Creser v Police - [2014] NZHC 1524

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2014-485-18 [2014] NZHC 1524

BETWEEN
RICHARD JOHN CRESER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 20 May 2014

Appearances:

Appellant appearing in person
S Bishop for the Respondent

Judgment:

2 July 2014

JUDGMENT OF MALLON J

Introduction

[1] Mr Creser was convicted following a defended hearing in the District Court on a charge of assault.1 He appeals against that conviction.2 He says that there was no evidence on which the District Court Judge (Tompkins J) could find the charge proven.

The evidence

[2] The incident giving rise to the charge occurred outside the Court of Appeal on 24 September 2013. The assault was said to have occurred after Mr Creser had served some documents on the Registrar of the Court of Appeal (Ms O’Brien) by putting them in her handbag. The issue was whether Mr Creser had grabbed
Ms O’Brien by the arm as she tried to enter the Court of Appeal building at the side

1 Summary Offences Act 1981, s 9.
2 Police v Creser DC Porirua CRI-2013-091-3082, 24 February 2014.

CRESER v NEW ZEALAND POLICE [2014] NZHC 1524 [2 July 2014]

entrance on Aitken Street. Mr Creser denied doing so and said that it was

Ms O’Brien that assaulted him.

Ms O’Brien’s evidence

[3] Ms O’Brien gave evidence at the defended hearing. She referred to two earlier encounters with Mr Creser. The first was over the service of documents on behalf of Mr Siemer, a person with a number of proceedings in the Court of Appeal. Ms O’Brien told Mr Creser that Crown Law would accept service on her behalf but Mr Creser said that a process server would serve her at her home. The second encounter was a few weeks later when Mr Creser took a photo of Ms O’Brien on his phone as she was walking in the vicinity of the Court. The photograph subsequently appeared on a website operated by Mr Siemer.

[4] Turning to the incident of present relevance, Ms O’Brien was aware that earlier in the day Mr Creser was at the Court of Appeal wanting to serve new documents on her. She was not prepared to see him at that stage. Later that afternoon Ms O’Brien had an appointment out of the office. She returned to the Court of Appeal at about 5.15 pm. She walked up Molesworth Street to the main entrance. However, because it was after 5 pm, the doors were locked. She then walked around to the side entrance on Aitken Street.

[5] As she was walking down the Aitken Street side of the building she heard someone call out her name. She turned around and saw Mr Creser about 10 feet away in the angled car parks on Aitken Street outside the National Library. Mr Creser was holding out some papers and said that he wanted to serve them on her. She said “[n]o, you know, Mr Creser, that the Crown accepts service on my behalf. You…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Creser v Police

Details

AGLC: Creser v Police [2014] NZHC 1524
Case: [2014] NZHC 1524
Decision Date: 2 July 2014

CaseChat Overview and Summary

The appeal in Creser v Police was brought by Richard John Creser against his conviction for assault by the District Court. The incident in question occurred outside the Court of Appeal on 24 September 2013, where Creser was alleged to have grabbed Registrar Ms O’Brien by the arm as she attempted to enter the building. Creser denied the assault and claimed Ms O’Brien assaulted him. The central legal issues were whether the District Court was justified in finding the charge of assault proven based on the evidence presented and whether there was a miscarriage of justice in the proceedings.

The court found that there was sufficient evidence to support the District Court’s decision. Ms O’Brien testified that Creser grabbed her arm and attempted to turn her to take a photograph, which she resisted. This testimony was corroborated by Ms Churchman, who overheard Ms O’Brien asking Creser to leave her alone. Creser’s claim that he did not touch Ms O’Brien and that she pushed him first was deemed less credible in light of the competing accounts and the context of the incident. The court held that the District Court was entitled to accept Ms O’Brien’s evidence and find support in Ms Churchman’s testimony, thereby rejecting Creser’s appeal. The side issues raised by Creser, such as the failure to retain CCTV footage and the competency of his counsel, were found to be without merit.

The appeal was dismissed, affirming the District Court’s conviction of Creser for assault.

Orders