Wesselingh v Police - [2022] NZHC 2161

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2022-476-000006

[2022] NZHC 2161

BETWEEN
STEPHEN WESSELINGH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 August 2022 (Heard at Dunedin)

Appearances:

Mr Wesselingh appears in person A R McRae for Respondent

Judgment:

29 August 2022

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 29 August 2022 at 3.30 pm.

Registrar/Deputy Registrar Date:

WESSELINGH v NEW ZEALAND POLICE [2022] NZHC 2161 [29 August 2022]

Introduction

[1] Stephen Wesselingh was convicted of a charge of assault1 following a Judge-alone trial.2 He appeals.

Background and District Court decision

[2] Before the commencement of the trial Mr Wesselingh said he did not have disclosure from the police. On further inquiry it appeared Mr Wesselingh had been sent a full copy of the police case but no longer had those documents in his possession. The Judge was satisfied Mr Wesselingh had received disclosure but asked police to make another copy of the documents available for the purposes of the trial.

[3] The police case was Mr Wesselingh assaulted Mr McGregor, a Ministry of Justice bailiff. On 2 May 2021, Mr McGregor, in uniform, travelled to the address of Ascot Manufacturing Limited to execute a warrant issued by the Court to seize property for unpaid fines. Mr McGregor arrived to find a gate to the property locked. However, the company was on a corner site and Mr McGregor was able to enter via a gate on the other street which was unlocked and open. He drove his vehicle in and stopped. He telephoned a number he had for the address, intending to speak to the manager. He spoke to Mr Wesselingh.

[4] Mr Wesselingh accepted he spoke to Mr McGregor over the phone and that Mr McGregor identified himself and said why he was at the property. A short time after the call ended Mr McGregor said Mr Wesselingh approached him from one of the buildings. Mr McGregor took out his ID and told Mr Wesselingh why he was there. He says Mr Wesselingh advised he was the manager and made comment along the lines of he was not paying, the company was not paying and he did not agree with the warrant.

[5] When Mr Wesselingh turned and walked away, Mr McGregor followed him, stopping at the entrance of the building. Mr Wesselingh saw Mr McGregor was still there and approached him again, telling him to leave. Mr McGregor said he was angry

1 Summary Offences Act 1981, s 9; maximum penalty six months’ imprisonment.
2 Police v Wesselingh [2022] NZDC 9326.

and yelling. Mr Wesselingh got closer to him before, in Mr McGregor’s words, he “lurched forward at me and put two hands on my chest, pushed me back with two hands on my chest”. Mr McGregor activated his mobile duress alarm. That alarm alerted a security company who in turn alerted police.

[6] Mr McGregor approach another employee in the building and…

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: [2022] NZHC 2161
Decision Date: 29 August 2022

CaseChat Overview and Summary

The case involves Stephen Wesselingh, who appealed his conviction for assault. The appeal was heard in the High Court of New Zealand. The primary legal issue was whether the trial judge made any errors that led to a miscarriage of justice. The court examined several specific grounds of appeal, including whether the judge presumed Wesselingh's guilt, interfered with his cross-examination, or improperly assessed his evidence. The Crown argued that any perceived errors by the judge did not affect the fairness or outcome of the trial. The High Court found that the judge did not err in his assessment of the evidence and that Wesselingh's trial was fair. The judge's interventions during the trial were aimed at ensuring the proper administration of justice and the protection of Wesselingh's right to a fair trial. The appeal was dismissed, and Wesselingh's conviction was upheld.

The court's reasoning was that the judge's approach to the case and his engagement with the competing evidence were appropriate. The judge clearly set out the burden of proof and the requisite standard for conviction. The provision of procedural information to Wesselingh before the trial did not prejudice the fairness of the proceedings. The judge's involvement in Wesselingh's cross-examination was to ensure that the witnesses understood the questions and that the trial remained relevant and efficient. The judge's assessment of the evidence was rational, and he appropriately considered the demeanor and credibility of the witnesses. Any perceived errors by the judge did not result in a miscarriage of justice, and the trial was conducted fairly.

Orders