Dummer v Police HC New Plymouth CRI-2011-443-035

[2011] NZHC 1454

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2011-443-035

CHRISTOPHER MICHAEL DUMMER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         25 October 2011

(Heard at New Plymouth)

Counsel:         S Hughes QC for Appellant

SA Law for Respondent

Judgment:      2 November 2011 at 10:00 AM

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 2 November 2011 at 10:00 am

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

S Hughes QC, New Plymouth:  [email protected]

SA Law, CE Clarke, Crown Solicitor, New Plymouth:

DUMMER V NEW ZEALAND POLICE HC NWP CRI-2011-443-035 2 November 2011

Introduction

[1]      Christopher Michael Dummer was convicted in the District Court at New Plymouth on one charge of assault using a metal bar as a weapon[1] and on a charge, arising from the same facts, of intentionally damaging a Nissan car,[2] the property of the same complainant.  He was acquitted of a related charge of driving in a manner which was dangerous.[3]

Background facts

[1] Crimes Act 1961, s 202C.

[2] Summary Offences Act 1981, s 11(1)(a).

[3] Land Transport Act 1998, s 35(1)(b).

[2]      The charges arose out of a “road rage” incident, the circumstances of which reflect little credit on either the complainant or the appellant.  The Judge described the circumstances in these terms:

[3]       The  complainant  states  that  on  the  3rd of  November  2010  at approximately 3:45 pm he was in his motor vehicle a Nissan station wagon with  his  partner  and  young  child,  aged  two.    He  had  exited  from The Warehouse and had moved into the right turning lane to move onto the expressway or motorway. He was heading towards town.

[4]       Coming from the opposite direction on the bridge and from Bell Block was a 15-odd tonne truck driven by the defendant which was about to conclude  a  left  hand  turn  onto  the  same  on  ramp.    The  evidence  of Mr Hodson was that he was travelling at something in the vicinity of 20 to

30 kilometres per hour, that he had the right of way as he was making a right turn and that the truck was travelling at approximately 30 kilometres per hour.   The complainant assumed that the truck would stop but in fact it turned and cut him off as a result of which the complainant tooted and he says that the defendant then honked his air horn back for some five seconds. In that manoeuvre he said that he had to brake to avoid a collision and it scared him and his partner.

[5]       The evidence of the complainant and the defendant vary [sic] at that point and further varies when they moved down the on ramp into the double lane of Devon Road.  The complainant says that he pulled up to the truck‟s right hand side, gave the truck driver a beep of the horn and the fingers and drove off, pulling back into the left lane at 100 kilometres per hour.  He says that he then saw the truck pull into the right lane trying to pass him.  His partner, he said, screamed and as a result he saw that the truck was endeavouring, he says, “to cut him off” and as a result the complainant had to veer off the road with his two left wheels on the verge.  The complainant‟s truck, he says, gave a bit of a wobble for a few seconds because of the rapidness of the turn left.  The truck, he said, came within half a metre of his

Nissan station wagon and that if his partner Jasmine had not screamed he would have run over them.

[6]       He pulled in ultimately behind the truck and rang the police.  Clearly from the recorded conversation at the Comms Centre the complainant was expressing considerable anger from time-to-time by the use of his words and he said that, “I’m gonna beat the shit out of him when I get hold of him” and that he was still following him and that, “I’ll follow him till the day he dies which will probably be soon”.  He further said, “I’m that angry I’m gonna fuckin’ ...” and did not complete the sentence.

[7]       The complainant followed the truck driver which seemed to take a bit of a tikki tour around New Plymouth until it pulled into a motel or lodge on Coronation Avenue.  The complainant turned into the motel, still on the phone to the police and the truck driver did a two or three point turn and backed into a car parking space.  The complainant blocked off the exit of the motel but then moved forward closer to the truck at which point the defendant, whose identity is not an issue, hopped out of the truck.   As a result the complainant and the defendant had a brief discussion lasting some

34 seconds in terms of the police Comms transcript which included some pushing and pulling.  Clearly, at the commencement at least the complainant

was very angry and that continued.  The defendant stated, “Fuckin’ stay in the  car”,  it  was  the  defendant‟s  position  that  what  then  followed  was

because the complainant endeavoured to get out of the car.

[8]       However in the two seconds that it took the defendant to leave his truck and approach the car, telling the complainant to “Fuckin’ stay in the car”, he then produced what has been called a wiggle pin, which weighs at least one pound or half or more of a kilogram and could be described as a weapon out of a folder.   That is reflected in the evidence of the Comms recording where the complainant says, “Don’t point it at me.  What the fuck you put a weapon in my face brother. I’ll fuckin’ kill you.”

[9]       The evidence of the complainant is that the defendant swung the wiggle pin at him and he did so whilst he was holding it in his left hand in an action similar to the use of a hammer and brought it down, he says, close to his head and shoulder and hit the sill door damaging it.   The defendant denies that he swung the pin at him.   The complainant says that he then endeavoured to grab the pin, grabbed it and there was a see-sawing action between the complainant and the defendant with the pin which the complainant  lost.   The  complainant  acknowledges  that  the  injury  to  his hands where he suffered some pulled skin and grazes was probably as a result of that push and pull action over the wiggle pin.

[10]     Further, the complainant endeavoured to get out of his car on a number of occasions whilst the defendant was saying, “Stay in the car”. The complainant says that as a result of his endeavours to get out of the car the defendant kneed the car door back shut and caused damage shown in the photographs  produced  to  the  Court,  with  an  assessment  of  damage somewhere between $1,300 and $1,545.

[11]      In the meantime, the complainant‟s partner and child exited the car through the passenger door and the complainant says he was then able to get out of the car through that door and went to join his partner and child on the side of the road waiting for the police.

[3]      The Judge noted that the complainant had said he was “very, very angry” as a result of the risk to his partner and child, and himself, which the driving incident created.   He acknowledged that he was emotional but did not believe he was aggressive or out of control. The Judge observed that in the course of the first part of the transcript of the 111 call, the complainant appeared rational and relatively calm, for the most part.   The complainant told the Court that he never wanted a confrontation with the appellant and had never had one in his life, and excused the more aggressive comments which he made by the emotional effect of what had occurred.

[4]      The  Judge  recorded  that,  when  interviewed  by  the  Police,  the  appellant alleged that the complainant had endeavoured to overtake him illegally before their vehicles exited onto a two-lane expressway.  The appellant told the Police that the complainant “swooped past him, while he did so he flipped the bird whilst alongside him and cut him off and then slammed on his anchors travelling at approximately 40 kilometres an hour causing the defendant to slam on his brakes and that caused the ABS system to operate.”  The appellant also gave evidence that the complainant, in the left of the two lanes, moved towards him causing the appellant to move close to the centre barricade, with the appellant then taking some sort of retaliatory action, forcing the complainant to take evasive action by veering to the left and running off the road briefly.

[5]      The Judge said that he found it difficult to accept evidence given by the appellant that he had heard the complainant swearing at him through the passenger window of his vehicle.  He also doubted that the complainant would have acted as recklessly as alleged, given the presence of, and risk to the safety of, the complainant‟s partner and child.

The altercation at the motel

[6]      This evidence was all by way of background to the events at the motel which gave rise to the assault and intentional damage charges.  The complainant, who had followed the appellant onto the motel property, apparently stopped his car about four or five metres from the appellant‟s truck.  The complainant said that, as he drove into the motel site, he wound the window down and that the appellant then hopped out of

his truck.  The complainant said he leaned out the window and said “Oi, what the „f‟

is your problem?” at which point the appellant “began his attack.”

[7]      The complainant said the appellant ran over to where he was sitting in his car and then started yelling “Don‟t get out of the f-ing car”. The complainant tried to get out of the car and the appellant laid his knee into the door, shut the door and kept saying “Don‟t get out of the car” while he, the complainant, was saying that he was going to get out of the car and tried to open the door.  The door was slammed again by the appellant who pulled out the metal “wiggle pin” which he swung at the complainant.  He said that as the appellant had approached him he could see a clip board and it appeared that he pulled the wiggle pin out from the clip board.

[8]      The complainant and the appellant were at sufficiently close quarters for the complainant to be able to grab the appellant by his shirt, through the open driver‟s window, and for them to grapple with the wiggle pin in an action described by counsel in cross-examination as a “tug-of-war”.  It was accepted by the Court that the injury which the complainant suffered to his hand was caused during this encounter, rather than by a deliberate direct blow by the appellant.  Nevertheless, the Judge accepted the evidence of the complainant that he had been hit and expressed some doubts as to whether or not the appellant had hit the complainant only once.  It was not disputed that the appellant had slammed the car door five or six times in his efforts to keep the complainant inside, or that there was consequential damage to the window sill and panel of the driver‟s door on the complainant‟s vehicle.

[9]      When spoken to by the Police, the appellant acknowledged that, in hindsight, it might have been better if he had run off somewhere and hidden, or gone to his room,  or just  locked  the truck  in  the first  instance rather than approaching the complainant‟s car.  He maintained in evidence, including under cross-examination, that his intention was simply to restrain the complainant by keeping him in his car so as to avoid potential assault.   The appellant said that, although he removed the wiggle  pin  from  his  truck  and  took  it  with  him  as  he  moved  towards  the complainant‟s car,  he  did  not  intend  to  use  it  aggressively  or  to  assault  the complainant.  He told the Police that he could see that the complainant was pretty agitated and that, “with what had just gone down”, he wanted to have something that he could defend himself with “if needs be”.

[10]     The appellant denied that he had driven in a dangerous manner.  The Judge considered the conflict in the description of events by the two drivers and concluded that he was unable to say beyond reasonable doubt that the allegation had been made out. That charge was dismissed.

[11]     In respect of the assault charge, the appellant said that he was acting in self- defence in that, having regard to what he considered to be evidence of the complainant‟s rage, demonstrated clearly to him by the fact that the complainant followed him for some ten minutes before parking behind him, that there was a risk of assault. The appellant also took into account the age differential, he being aged 53 and the complainant aged 33, and the complainant‟s stature.  The photograph of the complainant produced in evidence indicated that he is reasonably well built.

[12]     Although the appellant acknowledged that the complainant‟s vehicle must have been damaged during the altercation, he disavowed any deliberate intention to cause damage to it.

[13]     There is some corroboration in the partial transcript of the 111 call for the degree of animosity harboured by the complainant towards the appellant, during the pursuit  of the appellant through  the city and  at  the motel.   The recording also corroborated the appellant‟s intentions when he approached the complainant‟s parked car.

[14]     The partial transcript of the 111 call, produced by the defence, covered the first one minute and 16 seconds of the call and then the last 34 seconds of it.  The appellant‟s  evidence  was  that  the  confrontation  at  the  motel  was  not  wholly recorded; it appears that the initial 111 call was interrupted by the complainant‟s partner who used the phone to make a second 111 call seeking Police assistance at the motel.

[15]     Immediately after termination of the initial call, the complainant got out of the passenger door of the vehicle.   There may have been a continuation of the argument at that point, but no further physical confrontation.  The appellant said he went inside the motel, and the complainant said he joined his partner on the footpath to await the arrival of the Police.

[16]     The  transcript  of  the  111  call  reads  as  follows.    The  complainant,  the appellant, and the Police communications officer are identified in the second portion on the basis of evidence accepted by the complainant in cross-examination:

00.00 to 01.16

Police Comms:          This is the Police where is your emergency? Complainant: New Plymouth I don‟t know if I‟m ringing the right

thing it‟s like a traffic related a truck tried to run me

off the road. Police Comms:  Oh yeah.

Complainant:             I‟m following at the moment.

Police Comms:          Whereabouts in New Plymouth? Complainant:  New Plymouth on Northgate. Police Comms:  Yep.

Police Comms:          Is there any road that you are coming up to? Complainant: Ah coming up to Mangorei Road intersection.

Police Comms:          Ok which direction are you heading in? Complainant:       We are heading towards town so it‟s um west.

Police Comms:          So the truck nearly ran you off the road? Complainant:     Oh yeah definitely he‟s deliberately done it.  I‟m

following at the moment I‟m gonna beat the shit out

of him when I get hold of him. Police Comms:  So you are still following?

Complainant:             Yep I‟ll  follow him till the day he dies which will

probably be soon.

Police Comms:          So you are heading west did you say? Complainant:  Yep yep.

Police Comms:          What‟s he doing now?

Complainant:             I‟m he‟s in front of me he can‟t do anything because

we are in traffic. Police Comms:   I see yeah um.

Complainant:             He‟s carrying dangerous goods which is a crock of

shit, you should have seen what we had to get off the

road  to  get  away  from  him  the  loser‟s  fucking

mental.

Police Comms:          I see yeah yeah yeah.

Complainant:             We‟ve got a kid on board I‟m shaking I‟m that angry

I‟m gonna fucking

Police Comms:          Ok can you see his registration number?

08:52 to 09.26

Complainant:             I‟ll just go and have a chat with the fucker now. Police Comms:     I‟ll get you to stay in the car until Police get there. Complainant:        What the fuck.

Police Comms:          Stay in the car while ....

Complainant:             You fucking fuck with my car you fucking ... Defendant:   Stay in the car.

Complainant:             Why? Defendant: Stay in the car.

Complainant:             Don‟t point it at me.
Defendant:                Stay in the car.

Complainant:             What the fuck you put a weapon in my face brother

I‟ll fucking kill you.

Defendant:                Look at you. Complainant:         No fucking look at you. Defendant: Stay in the car, stay in the car.

Complainant:             Don‟t you fuck with me ..... will you.

Defendant:                Stay in the car. Complainant:  ...... get fucked.

[17]     The  language  used  by  the  complainant,  in  the  second  part  in  particular, provides some indication of his heightened emotions.

The findings of the District Court

[18]     The District Court Judge dealt first with the evidence relating to the driving incident, concluding that he could not wholly accept the appellant‟s evidence of the complainant “as  a road  rage person totally out of control.”   He considered the allegation that the complainant had placed his partner and his two-year-old child at serious risk of death from endeavouring to push the appellant‟s truck off the road to be “extreme  and  hard to conceive”,  and  he said  he found other aspects  of the appellant‟s account “exceptionally difficult to accept.”

[19]     He concluded his reasoning as follows:

[27]     My concern in respect of these issues is:

(a)       The defendant got out of his truck holding a clipboard that concealed a wiggle pin which was a weapon, in my determination or could be used as such.

(b)       He approached the complainant‟s  vehicle and endeavoured to restrain the complainant in his own vehicle by keeping the door shut against him and in doing so has caused damage to that door.

(c)       That he produced the wiggle pin in such a manner as to place it very close to the complainant sufficient for the complainant, who was basically locked in his car, to grab it and to try and take it off the defendant.   Further the complainant, it is alleged, grabbed the defendant‟s shirt and if that was the case the defendant was in the complainant‟s face and the actions of the defendant must therefore be viewed as aggressive and not conciliatory.

[28]      Because of the factors that I have just referred I am of the view that the defendant intentionally approached the complainant with a view to confrontation and I am further of the view that, by his own admission, he struck   the   complainant   with   the   wiggle   pin   whilst   he   was   legally

endeavouring to restrain the complainant in his motor vehicle.  He therefore used the wiggle pin as a weapon and I am satisfied in the circumstances that the charge of assault with a metal bar has been proved.

[29]     For the same reasons I am satisfied that the defendant has caused damage to the motor vehicle during the course of an unlawful enterprise.  I do not accept the submission that there was no intent to damage the car.  The damage to the window sill of the driver‟s side of the car certainly was such as to establish that it had been struck rather than that the wiggle bar had been pulled backwards and forwards across the window sill.  I accept that in terms of the assault that there was little or no injury to the complainant and that the injuries that he did suffer appear to have occurred when the wiggle pin was pulled from his hand.

[30]     With  regard  to  the  charge  in  relation  to  driving  in  a  manner dangerous, as with the other two charges, it is necessary for the Court to find beyond reasonable doubt that the charges have been proved.  I am satisfied in respect of the assault and the intentional damage that those charges have been proved, that neither was as a result of self-defence, that both were as a result  of  the  defendant‟s  aggressive  approach  to  the  complainant  for whatever reason but I am not satisfied that the defendant drove in a manner dangerous....

The appellant’s arguments on appeal

[20]     The appellant‟s defence to both the assault charge and the intentional damage charge was that he was acting in self-defence and that any damage to the complainant‟s vehicle was unintended.  Section 48 of the Crimes Act 1961 reads:

48        Self-defence and defence of another

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.

The assault conviction

[21]     Ms Hughes QC based her appeal submissions in relation to the assault charge on the ground that the District Court Judge had misdirected himself as to both the ingredients of, and the requisite burden and standard of proof in respect of, self- defence under s 48.  She submitted that the three questions which the District Court Judge should have asked where:

(a)       Did the appellant use force for the purpose of defending himself? (b) What were the circumstances as the appellant believed them to be;

(c)       Was the force used reasonable in those circumstances?

[22]     Ms Hughes QC submitted that the Judge erred in finding that the appellant‟s actions in endeavouring to contain the complainant in his vehicle were aggressive and not conciliatory, arguing that that was not the test for self-defence.  She pointed to the complainant‟s threat to kill the appellant as compounding the complainant‟s determined pursuit of the appellant over a period in excess of ten minutes.

[23]     Ms Hughes argued that if the District Court Judge had addressed the issues which required consideration, he would have found the appellant‟s “stated fear” of the complainant to be both reasonable and rational.   She pointed to the evidence indicating that the complainant was in an extremely aggressive frame of mind and argued that there was “no evidence whatsoever” to suggest that the appellant was intent upon assaulting the complainant in the car.  She pointed out that he had ample opportunity to lean through the open window of the vehicle and hit the complainant if that was his intention, and referred to the transcript of the 111 call as confirming that the appellant‟s only purpose was to confine the complainant within the vehicle “so as to prevent ... [the complainant] assaulting him.”

[24]     Ms Hughes submitted that the circumstances which the appellant believed to exist were that the complainant was intent upon harming him because he was suffering from road rage, having followed him for more than 10 minutes through and around New Plymouth to the motel, and was clearly highly agitated when arriving there. She submitted that the force was reasonable in those circumstances.

The intentional damage conviction

[25]     In  relation  to  the  intentional  damage  conviction,  Ms Hughes  tied  her submissions to the proposition that the actions of the appellant were in self-defence. She  pointed  out  that,  as  the  primary ingredient  of  the  charge  was  proof  of  an intention to damage, a finding to that effect could not be justified if the damage was caused inadvertently and incidentally to a lawful act of self-defence.

[26]     The Judge discussed these issues at [29], referring to his being satisfied that the appellant had caused damage to the motor vehicle “during the course of an unlawful enterprise.”   This followed from his finding that the appellant struck the

complainant “whilst he was illegally endeavouring to restrain the complainant in his motor vehicle.”   He said he did not accept the submission there was no intent to damage the car, saying that the damage to the window sill on the driver‟s side was such as to establish that it had been struck rather than being pulled backwards and forwards across the window sill during the “tug-of-war.”

The approach to considering self-defence

[27]     I agree with Ms Law that the authorities suggest that, where self-defence is raised, the first step is for the fact-finder to make a determination as to the circumstances as the appellant believed them to be.  The decision on that matter will influence the next determination, namely, whether the alleged offender was using force for the purposes of defence of himself or herself or another.  Putting the first two  questions  in  that  order  focuses  on  whether  the  defendant  intended  to  act

defensively in the circumstances he or she believed them to be.[4]

[4] R v Li CA140/00, 28 June 2000, approving Shortland v Police HC Invercargill AP 74/95,

23 April 1996; Selim v Police HC Christchurch A140/00, 10 November 2000.

[28]     The District Court Judge did not consider self-defence expressly in those terms, and he made no attempt to identify subjectively what the appellant considered the circumstances to be.

[29]     But it seems to be clear, nevertheless, that the Judge considered the appellant to be the aggressor.   That much is obvious from paragraphs [27] and [28] of the Judge‟s decision on the substance of the charges.[5]   At paragraph [30], he confirmed his view that the assault was not a result of self-defence, but “a result of the defendant‟s aggressive approach to the complainant for whatever reason” [emphasis added].

[5] Quoted above at [19].

[30]     Given the Judge‟s clear view that the appellant was acting aggressively and not in self-defence, he appears not to have considered it necessary to turn his mind to the  question  of  whether  the  force  used  was  reasonable  in  the  circumstances. However, making allowances for the fact that the Judge was delivering an oral judgment at the end of a hearing, it was necessary for him to address the subjective

element of the appellant‟s appraisal of the circumstances before determining that the

Crown had proved beyond reasonable doubt that the appellant was not acting defensively.

[31]     Some clue to the Judge‟s failure to approach the matter in that way can be seen in his conclusion that the defendant was acting aggressively, “for whatever reason”.  It was incumbent upon the Judge to identify the reason by making a finding as to the appellant‟s view of the circumstances, and then to consider whether it was an aggressive act of self-defence which involved force which was reasonable in those circumstances.  He erred in not doing so.

Approach on a general appeal against conviction

[32]     On a general appeal against conviction under s 115 Summary Proceedings Act 1957, the usual approach of the High Court is to consider the matter by way of rehearing based on the evidence heard by the District Court Judge.  I have had the benefit of reading the notes of evidence from the District Court, the partial transcript of the 111 call, and the transcript of the recorded interview of the appellant by a Police officer.  I have seen the photographs produced in evidence.  Ms Hughes QC suggested that, if I concluded that the District Court Judge had erred in his approach, I should come to my own view on the sufficiency of the evidence to support the convictions. This proposition was not disputed by Ms Law, for the respondent.

[33]     The approach to be taken by this Court in such a case was recently restated by the Supreme Court in Austin, Nichols & Co Inc v Stitching Lodestar, as follows: [6]

[6] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 (footnotes omitted).

[3]       The short point raised by the appeal is whether the High Court on an appeal under s 27(6) of the Trade Marks Act 1953 must defer to the assessment of the Commissioner if the conclusion he or she has reached is one on which reasonable minds may differ.   The short answer is that the general appeal under s 27(6) requires the High Court to come to its own view on the merits.  The weight it gives to the decision of the Commissioner is a matter of judgment.  If the High Court is of a different view from the Commissioner and is, therefore, of opinion that the Commissioner‟s decision is wrong, it must act on its own view.

[4]       Perhaps the most familiar general appeals are those between courts.6

So, in the present case, the Court of Appeal on general appeal from the High Court under s 66 of the Judicature Act 1908 was entitled to take a different view from the High Court.  Similar rights of general appeal are provided by statute in respect of the decisions of a number of tribunals.  The appeal is

usually conducted on the basis of the record of the court or tribunal appealed from unless, exceptionally, the terms in which the statute providing the right of appeal is expressed indicate that a de novo hearing of the evidence is envisaged.  (An example of a right of appeal with that effect was that under the legislation considered by the Court of Appeal in Shotover Gorge Jet Boats Ltd v Jamieson.)   In either case, the appellant bears an onus of satisfying the appeal court that it should differ from the decision under appeal.  It is only if the appellate court considers that the appealed decision is wrong that it is justified in interfering with it.

[5]       The appeal court may or may not find the reasoning of the tribunal persuasive  in  its  own  terms.  The  tribunal  may  have  had  a  particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important).  In such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong.  It may take the view that it has no basis for rejecting the reasoning of the tribunal appealed from and that its decision should stand.   But the extent of the consideration an appeal court exercising a general power of appeal gives to the decision appealed from is a matter for its judgment.  An appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the court or tribunal appealed from, if it comes to a different reasoned result.   On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case.

[34]     I apply those principles.

The assault charge – self-defence

The circumstances as the appellant believed them to be

[35]     Having  considered  carefully the transcript  of the Police interview of  the appellant, his evidence in the District Court, and the partial transcript of the 111 call dealing with most of the exchange between the appellant and the complainant at the motel, I am satisfied that the most favourable proposition which can be put on behalf of the appellant is that he apprehended that, if he and the complainant physically confronted each other, the complainant might assault or attempt to assault him. There was no basis for holding that the appellant perceived an imminent threat of assault at the time the complainant pulled up at the motel, and the complainant and he were in their respective vehicles.

Did the appellant use force for the purpose of defending himself?

[36]     The  appellant  alighted  quickly  from  his  truck,  carrying  the  heavy metal wiggle pin (concealed in a folder) with the intention of using it if it proved necessary

to deal with any aggressive behaviour on the part of the complainant or, as the appellant put it, “if need be”.   While I am satisfied that Mr Dummer‟s preferred option was simply to keep the complainant confined in his car until he calmed down, and to use such force as might be necessary to achieve that end, I do not consider he believed he was in such imminent danger that he was taking those steps in order to defend himself.   The physical confrontation occurred only because the appellant alighted from his truck, approached the complainant‟s vehicle, and used force to restrain the complainant from alighting from his vehicle (as the complainant was perfectly entitled to do).  He then used the metal bar to break the complainant‟s grip when the complainant reacted to the appellant‟s aggression.

[37]     The appellant was the aggressor, as the District Court Judge found, not a defender.  That finding is sufficient, in the circumstances as the appellant believed them to be, to support the conclusion that the prosecution had disproved self-defence beyond reasonable doubt.

Was the force used reasonable in the circumstances as the appellant believed them to be?

[38]     In light of the answer to the second question, it is not strictly necessary to deal with the third question of reasonableness.  But, in the circumstances of this case, the issue is closely related to the second and deserves comment

[39]     For the respondent, Ms Law referred to the judgment of the Court of Appeal in R v Savage,[7]  in which the Court of Appeal endorsed the proposition that it was open to a jury to conclude that, where an accused person merely thought that there might be some future danger to him, such a threat could normally be answered by retreating or adopting some other method of avoiding an immediate threat of danger.

[7] R v Savage [1991] 3 NZLR 155.

[40]     Taking aggressive action with a concealed weapon which would be available “if need be” was not reasonably necessary in the circumstances apprehended by the appellant.   It would have been reasonable, as the appellant acknowledged when interviewed by the Police, for him either to simply stay in the truck with the door locked, or move quickly into the motel office or to his room and so avoid any

potential confrontation.

[41]     Although  the  appellant  endeavoured,  in  evidence,  to  resile  from  the admission in the Police interview that he had hit the complainant on the hand, with the wiggle pin, the Judge was entitled to find that that was an assault.  It was not one which could be justified in circumstances where there was only an apprehension of a possible physical confrontation if the complainant got out of his vehicle and came into close proximity with the appellant.  In the circumstances which he believed to confront him, the appellant had no right to use force to prevent the complainant from getting out of his car.

Conclusion on self-defence

[42]     Although the Judge‟s reasoning may not have followed the three-step process required to consider whether self-defence had been rebutted by the prosecution, I regard the appellant‟s conviction of assault in the circumstances as being inevitable on a principled approach to the evidence.  I deal with the disposition of the appeal against the assault conviction below.

The intentional damage charge

[43]     The   appellant‟s  defence   to   the   intentional   damage   charge   does   not automatically fall away because of the rejection of self-defence on the assault.  There is no doubt that damage to the driver‟s window sill and door was caused by the appellant‟s attempts to keep the complainant inside the vehicle.  There was evidence from the complainant of a deliberate blow to the window sill by the metal wiggle pin, the appellant striking it in a downward motion.

[44]     Having regard to all of the evidence, however, I consider there is a real possibility  (not  addressed  by  the  District  Court  Judge)  that  that  damage  was incidental  to  the  appellant‟s expressed intention  to  keep  the  complainant  in  the vehicle and that it was not his intention to damage the window-sill, even if it was struck in a downward motion in the course of the appellant‟s trying to free himself from the complainant‟s grasp.  It also seems highly probable that the damage to the door panel caused by the appellant‟s knee was consequential and not deliberately inflicted.

[45]     The possibility of incidental unintended damage being caused by a deliberate act or acts was open on the evidence, meaning that the prosecution had failed to prove the ingredients of the charge sufficiently to render the act a criminal offence in that respect.  Taking the view that an appeal court in a general appeal is entitled to differ from the finding of the court below on an issue such as this, I consider the appellant‟s conviction on the intentional damage charge to be unsafe.  That appeal is allowed and the conviction quashed.

The order to pay reparation

[46]     In convicting the appellant on the charge of intentional damage, the District Court Judge did not impose a penalty but made a reparation order.  Quashing that conviction has the effect of discharging the reparation order.

Powers on appeal

[47]     The powers of the High Court on appeal from the District Court are wide. Section 121 of the Summary Proceedings Act 1957, so far as is relevant,  provides that:

121      High Court to hear and determine appeal

(1)       The High Court shall hear and determine every general appeal and make such order in relation to it as the Court thinks fit, and, without limiting the generality of the power conferred by this subsection, may exercise any of the powers referred to in the succeeding provisions of this section.

(2)       In the case of an appeal against conviction, the High Court may—

(a)       Confirm the conviction; or

(b)       Set it aside; or

(c)       Amend it and, if the Court thinks fit, quash the sentence imposed and either impose any sentence (whether more or less severe) that the convicting Court could have imposed on the conviction as so amended, or deal with the  offender in any other way that the convicting Court could have dealt with him on the conviction as so amended.

...

(6)        In any case, the [High Court] may exercise any power that the Court whose decision is appealed against might have exercised.

[48]     I do not think subsection (2)(c) is relevant here.  Although it provides for the possibility of imposing any sentence which the convicting court could have imposed,

it seems that the power specifically referred to applies only where the conviction in question has been amended (for example, by substituting an included offence) and not, as is the case here, where the conviction has been upheld.

[49]     Nevertheless, s 121(1) makes it clear that the general power conferred by that subsection is to make such an order as the Court thinks fit in relation to the appeal, and that subsection (2) does not limit it.   Section 121(1) also provides that the powers in subsection (2) may be exercised in  addition to the general power in subsection (1).

[50]     The power of the courts to impose reparation orders lies in s 32 of the

Sentencing Act 2002. The relevant parts of that section provide:

32        Sentence of reparation

(1)       A court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer—

(a)       loss of or damage to property; or

(b)       emotional harm; or

(c)        loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.

....

[51]     In R v Donaldson, the Court of Appeal discussed the causal link required between the offending and the loss or damage.[8]   The Court held that loss „through‟ an offence would be loss directly consequent on the commission of the offence; for example, the cost of damage to a door caused during a break-in into a house.[9]    On the  other  hand,  „by means  of‟ contemplates  a  less  direct  association  with  the offending and any loss closely associated with the offending would qualify.[10]   Any assessment of causation is to be approached in a broad and common sense way.[11]

[8] R v Donaldson CA227/06, 2 October 2006

[9] At [37]

[10] At [38]

[11] At [36]

[52]     Applying  that  approach  to  the  current  case,  I  am  satisfied  that  while  a reparation order would have been justified for loss „through‟ offending under the

wilful damage charge, it is equally justified for loss „by means of‟ offending under

the assault with a weapon charge.  Pursuant to s 32, it would have been open to the District Court, at first instance, to impose a reparation order upon the appellant in respect of the conviction for assault, because the damage to the car which occurred happened “by means of” the assault.

[53]     Section 121(6) Summary Proceedings Act further reinforces the breadth of the general power in subsection (1), and can be relied on here.  Consequently, loss to the complainant arising from the incident at the motel can be remedied by making a reparation order in relation to the conviction of assault with a weapon.

Disposition of the appeals

[54]     Pursuant to s 121(2)(b) Summary Proceedings Act, the appellant‟s conviction

on the intentional damage charge is set aside.

[55]     Pursuant to s 121(2)(a) of the Act, the appellant‟s conviction on the charge of assault with a weapon is confirmed but, pursuant to ss 121(1) and (6), the sentence imposed by the District Court on that charge is varied by the addition of an order for reparation in the sum of  $1,377.13 which, if not already paid, shall be paid by 4pm on 25 November 2011.

......................................

Toogood J