Tipiwai v Police

[2017] NZHC 1161

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2017-441-10 [2017] NZHC 1161

BETWEEN

APACHE CAMPBELL HAYES TIPIWAI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	30 May 2017
Appearances:	M J Phelps for the Appellant C R Stuart for the Respondent
Judgment:	30 May 2017

ORAL JUDGMENT OF MALLON J

Introduction

[1]      Mr Tipiwai, together with Mr Thomas, were charged with assault1  and male assaults female.2   Mr Thomas pleaded guilty to the assault charge.  The other charge against him and both charges against Mr Tipiwai went to a judge alone trial in the Hastings District Court (Judge Courtney) where they were found guilty and convictions entered.3

[2]      Mr Tipiwai appeals against his conviction.  He says a miscarriage of justice occurred because the trial Judge failed to consider the issue of self-defence despite

there being a credible narrative of self-defence raised on the evidence.

1      Crimes Act 1961, s 196 (maximum penalty one year imprisonment).

2      Section 194(b) (maximum penalty two years imprisonment).

3      Police v Thomas [2017] NZDC 4535.  Mr Tipiwai was sentenced to nine months supervision, fined $500 on each of the charges and ordered to pay $130 of Court costs.

TIPIWAI v POLICE [2017] NZHC 1161 [30 May 2017]

Facts

[3]      Mr Tipiwai and Mr Thomas are cousins.  One of the victims, Ms Tipiwai, is the sister of Mr Tipiwai, and Mr Martin is Ms Tipiwai’s partner.  On 5 June 2016 all four of them, along with other family members, were at an address in Flaxmere. They had all been drinking for some time.  A dispute arose apparently arising out of Mr Tipiwai’s view that that Mr Martin was eating his family’s food.   Mr Tipiwai punched Mr Martin and then punched his sister when she tried to intervene.   Mr Thomas also punched them.

[4]      The police were called to the address.  Mr Tipiwai was arrested.  He accepted he had told another officer that he punched Mr Martin.  He replied:

Yeah he’s been doing stuff.  I’m sick of what he’s been up to.  Him and my sister, it’s been building for a while.  I hit him I’m not denying anything.  If my sister says I hit her I didn’t.  I pushed her but I didn’t hit her.  I’ve got marks on my hands from his teeth.

[5]      A statement was taken from Ms Tipiwai.   In this statement she said her brother had punched Mr Martin three times in his face using a closed fist, and when she intervened she was punched on her cheek.  Then Mr Thomas punched her in her face. Another family member intervened.  Mr Thomas then punched Mr Tipiwai.

[6]      At the trial, Mr Martin gave evidence.  This was essentially consistent with Ms Tipiwai’s statement.   He put his hands up to cover his face when Mr Tipiwai started hitting him.  He did not see Ms Tipiwai being hit when she intervened, but heard the sound of her being struck and saw a bruise on her face the next day.  After this Mr Thomas hit him.

[7]      Ms Tipiwai was also called to give evidence at the hearing.  She was vague and unhelpful and was declared hostile.  Her police statement was put to her.   She remained  vague  and  the  Judge  considered  Ms  Tipiwai  was  not  particularly convincing in her evidence.

[8]      The statement Mr Tipiwai gave to the police (set out above) was also adduced by the prosecution along with the fact that Mr Tipiwai had no previous convictions. No defence evidence was called.

[9]      The Judge accepted the evidence of Mr Martin and Ms Tipiwai’s statement as

establishing the charges.  No mention was made of self-defence.

The appeal

[10]     Mr  Tipiwai  essentially  relies  on  the  following  passage  of  the  cross examination of Mr Martin to establish an evidential foundation for self defence in relation to the assault on Mr Martin:

Q.       Yeah. Would you agree that whilst he might’ve been a bit aggressive

towards you, you got aggressive towards him too? A.       Maybe.

Q.       Yeah, and you were getting ready to clock him, weren’t you?

A.       No I wasn’t, I was going to close the door.

Q.       Right, so you approached him with a view to closing the door? A.  Yeah.

Q.       You reached out? A.       Yep.

Q.       To close the door, okay. And I imagine that that was something that you did very quickly, reached out to close the door?

A.       Yeah.

Q.       And that you would agree that that would almost look as if you were shaping to punch Apache, right?

A.       Yeah.

Q.       Yeah.  And so on those circumstances it’s reasonably understandable

[sic] why he might’ve also tried to get you, correct?

A.       Yes.

[11]     Mr Tipiwai contends this evidence, particularly that Mr Martin accepted it would  look  as  though  he  was  shaping  to  punch  Mr  Tipiwai,  and  that  it  was reasonably understandable why he might have tried to get him, provided a narrative of self-defence for the Judge to consider.  He also refers to Mr Martin being a much bigger man and as having done some prospecting for a gang as relevant background.

The respondent submits this evidence provided an insufficient narrative to raise the possibility of self-defence.  I agree with the respondent.

[12]     A person acts in self-defence if, in defending themselves, they use such force as, in the circumstances as he believes them to be, it is reasonable to use.4     It is settled  authority  that  this  requires  consideration  of  the  circumstances  as  the defendant believed them to be – a subjective question.5

[13]     In order to sustain a narrative of self-defence, the Judge would have had to infer from Mr Martin’s acceptance that his move to close the door “would almost” have looked like preparation for a punch, that there was a reasonable possibility Mr Tipiwai actually believed he was about to be punched.   However there was no evidence to support this.

[14]     In  the  first  place  the  evidence  relied  on  from  the  cross  examination  of Mr Martin takes the events a little out of context.  According to Ms Tipiwai it was her brother who was angry with them and had come inside and said to Mr Martin “one outs, that’s us, outside”.   Moreover, in re-examination, Mr Martin explained that, as Mr Tipiwai was coming through the door, Mr Martin went to close the door but Mr Tipiwai pushed it at him as he was trying to open the door.  It was as he was trying to open the door that he struck Mr Martin.

[15]     Additionally, Mr Tipiwai had not given evidence at the hearing.  Insofar as he gave a statement, it explained that Mr Tipiwai had assaulted Mr Martin because he was sick of what Mr Martin and his sister had been up to and it had been building up for awhile.  He did not say he hit Mr Martin because he needed to defend himself against an assault from Mr Martin.6

[16]     Nor was there any evidence from others that would sustain a valid inference

as to Mr Tipiwai’s state of mind (for example, any description of the defendant speaking or behaving in a manner consistent with a fear for his own safety).  Nor

4      Crimes Act 1961, s 48.

5      See, for example, Pakai v R  [2016] NZCA 34 at [23].

6      See Pakai above n 5 at [28] and McNaughton v R [2011] NZCA 588 at [38] and [59] for the difficulties where there is no evidence from the defendant to give an insight into his perception of events at the relevant time.

was there a factual scenario where state of mind could readily be inferred as a matter of commonsense (for example, a scenario in which a complainant had pulled a gun on a defendant).  As I have mentioned the scenario was in fact consistent with Mr Tipiwai being the aggressor.

[17]     In   these   circumstances   there   was   insufficient   evidence   about   the circumstances as Mr Tipiwai believed them to be for the Judge to entertain self- defence in relation to the assault on Mr Martin.

[18]     In relation to the assault on Ms Tipiwai, the appeal relies on evidence from her in cross examination that her brother had probably pushed her, and this was probably in response to her getting involved and that her arms were flailing around. If this were accepted as reliable evidence, this would be a rather slim basis on which to found a narrative for self-defence.  Counsel for Mr Tipiwai accepts her evidence provides less of a foundation than that which he relied on in relation to the assault on Mr Martin.   In any case, the Judge did not accept Ms Tipiwai’s evidence to be reliable.  The Judge preferred instead to rely on Ms Tipiwai’s statement to the police. There was nothing in that statement to support a finding of self-defence.

Result

[19]     The appeal is dismissed.

Mallon J