Glass v Police - [2015] NZHC 387

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2014-425-52 [2015] NZHC 387

BETWEEN
COHEN JAMES GLASS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 March 2015

Counsel:

Appellant in person
M J Thomas for Respondent

Judgment:

6 March 2015

JUDGMENT OF BROWN J

[1] On the evening of 10 November 2013 the appellant was in the Barmuda Bar in Queenstown when he was told to leave by a security officer, Mr Orpin. After the appellant had finished his beer he was escorted to the door by Mr Orpin who held the door open and the appellant walked out of the bar. A brief scuffle then ensued some of which was captured by a camera mounted outside the door to the bar.

[2] As a consequence the appellant was charged with assault under s 196 of the Crimes Act 1961. After a defended hearing on 18 November 2014 the appellant was convicted of the charge by Judge K J Phillips and sentenced to 60 hours of community work. The appellant appeals against the conviction but not against the
sentence.

GLASS v NZ POLICE [2015] NZHC 387 [6 March 2015]

Judgment under appeal

[3] In the District Court evidence was given by Mr Orpin and the appellant, both of whom were cross-examined. The Judge also viewed the CCTV footage from two cameras, one inside the bar and the other outside the door to the bar.

[4] At the commencement of his judgment the Judge summarised the appellant’s case as being that he was being attacked, that he was doing no more than defending himself and that the blows thrown by him in the direction of Mr Orpin were no more than the appellant defending himself. The Judge said:

[2] I remind myself it is for the police to prove its case beyond reasonable doubt and in relation to self-defence, despite what the terminology indicates, it is the prosecution who has to prove beyond reasonable doubt the defendant was not acting in self-defence. It is right to say a person acting in self-defence may be justified in using force in his defence. Three questions need to be asked and answered:

(a) What were the circumstances as the defendant believed them to be?

(b) Did the defendant use force for the purposes of defending himself, because if he was not acting for that reason, he will not be acting in self-defence?

(c) If there is finding he did act in self-defence, was the force used reasonable?

[5] The Judge first reviewed the appellant’s evidence which included the following assertions:

(a) that as the appellant went out the door Mr Orpin punched him in the back following which Mr Orpin stepped back through the doorway;

(b) after the appellant made a gesture to Mr Orpin, he rushed at the

appellant with his fists up but in the camera’s blind spot;

(c) the punches which the appellant then threw were to defend himself

against Mr Orpin’s lunge with his fists up;

(d) Mr Orpin…

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 Glass v Police

Details

AGLC: Glass v Police [2015] NZHC 387
Case: [2015] NZHC 387
Decision Date: 6 March 2015

CaseChat Overview and Summary

Cohen James Glass appeals against his conviction for assault under section 196 of the Crimes Act 1961. The conviction was the outcome of an incident in the Barmuda Bar in Queenstown, New Zealand, where Glass was asked to leave by security officer Mr Orpin. Following the request, Glass was escorted to the door and a scuffle ensued, captured in part by CCTV footage. Glass was charged, convicted, and sentenced to 60 hours of community work. He appeals against the conviction but not the sentence.

The legal issues in this case are whether Glass was acting in self-defence when he threw punches at Mr Orpin, and whether the force used was reasonable. The District Court judge found Glass’s evidence less credible than Mr Orpin’s and concluded that Glass was not acting in self-defence. Glass contends that he was defending himself and that Mr Orpin was lying. The court must determine if the District Court judge erred in his assessment of the evidence.

The High Court found that the CCTV footage clearly shows Glass throwing three or four punches at Mr Orpin. The footage shows Glass making a provocative gesture before lunging towards Mr Orpin and throwing the punches. The court agreed with the District Court that Glass was not under attack and had the ability to run away, but chose to come in swinging. The force used by Glass was not for the purposes of self-defence, and therefore, the conviction was upheld. The appeal is dismissed as there was no material error in the assessment of the evidence by the District Court.

The final orders of the court are that the appeal against conviction is dismissed. The sentence of 60 hours of community work remains in place.

Orders