Wilson v Police - [2019] NZHC 1252

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-20

[2019] NZHC 1252

BETWEEN
BRENT DUNCAN WILSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 May 2019

Appearances:

M J Phelps for Appellant F Cleary for Respondent

Judgment:

5 June 2019

JUDGMENT OF GRICE J

Introduction

[1] On 21 May 2018 Mr Wilson appeared before the Napier District Court on two charges of assault with intent to injure.1 Mr Wilson had pleaded not guilty to the charges. Later, although it is unclear when, the charges were amended to the lesser charge of assaulting a child under 14 years of age.2 The Judge found the charges were proved.3 On 22 June 2018, the Judge refused Mr Wilson’s application for a discharge without conviction and instead convicted and discharged him.4

[2]Mr Wilson appeals that decision on the basis:

(a)The Judge erred in finding the charges were proved; and/or

1      Crimes Act 1961, s 189(2); maximum penalty of five years’ imprisonment.
2      Section 194(1)(a); maximum penalty of two years’ imprisonment.
3      Police v Wilson DC Hastings CRI-2017-020-003273, 21 May 2018 [Proof Decision].
4      Police v Wilson [2018] NZDC 12739 [Discharge Decision].

WILSON v NEW ZEALAND POLICE [2019] NZHC 1252 [5 June 2019]

(b)The Judge erred in declining to discharge Mr Wilson without conviction.

[3]I will address each ground in turn.

Background

Factual background

[4] On the morning of 22 October 2017 Mr Wilson was at the breakfast table with his then partner and her child. They were having breakfast together. The complainant child left the table to put away a book. He said he was also upset. The complainant went to his room. His mother reported that he was being rude to Mr Wilson. The complainant was told to come back to the table by his mother, but he ignored that request. Mr Wilson asked the child to come back from his room. The complainant ignored that request too. Mr Wilson entered the complainant’s bedroom and asked the complainant to come back to the table, but he was ignored.

[5] Mr Wilson then grabbed the complainant’s arm to “escort” him to the kitchen table. The complainant was upset and called Mr Wilson a “fucking whore”. It was suggested Mr Wilson leave the house and he did. Following this incident, the mother grabbed the child by the wrists to make him go to church.

[6] Following this incident the complainant complained of a sore arm. After church that day he was taken to the hospital for attention. There were initially fears there was a spiral fracture, but this was not borne out. On examination there was no bruising or swelling.

[7] The second charge arose two years earlier. Sometime between 1 October and 30 November 2015, in the early hours of the morning (around 1 am), the complainant banged on Mr Wilson and his then partner’s door. The child had been in the habit of doing his. The complainant entered their bedroom…

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: [2019] NZHC 1252
Decision Date: 5 June 2019

CaseChat Overview and Summary

The appellant, Brent Duncan Wilson, appeals the decision of the Napier District Court to convict him on two charges of assaulting a child under the age of 14. Mr Wilson argues that the Judge erred in finding the charges were proved, and that the Judge should have discharged him without conviction. The appeal was heard in the High Court at Napier and the appeal was dismissed. The court found the Judge's findings of proof were not in error and the consequences of conviction for Mr Wilson were not out of all proportion to the gravity of the offence. Mr Wilson was convicted of two charges of assaulting a child under 14. The first incident occurred at breakfast, when Mr Wilson grabbed the child by the arm to bring him back to the table. The second incident occurred two years earlier, when Mr Wilson placed his hand over the child's mouth to stop him screaming. The Judge found that the force used in both incidents was not reasonable in the circumstances and there was no justification for the assaults. The appeal against conviction was dismissed as there was no real risk the outcome of the trial was affected or that it was unfair. In relation to the discharge without conviction, the court found that the consequences of conviction for Mr Wilson were not out of all proportion to the gravity of the offence. While the convictions may impact Mr Wilson's career prospects, this was a natural consequence of his offending.

Orders