A v Police HC Hamilton CRI 2006-419-27
[2006] NZHC 519
•17 May 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2006-419-27
A
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 11 May 2006
Appearances: D Hall for the appellant
M Curran for the respondent
Judgment: 17 May 2006
JUDGMENT OF ELLEN FRANCE J
[1] The appellant was convicted after a defended hearing of one charge of assault and one charge of recklessly operating a motor vehicle. In addition, he pleaded guilty to one charge of wilful trespass. In relation to the assault, the appellant was ordered to pay witness expenses of $280; reparation for financial loss to the complainant of $268; and $1,000 for emotional harm reparation. This was all to be paid at not less than $30 per week.
[2] The appellant was also ordered to undertake 190 hours community work. On the reckless driving charge, the appellant was disqualified from holding or obtaining a drivers licence for a period of seven months.
A V NZ POLICE HC HAM CRI 2006-419-27 17 May 2006
[3] The appellant appeals against his conviction for assault. An appeal against the reckless driving charge and that against sentence was withdrawn.
[4] The point on appeal is a short one, namely, whether there was sufficient evidence to conclude that there was an intentional act as required for the charge of assault.
Factual background
[5] In January 2005 the appellant was served a trespass notice. It related to his former partner’s address, the former partner being Ms Carse who is the mother of their child. Despite the trespass notice, there was an agreement between Ms Carse and the appellant that the appellant could phone and text her regarding their child, that he could come to the gate of the house to pick up the child. This arrangement had been working for a period of time, but the appellant had begun to be verbally abusive to Ms Carse on the telephone. So, for a few days before 2 April 2005, Ms Carse had not answered the appellant’s telephone calls.
[6] Ms Carse’s evidence was that on 2 April the appellant arrived without any arrangement for him to come around. She had seen from “caller ID” on her phone that he had been calling. She did not answer but phoned her parents to say that this had happened. She wanted her father, Mr Carse, to be there if the appellant arrived. He did arrive and she phoned her parents to tell them that. The appellant came to the door saying he wanted to see his daughter, was standing on the landing and turning the handle. Ms Carse said he was to leave or she would phone the Police. She duly did so.
[7] She was on the phone when her father arrived. The prosecution case was that Mr Carse took a baseball bat out of the car, the appellant moved towards him, took the bat off him and hit him with it. Mr Carse fell to the ground injured. The appellant got into his vehicle, backed out from where it had been parked and then - going forward - drove quite quickly in the direction of Mr Carse. Mr Carse jumped backwards.
Decision of District Court Judge
[9] In a decision delivered on 17 January 2006, the learned District Court Judge first set out the evidence. That came from Ms Carse, her father Mr Carse, Senior Constable McGillivray, and from the appellant.
[10] The Judge then described the elements of the various charges. In terms of the assault charge, the Judge said that what was required was the intentional application of force. The Judge noted that the prosecution relied upon the appellant’s strike to Mr Carse’s face causing the bleeding and injury described.
[11] On this charge, the Judge observed that the defence was that there was no assault; no contact with Mr Carse either with the bat or with any part of the appellant’s body. It was also said no injury was caused or sustained by Mr Carse. When he fell, it was as a result of refusing to let go of the bat, not any push or force.
[12] The Judge said that the evidence for the prosecution and the defence was quite different and could not be reconciled on important points. Essentially, the Judge accepted the evidence for the prosecution. In that context, the Judge placed some weight on the physical differences between the appellant and Mr Carse. The appellant is 27 years of age, works in a physical occupation and was described by the Judge as large and strongly built. Mr Carse, by contrast, is 71 years of age, frail and of slight stature. The suggestion by the appellant that he was intimidated or fearful of Mr Carse was rejected. The Judge also observed that the appellant’s description of Mr Carse and his actions and demeanour did not tally with that of Ms Carse.
[13] The Judge accepted that Mr Carse sustained the injury he described and his evidence as to how he was injured. The Judge said this was not the kind of injury that could have occurred accidentally or incidentally. The Judge also placed some weight on the fact the appellant had deliberately and purposely approached Mr Carse.
[14] Finally, the Judge was satisfied beyond reasonable doubt that the appellant knew “perfectly well” that Mr Carse was only there to protect his daughter and her children. He knew he had only to leave: he did not have to approach Mr Carse, as Mr Carse would not approach him.
Appellant’s submissions
[15] The appellant submits that it was open to the Judge to find that a blow had been struck but not to conclude that it was intentional. There was no direct evidence, or there was insufficient evidence. The appellant takes issue particularly with the Judge’s conclusion that the injury was not of a type that could have occurred accidentally or incidentally.
[16] The appellant relies on passages of evidence in the evidence-in-chief and in cross-examination of Mr Carse to which I will come shortly.
Respondent’s submissions
[17] The respondent says that it was open to the Judge to conclude that the blow was not accidental but intentional. The respondent points out that the Judge did not believe the appellant and accepted the evidence of the prosecution. From the overall context, how and when the blow occurred, the respondent says the Judge could draw the inference that the blow was deliberate.
[18] The respondent emphasises the context. In particular, the age and physical disparity between the appellant and Mr Carse and the fact that the complainant was not threatening were considered important. The respondent also emphasises the fact that the appellant was not frightened of Mr Carse; having ignored the complainant initially, the appellant then made a clear decision to go to Mr Carse who ended up on his back, on the ground, bleeding.
[19] The evidence of Mr Carse was that when he arrived at the property he took the bat from his boot and held it in his hand down low. The appellant was standing near the side of the house. Mr Carse stood by his car and yelled at the appellant to go away. He said that the appellant did not move at all but totally ignored him. Mr Carse repeated several times his request for the appellant to leave. There was no acknowledgement of his request.
[20] Mr Carse then started to move since he was getting no response from the appellant. He saw his daughter appear at the bedroom window. He then walked down away from the car and away from where the appellant was standing down towards the road. He said that he was some 14 paces, or about 14 metres, from where the appellant was standing. He said the appellant then said “I’ll teach you to wave a f… baseball at me,” and that the appellant then stopped very close to Mr Carse and said “go on use the f… thing…”. Mr Carse said he did nothing but knew when the appellant was that close that he was “in trouble”. When asked where the bat was at that stage, Mr Carse said he thought he had it in two hands because “the next instant, it was gone out of my hands and I was on the ground”. He said this was “very fast and quite strong.” The notes of evidence then record the following exchange:
Question: All right, so how did that disappear from your hands? Answer: He grabbed it. [The appellant] grabbed it out of my hand. Question: Okay.
Answer: But in one movement he grabbed it and brought it up. Um, quite, I
think with the bat, with one end of the baseball bat.
Question: What, whereabouts were you struck?
Answer: The only mark I had was, um, in here and it was a very small mark. Question: You’re pointing at the top of your nose between eyes?
Answer: No, a little bit into the side, about here. Question: Right hand side?
Answer: Yeah, yeah, yeah.
[21] The Court then clarified that the witness meant the right hand side of the bridge of his nose close up by his right eye.
[22] The prosecuting Sergeant then asked Mr Carse what had happened to him as a result of that blow. Mr Carse said he found himself on the ground feeling “very strange sort of, ah, dreamylike, dreamlike.”
[23] In cross-examination Mr Carse was asked whether the appellant had disarmed him. The answer was as follows:
He walked up to me, 14 paces, he walked up to me. He didn’t go the 6 paces to his Ute and leave, he chose to walk up to me, 14 paces, quite casually, threatening revenge, “I’ll teach you to raise a f… baseball bat at me” and then invited me to use it. That doesn’t seem to me to be a disarming situation.
[24] Mr Carse did not accept the appellant’s evidence that he had not spoken in that way. It was put to him that Mr Carse had in fact approached the appellant with the baseball bat and that the appellant disarmed him. Mr Carse replied that he just stood on his evidence and would let the Court decide which one of him or the appellant was telling the truth.
[25] The appellant then relies on the following passage in cross-examination:
Question: You’ve previously said that as he took the bat off you then part of the bat struck your nose, you said?
Answer: I think so. Question: Yes.
Answer: I think so but it’s only a guess.
Question: And that is how you say you ended up with a bleeding nose? That’s right isn’t it?
Answer: From his, sorry, yes yes.
[26] Counsel for the appellant then put to Mr Carse an earlier statement he had made to the Police about what he said had happened. He was asked whether he had previously told the Constable that the appellant took the bat off him and then hit him
in the face with his hand. When this was put to Mr Carse in cross-examination he replied,
Answer: Might have been, might have been. Take your pick. Question: We’re not here –
Answer: Could have been the bat. I did say to him it could have been the bat and he did say to me at the time, Oh yes, that’s what always happens if you have a weapon, your very liable to get it used against you.
Question: Which is it, which do you say is correct Mr Carse? Answer: What?
Question: Which do you say is actually what happened, did you say? Answer: What that he hit me with his hand or the bat?
Question: Yes?
Answer: I’ve got no idea. You can take your pick. I have the impression and judging by this very small area of bruising that a fist could hardly make a small indentation in here in a protected space, so my guess it was the baseball bat. That’s why I may have changed my thinking about it after the statement to the Police.
Question: We’re interested in what you remember, Mr Carse? Answer: What I remember is what I’m telling you.
[27] When later, appellant’s counsel went back to this issue Mr Carse responded by suggesting that counsel “look at that guy’s muscles. I mean, look at me. He’s so strong, he’s, I mean, it’s, it’s amazing.”
[28] He was then asked whether he tried to hang onto the baseball bat to which he replied that he did not know. If he had tried to do that, it was an “instinctive reaction”. He said he had no idea:
One minute the bat was in my hands and the next minute it was gone. I can give you no specific information as to whether I resisted it or not. I don’t think so. I was petrified at this stage ..
[29] It was put to Mr Carse in cross-examination that he had lost his balance and fallen over. He responded:
That’s an interesting one. I hadn’t thought of that one. Yeah, I will have to leave it to the Court to decide which version of this story is the right one.
[30] When appellant’s counsel then suggested to Mr Carse that there was no deliberate striking with the baseball bat, Mr Carse’s response was:
Maybe he can explain to us why this action was proceeded by the words approximately, “I will teach you to wave a f… baseball bat near me”.
[31] Mr Carse’s daughter did not see what happened at this point. She did confirm that when her father was standing with the baseball bat in his hands hanging down he was standing some distance away from the appellant, possibly 10 to 15 metres away. When she turned around the next thing she saw was her father lying on the ground with the appellant “sort of standing over him”.
[32] The starting point in considering the point raised on appeal is that the Judge has believed the account given by Mr Carse and that of his daughter. The issue is whether there was sufficient in that evidence to prove the blow was intentional.
[33] The relevant facts are that Mr Carse was holding the bat, probably in both hands. The appellant, having initially stood back, advanced some distance and grabbed the bat out of Mr Carse’s hands. He then brought the bat up resulting in Mr Carse falling to the ground. Mr Carse said that it was the blow from the bat which caused his bleeding nose.
[34] Having had the benefit of listening to the evidence, it was open to the Judge to conclude that the blow was intentional. While Mr Carse could have been asked to develop what he meant by the bat being “brought” up, in the context of the case as the Judge found it there was sufficient evidence to conclude the blow was intentional.
[35] I agree with the appellant that not a lot can be said to turn on the nature of the injury here but it is consistent with Mr Carse’s version of events and provided some corroboration.
[36] It is also the case that Mr Carse in some of his answers in cross-examination did not assist the prosecution case. It was open, however, for the Judge to treat that as indicative of exasperation on Mr Carse’s part and not undermining the essence of
his evidence in chief on these points. It was open to conclude this element of the offence had been proven beyond reasonable doubt.
Result
[37] The appeal is accordingly dismissed.
Ellen France J
Delivery time: 11.45am Wednesday, 17 May 2006
Solicitors/Counsel:
Crown Solicitor, PO Box 19173, Hamilton
D Hall, PO Box 19071, Hamilton
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