T v Police HC Christchurch CRI 2010-409-203

[2010] NZHC 2359

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-409-000203

T

Appellant

v

POLICE

Respondent

Hearing:         10 November 2010

Counsel:         A G James for Appellant

K Basire for Respondent

Judgment:      15 November 2010

JUDGMENT OF FOGARTY J

[1]      This is an appeal from conviction.   The appellant had gouged the eye of a Mr Hatherley and then ripped an earring out of his ear tearing the same.  The Judge found that he was acting in self-defence:

e)However, I find that both actions involved the application of force that was wholly unreasonable in the circumstances as the defendant believed them to be.  He resorted to violence involving the risk of serious injury when there were other means open to him, including the use of less hazardous force and making it clear to Mr Hatherley that he was disengaging from his contact with Ms Karena-Moses.  It follows that the defence of self-defence has been disproved by the Crown.

T V POLICE  HC CHCH CRI 2010-409-000203  15 November 2010

[2]      The wider context was that the appellant’s step-daughter had assaulted him. He was lying on top of her.  The appellant’s mother had intervened and was lying partly  on  him  or  to  the  side  of  him,  it  is  not  clear,  and  pulling  his  hair,  and Mr Hatherley had joined in and had the appellant in a choke hold.

[3]      The appellant had first tapped Mr Hatherley on the shoulder.   He was not released.  He then bit him on the arm.  He was not released.  He then gouged him in the eye.  He was not released.  He then ripped Mr Hatherley’s earring out of his ear. Mr Hatherley released the choke hold and ran from the room, and at the same point in time so did the appellant’s step-daughter.

[4]      The finding of fact does not dispute that the force worked but rather finds that he had resorted to violence involving the risk of serious injury when there were other means open to him.

[5]      Section 48 of the Crimes Act 1961 provides:

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.

[6]      It is a mixture of a subjective element being the circumstances as he believes them to be coupled with an objective test of what is reasonable in those circumstances.  The question for the Judge is, whether given the defendant’s belief, the force used was actually reasonable.

[7]      Here Judge MacAskill decided that it was not.   The Judge expressed his finding in confident language.  He found not only that the application of force was unreasonable but that it was “wholly” unreasonable.  Referring to the latter part of his reasoning in paragraph [14]e) I heard oral argument from Mr James saying that there was no particular easy way for the appellant to disengage.  True, he was lying on top of the girl.  But Ms Wallace was lying on top of him.  In her evidence-in-chief she was asked the question:

Q.When Johnny was on top of Channelle [his step-daughter] could you see what he was doing?

A.       Nah.  No I was on top of him as well. Q.   You were on top of Johnny?

A.       Yeah.

[8]      After the appellant had got rid of Mr Hatherley Ms Wallace continued to hold him by the hair.  We know that Chanelle had also gone by this stage.  (The appellant was not convicted of assaulting her.)   The appellant put Ms Wallace in a choke hold until she released him.  The Judge accepted that that was reasonable self-defence.

[9]      It is not clear from the judgment whether it was the eye gouge or the ripping of Mr Hatherley’s ear lobe that the Judge found to be a defence that was wholly unreasonable.

[10]     Ms Basire for the police urged upon me the traditional argument that the Court on appeal should be loath to disturb a finding of fact by the trial Judge who has had the advantage of hearing the witnesses.  She pointed out, correctly, that there is all the difference in the world between reading a written brief or a transcript of evidence and hearing the witnesses.  Traditionally the approach on a finding such as this, being a question of degree as to what was reasonable or not, would be approached cautiously by an appellate Court.

[11]     Both counsel agreed that the recent Supreme Court decision of Austin Nichols

& Co Inc v Stitchting Lodestar [2008] 2 NZLR 141 was in point. But neither counsel had prepared any submissions on it. Ms Basire argued that there was a view, essentially a legitimate interpretation, that the decision should be confined to appeals from regulatory judgments.

[12]     But the unanimous decision of the Court is not confined in that manner.  The task is to keep in balance two propositions:

1.It is only if the appellate court considers that the appealed decision is wrong that it is justified in interfering with it. [4]

2.On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case. [5]

[13]     Cross on Evidence in paragraph 1.25 still says that the appellate Court must be satisfied that the Judge’s finding is plainly wrong, and this in the same paragraph where the texts cite the Supreme Court summarising Lodestar in this way:

The Supreme Court has confirmed that an appellate Court is required to come to its own view, and if satisfied that the lower Court was wrong it must “act accordingly”, ie reverse that Court’s judgment.

With respect to the very learned editor, Dr D L Mathieson QC, I do not think that the summation in paragraph 1.25 can stand alongside paragraphs [4] and[5] of the judgment in Lodestar.

[14]     In this particular case there is no issue of credibility or reliability of the evidence.   Ms Basire for the police said that she had viewed the interview of the appellant and was satisfied that he thought in the circumstances the force he ultimately used was reasonable.  So, she said the critical issue was, whether the trial Judge’s judgment, was wrong.  Where a Court has evidence that the person under attack believes the response was reasonable that is often “most potent” evidence that the defensive action was reasonable.  See R v Palmer [1971] AC 814, at 832, Lord Morris of Borth-y-Gest.

[15]     Following the decision of Lodestar I have the appellate responsibility of arriving  at  my  own  assessment  of  the  reasonableness  of  the  last  two  steps  of violence:  the eye gouging and the ripping of the ear.

[16]     Neither counsel before me disputed that a choke hold is a serious restraint. There was evidence that the accused was choking.  Persons under choke holds can lose consciousness.  They can die.

[17]     My own assessment is that the Crown has not proved beyond a reasonable doubt that these last two violent acts were, in the circumstances as the appellant believed them to be, unreasonable.  Accordingly, the appellant succeeds.

[18]     The appeal is allowed.  The conviction and sentence are set aside.

Solicitors:
A G James, Christchurch, for Appellant
Raymond Donnelly & Co, Christchurch, for Respondent