Katipa v Police [2016] NZHC 2217 (20 September 2016)

Last Updated: 10 October 2016

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2016-416-10 [2016] NZHC 2217

BETWEEN	TE HOKINGA MAI KATIPA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	19 September 2016
Counsel:	T Robinson for Appellant F Cleary for Respondent
Judgment:	20 September 2016

_{JUDGMENT OF SIMON FRANCE J}

[1] Mr Katipa appeals a conviction for male assaults female concerning which he was convicted and discharged.¹

[2] The charge stemmed from an incident with his then partner. The couple had a baby aged around one year at the time. The victim had been out drinking the night preceding the incident and this seems to have caused conflict. Mr Katipa was annoyed – he disputes this – about the mother’s lack of involvement in childcare the next morning.

[3] Eventually the scene moved to Mr Katipa’s father’s house. Mr Katipa got there first, with the baby. The mother followed, as she was to leave from there on a trip with Mr Katipa’s aunt. The baby was to remain with Mr Katipa. Another

_{argument ensued. The victim went outside to the vehicles, carrying the baby.}

¹ _{NZ Police v Katipa [2016] NZDC 7476.}

KATIPA v NZ POLICE [2016] NZHC 2217 [20 September 2016]

[4] Eventually she ended up lying on her back on the ground with the baby clutched to her chest. How she ended up there was the subject of dispute. There were two allegations against Mr Katipa which could have proved the charge but the Judge was not satisfied about either to the necessary standard. But on the ground with the baby the mother was.

[5] She refused to let hold of the baby. Mr Katipa pried her arms open and took the baby. That action of forcing her arms open, which he accepts he did, is the basis of the conviction for male assaults female.

[6] Concerning the prising open of the arms, the only issue was that of s 48 of the Crimes Act 1961 – defence of another. Despite the careful judgment, with the luxury of time to review the transcript I am satisfied the reasonable possibility that Mr Katipa was acting in self defence was not discounted:

(a) Mr Katipa said he was concerned about the tightness with which the victim was gripping the baby and so he forced open her arms to release the pressure. This provides the evidential foundation;

(b) Mr Katipa was not challenged in cross-examination that this was his motive. He was not asked about that aspect at all;

(c) all three witnesses present at the scene – the victim, Mr Katipa and his aunt – said that once the victim was on the ground the baby was distressed and crying;

(d) the victim agreed she was holding the baby tightly to protect her and not hand her over.

[7] In the absence of challenge, despite the Judge’s apparent doubts, I do not consider it can be said that defence of another was disproved to the criminal standard. The facts on which Mr Katipa’s belief was said to be based were unchallenged facts – for whatever reason the baby was being gripped tightly. It is

therefore not just a case of the facts as he believed them to be, but as they actually were.

[8] Those facts – an upset mother lying flat on her back on a road gripping the baby and refusing to hand her over even while she got up – provide a legitimate foundation for the type of concern Mr Katipa said he had. Indeed, the auntie had also out of concern asked the mother to pass the baby to her, but the mother refused. This provides further evidence that the facts as they existed were such that anyone might have the same type of concern that Mr Katipa said motivated his actions. That being so, there is no basis in the evidence to reject this as a reasonable possibility, particularly given he was not challenged on his evidence. Finally, as regards the defence of another, it cannot be said the force used was excessive and accordingly the defence was not negated.

[9] The appeal will be allowed. I note for the record I indicated my concern at the eventual result – male assaults female – as being a disproportionate outcome for the conduct involved. That is not a criticism as the charge was originally founded on other alleged conduct which made it an appropriate allegation. It seemed to me that once reduced to prizing open her arms and nothing else, the stigma attached to that conviction was excessive on these facts for a 27 year old man with no previous convictions, and I would have invited further submissions on that aspect.

Conclusion

_{[10] The appeal is allowed and the conviction quashed.}

Simon France J