Wesselingh v Police - [2024] NZCA 190

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA503/2022
[2024] NZCA 190

BETWEEN	STEPHEN WESSELINGH Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	13 May 2024
Court:	Mallon, Lang and Moore JJ
Counsel:	Applicant in person S M H McManus for Respondent
Judgment:	29 May 2024 at 3 pm

JUDGMENT OF THE COURT

The application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Stephen Wesselingh was convicted following a judge-alone trial in the District Court of a summary offence assault.[1] Mr Wesselingh was fined $750 and ordered to pay court costs of $130.[2] His appeal against conviction was dismissed by the High Court.[3] He now seeks leave to bring a second appeal to this Court.

Background

[1]New Zealand Police v Wesselingh [2022] NZDC 9326 [District Court decision]. Mr Wesselingh was charged under s 9 of the Summary Offences Act 1981.

[2]At [33].

[3]Wesselingh v New Zealand Police [2022] NZHC 2161 [High Court decision].

The charge of assault arose out of events on 20 May 2021. Clynt McGregor, a Ministry of Justice bailiff, attended Mr Wesselingh’s business address to execute a warrant. The warrant was to seize property for an unpaid speeding ticket.[4] As a result of the events that then transpired, Mr Wesselingh was charged with assault. He elected to act for himself and the matter proceeded to trial in the District Court before Judge Turner. The prosecution called evidence from Mr McGregor and a police officer. Mr Wesselingh gave evidence in his defence.
[4]The fine was $110 for exceeding the speed limit in a 50 km/h zone as well as an $102 enforcement fee.
Mr McGregor’s evidence was as follows:
(a)He entered the property in his vehicle through an unlocked gate, telephoned a number for the business to speak to the manager, walked to one of the sheds and was approached by a person who identified himself as the manager (there is no dispute that this was Mr Wesselingh). Mr McGregor then told Mr Wesselingh that he had a warrant and showed it to him and Mr Wesselingh responded that he was not paying.
(b)Mr Wesselingh turned and walked away, disappearing into a building. Mr McGregor followed him to the entrance of the building. Mr Wesselingh turned around and approached him, repeatedly telling him to leave and that he had no right to be there. Mr Wesselingh may also have told him that it was a dangerous building. Mr McGregor told Mr Wesselingh he was not going to leave and that he had a warrant. Mr Wesselingh came right up to him, angrily yelling at him to leave. Mr Wesselingh then “lurched forward” and “put two hands on [his] chest” pushing him back one step. Mr McGregor then took another step back and activated his duress alarm.
(c)Mr McGregor briefly talked with a nearby employee and walked to the gates. They were locked and so he went to his vehicle and waited for the…

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.

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Details

Case: [2024] NZCA 190
Decision Date: 29 May 2024 at 3 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Stephen Wesselingh for leave to appeal against his conviction and sentence for assault by the New Zealand Police. The case arose from an incident on 20 May 2021, when a Ministry of Justice bailiff, Clynt McGregor, attended Wesselingh's business to execute a warrant to seize property for an unpaid speeding ticket. Wesselingh was charged with assault following the events that transpired. The case involved a factual dispute between the parties, primarily concerning whether Wesselingh intentionally applied force to McGregor's chest.

The legal issues before the Court were whether the application for leave to appeal met the criteria for a second appeal and if a miscarriage of justice might have occurred. The Court considered the stringent requirements for leave to bring a second appeal, which must involve a matter of general or public importance, or a miscarriage of justice may have occurred. The Court was required to determine whether the appeal involved a factual assessment specific to the case or the application of well-established principles to a particular fact situation.

The Court of Appeal found that the District Court Judge had carefully considered the evidence and provided cogent reasons for preferring the prosecution's evidence. The Court was unpersuaded by Wesselingh's arguments regarding the duress alarm on McGregor's chest and the alleged lack of information provided by the Ministry of Justice and court staff. The Court also noted that the issues raised by Wesselingh, such as the manner of his arrest and the number of police who attended, did not bear on the narrow issue of whether Wesselingh intentionally applied force to McGregor's chest. The Court concluded that the criteria for a grant of leave to bring a second appeal were not met, and the application for leave to appeal was declined.

Orders