Vae v Police - [2013] NZHC 2664

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-284 [2013] NZHC 2664

BETWEEN
DANIEL VAE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

7 October 2013

Appearances:

M Ryan for Appellant

L M Mills for Respondent

Judgment:

11 October 2013

JUDGMENT OF KEANE J

This judgment was delivered by on 11 October 2013 at 3pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

Solicitors:
Crown Solicitor, Auckland

VAE v POLICE [2013] NZHC 2664 [11 October 2013]

[1] On 25 September 2013 Daniel Vae was, on his immediate plea in the District Court, Auckland, convicted of assaulting earlier that day a police officer in the execution of his duty. For two lesser offences, failing to comply with a direction that he not drive a motor vehicle and failing to give his name and address, he was convicted and discharged

[2] Mr Vae’s counsel, equally immediately, gave notice that Mr Vae intended to appeal that sentence and applied for bail. The sentencing Judge, Judge B Gibson, declined that application. The sentence he had imposed, he said, was a short sentence of imprisonment, it was the appropriate sentence, and a grant of bail was not in the interests of justice.

[3] On the following day Mr Vae appealed his sentence on the ground that it was manifestly excessive and the refusal of bail on the ground that this rendered his appeal right nugatory. He has since added a further ground: that the Judge should have recused himself because the Judge’s brother is a serving police officer. The most immediate issue, however, is whether Mr Vae’s appeal is moot. Mr Vae has served his sentence.

Contextual materials

[4] At 1 am on 25 September 2013, according to the undisputed summary of facts on which the Judge sentenced Mr Vae, Mr Vae’s car was stopped for a routine vehicle and licence check in New Windsor, Auckland. Mr Vae was driving while forbidden to do so. He gave a false name but was evidently recognised. He was warned of arrest but continued to provide the same details.

[5] Mr Vae became uncooperative and aggressive. He was arrested. He resisted the two officers who attempted to handcuff him. Four officers were required. Once handcuffed he pulled away and attempted to head butt one of the officers. He kicked the other in the left lower leg causing him to stumble over. It was that kick that constituted Mr Vae’s principal offence for sentence.

[6] Mr Vae was taken to the Auckland Central Police Station and continued to be threatening. According to the summary Mr Vae said he did not care about any

prohibitions to which he was then subject. He justified resisting and assaulting the police by saying he felt both to be open because the police were weak.

[7] The constable who suffered the assault said in his victim impact statement that he was assisting his colleague to arrest Mr Vae, ‘a well known offender’ and though the kick did not hurt…

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 Vae v Police

Details

AGLC: Vae v Police [2013] NZHC 2664
Case: [2013] NZHC 2664
Decision Date: 11 October 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Daniel Vae appealed against the sentence imposed by the Auckland District Court and the refusal of bail. Vae was convicted of assaulting a police officer, failing to comply with a direction not to drive, and failing to give his name and address. The primary issue was whether the appeal was moot, given that Vae had served his sentence. Additionally, Vae challenged the refusal of bail, the appropriateness of the sentence, and the Judge's failure to recuse himself.

The court found that the appeal against the refusal of bail was moot, as it was inherently conditional upon the order for detention still being in force. However, the appeal against the sentence was not moot, as it concerned the measure of the offence which had continuing significance. The court also dismissed Vae's argument for the Judge's recusal, finding it unsustainable and without evidence of actual bias. Regarding the sentence, the court held that the Judge was entitled to imprison Vae based on the stand-down report and that the imposed term was not manifestly excessive.

In conclusion, the appeal against the refusal of bail was dismissed as moot. The appeal against the sentence was also dismissed, as the court found no error in the sentence imposed and no requirement for the Judge to recuse himself.

Orders