Dad wins appeal over judge's assault case gaffe

James Louis Mason. Photo / Simon Baker

A Christchurch man has had his conviction for assaulting his 4-year-old son quashed on a technicality.

James Louis Mason, 53, was found guilty at a Christchurch District Court trial last year of punching his son in the face and pulling his ear in December 2007. He was acquitted on two other assault charges.

Mason, a musician, denied all charges but said he pulled the child's hair and flicked his ear to stop him going back into a dangerous situation on his bike.

He was sentenced to nine months' supervision and an order to undertake programmes as directed by the Probation Service.

Mason's was a high-profile case because it was one of the first to go through the courts after the anti-smacking law change.

That removed the defence of "reasonable force" which could previously be used to get off charges of hitting children.

He unsuccessfully appealed his conviction at the Court of Appeal before taking his case to the Supreme Court.

In its decision released yesterday, the Supreme Court said Mason's conviction must be quashed as two counts of assault had been included in one charge.

"The special nature of the present case is the distinctly different nature and seriousness of the two alleged assaults and the practical possibility of a particular defence for one of them only," it said.

The inclusion denied Mason the chance to clearly defend the act of ear-pulling.

During the original 2009 trial, the district court judge told the jurors they needed only to be satisfied he had done one of those two acts to find him guilty.

However, he did not tell them they had to unanimously agree on which act it was - either pulling the ear, the punch or both.

Yesterday's Supreme Court decision said it was possible that some jurors found him guilty on the ear pulling while others did so for punching.

It said separate charges should have been laid for each action.

Later in the day, the instigator of the removal of the "reasonable force" defence, Sue Bradford, said the smacking law was irrelevant to the Supreme Court decision and she would be concerned if opponents used it to lobby against the legislation.

Mr Mason's lawyer, Greg King, also said the decision was not related to the anti-smacking law but was simply a matter of court procedure.

He told Radio New Zealand he was pleased the matter was now behind Mr Mason.

Family First head Bob McCoskrie said the case should ring warning bells for parents about the way police were applying the law.

When the case was appealed to the Supreme Court, the Crown admitted there was a miscarriage of justice in the case.

It has not sought a retrial.

- ADDITIONAL REPORTING: NZPA