J v Police HC Christchurch Cri-2009-409-92

[2009] NZHC 1046

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2009-409-000092

J

Appellant

v

POLICE

Respondent

Hearing:         30 September 2009

Appearances: G Tyrrell for Appellant

H F McKenzie for Police

Judgment:      30 September 2009

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against conviction and sentence.

[2]      Following a defended hearing, the appellant, Mr J  , and a co-offender, Mr Reuben, were convicted in the District Court of fighting in a public place under s

7 of the Summary Offences Act 1981.

[3]      Mr J   was sentenced to come up for sentence if called upon in the next six months.  Mr Reuben was fined $250, costs $130.  The reason for the different treatment was because Mr Reuben had previous convictions, whereas Mr J 

was a first offender.

J V POLICE HC CHCH CRI-2009-409-000092  30 September 2009

[4]      It was not disputed there was a physical interaction between Messrs J   and Reuben and two other young men in downtown Christchurch at Cashel Mall. Nor was it disputed that Cashel Mall is a public place.

[5]      The issue was whether Mr J   (and Mr Reuben) were acting in self- defence.

[6]      At  the  hearing  before  the  District  Court,  evidence  was  given  for  the prosecution by two police officers.   They were in the vicinity at the time of the altercation, approximately eight metres or so away from Mr J  .  The officers did not see what started the fight.   Their attention was drawn when one of them heard raised voices.  He turned and saw Mr J   and Mr Reuben both on their feet, trading blows and abuse with two other young men.  The officers quickly went over to try and break up what they described as a fight.

[7]      The officers further testified that both Messrs J   and Reuben were highly agitated, aggressive and intoxicated.   There was also evidence that Mr J   was directing very loud, racist and abusive comments at the other group.

[8]      Mr J   and Mr Reuben gave evidence at the hearing.

[9]      They told the Judge that the fight had been initiated by the other two.  It had started when the other men asked Mr Reuben for a smoke.   He declined and then they struck Mr Reuben, causing him to fall to his knee and drop a pie that he was eating.

[10]     For his part, Mr J  , himself, did not see the blow, but said he turned around and went to his friend’s assistance.   Mr J   claimed that one of the other men got him in a headlock and started hitting him, as did the other.   Mr J   stated he was trying to get them off himself and Mr Reuben.

[11]     When asked “Were you looking to keep going with the fight?”, Mr J   said:

No way, we just wanted to get out of there and you know as Linton says have a good time.

[12]     In her decision, the District Court Judge stated:

[9]       It is for the prosecution to prove beyond a reasonable doubt that both Mr Reuben and Mr J   were not acting in self defence at the time that they involved themselves in this fight.  I accept that either Mr Reuben or Mr J   were entitled to defend themselves.  The real issue here is whether or not they were defending themselves or acting in a retaliatory fashion to what they deemed to be provocation.

[13]     The Judge then traversed the appellant’s and Mr Reuben’s evidence, and continued:

[20]      Quite frankly both Mr J   and Mr Reuben did not impress me as witnesses, particularly Mr Reuben in terms of his response to a casual request for a cigarette which was in my view an aggressive response.  Maybe this is the way Mr Reuben behaves but it did not impress me in terms of his credibility or reliability.

[21]      The other factor is, both of these young men had been drinking. They have downplayed the extent of their alcohol consumption but I accept the evidence of Constable Erber who is an experienced constable that both young men were intoxicated.

[22]      I have to decide whether or not the prosecution have proved beyond a reasonable doubt that neither of these men were acting in self defence.  I have factored into that decision the evidence from the prosecution as to not only what Constable Erber and Bird saw but also the response of Mr Reuben and Mr J   immediately after they were separated and their demeanour at the time.

[23]      Even  if  Mr  Reuben  had  been assaulted  as  suggested,  what  then proceeded  was  not  by  way  of  self  defence.  It  was  in  my  view  of  the evidence, quite clearly retaliation.   Mr Reuben was well aware  that the police were only a short distance away.  It would have been a simple matter to call out. That was not done.

[24]     These two men involved themselves in a fight.  They were trading blows and any element of self defence was well exhausted by the time the police became involved.

[25]      I accept Mr Brown’s submission that you can continue acting in self defence if the other is still the aggressor but here in my view both parties were acting in an aggressive fashion at the time that the police became involved and from what they saw it was quite clear that Mr Reuben and Mr J   had passed the point of acting in self defence.   They were angry and they were acting in retaliation.

[26]      Therefore I find both charges proved.

[14]     On appeal, counsel for Mr J   submits Mr J   should not have been convicted of fighting in a public place, as his actions were in defence of his friend, and reasonable in the context.

[15]     The law relating to self-defence is contained in s 48 of the Crimes Act 1961, which states:

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.

[16]     As counsel, Mr Tyrrell, submitted, the test is well understood and requires both an objective and subjective analysis of the actions of a person who attempts to rely on it.   It is for the prosecution to negative self-defence, and to do so beyond reasonable doubt, ie prove to the criminal standard that the actions were not self- defence.

[17]     As noted in the decision of R v Auckram [2007] NZCA 570, a three-step test is involved:

i)Did the accused use force for the purpose of defending himself or herself or another?

ii)What were the circumstances as the accused believed them to be?

iii)      Was the force used reasonable in those circumstances?

[18]     Mr  Tyrrell  points  out  that  in  this  case  the  District  Court  Judge  did  not articulate the three steps.

[19]     Mr Tyrrell submits that to the extent self-defence was analysed at all, it appears the Judge focused on the first question and found against the defendants, while accepting that self-defence may have been available at some stage.

[20]     Mr Tyrrell further points out that the only evidence of how the fight started was that of the two defendants.  Their evidence was uncontradicted.

[21]     It does not necessarily follow of course that the Judge was bound to accept it.

[22]     Having said that, I do however, agree that in this case the Judge’s approach was that while it may have started as self-defence, it mutated into retaliation.  That this  was  the  Judge’s  reasoning  is  further  confirmed  by  what  she  says  in  her sentencing notes.

[23]     The main thrust of the argument on appeal is that the Judge’s findings of fact about this being retaliation were not supported by the evidence to the  requisite standard of proof, or alternatively that the evidence was equally consistent with the inference of self-defence as retaliation and that accordingly the Judge should have adopted the inference that was the more favourable to the defendant.

[24]     In support of that argument, Mr Tyrrell submitted:

i)Given the entire episode was over in seconds, there was insufficient time for the matter to go from self-defence to retaliation.

ii)The Judge could not have been able to find beyond reasonable doubt that there had been that transition, given the time period.

iii)The Judge wrongly relied on evidence the appellant was angry to draw an inference of retaliation.

iv)The Judge was wrong to rely on evidence of intoxication as justifying an inference of retaliation.

[25]     A further argument raised by Mr Tyrrell was that the Judge wrongly imputed negative findings about Mr Reuben to Mr J  .   The latter was accordingly prejudiced as a result.  This submission is based on paragraph [20] in the decision quoted above where the Judge said:

Quite frankly both Mr J   and Mr Reuben did not impress me as witnesses,  particularly  Mr  Reuben  in  terms  of  his  response  to  a  casual request for a cigarette which was in my view an aggressive response.  Maybe this is the way Mr Reuben behaves but it did not impress me in terms of his credibility or reliability.

[26]     I have carefully considered all of the submissions Mr Tyrrell has made and made well.  However, I do not consider that the Judge’s analysis of the evidence was flawed in the manner suggested.

[27]     The evidence must be considered in its entirety.

[28]     In my view, there was sufficient evidence on which the Judge could find that behaviour which had begun as self-defence had mutated into retaliation.

[29]     The evidence of anger, intoxication and demeanour must be relevant to that assessment, as indeed must evidence that when the police did step in to break up the fight, greater effort was required to get Messrs J   and Reuben away.

[30]     On  their  own,  each  of  those  matters  may  not  have  been  sufficient,  but together, when considered alongside the direct evidence of the police officers as to their observation, does, in my view, provide the requisite proof to the requisite standard.

[31]     I therefore accept Ms McKenzie’s submission that the Judge’s failure to refer to the three-stage test is a situation simply of a want of form rather than substance.  It should not result in appellate intervention, given that there was an evidential basis and given that the substance was correct.

[32]     In essence, the Judge’s analysis was, in my view, sustainable, and would not justify my overturning her findings of fact.

[33]     I consider that the decision of Linton v Police HC Wellington CRI-2008-485-

000081, cited to me by Mr Tyrrell, is distinguishable.  In that case the District Court Judge had not directed themselves correctly in terms of the onus of proof.  In this case it is clear from the decision that the Judge was well aware of where the burden of proof lay.  She in fact mentions it on more than one occasion.

[34]     As regards the argument about the Judge’s findings against Mr J   being tainted by her impression of Mr Reuben’s credibility, I have carefully considered the paragraph relied upon by the appellant.   However, I am unable to interpret it in the way suggested.   It is clear from the paragraph itself, and what follows, that the Judge was distinguishing between the two defendants, and in no way does she attribute Mr Reuben’s poor behaviour, as she saw it, to Mr J  .

[35]     I therefore do not accept that the appellant was “tainted” by the Judge’s assessment of Mr Reuben.

[36]     It follows from all of the above that I consider the appeal against conviction should be dismissed.

[37]     My finding on conviction means it is necessary for me to turn to the issue of the sentence.

[38]     Mr J  , as I have said, has no previous  convictions.   He sought a discharge without conviction.

[39]     In declining that application, the Judge stated:

[2]       In my view a s 106 discharge is not appropriate here. I can only do that  if  I  am  satisfied  the  consequences  of  conviction  outweigh  your culpability and they do not and you may have read the papers. The Court is basically sick and tired of people fighting in and around Cashel Mall. It is a continuing problem for the police and in my view a conviction is warranted here but I will deal with you as the other party was involved.

[40]     An appeal against a decision not to grant a s 106 discharge is an appeal against the exercise of a discretion.  That means Mr J   is required to satisfy me the Judge has erred in principle, taken irrelevant matters into account, or failed to take relevant matters into account, or was simply wrong.

[41]     What is relied upon as constituting error in this case is the following:

i)Disparity between the sentence imposed on Mr J   and the fact that one of the other protagonists received diversion.

ii)Failure to take into account the fact that Mr J   had spent six hours in the cells.

[42]     As regards the argument of disparity, Mr Tyrrell points out that the person who  received  diversion  was  a  person  who  started  the  fight,  and  therefore  was arguably more culpable than Mr J  .

[43]     It does, however, appear that Mr J   himself was offered diversion but chose to defend the charge.  He should not, of course, be penalised for that, but on the other hand a guilty plea does, as a matter of normal sentencing principles, result in a discount.

[44]     I accept that the fact someone else has been offered diversion may be invoked in aid in support of an argument about disparity so I am therefore in principle prepared to consider the argument: Urquhart v Police HC Christchurch AP30/91, 1

March 1991, Tipping J.

[45]     However, looking at the sentence that was imposed on Mr J   and the fact of diversion, I am unable to say the disparity is so great it satisfies the normal test relating to disparity.  Mr J   was given a sentence that was at the lowest end of the sentencing hierarchy.   It is, in effect, a suspended sentence and, as Ms McKenzie points out, of only six months duration.

[46]     As regards the consequences of a conviction, I also accept that if Mr J   was to rely on those issues, more needed to be provided to the District Court Judge other than standard generalities.

[47]     It is clear from the notes that the Judge considered the consequences that had been put to her, but did not regard them as sufficient to satisfy the necessary pre- requisites for a discharge.

[48]     As I have said, this is an appeal against the exercise of a discretion.  I do not consider the Judge’s reasoning processes can be considered as deficient in any way. She appears to have considered all relevant factors. The fact that Mr J   had

spent six hours in the cells is not expressly mentioned, but on the other hand a Judge is not required to expressly articulate every factor, and further, in my view that would not in any event be a sufficient distinguishing factor to make this sentence manifestly excessive, whether in terms of disparity or otherwise.

[49]     In conclusion, in looking at the situation in its entirety, I do not consider that the Judge was in error. The sentence should stand.

[50]     The appeal against both conviction and sentence is accordingly dismissed.

Solicitors:

Weston Ward & Lascelles, Christchurch

Crown Solicitor, Christchurch