L v Police HC Wellington CRI 2008-485-81

[2008] NZHC 1952

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-485-81

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 December 2008

Counsel:         D S L   in Person

K Grau for Respondent

Judgment:      9 December 2008

ORAL JUDGMENT OF RONALD YOUNG J

This judgment was delivered by Justice Ronald Young on 9th day of December 2008 pursuant to r540(4) of the High Court Rules 1985.

L V NEW ZEALAND POLICE HC WN CRI 2008-485-81 9 December 2008

[1]      Mr L   says he was defending himself in the Cuba Mall in February 2008 when the Police arrived and arrested him for fighting.  He told the Police at the scene he was defending himself.  He gave evidence and called evidence from his friends who were also in Cuba Mall that day that he was defending himself.

[2]     The Judge in the District Court, however, convicted him of fighting. Representing himself he now appeals against this conviction saying the Judge wrongly convicted him.

[3]      I turn, firstly, to the facts.  It seems that the appellant was in Cuba Mall on the evening of 2 February celebrating a friend’s birthday.  He was with James Yull and Samuel McGinnity.

[4]      The appellant said in evidence he saw a boy called Ben Webber whom he knew punch and then push a  younger boy in the mall.   The appellant  says  he remonstrated with Ben Webber asking why was he attacking a younger smaller boy.

[5]      The appellant says Ben Webber then attacked him punching him and others then arrived and also started attacking him.  The appellant says he defended himself by punching back.   At times he said he was kicked as well as punched.   The appellant’s evidence was that one of the attackers pushed him up against a glass window and the shop alarm was triggered.  He was still punching him and they were exchanging punches.  About this time the Police arrived.

[6]      The other two witnesses called on behalf of the defence essentially gave similar evidence although differing in some detail.

[7]      Two policemen gave evidence.   They both accepted they had not seen the beginning of the incident.   Constable Lomus said he saw what he believed was a group of males fighting as he arrived in Cuba Mall in his patrol car.  By the time he got to the scene two males were still fighting by exchanging blows and one of whom was the appellant.   He pulled them apart.   The Constable said the appellant had a

badly ripped shirt and a bleeding nose.  The other person with whom he was fighting apparently had no injuries.

[8]      The appellant immediately told the Police Officer he had been attacked by the other man and had been defending himself.   The Constable confirmed the appellant had been forced up against the window of a shop when he had observed the exchange of blows.

[9]      Sergeant Feltham also gave evidence.  He also described seeing a number of people fighting when he first arrived at the mall.  However, he said that when the two constables arrived at the group three or four were still fighting, one of whom was the appellant.  He said he had to pull some of those apart.

[10]     The Judge correctly identified the onus and standard of proof.  He identified the elements of the offence of fighting in a public place.  He considered generally questions of credibility.  He identified the fact that self-defence had been raised and identified the elements in law of self-defence.

[11]     He did not, however, identify in any direct way the fact that the prosecution where (as here) there is a possible narrative raising self-defence, must prove beyond reasonable doubt that this was not a case of self-defence.

[12]     The Judge said the question for him was “who do we believe in this case?” The Judge found the Police Officer’s credible witnesses.   As to the appellant’s witnesses he said each admitted drinking alcohol which he thought detracted from their evidence.   He said he found Mr Yull an arrogant witness.   And he said the defence witnesses were consistent in some parts and inconsistent in others.  He also said some of the phrasing of the witnesses’ evidence was strikingly similar.

[13]     He said he was cautious about their evidence and “the possibility of collusion and contrivance”.  He then said “In the balance I accept the Police evidence over that of the defence”.  He, therefore, put the defence evidence to one side.  He said the Police description of “trading blows” meant any self defence had expired and this was retaliation by the appellant and, therefore, fighting.

[14]     There are in my view a  number of difficulties with the Judge’s approach and analysis to this case.

[15]     Firstly, the Judge did not identify having raised self-defence that it was for the prosecution to prove beyond reasonable doubt that this was not a case of self- defence.  The Judge’s approach to the case seemed to confuse the burden of proof in this aspect.

[16]     Secondly, contrary to the Judge’s assertion this was not a case of competing credibility between the Police and the appellant and his witnesses on the essential points.

[17]     The Police did not see what started the fight.  They saw an exchange of blows and understandably assumed a fight.   The appellant did not deny the exchange of blows but said it was occurring because the other man was attacking him and he (the appellant) was defending himself.

[18]     In  any event  the  Judge’s  resolution  of  what  he  saw  was  a  conflict  was inappropriate and wrong in a criminal case.   The Judge spoke of “in the balance” accepting the Police evidence over the defence.  However, in a criminal case given the facts here before the Judge could reject self defence he would have had to concluded the evidence of the appellant and his two witnesses was on the important points specifically untrue.

[19]     Thirdly, as to the appellant’s credibility other than a general observation the Judge made no mention of the appellant’s evidence at all.   There was no specific analysis of his evidence.  On the essential point of the appellant’s evidence, that the exchange of blows had begun with him being attacked, there was simply no evidence to dispute this version.  And the Police evidence and what happened at the scene in my view supported the appellant’s evidence.  He was the one who was injured and had a ripped shirt.  He was backed into the shop window by the other man.  And the appellant had immediately told the Police Officer at the scene he was under attack and had been defending himself.

[20]     Given that evidence, together with the evidence of the other men called by the appellant, it is difficult to understand how the prosecution could possibly have proved beyond reasonable doubt that this was not self-defence.

[21]     I am satisfied, therefore, that the Judge brought the wrong approach to this case.  In doing so he made errors of law which require this conviction to be set aside.

[22]     Ordinarily  I  would  have  sent  this  case  back  to  the  District  Court  for rehearing.  I do not propose to do so in this case, however.

[23]     Here as I have said, there was uncontradicted evidence that the appellant was defending himself.  While the Judge was concerned about the defence evidence he did not reject it as untruthful.  A conclusion that self-defence had not been disproved does not involve any findings against the evidence of the Police Officers involved here.   Finally, what we know of what was happening at the scene of the incident supports, or at least is neutral (as I have previously identified) as to the appellant’s case.

[24]     The appeal is, therefore, allowed.  The conviction and sentence quashed.  As

I have said I do not send the matter back for rehearing.

Ronald Young J

Solicitors:

D S L  , 152 Oban Street, Wadestown, Wellington
K Grau, Luke Cunningham & Clere, PO Box 10 357, Wellington, email: [email protected]