Thorburn v Police

[2013] NZHC 1332

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2013-425-14 [2013] NZHC 1332

GRAEME DEREK THORBURN

v

NEW ZEALAND POLICE

Hearing:                   5 June 2013

Appearances:           M Newell and B S Whiting for Appellant

R W Donnelly for Respondent

Judgment:                5 June 2013

JUDGMENT OF PANCKHURST J

[1]      This is an appeal against conviction in relation to a charge of assault with intent to injure.   The thrust of the appeal is somewhat unusual.   Counsel for the appellant  contends  that  the  accused  should  have  been  convicted  of  Crimes Act assault under s 196 of that Act, not with assault with intent to injure.

[2]      The facts of the case are as follows.  In the early hours of 17 October last, the appellant, Mr Thorburn was working in Queenstown.   He was a barman at the Tardis Bar.  The complainant is a person unknown.  He had been a patron at the bar but was excluded from the bar on account of his level of intoxication.  The assault occurred just outside the entrance into the bar and was captured on CCTV cameras. There was both a camera associated with the bar in the entrance area, but I am advised that the best CCTV coverage is that provided by Sky City Casino showing a general view of Cow Lane, a pedestrian thoroughfare where the relevant events

occurred.

THORBURN v NEW ZEALAND POLICE [2013] NZHC 1332 [5 June 2013]

[3]      The complainant remonstrated at the doorway with Mr Thorburn for some time.  He then made as if to walk away, stopped, returned to the doorway area and was pushed quite forcefully to the ground.  The assault then occurred.  Mr Thorburn reigned several blows to the general area of the complainant’s head.  At that point a second  man,  who  was  the appellant’s  superior  or boss,  intervened  and  dragged Mr Thorburn away, and he played no further part in the relevant events.

[4]      Curiously Mr Thorburn’s boss then took the complainant further down the lane and as is depicted on the CCTV footage proceeded to assault him.   The complainant at that stage remained standing, but was bent double, and appears to have been punched a number of times if somewhat ineffectually given the fact that the complainant emerged seemingly unscathed from this attack.  It stopped only at a point of time at which another person intervened and dragged Mr Thorburn’s boss away.

[5]      I have been told that the boss is today involved in a defended hearing in the

Queenstown District Court on account of his involvement in this incident.

[6]      The way in which the case was heard in the District Court was also unusual. The only witness was the police constable who investigated the matter.   It was reported to the police by Sky City Casino which provided its CCTV footage to the authorities.  The investigating officer viewed that footage, identified the appellant as the initial assailant and seven days after the event, that is on 24 October, arranged to interview Mr Thorburn at the police station.  This interview was also recorded on a DVD.

[7]      The prosecution case was presented by the constable who produced copies of the CCTV footage and of the interview and they were viewed by Judge Phillips.  I should also note at this point that the complainant remains unidentified.   He is referred to in the information as unknown and he plainly made no complaint, nor sustained injury which attracted attention that enabled him to be identified.

[8]      The defended hearing was on 26 March.  The Judge gave an immediate oral decision in which he considered the appellant’s explanation as against what he had viewed in relation to the CCTV footage.  He said this:

What  the  defendant  told  Constable  Ridalli  was  that  he  described  the unknown person as becoming agitated and more aggressive.  He said, “As I’ve turned by back to him (which I did not see) he’s then threatened to come at me (which I did not see) – is all on the tape.  So I’ve turned round and shoved him and open-handedly slapped him on the head because I thought I was going to get hit basically”.  With due respect to the defendant that was not the way in fact matters transposed on the videotape.  He put the unknown person as threatening to him or as coming at him.  I did not see the unknown person do that.  It was not a question of an “open-handed” hit on the top of the head, as described by the defendant in the statement.  He accepted that the unknown person was on the ground when he hit him, but he said that he hit him twice.  The evidence clearly shows that he had hit him a number of times.  The defendant says he hit him with an open hand.  I have to say that on the evidence of the video I am unable to see whether the blows were with an  open  hand  or  not.   What  I did see, they were delivered  with force, delivered in and around the head of the person lying on the ground who was untotally and unable to protect or defend himself and, who would at that point of time, had been taken out of the area of the bar door way and was causing the defendant no difficulties at all.

[9]      A little later the Judge expressed his conclusion about proof of the charge in these terms.

I find  from these facts  I can  easily draw the inference that  he  had  the intention of causing the person actual bodily harm.  He was striking the head repeatedly, whether with an open hand or not, as an intent of an assault from the way in which the matter occurred.  When required to desist by his boss, who was reluctant to do so, in my view the ingredients of an assault with intent to injure are made out, he will be convicted.

[10]     Having  reached  that  conclusion,  the  Judge  proceeded  to  immediately sentence the appellant.  He said that he viewed the matter as a ‘low level one’ of its kind under s 193.  He characterised the assault as involving a number of slaps to the face, rather than any use of feet or heavy blows to a defenceless person. Accordingly the sentence imposed was one of 100 hours of community work.  I should note that the appellant had no previous convictions.

[11]     Two arguments have been raised in support of the appeal.   The first by Mr Newell,  that  there  was  no  adequate  proof  of  an  intent  to  injure.    Counsel submitted that the fact the appellant administered slaps or cuffs to the head area was indicative of an intention to avoid infliction of injury rather than the reverse.   He

stressed that at this point the unknown complainant was on the ground, and it would have been an easy matter for the appellant to have struck blows with the fist or with his feet, but that he obviously did not do so.  The blows themselves were described as lateral in nature, rather than like punches.  That is the arm was swung repeatedly on my count about seven or eight times from the side, and it is the case that the appellant was restrained and pushed away from the immediate scene by his boss at which point he obviously desisted.

[12]     Mr Newell’s argument then continued on the basis that there was no sign of injury, nor or course complaint, on the complainant’s part.  This he submitted was consistent with an absence of actual bodily harm and the absence of injury was at least  some  support  for  the  proposition  that  the  appellant  lacked  the  necessary criminal intent.

[13]     Mr Whiting also made submissions in support of the appeal.  He advanced the  argument  that  this  Court  should  intervene  and  substitute  a  conviction  for Crimes Act assault because the bringing of a charge of assault with intent to injure was disproportionate, and therefore inappropriate to the circumstances of this case. He made a number of submissions which invited the response from Mr Donnelly that this Court does not review an exercise of prosecutorial discretion, a proposition which Mr Whiting rightly accepted.  Nonetheless he argued that there was inherent jurisdiction, or jurisdiction under the New Zealand Bill of Rights Act, for the Court to intervene and substitute a lesser charge, for the charge upon which the conviction was entered.

[14]     He  openly  outlined  the  reasons  why  this  was  of  such  consequence  to Mr Thorburn.  He is from the United Kingdom, and in New Zealand on a temporary visa.   The visa requires renewal and the difference between assault with intent to injure and common assault will be, in Mr Whiting’s submission and experience, relevant to whether he will obtain a “character waiver” which will be required for him to obtain a further visa.

[15]     In addition of course, Mr Whiting supported Mr Newell’s argument and he submitted that the case was one where this Court should find that there was no

demonstrated intent to injure and therefore intervene by substituting a conviction for

Crimes Act assault pursuant to s 132 of the Summary Proceedings Act.

[16]     For completeness, I note that Mr Whiting also produced a schedule of cases reported in the newspaper over the past several weeks which plainly enough showed that this case is out of line.  Several examples of cases decided under s 196 of the Crimes Act appeared in the schedule.  They involved punching and in some cases kicking but little in the way of injury, and typically attracted sentences of community work,  sometimes  coupled  with  supervision.    By contrast,  the  example  cases  of assault with intent to injure invariably involved punches, kicks, stomps, injury of some consequence and many of them produced sentences of imprisonment.

[17]     However, there is a difficulty, in my view, in simply evaluating the schedule, concluding that this could appropriately have been a case of common assault and substituting that outcome.  In my view it is necessary for me to consider the matter under s 132 of the Summary Proceedings Act if a conviction is to be substituted for common assault.

[18]     I am in an unusual position to the extent that I have viewed CCTV footage of the incident.  I agree with the description of the assault contained in Judge Phillips decision.  It is apparent that the appellant lost his cool, became frustrated with the complainant and slapped him a considerable number of times in the vicinity of the head until he was restrained.  The man then got to his feet, with no sign of obvious effects, save those which were consistent with intoxication.  The question is whether that evidence did show an intent to injure?  An injury in this context is actual bodily harm.  It must be something that is more than transient, but need not be long lasting. It must be such as to be calculated to cause discomfort, or interfere with health and enjoyment of life.

[19]     I am sure that I have had the benefit of much fuller submissions than the Judge below received.   And, I am in a similar position in evaluating the level of violence that was employed by Mr Thorburn.  Whilst I do not differ from the Judge in relation to his description of the events, I do differ in relation to whether an intent to  injure  was  shown  beyond  reasonable  doubt.    In  particular,  the  fact  that  the

appellant chose to slap the complainant impresses me as an important factor.  That I accept, as Mr Newell argued, is consistent with a state of mind where an assailant is mindful of harm to the victim and is seeking to avoid injury rather than inflict it.

[20]     For these reasons I differ from the Judge below in that one regard.  Therefore it is appropriate to intervene, s 132 is engaged and I substitute a conviction for common assault as opposed to assault with intent to injure.

Solicitors:

M Newall, Barrister, Dunedin

B S Whiting, Barrister, Queenstown

R W Donnelly, Preston Russell Law, Invercargill