Review under way after protester kicked in head wasn’t told of court appeal

A review of court processes has been ordered after a protester kicked by a security guard wasn’t told the man was appealing.

Hal October, 63, pleaded guilty to assaulting Gal Ben Zur at the Kennedy Point Boatharbour Limited construction site on Auckland’s Waiheke Island in July 2021.

The security guard – who has four previous convictions for assault, ranging from 17 to 36 years ago, was convicted of assault in 2022 and ordered to pay $1330, including $400 to Ben Zur.

But he appealed that ruling and last week was discharged without conviction by High Court Justice Geoffrey Venning.

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However, Ben Zur said he was not notified of either the appeal hearing nor the decision.

The 2021 incident unfolded after protesters climbed onto a pontoon within the marina construction zone.

Ben Zur was with Protect Pūtiki – a group who call themselves protectors because they see their role as kaitiaki, or guardians of the area.

They were protesting against the Hauraki Gulf marina, saying mana whenua were not adequately consulted and kororā, little blue penguins, could be harmed by the construction.

In his decision issued on February 28, Justice Venning wrote that after a short scuffle between Ben Zur and October, Ben Zur fell into the water.

As he tried to climb back onto the pontoon, October stepped forward and kicked him in the side of his head. He fell into the water again.

When Ben Zur climbed back onto the pontoon again, October placed him in a headlock.

Justice Venning said Auckland District Court Judge June Jelas had failed to consider the full context of the incident.

The summary of facts and video of the altercation showed “provocative and aggressive actions by a group of protesters directed towards the security officers”, Justice Venning wrote.

“Taken overall, a conviction would be out of all proportion to the gravity of the offending.”

A spokesperson for the Chief High Court Judge said the case had identified a gap in the process and a review was under way to improve the procedures in place around victim notification.

Victims had a right to be notified of an appeal and any outcome of that appeal, which could be provided “by investigating authorities or, as the case requires, by members of court staff, or the prosecutor”, the spokesperson said.

”After looking into this matter, the registry has ascertained that a victim advisor was not assigned to this case in the District Court, which meant that the victim was not notified by the Court registry of the appeal hearing or the outcome. This is regretted.”

A police spokesperson said police would not be applying for leave to appeal Justice Venning’s decision.