Barber v Police [2014] NZHC 2057 (2 September 2014)

Last Updated: 8 September 2014

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2014-454-9 [2014] NZHC 2057

ROSS EASTON BARBER Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	29 August 2014
Counsel:	Appellant in Person E M Fitzherbert for Respondent
Judgment:	2 September 2014

_{JUDGMENT OF SIMON FRANCE J}

[1] Mr Barber was convicted of one charge of assaulting a child. He was sentenced to 100 hours community work, and ordered to pay $1,000 emotional harm reparation.¹ He appeals conviction and sentence.

[2] The complainant was a young cousin of Mr Barber. Then aged around nine years old, the boy would visit the appellant’s farm during holidays and live there, doing odd jobs during the day.

[3] On the occasion in question something, perhaps an incident with other staff, caused the child to become upset. He was throwing things and crying, and then walked off. Mr Barber followed. Somehow the boy ended up on the ground. At that

_{point Mr Barber put his foot on the side of the child’s chest near the armpit, pinning}

1. New Zealand Police v Barber DC Palmerston North CRI-2013-054-000585, 21 March 2014, Judge Atkins QC; sentencing 30 May 2014.

BARBER v NZ POLICE [2014] NZHC 2057 [2 September 2014]

him down. He was also at the same time pulling the near hysterical boy’s arm, as if trying to pull him to his feet. Throughout this Mr Barber was talking (some would say taunting) the boy.

[4] An unusual feature of the incident was that Mr Barber was videoing the incident. He said to police that he was doing so in order to have a record that he could show the boy for educational purposes once he calmed down. The Judge saw it quite differently, agreeing with the prosecution that it was part of Mr Barber taunting the boy.

[5] Some years after the incident the video fell into the hands of authorities, which led to this charge. The boy was interviewed, it then being some five years after the incident. He could not remember a lot, but definitely remembered the incident. He described Mr Barber pushing him to the ground, putting his foot on him and teasing him. At trial the boy’s memory was little better. Standing on its own the evidence was possibly not of a quality to sustain a conviction but it was firmly corroborated by the video record.

[6] Mr Barber was represented at trial. The boy was cross-examined but there was little headway to be made given his general lack of recall. Mr Barber did not testify but he had been interviewed by the police prior to trial and this was played. Mr Barber accepted putting his foot on the boy, but said it was just to restrain the boy to get him to talk. Of this suggestion the Judge observed:

To suggest this was behaviour designed to get the boy to talk is a proposition so extraordinary in the circumstances that it is difficult to accept it was even put forward seriously. What the defendant was doing was behaving in a way which could only have the effect of further provoking, distressing and agitating the child to the point where the child would be almost unable to be reasoned with.

[7] The Judge analysed the reasonableness of Mr Barber’s conduct in terms of s 59 of the Crimes Act 1961 (parental control). This inherently means that it was accepted that Mr Barber at the time was in the place of a parent. Otherwise the defence would be unavailable. However, his Honour concluded the force was not of a kind that could be considered reasonable, nor could it be interpreted as being by way of correction.

[8] Concerning sentence, Mr Barber has three other convictions for assault on a child. In relation to this offending he accepted that he bullied the child by continually calling him a baby, but did not consider it was wrong to videotape the incident. Mr Barber said he had later apologised.

[9] On sentencing the Judge observed that the video record of what Mr Barber did was distressing to anyone viewing it. The lack of feeling on the part of Mr Barber in driving the boy into the state in which he ended up was extraordinary. The Judge favoured a community detention sentence, but accepted that where Mr Barber lived was not suitable and concluded that community work plus reparation would be a sufficient sanction.

The appeal

[10] Mr Barber has acted for himself on the appeal. His written submissions involved a large measure of abuse of the Judge, and a claim for compensation. To the extent one could discern it, the primary challenge to conviction focussed on the vagueness of the victim’s evidence. It is also suggested that placing a foot on the child’s chest with no mark resulting cannot constitute an assault. Neither point has merit. The duration and force with which the foot was applied made a conclusion of assault inevitable. The context of taunting and winding the boy up made reliance on s 59 of the Crimes Act 1961 hopeless. The young boy’s evidence on its own might possibly have not been sufficient, but the video record was also available.

[11] Mr Barber’s oral submissions focussed on the points where he disagreed with the respondent’s written submissions. Some points are trivial and I comment only on matters of potential substance.

[12] The first involves why Mr Barber was doing what he was doing. Mr Barber sought to advance a theory that he was seeking to put the boy in the “recovery position”. I explained to Mr Barber it was not open for him to provide new evidence in this way on an appeal. I also observe, having watched the video, it is an untenable proposition. It was not one advanced to police when he was interviewed.

[13] Mr Barber identified inconsistencies in the Judge’s decision about the length of the assault and the amount of force. At one point the Judge refers to “briefly holding him down” and at another “for some time”. I accept there is a level of inconsistency in the manner of expression, but it is of no moment and reflects it is an oral judgment.

[14] Mindful of Mr Barber’s underlying point, which is that it was not a sustained contact, I reviewed the video which shows his foot on the boy for around 50 seconds. There is accordingly no substance in the submission.

[15] Mr Barber’s third point is that the judgment under appeal ignores the time delay between the incident and the trial. This means it has not been possible to recapture the context of what was happening. The point would have legitimacy if the prosecution were reliant on oral evidence. As it is, the video speaks for itself.

[16] No other points were made that require addressing. As for sentence there is no basis for challenge. The actual assault is at the lower end, but the context and purpose is very relevant, as are the fact of previous convictions.

_{[17] The appeals against conviction and sentence are dismissed.}

_{Simon France J}

Solicitors:

Ben Vanderkolk & Associates, Palmerston North