Infidelity, assault, discharge, appeal

An interesting case down this way involving a family, infidelity, multiple assaults when discovered, a prosecution, a discharge without conviction, and now an appeal against that discharge.

Discovering infidelity of a spouse or partner would understandably be upsetting to may people, but is violence an unacceptable response?

We have a major societal problem, especially involving men, where adverse situations result in violence against others or against themselves (like suicides ,and domestic assaults including murder).

ODT:  Appeal sought on assault discharge

The Crown has applied for leave to appeal discharges without conviction granted to a man who assaulted his best friend, wife and daughter in Queenstown last year.

The 58-year-old Central Lakes man, who has name suppression, had earlier admitted assaulting his wife, daughter and best friend on September 14, having discovered a text between his wife and friend declaring their undying love for each other.

Ultimately, Judge Brandts-Giesen found the gravity of the man’s offending was low to moderate and the consequences of convictions were out of proportion.

A problem is that “low to moderate” violence can easily have serious unintended consequences, and can easily escalate  into very serious situations.

At the time he said while on one level it was a ”nasty assault”, on another it had to be seen in context and there would be ”many people who would have done exactly what you did, even though it might be against the law to do so”.

That is alarming. He is excusing violent assault on a highly questionable “many people who would have done exactly what you did”. Many people have to deal with infidelity and relationship breakups, and the vast majority don’t lash out violently, and that sort of reaction should not be portrayed as a normal reaction by the Court.

The man left the bar when he saw the text message, but then encountered the male victim in the CBD.

He assaulted his friend and then when his daughter intervened he grabbed her around the throat, pushed her down and held her there, causing bruising.

When the defendant’s wife stepped in, he pushed her and she fell to the ground.

Ms Thomas submitted the matter ”became derailed” during the gravity assessment because Judge Brandts-Giesen appeared to consider the offending or surrounding circumstances ”unusual”.

”Infidelity of itself is not an unusual phenomenon in society.

”Nor, in my respectful submission, is the discovery of infidelity.

”Nor is it … in the context of domestic violence, or when assessing gravity, unusual that there may be actions arising … out of what’s seen as infidelity and the finding of infidelity.

”The sad reality … of domestic offending that the courts grapple with daily … is that it’s not unusual at all.

”The learned district court judge erred in … allowing mitigating factors to be taken into account … that he ought not to have.”

Having made that error, she submitted he erred further in assessing the consequences of convictions.

That will be for the appeal court to decide, if leave for appeal is granted – the High Court judge reserved his decision.

Although Ms Denton agreed infidelity was not unusual, ”in [the defendant’s] world, it was”.

The defendant had known the male victim longer than his wife, his reaction that night ”was very unusual” and described it as ”visceral”.

”He did not see the situation coming”.

Many people do not see situations like this coming, but most do not react violently.

With regard to the more serious assault on his daughter, Ms Denton said it was not ”a traditional domestic violence incident” and he had no idea whom he had grabbed until after the incident.

”He only became aware it was his daughter when she came up to him afterwards and said. ‘Dad, look at what you’ve just done to me’.”

That sounds like he was out of control. Anything could have happened – anyone could have been harmed, potentially very seriously.

People get convicted for far less – for example for things like momentary carelessness when driving. They are prosecuted for the potential risk to others, even if there is no actual harm done.

It will be interesting to see how this appeal progresses, if leave for appeal is granted.

Leave a comment


  1. High Flying Duck

     /  8th March 2018

    Interesting case. It seems the judge subscribed to the “crimes of passion” defence allowed for in France and some other countries such as the US and Canada.

    Canadian Department of Justice has described crimes of passion as “abrupt, impulsive and unpremeditated acts of violence committed by persons who have come face to face with an incident unacceptable to them and who are rendered incapable of self-control for the duration of the act.”

    The fact the assault happened directly after the man found out about the affair lends credence to this.

    • Kitty Catkin

       /  8th March 2018

      I wonder what people would be saying if the wife had discovered that her husband and her trusted, long-term friend had been betraying her in this way and lashed out at them both.

  2. Chuck Bird

     /  8th March 2018

    We do not know if the man and his wife have tried to reconcile. If they have the judges decision would make sense. A criminal conviction would not be helpful.

  3. Patzcuaro

     /  8th March 2018

    This involves an older white male presumably reasonable comfortable financially would the outcome have been similar if it had been a brown, poor, younger man?

    • Kitty Catkin

       /  8th March 2018

      Nobody can know ‘what would have happened’. It’s a pointless speculation.

  4. unitedtribes2

     /  8th March 2018

    “declaring their undying love for each other.”
    Perhaps is this point was shared with the hubby in a more controlled environment then the assault may have been avoided.

    • Kitty Catkin

       /  8th March 2018

      Well, it couldn’t have been worse than finding it out as he did, so an assault might well have been avoided.

      In the case of the lion park owner, whose name I forget, who walked in on his close friends who were also his business partners and his wife, all naked in bed and who was expected to believe that ‘it’s not what it looks like’ one could have some sympathy for him when he lost it.

  5. artcroft

     /  8th March 2018

    Andrew Little has gotten underway with disestablishing the NZ justice system with a hiss and a roar.

    • duperez

       /  8th March 2018

      Is his ‘disestablishing the NZ justice system’ as comprehensive as your disestablishing of rational comment about what he is doing?

  6. Pickled Possum

     /  8th March 2018

    * male assaults female a maximum penalty of two years’ prison.

    * a person arrested for breaching a protection order under the Domestic Violence Act 1995 is required to be detained in police custody for 24 hours

    And then there are men who think they will get off scott free in some judges court room.

    It was the third time Judge Cunningham has been over-ruled after granting a discharge without conviction.

  7. Chuck Bird

     /  8th March 2018

    Judge Cunningham is a shocker but judges cannot be sacked. The other point you raise is sexist legislation. In these days of equality if a male assaults his partner the penalty should be the same as if a woman assults her partner..

    • Kitty Catkin

       /  8th March 2018

      That’ll be the bloody day, Chuck.

      If a woman assaults her husband and he calls the police, who is the one who is ordered to leave the house and not let to return until whatever time ? The aggressor or the victim ? No prizes for guessing the right answer.

  1. Judge ‘misguided’ over discharge without conviction, overturned | Your NZ

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