Webster v Police - [2019] NZHC 1335

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-090

[2019] NZHC 1335

BETWEEN
COLIN WEBSTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 May 2019

Appearances:

S Kimberley and R N Roy for the Appellant S M Murphy for the Respondent

Judgment:

13 June 2019

JUDGMENT OF PALMER J

Solicitors: Crown Solicitor, Manukau
Public Defence Service, Manukau

WEBSTER v NEW ZEALAND POLICE [2019] NZHC 1335 [13 June 2019]

Summary

[1] In August 2018, Mr Colin Webster called for Police assistance at his home in Manurewa, Auckland, because of an altercation with his methamphetamine-addicted son. Mr Webster was highly agitated and holding a metal pole a short distance from his son when the Police arrived. The two constables did not know quite what the situation was. One entered his property, without permission, to ask questions and Mr Webster pushed him away. He was charged with behaving in a disorderly manner, to which he pleaded guilty. He was also charged with assaulting a police officer in the execution of his duty and possession of an offensive weapon, to which he pleaded not guilty but was convicted after a trial. He appeals.

[2] A reasoned judgment is essential to a fair trial. The judgment under appeal did not identify the law, or directly engage with the issue, of the lawfulness of the constable’s presence on Mr Webster’s property. I do not consider the constable was lawfully on the property and, therefore, he was not in the execution of his duty. Neither did the judgment under appeal identify the legal definition of an offensive weapon or provide any reasoning about whether its possession was proved. I do not consider the evidence sustains, beyond a reasonable doubt, that the metal pole was intended by Mr Webster for the use of causing bodily injury or that he had no reasonable excuse to hold it. Accordingly, there was a miscarriage of justice in respect of each conviction. I allow the appeal of both convictions and set aside the sentences. I also set aside the sentence of community work for behaving in a disorderly manner, which was not lawfully available.

What happened?

[3] Mr Webster’s evidence was that his son had been struggling with methamphetamine addiction issues for five years and Mr Webster had previously called the Police for assistance at his home on a number of occasions. In the early hours of 13 August 2018, he said he had had an altercation with his son who had ripped their mail box out of the ground. Three hours later he called the Police. They arrived around midnight, as he was chasing his son away from the driveway and away from his other son’s car. Mr Webster said he was pleased the Police had arrived, he walked

back into his property and told them his son was a P-head and they needed to take him away.

[4] The evidence of Constables Mendoza and Park was that they saw Mr…

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 Webster v Police

Details

AGLC: Webster v Police [2019] NZHC 1335
Case: [2019] NZHC 1335
Decision Date: 13 June 2019

CaseChat Overview and Summary

In August 2018, Mr Colin Webster called the Police because of an altercation with his methamphetamine-addicted son. Mr Webster was holding a metal pole when the Police arrived and pushed away one of the constables who had entered his property. He pleaded guilty to behaving in a disorderly manner and was convicted, following a trial, of assaulting a police officer in the execution of his duty and possession of an offensive weapon. He appeals. The appeal is allowed and the convictions set aside. The reasoning in the judgment under appeal is inadequate. It did not identify the law, or directly engage with the issue, of the lawfulness of the constable’s presence on Mr Webster’s property. There was no consideration of whether the constable had reasonable grounds to suspect an offence was about to be committed causing injury or that there was a risk to the life or safety of any person requiring an emergency response. The evidence does not sustain, beyond reasonable doubt, that Constable Park was lawfully on Mr Webster’s property and was, therefore, in the execution of his duty when he was assaulted. The judgment also did not identify the legal definition of an offensive weapon or provide any reasoning about whether its possession was proved. The evidence does not sustain, beyond reasonable doubt, that the metal pole was intended by Mr Webster for the use of causing bodily injury or that he had no reasonable excuse to hold it. Accordingly, there was a miscarriage of justice in respect of each conviction. Finally, the community work sentence for behaving in a disorderly manner is quashed as it is not a lawful sentence for that offence.

Orders