M v Police HC Rotorua CRI 2009-463-45

[2009] NZHC 2225

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2009-463-45

BETWEEN  M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         10 December 2009

Appearances: Paul Fisher for Appellant

Laura Owen for Respondent

Judgment:      10 December 2009

JUDGMENT OF HARRISON J

SOLICITORS

Clancy Fisher Oxner & Bryant (Tokoroa) for Appellant

Gordon Pilditch (Rotorua) for Respondent

M V POLICE HC ROT CRI 2009-463-45  10 December 2009

[1]      Mr M   appeals against his conviction following a summary trial in the District Court at Tokoroa on one charge of injuring with intent to injure his sister, Nova M  , on 15 December 2008.

Facts

[2]      The  circumstances  do  not  require  particular  elaboration.     At  the  time Mr M   was working as a driller in a remote part of Australia.  He returned to the family home in Tokoroa to spend Christmas with his family.  On the evening in question  Mr M    and  his  relatives  met  at  his  mother's  home  for  a  social celebration.   Mr M   and some of his relatives consumed a  good deal of alcohol.

[3]      Also present was Mr M  's sister, Nova.  Two elements of her situation should be recorded: one is that she was then four months pregnant and was not drinking; the other is, as Mr Fisher emphasises in support of Mr M  's appeal this afternoon, she was experienced in kick boxing.

[4]      At one stage Ms M   and her brother were indulging in play fighting. This  activity  apparently  got  out  of  hand.    It  commenced  in  the  lounge  while Ms M   was watching television with her mother and some children.   For whatever reason, Ms M   decided to discontinue the play fighting.  She went to her bedroom.  It is common ground that Ms M   struck her brother on the nose when he followed her there.  The blow was reasonably severe.  He says it broke his nose and caused bleeding.  All that is common ground.

[5]      However, what occurred subsequently is in dispute.  Ms M   says that her brother then struck her while she was on the bed and continued to hit her after he pulled her from the bed onto the floor.  She said he punched her with a closed fist. At the same time he kicked her around the chest area.  She described the punches as being to the side of her face.   Some corroboration for her account is found in photographs taken subsequently.

[6] Mr M , however, gave a different account. He confirms that he followed his sister into the bedroom. He confirms that she struck him a heavy blow on the nose. His reaction, he said, was to grab her and push or throw her into the hallway. In defence of the charge Mr M said he was acting in self-defence. I should add for the purposes of completeness that Mr M denied his sister's account of a subsequent assault (at [5] above). Also at some stage during this episode he punched structures within the house and caused damage. He pleaded guilty to one charge of wilful damage.

District Court

[7]      Against that background Judge Weir convicted Mr M  .  The ratio of his decision is found in these paragraphs:

[14]      [Mr M  's] version of events was that he was being a pain, but when she stormed off to her room, he decided to go and see what was wrong. He was still pretty happy and when he walked in the bedroom she just smacked him in the nose and told him to 'fuck off'. He said that his response was to accuse her of breaking his nose and that he simply grabbed her and threw her into the hallway. All he was doing was defending himself.

[15]      In order to determine the result in this case, it is important to look at the circumstances surrounding this whole incident. It is clear that the defendant was heavily intoxicated and he was heavily aggressive. It is also clear that he was hit first by the complainant, but there is no doubt in my mind that the defendant had an opportunity to walk away. Self defence was, in my view, not an option. He simply did not have to use any force at all to take himself away from the altercation. I find as a matter of fact that he did assault  her.  There  is  no  other  explanation  for  the  injuries  which  she described and which are graphically demonstrated in the photographs taken by Constable Samuel.

[16]     Those factors alone buttressed by his intoxication and extremely aggressive behaviour, in my view, are sufficient for the prosecution’s case to be proven beyond reasonable doubt in relation to the charge of assault with intent to injure. The charge is accordingly proved.

[8]      In support of Mr M  's appeal, Mr Fisher submits that the Judge erred in rejecting Mr M  's defence of self-defence.  The Judge was satisfied that the Crown  had  negated  the  availability  of  this  defence  to  the  criminal  standard. Mr Fisher says that there is sufficient evidence to raise the requisite doubt.

[9]      I  am  satisfied  that  Judge  Weir  did  not  err.    It  was  open  to  him  on Mr M  's own evidence, the thrust of which was confirmed in Mr Fisher's cross-examination of Ms M  , that he reacted angrily to his sister's initiating violence.  All the facts establish that, as the Judge found, he had an opportunity to walk away from the bedroom.   There was no evidence that he was in imminent danger of further violence or, to apply the test in s 48 Crimes Act 1961, that it was reasonable to use the force which he admitted of grabbing his sister and projecting her into the hallway.  This act on its own unarguably constituted an assault.

[10]     Mr Fisher is, however, on stronger ground when he challenges the Judge's finding that the assault was carried out with an intent to injure.  He points out that the Judge did not make findings, first, about the state of Mr M  's mind at the relevant time or, secondly, that Mr M   inflicted the injuries described by his sister.  In answer, Ms Owen for the Crown points to the Judge's brief reference to the absence of any other explanation for the injuries which Ms M   described and which were shown in the photographs taken by a police officer.  The Judge relied on that evidence to support his finding of the fact of assault.

[11]     I am satisfied that in order to resolve this issue it was necessary for the Judge to make the two findings set out (at [10]).  His judgment was limited to a narration of both accounts and a finding of an assault in the hallway.  He did not, however, take the further step of examining and making findings about whether Mr M   carried out the subsequent attack alleged by his sister or, if so, his state of mind at the time.   A credibility finding on the conflicting accounts was essential, but was omitted, to sustain the Judge's finding of guilt on the more serious charge.   In the event that the Judge was relying upon the photographs to support the more serious charge, it would have been necessary for him to explain the basis.

[12]     Mr Fisher raises an alternative submission that Judge Weir's interference in the trial process constituted a miscarriage of justice.  He relies on 16 questions by the Judge which he says were directed towards supporting the prosecution case.  He also

refers to a number of interruptions in counsel's cross-examination of the prosecution witnesses (a total of seven).

[13]     This allegation is serious and Mr Fisher appreciates that he must satisfy a high threshold to establish actual bias or pre-determination or inherent unfairness in the conduct of the trial process.  While I accept Mr Fisher's submission that some of the questions may give rise to a perception that they were asked for the purpose of advancing the prosecution case, I am not satisfied that the Judge's interventions when considered in total or context amounted to bias or an unfair interference with the trial process.  Some of his questions were directed to uncontroversial issues.  And he was correct to stop Mr Fisher's cross-examination on some irrelevant subjects, such as what  steps  the  police  took  to  obtain  medical  assistance  for  Mr M  . Accordingly this ground of appeal is dismissed.

Conclusion

[14]     Mr M  's appeal is thus allowed to the extent that his conviction for assault with intent to injure is quashed.  In substitution he is convicted on the lesser charge  of  assault.    In  this  respect  I  note  that  Mr M    received  a  lenient sentence in recognition of the sibling reconciliation which had apparently occurred since the altercation.  Judge Weir directed Mr M   to come up if called upon within 12 months.

[15]     I wish to compliment both counsel on the way this appeal has been conducted and the assistance they have given this afternoon in identifying the real issue for

determination.

Rhys Harrison J