Collins v Police
[2015] NZHC 451
•12 March 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2013-485-14 [2015] NZHC 451
NICHOLAS GEORGE COLLINS Appellant
v
NEW ZEALAND POLICE Respondent
Hearing: 10 March 2015 Counsel:
B Crowley for Appellant
S C Carter for RespondentJudgment:
12 March 2015
JUDGMENT OF BROWN J
[1] Mr Collins was convicted of one charge of common assault1 by Judge J F Moss in the District Court at Wellington on 17 November 2014. He was sentenced to pay the complainant $37 in medical expenses and $1500 in emotional harm reparation.
[2] He now appeals against that conviction and sentence.
1 Contrary to s 196 of the Crimes Act 1961, maximum penalty one year imprisonment.
COLLINS v NZ POLICE [2015] NZHC 451 [12 March 2015]
[3] The assault occurred in the early hours of 8 December 2013 in the Kent/Cambridge Terrace area near Courtenay Place. The complainant, Mr Harford, was known to Mr Collins – he was the boyfriend of Mr Collin’s ex-girlfriend, Brittany. Both had been consuming alcohol.
[4] The Crown case was that Mr Collins harboured ill-will towards Mr Harford in relation to Brittany. The two encountered each other in MishMosh bar on Courtenay Place late on 7 December 2013. The Crown alleged Mr Collins became angry at MishMosh and challenged Mr Harford to a fight outside. No incident eventuated while in the bar, the Crown says because Mr Collins’ friend Mr Colucci held him back. The two went their separate ways. In the early hours of
8 December 2013 Mr Harford was on Kent Terrace walking towards his home in Mount Victoria. The Crown said Mr Collins saw Mr Harford, ran up behind him and assaulted him with at least one punch to the face, and probably more. Mr Harford suffered a broken tooth and bruises to his face.
[5] The defence case was that Mr Collins was frustrated with Mr Harford in relation to what Mr Collins says were three separate incidents in which he alleges Mr Harford deliberately ‘bumped’ or shoved him while the two were in various bars around Courtenay Place between July and September 2013. When the two saw each other in MishMosh Mr Collins wished to resolve the issue. He asked Mr Harford why he had been bumping into him so often. Mr Harford became aggressive and asked Mr Collins if he wanted to “take it outside”. Mr Collins said “let’s go”, but then thought better of it. The two then went their separate ways. Mr Collins said he was walking along Cambridge Terrace towards his home in Newtown when he next saw Mr Harford. He still wished to resolve the issue, and so crossed the road in front of Mr Harford and again asked him why he had been bumping into him in town. The defence then alleged Mr Harford became aggressive and threw a punch at Mr Collins, which he deflected with his forearm. He then acted out of “reflex” and immediately punched Mr Harford in the face but only once. The defence claimed Mr Collins in self-defence.
[6] Judge Moss heard evidence from four witnesses: Mr Harford, Mr Collins, Mr Colucci and the officer who attended the incident, Constable Taylor. Her Honour first set out the background to the three ‘bumping’ incidents which Mr Collins alleged provided valuable background to Mr Harford’s aggression. She then directed herself as to the requirements of a defence of self-defence as follows:
[19] In order to establish the defence of self-defence, the defence must establish on a balance of probabilities that the force used in self defence was a reasonable force in the circumstances. I must consider that defence in the context of all of the evidence.
[7] Her Honour’s assessment of the evidence and conclusions are as follows:
[20] The unhappiness that Mr Collins gave long evidence about in relation to the previous shoulder-barging was denied completely by Mr Harford, and in the context of an assertion and denial with no other context, it is difficult to make sense of that evidence. On balance, however, I am not at all convinced by Mr Collins’ evidence in relation to the shoulder-barging. He may have felt that Mr Harford had it in for him, but the identity of the assailant on each occasion was far from satisfactory and I am not satisfied that that preceding context occurred.
[21] But I am convinced, having heard Mr Collins give evidence, that he had a score to settle with Mr Harford. Mr Collins gave evidence in a way which satisfies me that he felt highly entitled to Mr Harford being apologetic and accepting that he had done Mr Collins wrong.
[22] Mr Harford, for his part, gave much more measured evidence and said that although he had no recollection of bumping into Mr Collins, and certainly denied doing so deliberately, that he said that if that had happened by accident, about which he did not recall, then he apologised to Mr Collins. The tone of the evidence was portraying two young men with completely different approaches to this awkward social situation.
[23] Bearing in mind that finding, I then come to the issue of what actually occurred in the few seconds prior to the actual collision of fist with face. Mr Collins had a score to settle. Mr Harford believed he had nothing to settle and was on his way home. Mr Collins came up to Mr Harford. It was he who made the approach. Mr Collins had, he says, been challenged to a fight by Mr Harford and then Mr Harford had backed down.
[24] It appears to me more plausible and more reasonable behaviour that
Mr Collins would have gone about his own business early in the hours of 8
December rather than approaching Mr Harford again. He being a much larger man who had previously challenged the smaller man to a fight.
Anyway, be that as it may, Mr Collins goes over to Mr Harford and
Mr Harford, Mr Collins says, threw a punch. Now Mr Harford denies that, but even for a moment accepting that what Mr Collins says was right,
Mr Collins fended the punch successfully and as a reflex punched back. The reflex word was used in evidence-in-chief. The exact words were, “It was just a reflex.” In cross-examination, Ms Handcock challenged Mr Collins about that word reflex, and Mr Collins confirmed it.
[25] For self-defence to be a justification for violence, it is necessary for the Court to find that the person who was first attacked acted to defend himself. There is a causative or a purposeful connection between an act of being assaulted or a force being threatened and a forceful action back. This was not the case here. Mr Collins simply acted in reflex. He was hit. He hit back. He had multiple options well before this confrontation, and during the confrontation, to remove himself from the situation. I am not prepared to find that he acted in self-defence.
[26] Whether the force was reasonable is a moot point. Maybe it was, but the application of any force by this man by reflex could not be self-defence. He was at that point, in my view, joining a scuffle, and that is not self-defence.
[8] Her Honour then considered whether there was enough evidence to find there was more than one punch:
[27] The question then remains whether there were three blows or one. The burden for the police is to prove the facts beyond a reasonable doubt. The medical evidence, which is admitted by consent, includes the observations of an ear, nose and throat registrar and a dental surgeon. Mr Harford consulted the dental surgeon and was referred to the ear, nose and throat department. The dental surgeon saw Mr Harford 30 hours after the assault. The ear, nose and throat registrar, 10 days after the assault.
…
[33] I acknowledge that Mr Harford’s evidence was completely clear and so was Mr Collins’ evidence. I cannot tell between them. That does not mean to say that I disbelieve either man. I simply cannot choose between them and, thus, I am not satisfied beyond reasonable doubt that the number of punches was three. But I do not need to be satisfied as to that to find Mr Collins guilty of an assault. The one punch is sufficient.
Legal principles on appeal against conviction
[9] The appeal against conviction is brought under s 229 of the Criminal Procedure Act 2011 and proceeds by way of rehearing. The High Court can only allow an appeal if it is satisfied that the trial judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice occurred (s 232(2)(b)) or that a miscarriage of justice has occurred for any reason (s 232(2)(c)).
Any error, irregularity or occurrence in or relation to of affecting the trial that¾
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[11] Following the Supreme Court in Austin, Nichols & Co Inc v Stichting
Lodestar, the appeal is approached in the following way:2
(a) Mr Collins bears the onus of satisfying the Court that there has been a miscarriage of justice;
(b) The appellate Judge is to review all of the evidence and come to his or her own view as to whether or not Mr Collins is guilty of the assault;
(c) The appeal should be allowed if the appellate Judge disagrees with the conclusion of the District Court Judge;
(d) The appellate Judge may reach the same conclusion as the District Court Judge, albeit for different reasons. It is the correctness of the decision reached by the District Court Judge rather than the reasoning followed to reach that decision that is of paramount importance.
Grounds of appeal
[12] The grounds of appeal against conviction advanced by Mr Crowley for
Mr Collins can be summarised as follows:
(a) That Judge Moss misdirected herself as to which party bears the burden and standard of proof in relation to self defence, and as such erred in her application of the law;
(b) That had the Judge applied the correct legal test, the findings of fact her Honour made should have lead her to conclude Mr Collins should be acquitted;
(c) That the Judge “completely ignored” the “corroborative evidence” of Mr Colucci, such that her understanding of the evidence was “skewed” in favour of the prosecution.
2 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
Did the Judge misdirect herself, and err in law as a result?
[13] The Crown responsibly accepts that, at [19] of her Honour’s judgment, she
misdirected herself as to the law in relation to self-defence when she said:
In order to establish the defence of self-defence, the defence must establish on a balance of probabilities that the force used in defence was a reasonable force in the circumstances. I must consider that defence in the context of all the evidence.
[14] Then, after a review of the evidence in the paragraphs quoted above at [7], the Judge stated in the last sentence of [25] that she was not prepared to find that Mr Collins acted in self-defence and concluded at [34] by saying:
Self-defence is not established.
[15] However Ms Carter contends that, notwithstanding the misdirection, there has been no miscarriage of justice because it is clear that the Judge did not find that the appellant was threatened by the actions of Mr Harford but rather acted in retaliation. Her submission was that on the evidence, if the correct legal test had been applied, the prosecution would still have proved that the appellant had not acted in self-defence.
[16] Unsurprisingly that submission is challenged by Mr Crowley who argues that a Judge must start from the presumption that the appellant did act to defend himself and then examine whether the evidence has proved that the Judge is sure that the appellant was not motivated by self-defence. He points out that the Judge did not engage in any such analysis of the evidence and that there is no basis for the Crown to speculate that the finding “would have” been the same if an entirely different standard and burden of proof had been applied.
[17] The ability of an appeal court to reconsider the matter on the basis of the application of the correct legal test is very dependent on the nature and extent of the factual findings by the trial Judge. That is difficult in the present case. Not only did the Judge not reach a conclusion on the number of punches thrown by the appellant
(which is a significant consideration in a self-defence analysis) but the Judge also did not make a finding on the question whether the complainant in fact threw the first punch. It might well be inferred that her Honour accepted the complainant’s evidence that he did not throw a punch. However, having noted his denial of the appellant’s assertion at [24], the Judge proceeds to address the matter on the basis of “even for a moment accepting that what Mr Collins says was right”.
[18] Such an approach, of addressing the issue on the basis most favourable to the appellant, reflects the Judge’s misdirection on the question of which party carried the burden of proof on the issue of self-defence. Had she directed herself correctly, I consider that it is very likely that she would have made a finding of fact on the issue whether the appellant or the complainant threw the first punch or, to put it slightly differently, whether the complainant even threw a punch at all.
[19] In these circumstances I consider that there has been an error affecting the trial which has created a real risk that the outcome of the trial was affected. I allow
the appeal and set aside the appellant’s conviction. I direct that a new trial be held.
Brown J
Solicitors:
B Crowley, Barrister, Wellington
Luke Cunningham & Clere, Crown Solicitors, Wellington
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