Page v Police
[2018] NZHC 1218
•29 May 2018
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE
CRI-2017-463-46
[2018] NZHC 1218
BETWEEN BEN PAGE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 May 2018 Counsel:
H H Roose for Appellant
M S Jenkins for Respondent
Judgment:
29 May 2018
JUDGMENT OF BREWER J
This judgment was delivered by me on 29 May 2018 at 10:00 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Herman Roose (Rotorua) for Appellant Gordon Pilditch (Rotorua) for Respondent
PAGE v POLICE [2018] NZHC 1218 [29 May 2018]
Introduction
[1] Mr Page was convicted by Judge G C Hollister-Jones of one charge of assaulting Mr Te Kaawa with intent to injure him.1 He appeals the conviction.
[2]Mr Roose submits there are two issues:
(a)Whether it was available to the Judge on the evidence to find Mr Page intended to injure Mr Te Kaawa when he punched him; and
(b)Whether it was open for the Judge to find the justification of self- defence was unavailable to Mr Page.
Approach on appeal
[3] I must allow Mr Page’s appeal if I am satisfied the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or, for whatever other reason, there has been a miscarriage of justice.
[4] I will find there has been a miscarriage of justice if I am satisfied something created a real risk that the outcome of the trial was affected, or resulted in an unfair trial or one that was a nullity.
Discussion
[5] This was a straightforward case. The focus of the trial was on what happened between Mr Page and Mr Te Kaawa outside Mr Page’s sister’s property following a dispute over a driving incident.
[6] Mr Te Kaawa followed Mr Page to Mr Page’s sister’s address. A neighbour, Mr Lee, could see the situation developing and went to try to calm the men down. The Judge summarised the situation:
[13] Mr Lee, who I find to be an impressive witness, said that he thought the defendant was on something. There is the reference to him not having a shirt on. Mr Lee then said the defendant was bouncing around in a fighting
1 Police v Page [2017] NZDC 22531.
type manner. This concerned Mr Lee and he was trying to manage the situation. Mr Lee said he was afraid the defendant was trying to have a go at him.
[14] So we are poised at the point that the defendant struck Mr Te Kaawa. The first issue is was that done with an intent to injure? There are two different versions here. The version of Mr Te Kaawa was that he did not see a punch coming, does not know how he was punched. The next minute he was on the ground. Mr Lee said that he was in between the two men. The defendant reached in between the two men. Ms Page was present as well. That the defendant reached around and in a gap that he found, effectively king hit Mr Te Kaawa and Mr Te Kaawa went to the ground. If that were established, that would amount to an intent to injure because it was a forceful punch designed to take Mr Te Kaawa out and effectively to floor him.
[7]The Judge then found:
[19] I am satisfied largely on the basis of Mr Lee’s evidence who I found to be, as I said, an impressive witness, that this was an aggressive hit to Mr Te Kaawa’s head through a gap designed to take him out. So I find intention.
[20] Then the next issue is self defence and I now have to consider the circumstances that the defendant believed them to be at the time. In covering the narrative, I have already concluded that the defendant, from Mr Te Kaawa’s actions, was able to interpret his conduct as aggressive. This is despite the background of the defendant’s excitable conduct that morning which could also have been interpreted aggressively. This is also despite the defendant removing at least his sweatshirt, perhaps his singlet which the others would have been able to interpret as aggressive.
[21] So moving forward to the critical point, I find that Mr Lee was between the two men when the defendant punched. He was trying to separate them. He was trying to persuade Mr Te Kaawa to leave. At that point, Mr Te Kaawa was not acting aggressively because he was engaged with Mr Lee. I also remind myself that these things cannot be weighed with fine scales and there had been prior actions by Mr Te Kaawa that could have been interpreted aggressively. So I consider that circumstances of self defence do arise. I am not satisfied that there was a push to Ms Page. Ms Page came out of the house concerned for her brother. Her brother has a history of a prior head injury. She was fearful for her brother and watching her give evidence, I find there was a considerable invest in her brother’s circumstances. At times her evidence tended towards advocacy on his behalf whereas Mr Lee was much more neutral. So I exclude circumstances amounting to self defence of another, that being his sister, but there were I think, by a fine margin, circumstances of self defence which Mr Page was entitled to consider. Then he punched Mr Te Kaawa forcibly enough to send him to the ground and to daze him.
[22] The prosecution have to prove beyond reasonable doubt that that action was not reasonable. In order to examine that, we need to consider what had happened up until that point. Mr Te Kaawa had got right up close to Mr Page. Mr Te Kaawa is a bigger man, I think some 30 plus kilos more. Has something of a puku whereas Mr Page does not. I am not satisfied that
Mr Te Kaawa was stomach barging the defendant but he was certainly in close proximity. Mr Lee said Mr Te Kaawa had his fists up because the defendant was bouncing around. So he was in an aggressive stance, but I do not find a strike from Mr Te Kaawa to the defendant nor a body barge. So with that background, with there being no strike, with Mr Lee in the midst, attempting to settle the situation, I do find that the punch was an excessive response and was out of proportion to what had gone on before. It is to a certain extent explained by the defendant’s prior excitable conduct, by the observations of him bouncing around in an aggressive way and also by what happened afterwards because Mr Te Kaawa and Mr Lee said that after, the defendant threw a racial insult and was proud of what he had done. That is denied strongly by the defendant and his witness, Ms Page, but Mr Lee was clearly upset by it, Mr Lee being a Maori. So standing back and preferring the account of Mr Lee, who by this stage, the critical point when the punch was thrown, was right there, I am at the point where I am satisfied that the police have proved beyond reasonable doubt that when the defendant hit Mr Te Kaawa, he used more force than was reasonable. Once again I remind myself that these matters are not to be weighed with fine scales but the nature of what he did was excessive. Accordingly, the charge is proved.
[8] The Judge had the advantage of seeing and assessing the witnesses. He has summarised accurately the evidence and he was entitled to make the findings of credibility and reliability which he set out in his Judgment.
[9] On the evidence, the punch was delivered with such force that an intention to injure can be properly inferred. I understand the submission by Mr Roose to be that the circumstances giving rise to that punch were still relevant and that if the punch were defensive in nature then an intention to injure cannot safely be inferred. He urges me to substitute a conviction for common assault. There is no basis for me to do that. Whether or not a blow is justified in self-defence is not relevant to the intention as to harm in existence when the blow was struck.
[10] Here, the Judge found there was a reasonable possibility Mr Page punched Mr Te Kaawa as a defensive act. The Judge also found the use of force was excessive in the circumstances as Mr Page believed them to be. That is because Mr Lee had interposed himself physically between Mr Page and Mr Te Kaawa and was engaging with Mr Te Kaawa to calm him down.
Decision
[11] The findings the Judge made were available to him on the evidence. I see no miscarriage of justice. The appeal is dismissed.
Brewer J
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