the shoulders, and he was forcefully holding her there”. Ms Tipene’s evidence- in-chief was she saw Mr Tipene “had [the victim] up against the wall and was holding her back” with both arms when she tried to enter the garage. Mr Tipene threw an object in her direction, and she retreated to the house to call police.

[10]   Under cross-examination, Ms Tipene accepted Mr Tipene initially was holding the victim on the top of her shoulders “sort of just like to keep her back”. She accepted Mr Grbavac’s propositions it was possible they were holding each other, “just hugging in a weird way”. In answer to questions from the Judge, Ms Tipene said the victim could get away from Mr Tipene by “[j]ust go[ing] past him”.

[11]   It is unclear from the evidence if Ms Tipene observed Mr Tipene obtaining the victim’s return to the garage. She initially described Mr Tipene then grabbing the victim by the arm. Under cross-examination, she accepted no force then was used but Mr Tipene was just “shooing her in”. She agreed she was “inside on the phone to police as that happened”, and “didn’t actually see what happened outside”. On

re-examination, she accepted the contact between Mr Tipene and the victim was more like a hug than a struggle.

[12]   It is too reductive an assessment to say the Judge exclusively found Mr Tipene to have assaulted the victim based only on the photographs of her upper arm. The Judge’s focus was on proof beyond a reasonable doubt of “non-consensual touching”,13 which the Judge was satisfied took place by “a pushing against the garage wall involving the upper arms”,14 the photographs endorsing the parties’ contact went beyond “a loving embrace”.15

[13]   It was open to the Judge to give more weight to Ms Tipene’s contemporary and principal evidence than her acceptance of alternatives under cross-examination. Her call to police illustrated her perception Mr Tipene’s argument with the victim had escalated to a point justifying intervention. The Judge also had the evidence of the police officer’s subsequent contact with the upset victim, who volunteered her injury as arising in the dispute. The Judge plainly was satisfied assault had occurred in general terms, not exclusively on the basis of the photographs.

[14]   And, even if he had made that decision solely on the basis of the photographs, I would not come to any other conclusion on the evidence overall. There was no real risk of a more favourable outcome for Mr Tipene. Trial was not unfair or a nullity.

Result

[15]The appeal was dismissed.

—Jagose J

13     Police v Tipene, above n 1, at [6].

14 At [9].

15 At [10].