A v Police HC Auckland CRI 2007-404-184
[2008] NZHC 169
•21 February 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2007-404-000184
BETWEEN A
Appellant
ANDPOLICE Respondent
Hearing: 26 November 2007
Appearances: O E Harold for Appellant
M S Gatland for Respondent
Judgment: 21 February 2008
JUDGMENT OF COOPER J
This judgment was delivered by Justice Cooper on
21 February 2008 at 2.00 p.m., pursuant to r 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland.
Copy to:
O Harold, PO Box 27 290, Mt Roskill, Auckland
A V POLICE HC AK CRI 2007-404-000184 21 February 2008
[1] The appellant was convicted of common assault under s 9 of the Summary
Offences Act 1981. He was ordered to pay Court costs of $130 and reparation of
$200. He now appeals against his conviction alleging that the learned District Court
Judge erred when he rejected the appellant’s claim to have acted in self defence.
Background
[2] The charge arose out of an altercation that took place in commercial premises ostensibly about the amount of a bill that had been rendered to an acquaintance of the appellant, a Ms Marie. The invoice was for the repair of a motor vehicle. The appellant attended the premises with Ms Marie and indicated that the bill would be disputed.
[3] The Judge found that the complainant (Mr Blank) had been in the shop with his two children, working in the parts department of the business. The appellant and Ms Marie entered the shop and began to discuss the amount of the bill with the complainant.
[4] When the appellant indicated that the bill would not be paid, the discussion became angry. The complainant came from behind the counter where he had been and moved towards the appellant and Ms Marie. At this stage, the service manager of the business, a Mr Brokavich was coming upstairs from the ground floor below.
[5] When the complainant came out from behind the counter he indicated that if the bill was to be disputed, he was going to take from the car parts that had been employed in repairing it. The Judge found that the discussion had become “pretty heated”. The appellant had begun gesturing with his hands and pointing his finger close to the complainant’s nose. The complainant pushed the appellant’s hand away.
[6] According to the complainant, he was punched in the chin, an upper cut which caused him to move backwards. He did not retaliate. He dialled 111 for the police, who arrived shortly afterwards. Mr Brokavich saw the appellant shaking his finger near the complainant’s nose, but did not see the appellant’s hand being
knocked out of the way. He saw the appellant throw what he assumed was a punch, but he did not see a closed fist.
[7] According to the appellant, the complainant had grabbed his finger and twisted it. The Judge declined to make a finding that that had occurred. He did, however, accept that the appellant’s arm had been pushed down, though not in such a way as to justify his subsequent reaction. On the other hand, the Judge accepted the complainant’s evidence that he had been punched with a closed fist. The appellant had given evidence that he had used an open hand to hit the complainant. The Judge’s preference for the complainant’s evidence was simply expressed on the basis that he had “no reason to doubt” the complainant on that issue. He added that it was hard to accept that someone “would give a round house punch to someone and have his hand open”. Although I do not think that it is central to the issues raised on the appeal, that finding was criticised by Mr Harold, as not being justified on the evidence. However, although it was not referred to by the Judge, the finding that a closed fist was used appears to be consistent with evidence that had been given by Mr Brokavich who, although he did not see the punch landed, described the way in which the appellant’s shoulder was moved prior to the strike, and he had also seen the complainant’s head recoil back when the strike occurred.
[8] The issue of self-defence was not raised in relation to the appellant himself, despite the evidence he gave about his finger being twisted back. Rather, counsel in the District Court maintained that the appellant had had an honest belief that his friend Ms Marie was under threat of an imminent assault and had struck the complainant accordingly. The appellant had given evidence to that effect, and the same issue was advanced on the appeal.
The appeal
[9] The main contention made in the appeal is that the Judge adopted the wrong approach to deciding what the circumstances were as the accused believed them to be. Section 48 of the Crimes Act 1961 provides:
Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.
[10] Mr Harold submitted, quite correctly, that in ascertaining the circumstances as the accused believes them to be it is necessary to apply a subjective approach. Of the numerous authorities to that effect, he referred to Baragwanath J’s recent decision in R v Lua (HC AK CRI 2006-092-4336, 24 April 2007). He referred also to the Court of Appeal’s decision in R v Thomas [1991] 3 NZLR 141 for the proposition that it does not matter if the defendant’s belief is mistaken, so long as it is an honestly held belief. It is clear law also, that once the issue of self-defence is properly raised, then the Crown must prove beyond reasonable doubt that the defendant did not act in self-defence or in defence of another.
[11] Here, counsel referred to two parts of the District Court Judge’s decision. First, at [4]-[5]:
[4] Mr Tennet has argued self defence, essentially, as I understand it, defence in relation to a lady, Ms Marie, who was with him and who the evidence suggests was holding the keys to a vehicle which Mr Blank was wanting to go to to remove certain parts.
[5] The argument is self-defence, on the basis that he had a belief and it was an honest belief that she was under threat or attack and also he is arguing that it was in defence to having his finger twisted back by Mr Blank. He refers to the agony of the moment, reasonable reaction and, in the circumstances, what he believed the circumstances to be. His evidence was that he believed Mr Blank was going to assault Ms Marie.
[12] Then, Mr Harold referred to the discussion at paragraphs [23] to [30] of the decision:
[23] Moving to Ms Marie, I except that Mr A was aware, it seems from the evidence, that Ms Marie had the key. It may have concerned him that Mr Blank was going to take the key or ask her for it or someway get it. Again, I cannot accept that Mr A would have believed in all the circumstances that Mr Blank was going to assault Ms Marie, that he was going to attack her in anyway. His children were present at all times.
[24] There was a heated argument. People dispute bills everyday. Mr A , with his experience in the business, would have been aware of this and also aware that people whose bills are challenged do not punch other people, especially older people and women, when an account is in dispute. It is quite simply not the way that people normally react and there was no
evidence that he knew something about Mr Blank which would suggest that punching was going to happen in this case.
[25] After he was hit, one would perhaps have expected Mr Blank to have reacted had he been the initial aggressor. The evidence is clear that once he had been hit, he walked away and called the police.
[26] There is no evidence that he made a move to do anything to Mr A at that stage. Both he and Mr Brokavich gave their evidence in a straightforward manner. I have no reason to disbelieve either of them. Their evidence was reasonably consistent with statements that were made to the police. Some details on Mr Brokavich’s evidence were different from the statement. There is no motive, I can see, for the concocting of any evidence by them.
[27] As far as Mr A is concerned, he is clearly a person who believes that querying the bill was something he had to do for his friend, new friend Ms Marie and was doing it to the best of his ability. When he was not as effective in reaching resolution as he perhaps had hoped, the anger got to him and he, for whatever reason, punched Mr Blank.
[28] I accept Mr Blank’s evidence that it was with a closed fist. I have no reason to doubt it. It is hard to accept that someone would give a roundhouse punch to someone and have his hand open.
[29] Mr A is a person of some experience and gave the impression, certainly, in his evidence from what he said that this was not the first altercation he has had.
[30] As I said at the beginning of the evidence the charge has to be established beyond reasonable doubt and I have no doubt that the charge has been made out. Accordingly, I find Mr A guilty.
[13] Mr Harold submitted that effectively the Judge had applied an objective, rather than a subjective test for the purpose of ascertaining what the appellant believed the circumstances to be. Thus, in the passages quoted, the Judge had referred to the facts that the complainant’s children had been present, an assumption that the accused would be aware that in most cases of disputed bills business people do not punch the customers, especially if they are older people or women, the fact that the appellant would not have known anything about the complainant to suggest that that was going to assault Ms Marie, the fact that the complainant had not reacted after he had been hit, the manner in which the prosecution witnesses had given their evidence, the absence of motive for the prosecution witnesses to concoct evidence, the fact that the appellant had punched the complainant and the impression that the appellant had given the Judge that it was not the first altercation he had been in.
[14] Mr Harold went on to submit that some of those issues were not relevant to what was in the appellant’s mind at the time that he hit the complainant. He is undoubtedly right about that. However, I do not accept that the District Court Judge relied on all of the factors to which Mr Harold pointed for his decision as to the circumstances that the appellant believed to exist at the relevant time.
[15] Plainly, the Judge recognised that the appellant had been concerned about Ms Marie, but at [23], he made the crucial finding that he could not accept that the appellant “would have believed in all the circumstances that Mr Blank was going to assault Ms Marie, that he was going to attack her in any way”. It was in that context that he referred to the presence of the complainant’s children, the fact that it is not uncommon for there to be disputes about bills, but that the disputes very rarely descend to punching, and the fact that there was no evidence to suggest that the appellant knew something about the complainant that would have caused him to apprehend that Ms Marie was about to be punched by the appellant.
[16] I do not accept that process of reasoning shows that the Judge was wrongly applying an “objective” test, as opposed to a subjective one. At this stage of analysing the defence, the Judge’s task was to make a finding of fact as to what the appellant believed the circumstances to be. An assertion by the appellant as to what he believed those circumstances to be is not necessarily to be taken at face value, or accepted uncritically. A defendant’s mere assertion as to his state of mind cannot be enough.
[17] In the present case, the Judge did not accept that the appellant believed the circumstances were such as to cause him to apprehend an imminent assault on Ms Marie. He arrived at that conclusion by looking at the circumstances as they existed and, having regard to those circumstances, he apparently did not find the appellant’s assertion as to his state of mind credible.
[18] That was a conclusion that was open to the Judge and in reaching it I do not consider that he committed any error. In particular, I do not consider that it was wrong to take into account the actual circumstances pertaining for the purpose of analysing the appellant’s assertion as to his state of mind at the time.
[19] The Judge’s conclusion meant that the prosecution had shown beyond reasonable doubt that self-defence was not available and it was unnecessary for there to be any further analysis of whether the force used was reasonable in the circumstances.
[20] Accordingly, the appeal is dismissed.
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