ROSS EASTON BARBER v NEW ZEALAND POLICE [2020] NZSC 111

ROSS EASTON BARBER v NEW ZEALAND POLICE [2020] NZSC 111 [15 October 2020]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT/PERSON UNDERTHE AGE OF 18 YEARS WHO APPEARED AS A WITNESS OR NAMEDWITNESS UNDER 18 YEARS OF AGE PROHIBITED BY S 204 OF THECRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 61/2020[2020] NZSC 111BETWEEN ROSS EASTON BARBERApplicantAND NEW ZEALAND POLICERespondentCourt: Glazebrook, O'Regan and Williams JJCounsel: Applicant in personJ A Eng for RespondentJudgment: 15 October 2020JUDGMENT OF THE COURTThe application for an extension of time to apply for leave toappeal is dismissed.____________________________________________________________________REASONSIntroduction[1] Mr Barber was convicted on one charge of assaulting a child (who was at thetime of the assault aged around nine).1 He was sentenced to 100 hours of communitywork and ordered to pay $1,000 in emotional harm reparation.21 New Zealand Police v Barber DC Palmerston North CRI-2013-054-000585, 21 March 2014(Judge Atkins).2 New Zealand Police v Barber DC Palmerston North CRI-2013-054-000585, 30 May 2014(Judge Atkins).[2] His appeal to the High Court against conviction and sentence wasunsuccessful.3 He seeks leave to appeal to this Court against the High Court decision.[3] Mr Barber's application to this Court is some six years out of time. We willtreat his application for leave as also including an application for an extension of timeto make his leave application.Background4[4] The assault occurred when the child was visiting Mr Barber on his farm. Thechild had become upset and had walked off. Mr Barber followed. The child ended upon the ground. Mr Barber put his foot on the child's chest and also pulled on his armto bring him to his feet, allegedly taunting him at the same time. The incident wasvideoed by Mr Barber. He said this was for the purpose of showing it to the childwhen he calmed down.[5] The video came to light some five years after the incident and the charges werebrought. The child was interviewed. He remembered the incident but not the details.At trial the child's memory was somewhat better. The High Court said that, standingon its own, the child's evidence was possibly not of a quality to sustain a convictionbut his account was firmly corroborated by the video record.[6] Mr Barber was represented at trial. The child was cross-examined but therewas little headway to be made given his general lack of recall. Mr Barber did nottestify but he had been interviewed by police prior to trial and this video interview wasplayed.Decisions below[7] The District Court analysed the reasonableness of Mr Barber's conduct interms of s 59 of the Crimes Act 1961.5 The Judge concluded the force was not of a3 Barber v New Zealand Police [2014] NZHC 2057 (Simon France J) [HC judgment].4 This background is taken from the High Court judgment, above n 3, at [2]–[6].5 As it was before the Crimes (Substituted Section 59) Amendment Act 2007.kind that could be considered reasonable. Nor could it be interpreted as being by wayof correction.6[8] On appeal, the High Court considered that Mr Barber's complaints about thefindings of the trial Judge were unsustainable in light of the video.7 His sentenceappeal was also without merit, given the context and purpose of the offending and thefact of three previous convictions for assault on a child.8This application[9] Mr Barber seeks to raise similar issues before this Court as he did in theHigh Court. He asserts that the High Court misunderstood the evidence and also seeksto raise other issues he says have arisen because of what he contends was the wrongfulconviction.Our assessment[10] As noted above, the application is out of time. No explanation has been givenfor the delay in seeking leave.[11] In addition, the proposed appeal does not meet the criteria for leave to appealand certainly does not meet the test of exceptional circumstances for a direct appeal tothis Court.9[12] The matters Mr Barber seeks to raise are all related to the particular facts inthis case. No matter of general or public importance arises.10 Nor do any of the issuesMr Barber seeks to raise suggest any risk of a miscarriage of justice.116 HC judgment, above n 3, at [7].7 HC judgment, above n 3, at [10].8 At [8] and [16].9 Senior Courts Act 2016, s 75.10 Senior Courts Act, s 74(2)(a).11 Section 74(2)(b).Result[13] The application for an extension of time to apply for leave to appeal isdismissed.Solicitors:Crown Law Office, Wellington for Respondent