Buchan v Police
[2019] NZHC 3006
•19 November 2019
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2019-476-000011
[2019] NZHC 3006
BETWEEN REID ALEXANDER BUCHAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
CRI-2019-476-000012 BETWEEN
CHRISTOPHER ROBERT RAMSAY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 October 2019 Appearances:
K C Beazley for the Appellant Buchan C M Ruane for the Appellant Ramsay H Bennett for the Respondent
Judgment:
19 November 2019
JUDGMENT OF NATION J
Introduction
[1] In a Judge alone trial on 1 April 2019, Reid Buchan and Christopher Ramsay were convicted as parties under s 66(2) Crimes Act 1961 of injuring with intent to injure by Judge Roberts. Judge Roberts sentenced both men on 31 July 2019 to four months’ community detention, 120 hours’ community work and reparation of $877.50. They both now appeal conviction and sentence.
BUCHAN & RAMSAY v POLICE [2019] NZHC 3006 [19 November 2019]
Facts
[2]Mr Buchan and Mr Ramsay were both aged around 36 at the relevant time.
[3] The offending arose from a Halloween party in Twizel on the evening of 11 November 2017. The exact details of the offending, and indeed the many other events of the night, were contested and subject to differing accounts from witnesses. There were four distinct incidents discussed at trial, likely occurring within about a 45- minute period in the early morning of 12 November 2017:
(a) At the party on Omahau Crescent, there was a confrontation between Mr Buchan and Mr Fleming. It appears Mr Buchan was arguing with Mr Fleming’s partner. Mr Fleming punched or pushed Mr Buchan, and Mr Buchan punched Mr Fleming at least once. There is no evidence Mr Ramsay was involved. It appears others then involved themselves in the fight and, in the words of one witness, “all hell broke loose”. Two of the people involved were two Tongan men, Harvard Fale and Petelo Pouhila.
(b) Nearby, friends or associates of Mr Buchan and Mr Ramsay were knocked over and injured by a car containing Mr Fale and Mr Pouhila. There was no evidence either Mr Buchan or Mr Ramsay were involved in this incident, although they became aware of it shortly afterwards and attended the scene.
(c) Mr Buchan and Mr Ramsay were driven by a sober driver to Rata Road. They entered a house and confronted the occupants before leaving. They were looking for Mr Fale and Mr Pouhila. The car that was involved in hitting people was seriously damaged on their departure.
(d) Mr Buchan and Mr Ramsay were driven back to where others were gathered around the people who had been hit by the car. On Mackenzie Drive there was a confrontation, in which the Police allege Mr Buchan and Mr Ramsay together assaulted Mr Fleming.
[4]It was this last assault on Mackenzie Drive on which the Police based its case.
District Court conviction decision
[5] A large part of Judge Roberts’ conviction decision summarised and attempted to clarify the significant amount of evidence he had heard. Ultimately, the Judge accepted evidence that Mr Buchan and Mr Ramsay punched and kicked Mr Fleming, including while he was on the ground, on Mackenzie Drive. While he acknowledged that his focus had to be on the evidence on that specific incident, he considered the other incidents at and around the party as a relevant backdrop.
[6] The Judge considered the injuries Mr Fleming sustained would not have occurred during the earlier altercation at the party on Omahau Crescent. He accepted Mr Fleming’s evidence on this point, contrary to Mr Buchan’s evidence, that he punched Mr Fleming more than one at the Halloween party. However, later in the judgment the Judge said:
There is an evidential discrepancy of significance, the reality is that it matters little where Fleming sustained his injuries, the fact is he did… For reasons I will develop I am satisfied that Fleming’s injuries, however, were inflicted roadside on Mackenzie Drive.
[7] On the Judge’s reading of the evidence, Mr Ramsay and Mr Buchan’s anger was directed at Mr Fale and Mr Pouhila. Their anger at Mr Fleming appeared to be because they saw his actions as the catalyst of the bigger conflict.
[8] The Judge considered that, on Mackenzie Drive, it was Mr Ramsay who threw the first punch, knocking Mr Fleming to the ground, but he said the evidence of various others pointed to both Mr Ramsay and Mr Buchan, who had been together immediately before the attack, then continuing to hit Mr Fleming while he was on the ground. The Judge incorrectly recorded that two witnesses saw both punching and kicking, when only one witness mentioned kicking.
[9] Using the language of s 66(2) Crimes Act to confirm the appellants’ liability as parties, the Judge had “no hesitation concluding there was a common intent, an intent to assault” Mr Fleming, along with Mr Fale and Mr Pouhila. He found:
…abundant evidence attaching to the unfolding evidence to confirm the affliction of such injuries and their seriousness was recognised by both as a
probable consequence of the common purpose each knowing it was a real or substantial risk, an injury of real seriousness would occur.
Principles on appeal against conviction
[10] Section 232 Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.1
[11] Per the recent judgment of the Supreme Court in Sena v Police, the approach to this appeal is by way of rehearing, consistent with the judgment in Austin, Nichols & Co Inc v Stichting Lodestar.2 The Court explained further:3
If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed. But, to the extent that Mr Jones was suggesting that the role of an appellate court is to consider the issues de novo as if there had been no hearing at first instance, then we do not agree. Since it is an appeal, it is for the appellant to show that an error has been made. Further, in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had. Because of this, where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “‘customary’ caution”.4
Submissions
Submissions for Mr Ramsay
[12] Mr Ramsay, through counsel’s submissions, acknowledged there was evidence of a common purpose following the car incident and the common purpose was assault. However, Mr Ruane for Mr Ramsay submitted that all related to the pursuit of the two Tongan men. Mr Ramsay acknowledged, through counsel, that he took part in an assault on Mr Fleming on Mackenzie Drive but submitted it was effectively a separate
1 Criminal Procedure Act 2011, s 232(4).
2 Sena v Police [2019] NZSC 55; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
3 Sena v Police, above n 2, at [38].
4 Austin, Nichols & Co Inc v Stichting Lodestar, above n 2, at [13].
and new incident. Counsel submitted Mr Ramsay had been involved in a one-on-one fight in which blows were exchanged. Mr Ruane acknowledged it would have been appropriate for Mr Ramsay to have been convicted for fighting in a public place or common assault.
[13] Mr Ruane identified a number of issues that he submitted affect the validity of a conviction for injuring with intent to injure.
[14] Mr Ruane said the Judge conflated the various incidents that occurred over the night, without clear identification of what each appellant did during the Mackenzie Drive attack. He took issue with the Judge’s comment that “it matters little where Fleming sustained his injuries”, stressing that Mr Ramsay was not involved in the fight that occurred initially at the Halloween party at Omahau Crescent. Mr Ruane said it was significant that Mr Fleming did not give evidence about where his injuries were sustained.
[15] Mr Ruane submitted that the evidence relating to the nature of the Mackenzie Drive attack was unclear. Primarily, Mr Ruane submitted the neighbour’s evidence that she saw kicking was uncorroborated, contrary to the Judge’s comments. Counsel submitted her evidence could be discounted, given she also said the figures looked like shadows, and that she could not make out any facial features or recognise anyone. No other witness, including Mr Fleming, mentioned kicking. Another witness expressly denied there was “stomping or anything, just fists”. Mr Fleming’s evidence of the assault identified Mr Ramsay as punching him once around the mouth, and that there were a number of other punches, but he was otherwise unspecific. Mr Ruane submitted that, even if kicking could be established, on the neighbour’s evidence it could not beyond reasonable doubt be attributed to the appellants.
[16] Mr Ruane submitted that, without reliable evidence that the assault involved kicking, a conviction for injuring with intent to injure could not be sustained.
[17] Counsel also suggested there was at least a potential error in the way the Judge had referred to Mr Buchan’s comments to the Police when interviewed and the way he may have used Mr Buchan’s statements as evidence against Mr Ramsay. Mr Ruane
referred to the fact the Judge had not clarified that Mr Buchan’s statements to the Police, per s 27(1) Evidence Act 2006, were inadmissible against Mr Ramsay as a co- offender.
Submissions for Mr Buchan
[18] When interviewed by the Police, Mr Buchan denied assaulting Mr Fleming on Mackenzie Drive. Ms Beazley, for Mr Buchan, submitted there was no clear evidence to support the Judge’s finding on the specific roles that each appellant played in the confrontation on Mackenzie Drive.
[19] Ms Beazley highlighted Mr Fleming’s evidence that he did not see Mr Buchan while he was being attacked on Mackenzie Drive. Mr Fleming said he knew Mr Buchan “was around but [he] didn’t actually physically see him”.
[20] Ms Beazley repeated Mr Ruane’s submissions relating to inadequate evidence of kicking, and the submission that injuring with intent to injure was thus too serious a charge.
[21] Ms Beazley submitted the evidence did not support a conclusion that Mr Buchan and Mr Ramsay formed a common intention to attack Mr Fleming.
[22] In a Police interview, Mr Buchan had accepted he punched Mr Fleming at Omahau Crescent but denied taking part in the assault on Mackenzie Drive. Mr Buchan has not been charged in relation to the punch or punches at Omahau Crescent. Ms Beazley thus submitted that the evidence did not support convicting Mr Buchan for injuring with intent to injure.
Submissions for the Crown
[23] Ms Bennett, for the Crown, submitted there was ample surrounding evidence to show that from the outset, based on witness accounts, Mr Buchan and Mr Ramsay were acting in concert when they embarked on a course of events to locate Mr Pouhila and Mr Fale, and subsequently Mr Fleming. She submitted the prosecution successfully proved:
(a) there was a shared understanding or agreement between them to locate and attack Mr Pouhila and Mr Fale if they found them, and Mr Fleming once they located him at Mackenzie Drive;
(b) they agreed to help each other and participate to achieve their common unlawful goal, which was evidenced by their pursuit of Mr Pouhila and Mr Fale to Rata Road, and their pursuit of Mr Fleming on Mackenzie Drive;
(c) both Mr Buchan and Mr Ramsay attacked Mr Fleming on Mackenzie Drive; and
(d) they intended that the offence that eventuated be committed or knew that the offence was a probable consequence of carrying out the common purpose. Their intention could be inferred from their pursuit of Mr Fale, Mr Pouhila and Mr Fleming for retribution.
[24] Ms Bennett pointed to the evidence of Nicholas Preston-Marshall, Daniel Joseph Smith and Kushla Ann Marie Lindsay, who all said they saw both Mr Buchan and Mr Ramsay attacking Mr Fleming on Mackenzie Drive. Ms Bennett acknowledged that the Judge was mistaken to say Mr Preston-Marshall also witnessed kicking.
[25] Ms Bennett submitted that, even though the Judge erred in saying Mr Preston- Marshall witnessed kicking, it was not an error which would amount to a miscarriage of justice because:
(a) both defendants attacked Mr Fleming, with multiple punches thrown;
(b) the neighbour’s evidence of seeing kicking was detailed and when challenged she said she was sure. An appellate court should not intervene when it comes to observation of witnesses that the trial Judge had the opportunity to scrutinise, especially relating to credibility and reliability;
(c) even if there was no finding of fact that either Mr Ramsay or Mr Buchan kicked Mr Fleming, Mr Fleming’s injuries, as a result of a joint attack, would support a charge of injuring with intent to injure;
(d) Mr Fleming’s injuries could not be attributed to the more minor altercation at Omahau Crescent; and
(e) on all the evidence, the Judge was entitled to reject Mr Buchan’s explanation that he was not involved in the attack on Mackenzie Drive.
[26] Ms Bennett submitted there was no foundation to Mr Ruane’s submission that the Judge improperly referred to Mr Buchan’s police interview when considering Mr Ramsay’s role in the offending. She said the Judge did no more than refer to the interview to establish Mr Buchan’s involvement in the common purpose, not in connection with Mr Ramsay.
[27] Ms Bennett submitted there was no error which led to a miscarriage of justice which would warrant overturning the convictions for injuring with intent to injure.
Analysis
[28] Mr Ramsay and Mr Buchan were convicted of injuring with intent to injure, under s 189(2) Crimes Act. The maximum penalty is five years’ imprisonment. Per s 2 Crimes Act, “to injure” means to cause actual bodily harm. As discussed in Adams on Criminal Law:5
As to actual bodily harm, all that is necessary is that there should be a hurt or injury calculated to interfere with the health or comfort of the victim. It need not be an injury of a permanent character; nor need it amount to what would be considered a grievous bodily harm. The bodily harm may be internal or external, it need not be permanent or dangerous. It need not amount to maiming, disfigurement, or disablement but it must be more than merely transitory and trifling.
[29] As set out by Mr Ruane, the Judge was required to find, beyond reasonable doubt, that:
5 Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [CA2.15.01].
(a) there was a common intention to prosecute an unlawful purpose, namely an assault, and to assist each other in that;
(b) injuring with intent to injure was known to be a probable consequence of the prosecution of the common purpose;
(c) there was an assault carried out by one or other of the appellants;
(d) Mr Fleming was injured in this assault (and it was not sufficient to be satisfied that the injuries may have occurred in the earlier incident at Omahau Crescent); and
(e) there was an intent to injure (and not merely to fight or assault).
[30] Although those elements included what the Police had to prove for Mr Ramsay to be guilty as a party to the offence of injuring with intent to injure, Mr Ramsay would also have been guilty of that offence if the evidence established that he was the person who actually injured Mr Fleming through hitting and/or kicking him.
[31] Although the Judge said that “it matters little where Fleming sustained his injuries”, the Judge went on to say that, for reasons he developed, he was “satisfied that Fleming’s injuries, however, were inflicted roadside on Mackenzie Drive”.
[32]Later in his decision, the Judge said:
Aside from the injured the [six] persons the evidence indicates that Fleming was on the ground at some point back in Mackenzie Drive. His injuries are consistent with an elevated assault, he lost a tooth, his left eye is blackened. Fleming’s evidence is that he was struck by Ramsay.
[33] The Judge referred to both Mr Buchan and Mr Ramsay having an intent to get even after the car was damaged. He decided:
Arrival at the scene resulted in an immediate attack on Fleming by both Reid and Buchan. This was never going to be an even contest. Fleming was certain, at that juncture, to get the bash and that was the intent, it happened.
[34]The Judge found:
… abundant evidence attaching to the unfolding evidence to confirm the affliction [sic] of such injuries and their seriousness was recognised by both as a probable consequence of the common purpose each knowing it was a real or substantial risk, an injury of real seriousness would occur.
[35] Mr Ramsay, through his counsel, accepted the evidence established he assaulted Mr Fleming at that point but sought to characterise this as participating in a fist fight. There was ample evidence on which the Judge could have reasonably concluded that the assault was not of that nature.
[36] Mr Fleming said he had been talking to Ms Lindsay on Mackenzie Drive after people had been hit by the vehicle. He said Ms Lindsay was saying to him that what happened with the car had not been his fault, that he was giving her a hug and he “just sort of just got attacked”. He turned around and saw Mr Ramsay punching him. It was around the mouth area. Most of the hits came to his left side and they were “relatively forceful”. He said he was rocked and shocked by it, that there were “a lot of hits to the head”, that he saw stars and was thrown around. He said that, after the first few strikes, he went to the ground, that he remembered trying to crawl away and just repeatedly still being struck. He remembered Ms Lindsay screaming “just leave him alone” and jumping on him. He said, after she did this, “they sort of backed off”. Mr Fleming ran to the Police station. When cross-examined, Mr Fleming again said he had been giving Ms Lindsay a hug when Mr Ramsay ran or walked up and punched him. He again referred to his receiving a lot of punches to the head at quite a quick rate and seeing stars.
[37] Ms Corlette, who was staying in a holiday house at 299 Mackenzie Drive, was woken by the commotion at around 2.00 am, got up and looked out her bathroom window to see what was happening. She was independent of the people who had been involved in the various altercations that night. She said she heard a lot of shouting, about eight people involved, in what she initially described as a fight. Under cross- examination she described someone being on the ground, someone kicking the person on the ground and other people trying to intervene and stop the fight. She said, when this was going on, she also heard yelling “stop it, stop, get away from him”. Her evidence as to what she heard was consistent with the evidence of Ms Lindsay as to what she said when she was trying to protect Mr Fleming.
[38] Ms Corlette was clear that she had seen someone kicking the person on the ground. She had not seen punches being thrown. She said the kicks were to the body, meaning to the body as a whole. She described the kicking motion as being “like with a full swing, like you would kick a soccer ball”.
[39] Ms Corlette acknowledged that what she observed happened “about two lamp posts away” from where she was watching. She said she could not identify the faces of people involved. She said she “saw a dark figure kicking someone on the ground”. She acknowledged that it was night time and dark but said there were street lights on and also car lights. She could not remember which way the car lights were pointing.
[40] Ms Corlette’s response to what she says she saw was to go outside the house with her father to make sure it was not going to escalate and to see if they needed to send for help. When they went outside, the physical fighting had stopped.
[41] Reading Ms Corlette’s evidence, I consider it could reasonably have been accepted by the trial Judge as evidence that, at the time Mr Fleming was on the ground, he was kicked by one of his assailants. The evidence on its own did not identify who that assailant was.
[42] Nicholas Preston-Marshall’s evidence was taken before the Registrar before the trial. He described himself as a builder and volunteer fire brigade member in Twizel. He had been at the Halloween party earlier in the night. His evidence indicated he had not been involved physically in the earlier altercations. He had seen Mr Fale knock someone out and this person get hit with a car when he was lying on the ground. He said he rang the Police and went to help the person who was on the ground.
[43] Mr Preston-Marshall later saw Mr Fleming hanging around and saw “two occupants of the car sort of had a go at [Mr Fleming]”. He said he did not know Mr Fleming well. He said, at the time, Mr Fleming had just been looking on at what was happening. He said the people in the car had been Mr Ramsay and a person who he knew as Reid. Reid would have been Mr Buchan. He said the car was being driven by Dan Smith, a sober driver. He said he saw all three exit the vehicle and saw Mr
Fleming being attacked for maybe about 20 seconds, being punched and being hit on the ground. He said the people hitting Mr Fleming were Mr Ramsay and Mr Buchan. The driver, Mr Smith, was just “standing back”.
[44] Under cross-examination, it was suggested he was unclear as to whether he had seen actual contact between the two assailants and Mr Fleming. Mr Preston-Marshall was clear he had seen punches being thrown.
[45] I am satisfied that, on that evidence, there was a reasonable basis on which the Judge in the District Court could conclude that Mr Ramsay injured Mr Fleming with intent to injure him. The evidence would have been sufficient to establish he was guilty of that offence without the Judge having to accept that either he or Mr Buchan had kicked Mr Fleming while he was on the ground or that the two of them were acting in concert at the time.
[46] The evidence was sufficient to establish that Mr Ramsay had forcefully and in a sustained way inflicted a number of blows to Mr Fleming’s head. The blows were sufficient to knock Mr Fleming to the ground and leave him at least dazed. They were sufficient to dislodge a tooth and cause bruising around his face. With the way Mr Preston-Marshall described Mr Ramsay getting out of the car and immediately going to attack Mr Fleming, there was sufficient evidence on which the Judge could conclude, as he put it, that Mr Ramsay intended to “give Mr Fleming the bash”. It was much more than simply wanting to engage in a fight with him. He gave Mr Fleming no opportunity to resist.
[47] On that basis, there was no error or miscarriage of justice in Mr Ramsay being found guilty of injuring Mr Fleming with intent to injure.
[48] I am also satisfied there was a reasonable basis on which the Judge could find that Mr Buchan and Mr Ramsay were acting in concert with the required knowledge and intent for them to be guilty as parties to that offending.
[49] Mr Fleming described how he got into an altercation with Mr Buchan at the Halloween party. He said he had not liked the way Mr Buchan was talking with his
partner at the time. He intervened and things got a bit heated, at which point he pushed Mr Buchan down and went to leave him. He said Mr Buchan punched him in the back of the head, knocking him to the ground. This was not the subject of any charge. After that, Mr Fleming saw Mr Buchan being hit by Mr Fale. He heard about people being hit by a vehicle. He went back to see what had happened there. He said it was when he was back there that he heard Mr Buchan yell out “what are you doing here? This is all your fault”.
[50] It was at that time Mr Fleming said he remembered Ms Lindsay giving him a hug saying “this is not your fault”, whereupon he was hit by Mr Ramsay.
[51] Mr Fleming did not identify Mr Buchan as attacking him at that point but said he was unsure whether that had happened. Mr Fleming’s head was towards the ground. Mr Fleming said he was trying to crawl away and get to safety because he was being “struck repeatedly”. Mr Fleming said he did not see Mr Buchan during the time he was being attached but he saw him “just prior to right there”.
[52] It was at Chelsey Lousley’s house that the Halloween party was held. She had gone to bed but got up when she heard a commotion outside the house. At that stage, she saw Mr Ramsay and Mr Fale fighting. She saw Mr Pouhila and Mr Fale walk down the road. Mr Buchan and Mr Ramsay also went off down Omahau Crescent. She ended up going to the same place. She heard a car pull up and Mr Ramsay, Mr Smith and Mr Buchan entered the property. She described them as being very angry, yelling, trying to find Mr Pouhila. Mr Pouhila was in the back bedroom of the house they were in. Mr Buchan and Mr Ramsay left the house. Ms Lousley heard a lot of glass smashing. She walked outside to find a car was all smashed up and Mr Buchan and Mr Ramsay were “off running down the driveway”.
[53] Summer-Rae Lousley described seeing the initial fighting outside the address of the Halloween party. She said she had seen Mr Fleming on the ground there and then she saw Mr Fale hit Mr Buchan. She also saw a one-on-one between Mr Ramsay and Mr Fale. She said that, after Mr Fale ran off, Mr Ramsay, Mr Buchan and Mr Smith got into a car. Mr Smith was driving. She said the car “just shot down Omahau towards Mackenzie”. She said she then went back into the house. She said Mr
Ramsay, Mr Buchan and Mr Smith came back to the house a short time later, came barging in and they were angry. She said they left again and about 30 seconds later she could hear the windows of a car being smashed.
[54] Mr Fale’s evidence was taken before the Registrar on 28 January 2019. He said he saw Mr Fleming being hit at the party and that he jumped in to try and protect him. He said the person tried to fight back and attack him, and he ran down Omahau Drive. His cousin, Mr Pouhila, came past in a car and picked him up. Later he said he saw three people jump out of a car. The only one he knew was Mr Ramsay. He said Mr Ramsay was chasing him on the road. Mr Pouhila ended up hiding in a house on Rata Road. He said the three people in the car had been chasing him after the Halloween party.
[55] In his evidence, Mr Smith said he was the sober driver for “the boys”, referring to Mr Ramsay and Mr Buchan. He said he had known Mr Ramsay for his whole life and Mr Buchan for five or six years. He said that, during the Halloween party, he had been “just cruising around”, just waiting for the boys if they needed a ride anywhere, “so mainly outside”. Mr Smith said that, after he saw an altercation between Mr Fleming and Mr Ramsay, Mr Fleming disappeared. He said that, after he had been on Omahau Drive, “we went back to the party”. Someone came down and said they had been hit by a car and he, Mr Ramsay and Mr Buchan had “jumped in the Subaru and tore off down the street to see how our mates were”. He said, when they got to the scene, “it was just chaos”. He said “we were just – adrenalin was pumping and we went to look for the Tongans”. He said that he, Mr Buchan and Mr Ramsay went and saw what had happened. There were people on the ground. He said he and these two men were making sure that “the boys were alright”. Mr Smith said that he had jumped back in the car and waited for the boys. He said the two Tongans were obviously hiding. When asked as to where Mr Buchan and Mr Ramsay had gone, he said they had obviously smashed a window in the car and then came back in and just said “drive”.
[56] Later, Smith saw Mr Fleming standing by himself. He heard Mr Fleming say “I didn’t cause this” or “it’s not my fault”. Mr Smith said Mr Fleming was just standing there not doing anything.
[57] Initially, when giving evidence, Mr Smith said nothing about either Mr Buchan or Mr Ramsay assaulting Mr Fleming at that point. He was then referred to a Police statement he made on 13 November 2017. He confirmed that in his statement he had said “Chris [Ramsay] and Reid [Buchan] grabbed Sam [Fleming] and dragged him away and they began fighting again”. Mr Smith accepted that was what he told the Police and that was what happened. He also confirmed he had told the Police that two girls had tried to pull them apart as they were rolling around on the ground.
[58] The Judge was not impressed with Mr Smith as a witness. Because of the advantage he had in hearing Mr Smith give evidence, the assessment the Judge made as to Mr Smith’s credibility has to be given weight on an appeal. The assessment the Judge made however appears to have been entirely reasonable, given the record of Mr Smith’s evidence. Mr Smith gave a version of what happened between Mr Ramsay and Mr Buchan at the point where, as he described it, they grabbed Mr Fleming and dragged him away. He described what then happened between them all as being a fight rather than, at the very least, the assault which it undoubtedly was. He nevertheless said that Mr Fleming had been “whinging about he didn’t start this and it’s not his fault, and it’s like, mate, so the boys took him away”.
[59] In his decision, the Judge referred to this aspect of Mr Smith’s evidence being inconsistent with his earlier statement to the Police. He determined Mr Smith was deliberately being unhelpful and, for that reason, had allowed the prosecution to refer him to the statement he made to the Police.
[60] Despite Mr Smith’s apparent tailoring of his evidence to benefit Mr Ramsay and Mr Buchan, on such evidence as he did give, Mr Buchan and Mr Ramsay had been jointly involved in an assault on Mr Fleming.
[61] Ms Lindsay had been at the Halloween party. She knew both Mr Buchan and Mr Ramsay well. She said she and Mr Preston-Marshall had been helping someone who had been hit by a car. She said she had been hugging Mr Fleming. She felt a knock and let him go. She then saw Mr Buchan and Mr Ramsay running towards Mr Fleming. At some point after that, she jumped on Mr Fleming to cover him so no one
could touch him. She mentioned a number of people being around as she covered Mr Fleming on the ground. The people around included Mr Ramsay and Mr Buchan.
[62] Constable Galbraith met with Mr Buchan at the Twizel Police Station at 2.00 pm on 13 November 2018, approximately 33 hours after the events with which he was charged. The Police took photographs of his hands. The photographs show what appear to be bruises or discolouring near or around the knuckles of his right hand.
[63] The constable who photographed Mr Buchan’s hand confirmed that the middle knuckle on Mr Buchan’s right hand appeared to be swollen in contrast to the other hand when he took the photograph.
[64] When Mr Buchan was interviewed by the Police, he denied he had been involved in any assault of Mr Fleming after a person or people had been hit by the car. Mr Buchan did not give evidence.
[65] After hearing all the evidence and hearing the DVD interview of Mr Buchan, the Judge said he rejected “out of hand Buchan’s claim at interview he was not involved”. He referred to the evidence of several witnesses as to the way Mr Buchan had been involved in acting together with Mr Ramsay at various points after the Halloween party, after an incident had occurred with people being hit by a car and when Mr Fleming was punched on the ground.
[66] Independent of the statements made by Mr Buchan to the Police when he was interviewed, there was ample evidence on which the Judge could reasonably find Mr Ramsay and Mr Buchan were acting in concert when there was an attack on Mr Fleming on Mackenzie Drive. I refer in particular to the evidence of Mr Preston- Marshall and Mr Smith as to how both Mr Ramsay and Mr Buchan were involved in at least an assault of Mr Fleming.
[67] The evidence from those witnesses, which provided a reasonable basis for the Judge to conclude that Mr Ramsay had injured Mr Fleming with intent to injure and, in doing this, had been acting in concert with Mr Buchan, were sufficient to prove that Mr Buchan was guilty as a party to the offending by Mr Ramsay.
[68] There was further evidence to prove, as against Mr Buchan, that he was a party to this offending through what he said to the Police when he was interviewed. Mr Buchan did try and distance himself from the damage which was done to the car the Tongans had been in and also from the way Mr Fleming was assaulted when he was on the ground, but his denials of that offending did not carry any weight with the Judge.
[69] Mr Buchan acknowledged that, at the Halloween party, after he said Mr Fleming had given him “a whack in the chops”, Mr Buchan just got up and gave him “three good ones”. He talked about going after “these bloody Tongans”, of being in the car with Mr Ramsay and of going to look for the Tongans. He said they had not found the Tongans at the house they had gone into but said that, if they had been there “it would have been a different story you know”. He said, if “we” had seen them, “it probably would have been another, another scuffle”. The Judge would justifiably have considered this to be an understatement as to what would have occurred.
[70] After this, when Mr Smith had driven them to the point on Mackenzie Drive where the assault on Mr Fleming occurred, Mr Buchan said that Mr Fleming had arrived at the scene “out of the shadows”. He said that Mr Fleming had said something like “oh I’m just seeing that my mates are alright” and Mr Buchan was like “fuck off mate, if you hadn’t of started all that none of this shit would have happened”.
[71] Mr Buchan agreed that, at that point, he was not happy with Mr Fleming, there was “a scuffle” and Mr Ramsay was there. In responding to the Police, Mr Buchan said it would probably have been Mr Fleming’s own fault that he lost a tooth.
[72] The Judge did say that Mr Preston-Marshall had seen Fleming “getting punched and kicked on the ground”. In that, the Judge was mistaken. Mr Preston- Marshall had referred to seeing Mr Fleming just being punched. I do not consider that mistake was crucial to the Judge’s ultimate decision.
[73]The Judge concluded:
[36] The police, of course, are unable to identify the specific individual responsible for the kicking but they do not have to. Buchan was quite
dismissive of the fact Fleming was injured, “He probably deserved it,” he said. Thus in his mind the purpose has been accomplished in relation to Fleming, he has been given a hiding. The long-term focus on violently offending against Fleming and the Tongan shines through.
[37] I have no hesitation concluding there was a common intent, an intent to assault both [Fale], the Tongan and Fleming the complainant. Both had earlier been engaged physically with Buchan. The pursuit of the Tongan involves movement down the street and travel with the help of the sober driver to another address. Violence, given the behaviour of both and the acknowledgement of Buchan it would have been a different story had they been apprehended is obviously an ultimate intention.
[38] Damage involving the car was, I am satisfied, effected by both defendants thus perpetuating an intent to get even. Arrival at the scene resulted in an immediate attack on Fleming by both Reid and Buchan. This was never going to be an even contest, Fleming was certain, at that juncture, to get the bash and that was the intent, it happened.
[39] I find abundant evidence attaching to the unfolding evidence to confirm the affliction of such injuries and their seriousness was recognised by both as a probable consequence of the common purpose each knowing it was a real or substantial risk, an injury of real seriousness would occur.
[74] I consider there was a reasonable basis, on the evidence which I have referred to, for the Judge to conclude that Mr Ramsay and Mr Buchan had been jointly involved in an attack on Mr Fleming intending to help each other, knowing that injury with intent to injure was a probable consequence of what they were jointly setting out to do. What eventuated was not in the nature of a fight. There were a number of blows to the head. Those blows injured Mr Fleming and they must have been inflicted with intent to injure him in the way that occurred.
[75] Accordingly, I cannot find there was any error in the way the Judge found both appellants had been proved guilty of the offending they were charged with.
Appeals against sentence
[76] Both Mr Ramsay and Mr Buchan appealed against their sentences. Both were sentenced to community detention for four months with community work of 120 hours and with them having to make an emotional harm reparation payment, each for
$877.50. Mr Ruane accepted that, if Mr Ramsay remained convicted of injuring with intent to injure, that penalty was within range. Ms Beazley said that Mr Buchan had already completed part of his sentence.
[77] I do not consider there is any basis on which it can be said the sentence imposed on either man was manifestly excessive.
[78]The appellants have not established that a miscarriage of justice has occurred.
[79] The appeals from Mr Buchan and Mr Ramsay against both conviction and sentence are dismissed.
Solicitor:
K C Beazley, Barrister, Timaru
C M Ruane, Barrister, Christchurch Gresson Dorman, Timaru
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