Henderson v Police HC Nelson CRI 2011-442-26

[2011] NZHC 1602

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2011-442-26

SEAN CRAIG HENDERSON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 August 2011

Counsel:         A J Heward for Appellant

S K O'Donoghue for Respondent

Judgment:      17 August 2011

JUDGMENT OF SIMON FRANCE J

[1]      Following a summary trial, Mr Henderson as convicted of assault with intent to injure.[1]   He appeals on the basis that the Judge wrongly found that he intended to injure the person he kicked, and wrongly rejected self defence.

Facts

[1] Police v Henderson DC Nelson CRI 2010-042-2861, 8 April 2011.

[2]      Mr Henderson and a friend were out drinking.  Around 1 a.m. they sought to go to a nightclub but were refused entry.  An altercation ensued with two doormen. In the course of the fight, Mr Henderson’s friend ended up on the ground with one of the doormen kneeling over him.  There is a dispute as to what he was doing.  The

doormen say the friend was just being held on the ground and restrained with an

SEAN CRAIG HENDERSON V NEW ZEALAND POLICE HC NEL CRI 2011-442-26 17 August 2011

arm lock.    Mr Henderson  and  his  friend  say the  doorman  was  punching  him  –

15 to 20 times.

[3]      Mr Henderson had withdrawn from the initial affray and was watching from nearby.  When his friend was on the ground, with the doorman kneeling over him, Mr Henderson approached the scene and kicked the doorman in the face. At the time of the kick, the doorman’s face was looking down and the kick impacted with his nose, breaking it.

[4]      Mr Henderson said that prior to doing this he had been calling out for the doormen to leave his friend alone.  (Others testify they did not hear this.)  When they did not, and the attack continued, Mr Henderson intervened to protect his friend.  He delivered the kick to the doorman’s face and then retreated again.

Judgment under appeal

[5]      Mr Henderson having accepted that he kicked the accused, the trial issues were whether he did so with the intent alleged, and his defence of “defence of another”.

[6]      Some aspects of the decision appear to involve credibility findings favourable to Mr Henderson’s evidence.  For example, the judge held that Mr Henderson was indeed calling out pleas for the doormen to stop their actions.   And he held that Mr Henderson was acting in defence of his friend:

... he honestly believed from what he saw he became concerned for his friend’s safety and well-being, and considered his friend did need some assistance.

[7]      One might infer from this some acceptance of the appellant’s evidence that the friend on the road was being assaulted rather than just restrained.  Elsewhere the Judge also holds that there was a violent scuffle on the ground.  However, earlier in the judgment the Court held:

Mr Thornley held Mr Oliver [the friend] on the ground and was leaning over him, trying with both hands to restrain him by the head and upper body area.

[8]      It seems then that what is being described is somewhat of a progressive event.  As the friend falls to the ground, there is a violent struggle between him and the doorman as the doorman seeks to subdue him.  The nature of the scuffle is not definitively described, but punches were exchanged.   It is not quite the scene described by Mr Henderson and his friend, who have the friend being the prone victim of a sustained assault, but nor is it the less physical event described by the doormen.

[9]      In   terms   of   the   trial   issues   earlier   identified,   the   Court   held   that Mr Henderson had an intent to injure, and that whilst he was acting in defence of another, the force was not reasonable.

The appeal

[10]     On the question of intent, the Court ruled that:

A deliberate forceful kick to the head as has occurred here, which results in the victim breaking his nose, in my view, satisfies the criteria under s 193 of the Act.

[11]     The complaint made on appeal is that the Court does not actually focus on whether Mr Henderson had the necessary intent.   There is no reference to several factors that could be relevant to the assessment.  For example, there is no reference to his motive of only helping his friend by disrupting things, nor to the fact that he only kicked once and immediately withdrew, something submitted to be inconsistent with any desire to actually injure.

[12]     A similar complaint is made as regard self defence.  It is submitted that the Court could not find the force unreasonable until there was first a determination of what were the circumstances that Mr Henderson believed were happening.

Decision

[13]     There is merit in the grounds advanced on appeal.    It would have been preferable had there been firmer determinations on the matters of conflict, and a fuller statement of what the Court assessed Mr Henderson’s understanding to be.

The real question is whether there is any possible conclusion on the evidence other than that reached by the District Court.

[14]     For self defence, one could take the best possible scenario for Mr Henderson. This is probably more favourable than what the Judge did hold, but in the absence of any express finding it is the preferable approach to take on  appeal.   The most favourable view would be that his friend was being held on the ground by two men, one of whom was persistently punching and hitting him.  Mr Henderson believed the assault would continue, along the same lines, and felt he had to interfere.  In such circumstances could a hard kick to the face possibly be reasonable force?

[15]     The doorman was kneeling, his face down, not looking.  The kick was to the head area, which sufficient force to break the man’s nose.   One has to posit that Mr Henderson wanted to disrupt the attack, but did not want himself to be caught up in it and also assaulted.  Was it reasonable to act as he did, remembering that these assessments are not to be unduly fine.  The question is not whether there were other options, although that can be relevant, but whether the option taken represents unreasonable force in the circumstances as he believed them to be.

[16]     In my view the Judge was right to say no.  Like him, I consider much more is needed before a blind side kick to the head can possibly be reasonable.  Witnesses said it was a big kick, and likened it to sportspeople kicking a ball.  Mr Henderson naturally described it less prosaically, but accepted it was firm but not real, real hard.

[17]     Accordingly, on the most favourable version of events the kick could not possibly be reasonable force and self defence must fail.   Self defence is excluded beyond reasonable doubt.

[18]     What of an intent to injure?  I accept the complaint that the reasons, standing alone,  suggest  a  process  of  only  identifying  the  fact  of  injury  and  working backwards.  However, the injury is by no means irrelevant to assessing what intent the assailant may have had.  To break the nose suggests a degree of force consistent with an intent to cause actual harm.

[19]     Other facts found proven by the Judge or otherwise not capable of dispute, can be relied upon on appeal.   First, the shoe Mr Henderson was wearing was an exhibit, and so the Judge’s description of it having a solid toe is available. The Judge also appears to accept the evidence of the kick being like a rugby player punting a ball.

[20]     On Mr Henderson’s evidence, he walked, not ran, up to the man he kicked. One can eliminate, therefore, any suggestion that it inadvertently hit the face.  It was controlled and directed.  If not the nose, then the only other options for impact were the mouth or eye area. Again, a kick deliberately aimed at this area, when the victim is not even aware it is about to happen, points irresistibly to an intent to injure.

[21]     Bring these matters together, which are either findings of fact by the Judge or matters  sourced  in  the  accused,  in  my view  an  inference  of  intent  to  injure  is inevitable.   It was not incorrect to see the injury as relevant, and when it is taken with these other facts, I consider there is no basis to disturb the Court’s finding.

Conclusion

[22]     Mr Heward advanced the arguments that could be made, but the appeal is dismissed.

Simon France J

Solicitors:

A J Heward, Nelson

S K O’Donoghue, Crown Solicitor, Nelson