Glass v Police
[2015] NZHC 387
•6 March 2015
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 RespondentJudgment:
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 was described by the appellant as being like a magician who
was aware of the camera’s blind spots and acting accordingly.
[6] The Judge then reviewed the evidence of Mr Orpin for the prosecution including:
(a) after Mr Orpin escorted the appellant out the door the appellant suddenly started throwing punches at him;
(b)Mr Orpin was struck on the left side of his face and in the cheek area and put his arms up in self-defence;
(c) Mr Orpin denied punching the appellant in the back.
[7] The Judge found the appellant to be an unpersuasive witness who had a fixation about the matter, believing that there had been a concerted programming of it by Mr Orpin. By contrast the Judge found Mr Orpin to be a witness who was overall believable and whose evidence was logical. The Judge stated that when it came to weighing the appellant’s evidence against Mr Orpin’s evidence, he considered Mr Orpin’s evidence correctly reflected what had occurred.
[8] The Judge concluded his judgment by stating that he found the following matters to be established beyond reasonable doubt:
[12] Mr Glass was in the Barmuda Bar on 10 November 2013. Rightly or wrongly, he had been asked to leave by the security officer who was doing no more than his job as directed by the bar manager. He would have had a duty to carry out those instructions. Mr Glass did not like it and he was more than annoyed about it but after he realised his position was such he was going to go, he finished his drink and walked out the door. I find as a fact Mr Orpin held the door open and Mr Glass walked through. Finally, Mr Glass’ temper and loss of self-control resulted in the gesture and resulted in him coming back in an attempt to deal with the bouncer by throwing three punches at him. As a result of that, Mr Glass then took off. In relation to the circumstances as the defendant perceived them to be, I do not believe he believed he was acting in self-defence. I have had a close look at the video and his attitude prior to the delivering of the punches. He was not under attack, in my view, in the finding I make but he may have believed he was. Mr Orpin is a large man. If I take the circumstances as the defendant believed them to be, he believed
that Mr Orpin was going to come out the door again. Did he use the force for the purposes of defending himself? There I note what had happened. He was in an alleyway and Mr Orpin, even on the defendant’s view of the facts, was at the doorway. Mr Glass had the ability to run away but what did he do? He came in swinging. In the end, he was not using the force that I found he had used for the purpose of defending himself. He was not acting in self-defence. He had other means available to him. I look again at the video footage and if I am wrong in my finding that he did not use the force for the purposes of defending himself and consider whether the force used was reasonable, I see no strike or no evidence at all from Mr Orpin at the time. All of the aggression and movements seem to be from Mr Glass. He threw three or four punches at a person who I have found was not advancing at him and those blows were unnecessary. There were clear alternatives.
[13] The force used was not reasonable anyway but in the end I am satisfied the police have proved beyond reasonable doubt the defendant was not acting in self-defence. He delivered three blows to Mr Orpin. On that basis, he applied force to the body of Mr Orpin, those blows having struck Mr Orpin. He will be convicted.
Grounds of appeal
[9] The notice of appeal dated 9 December 2014 stated the grounds of appeal in very considerable detail. The grounds, which were contained in a separate attachment to the prescribed form of notice of appeal, comprised some 12 pages arranged under the following headings:
1. Mistaken identity and contracting under duress
2. Jurisdiction
3. Suspicion of prejudice
4. No presumption of innocence
5.Formal requests to have case transferred to Invercargill High Court ignored
6. Failure to keep/maintain and provide accurate record
7. Unlawful and/or unfear (sic) hearings
8. Failure to obtain/secure and provide important evidence
9. Apparent false statements
10. Breach of liquor laws, contributory negligence and entrapment
11. Non credible witness
12. Unfair procedure at trial – s 25(a) of the Bill of Rights Act
13. Suspicion of doctored evidence
14. Inconsistent “summing up” – s 25(a) of the Bill of Rights Act
15. Unfair hearing – s 25(a) of the Bill of Rights Act
Approach on appeal
[10] On an appeal against conviction under s 229 of the Criminal Procedure
Act 2011 the appeal court must allow the appeal if satisfied that:
(a) the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b) in any case, a miscarriage of justice has occurred for any reason. The appeal court must dismiss the appeal in any other case.
[11] An appeal against conviction is by way of rehearing. The approach of the
Court is as explained in Austin, Nichols & Co Inc v Stichting Lodestar:1
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate Court's opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court's assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
The parties’ contentions
Appellant’s submissions
[12] The appellant’s argument was well constructed and generally speaking focused on the relevant incident rather than on the broad range of other matters referred to in the notice of appeal. The appellant presented a bundle of 26 still
frames taken from the CCTV footage, both inside and outside the bar. He also
1 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
presented 11 “exhibits” which closely analysed what he submitted were inconsistent statements in the police summary of facts, the evidence and the Judge’s decision. The exhibits also related to his efforts to obtain CCTV footage which covered a much longer period than the footage in evidence.
[13] The appellant proceeded carefully through the 26 still frames from the CCTV footage, developing his argument in the process. The footage was then played on the screen in the courtroom.
[14] The appellant emphasised the following points by reference to the still frames:
(a) frame 11: the reflection of the appellant’s face could be seen in the
door;
(b)frame 12: the appellant had gone out the door and Mr Orpin was squared up to walk out the door. The appellant contended that Mr Orpin had a clenched fist;
(c) frame 13: Mr Orpin is stepping out the door;
(d) frame 14: Mr Orpin cannot be seen – he is out the door;
(e) frames 16 and 18 (outside camera): the appellant’s hand gesture can
be seen. The appellant disputes that it is a throat-cutting gesture; (f) frame 17: Mr Orpin has retreated back inside the bar;
(g) frame 20: Mr Orpin steps outside again;
(h)frames 22 and 23 (outside camera): The appellant has turned back towards the door but contends that his fists are not clenched;
(i) frame 24 (outside camera): Mr Orpin’s head is visible; the appellant is
shaping up with apparently clenched fists;
(j) frame 26 (outside camera): shows appellant running off.
[15] In addition the appellant presented a substantial argument to the effect that
Mr Orpin was lying and hence the Judge’s acceptance of his evidence was flawed.
Respondent’s submissions
[16] The Crown submitted that the CCTV footage clearly showed the appellant assaulting Mr Orpin by throwing three or four punches at him. Ms Thomas contended that the Judge carefully analysed the evidence, in particular the CCTV footage, finding that not only had the appellant punched the complainant but that at no stage did the appellant appear to have been acting in self defence. She drew attention to the Judge’s findings as to the relative credibility of the appellant and Mr Orpin.
Decision
[17] The appellant was plainly aggrieved at being requested to leave the bar. He considered that the request was instigated by the bar manager who had an ulterior motive of wishing to speak with the young women who were seated beside the appellant at the bar. The appellant acknowledged that he had not been cooperative when Mr Orpin approached him at the bar and that a debate ensued about the fact that the appellant had been served a drink when he was allegedly intoxicated. Referring to the reasonably lengthy discussion which can be seen on the in-bar footage, the appellant remarked: “I’m making him earn his wages”.
[18] It was the appellant’s focus on the earlier stage of the evening that caused him to make the requests to Good Group Ltd (copies of which the appellant handed up during the appeal hearing) for copies of the CCTV footage for a full 60 minutes prior to the incident. It is unfortunate that that footage was not retained because its unavailability has served to fuel the appellant’s sense of aggrievement about his treatment while inside the bar. However his conviction and this appeal are concerned with the events after he left the bar.
[19] I recognise that the location of the outside camera somewhere above the door had the consequence that a person immediately outside the door (but below the camera) is not captured on film. Hence there is little to be seen of Mr Orpin on the footage taken outside the bar.
[20] I agree with the appellant’s submission that Mr Orpin stepped out the doorway, then stepped back into the bar and then stepped out through the doorway a second time. However I do not consider that the Judge’s reference to Mr Orpin’s evidence, that he was standing in a static position when the appellant struck him, is necessarily inconsistent with what can be seen on the footage. I am unable to identify from the footage whether, when he was in the bar, Mr Orpin had a clenched fist as the appellant contends.
[21] Nevertheless the appellant does not dispute that once outside the bar he threw three or four punches at Mr Orpin. The CCTV footage clearly shows him doing so. The only issue then is whether the appellant did so in self defence.
[22] On that issue my conclusion is the same as Judge Phillips’. The footage shows that, having walked outside, the appellant then turns back to face the door and makes a gesture with his right hand. While it is open to interpretation whether it could be described as a throat-cutting gesture, I have no doubt that it was provocative in nature. The appellant then lunges towards the door (where it is to be inferred that Mr Orpin is standing) and throws the sequence of punches.
[23] My assessment is the same as Judge Phillips at [12],2 namely that the appellant was not under attack, that he had the ability to run away, that he came in swinging and that the force which he used was not force for the purposes of
defending himself.
2 At [8] above.
[24] While I recognise that the outside CCTV footage does not capture Mr Orpin’s movements, I consider that it shows the appellant’s conduct very clearly. That evidence establishes beyond any reasonable doubt that the several punches, which the appellant acknowledges he threw, were not thrown as an act of self defence. Consequently I do not consider that there was any material error by the Judge in his assessment of the evidence. I have come to the same conclusion.
[25] The appeal is dismissed.
Brown J
Solicitors:
Preston Russell Law, Invercargill
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