Webb v Police

[2013] NZHC 272

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2012-406-26 [2013] NZHC 272

BETWEEN  COLIN GORDON WEBB Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         20 February 2013

Counsel:         No appearance of Appellant

S O'Donoghue for Respondent

Judgment:      20 February 2013

JUDGMENT OF MILLER J

[1]    Mr Webb appeals against convictions for disorderly behaviour and assault with intent to injure.[1]   At the end of the hearing I dismissed the appeal, indicating that my reasons would follow.

[1] Respectively, s 3 Summary Offences Act and s 193, Crimes Act 1961.

[2]    The convictions, which followed a defended hearing in the District Court at Blenheim on 19 September 2012, arose out of an incident during an earlier hearing in the same Court, on 9 December 2011.

[3]    That incident involved Mr Webb and two police officers, Sergeant Single and Senior Constable Jackson.  It happened at the end of a hearing concerning a traffic infringement by Mr Webb.  The Sergeant prosecuted, and the Senior Constable gave evidence  of  which  Mr  Webb  disapproved.    His  behaviour  when  his  truck  was

stopped for speeding had been sufficiently volatile to cause the Senior Constable to

WEBB v NEW ZEALAND POLICE HC BLE CRI-2012-406-26 [20 February 2013]

question his fitness to hold a licence, while Mr Webb had considered the officer overbearing.  At the hearing the two officers considered that Mr Webb treated the presiding  Justices  disrespectfully.    The  Justices  found  the  offence  proved  and imposed a period of disqualification, which upset him.

[4]    When the Court rose for the day Mr Webb was said to have refused to leave when the officers asked him to do so.  He was warned that he might be arrested for trespass but he insisted that it was a public place and he would remain.  The officers took steps to remove him.  Trouble ensued.  Outside the courtroom the police sought to arrest him.  He resisted, and bit Senior Constable Jackson in the struggle, during which pepper spray was used to subdue him.

[5]    These post-hearing events led to the present convictions, which followed a one-day defended hearing on 19 September 2012 at which Mr Webb was represented by counsel and gave evidence, as did his daughter and his partner.  The two police officers and the court registrar at the time also gave evidence.  The evidence was in sharp conflict, and the decision was reserved until 15 October.  In the result, charges of trespass and assaulting Sergeant Single were dismissed, the former because Sergeant Single was not an occupier entitled to order Mr Webb from the courtroom, and the latter because the Judge was not satisfied that the blow which led to the charge was deliberately inflicted by Mr Webb.

[6]    The Judge observed at sentencing, where he imposed 100 hours community work, that the whole incident had caused Mr Webb significant cost, effectively placing his business as a self-employed owner/driver on hold, and that although Mr Webb had behaved inappropriately and angrily, the offence was out of character.

[7]    Mr Webb’s notice of appeal claimed simply that his convictions were bad in fact and law, but at the time of his appeal he filed a lengthy letter to the District Court Judge in which he accused Sergeant Single of an illegal assault which began the whole incident and claimed that the officers’ evidence and that of the registrar was false.   He criticised the demeanour of these witnesses.   He said he was not argumentative, and he claimed that the Court audio record confirmed his account.

[8]    Shortly before the hearing of this appeal Mr Webb importuned the Court on several occasions to transfer the file to Dunedin or adjourn the hearing.  I refused all of these requests for reasons recorded in a minute dated 19  February, but gave Mr Webb the opportunity to file submissions by email.  He did so, while advising that he would have been able to appear at Blenheim in March.

[9]    I turn to the merits.  The police case was that Mr Webb refused to leave the courtroom and was told that he could be arrested for trespass if he did not go. Sergeant Single then placed his hand on Mr Webb’s shoulder and pushed him lightly toward the door.  Mr Webb shouted that he had been assaulted.  He was then touched again in a similar manner, in response to which he leapt backward onto the floor, screaming police brutality, while shuffling himself backwards on his hands and feet toward the door.  By this bizarre means he exited the courtroom.  In the foyer, and in the presence of members of the public, Mr Webb again refused to leave.  Sergeant Single and Senior Constable Jackson then arrested him.   That did not go well. Mr Webb resisted, managing to break free when Sergeant Single tried to place him in handcuffs.   He bit Senior Sergeant Jackson on his leg above the knee, and the Senior Constable fell.  Mr Webb came at him and the Senior Constable kicked out at him several times, connecting with his chest and face, to keep him away.  Mr Webb was pepper sprayed and eventually subdued, handcuffed and taken into custody.

[10]  The  defence  case  was  that  the  incident  began  when  Sergeant  Single unexpectedly and forcefully pushed Mr Webb with two hands in the chest in the courtroom.  He did this twice, causing Mr Webb to fall to the ground.  Mr Webb said he ended up outside the courtroom on the floor and was continually trying to submit rather than resist.  There was no reason to use pepper spray.  The Senior Constable’s use of the spray caused him to push his face into what turned out to be the Senior Constable’s leg.  He did not realise that he had bitten the leg.  He also said that he was kicked in the head and ear by Senior Constable Jackson and suffered profuse bleeding.  His daughter Rachel confirmed this account.

[11]  On the charge of assaulting Senior Constable Jackson with intent to injure, the Judge reviewed the evidence and was left in no doubt that Mr Webb inflicted a deliberate and determined bite, meaning to injure.  He rejected the claim that the bite

followed the pepper spray, finding that the bite came first.   He also found it inconceivable that Mr Webb would have been sprayed at all had he conveyed a wish to submit.  The evidence of what happened inside the courtroom, including that of the  registrar,  confirmed  that  Mr  Webb  had  behaved  most  unusually,  throwing himself to the ground and shouting “police brutality”.   The audio record of the hearing confirmed that he was behaving hysterically.  Support for those conclusions was found in the undisputed evidence that at an earlier stage of the hearing Mr Webb had approached Senior Constable Jackson in the witness box and shoved him in the chest.  The Judge found implausible Mr Webb’s claim that this was a jovial thing to do.  He thought it highly unlikely that two experienced police officers would behave in the extraordinary manner alleged by Mr Webb, and especially so when they were being watched by the registrar, members of the public, and Mr Webb’s daughter. The audio record of the hearing showed that Rachel Webb told her father a couple of times to stop it and leave, which suggested that he was performing rather than being assaulted.  The Judge added that it was clearly not a situation of self-defence.

[12]  With respect to the charge of behaving in a disorderly manner in the foyer, the Judge referred to Brooker v Police [2] and Morse v Police,[3] and found that Mr Webb’s conduct was “seriously disruptive” to public order.   Onlookers were present. Accordingly, the charge was made out.

[2] [2007] NZSC 30, [2007] 3 NZLR 91.

[3] [2011] NZSC 45, [2012] 2 NZLR 1.

[13]  Mr Webb is entitled to this Court’s independent assessment of the merits, but it is also for him to show that the Judge was wrong in his assessment of the witnesses who he saw and heard.   On issues such as demeanour and credibility, on which Mr Webb placed much reliance, an appellate Judge is at a significant disadvantage.[4]

[4] R v Munro [2007] NZCA 510, [2008] 2 NZLR 87, at [83]-[84].

[14]  Mr Webb advanced a number of grounds in the submissions he filed today.  I have considered all of them, and I have examined the material he referred to.  He relied on it to say that the police evidence was inconsistent, unreliable and false.  I will not respond to all the points he makes because I find it unnecessary to do so. For instance, there is nothing to suggest that there is any substance in his criticisms

of his lawyer, so no reason to delay the hearing to allow the Police to get evidence

from the lawyer.  Nor is he correct to complain that he was never arrested; he was told that he was under arrest then physically restrained and handcuffed.   A lawful arrest need not involve fingerprinting.   Nor is there the slightest substance in his complaints about court staff; the record shows that he has had all the assistance preparing  his  appeal  that  he  could  expect.    He  has  the  record,  including  the transcript, although I ruled that the audio recording would not be sent to him.  The audio recording is consistent with the transcript, and I reject as utterly fanciful his claim that court staff have doctored both.  The transcript is not a complete record; it omits an irrelevant exchange between the presiding Justice and the registrar, and stops before the recording does.   But nothing about the additional audio material could possibly help Mr Webb.  (It does add one point which is unhelpful to him;  it records the registrar’s call to the police, in which she explained that a man was going berserk;  that man was clearly Mr Webb.)

[15]  Mr Webb’s essential difficulty is that three reliable witnesses confirmed the facts found by the Judge, while Mr Webb’s own evidence and that of his daughter was implausible.   Further, the transcript and the audio recording, which  I have listened to, compellingly support the Judge’s findings, including his finding that Mr Webb and Rachel Webb were unreliable witnesses.  They confirm that Mr Webb was not being assaulted or trying to submit as he left the courtroom, but rather was putting on a performance.  He was initially upset at the decision and hostile towards the police.   They were calmly trying to get him to leave the courtroom when he dramatically burst into hysterical shouting.  His daughter admitted saying “come on, dad”, as they left the courtroom, and the audio records her saying it repeatedly, both before and after he began shouting.   She was urging him to leave, and he was choosing not to do so.  I reject Mr Webb’s challenge to the Judge’s findings of fact.

[16]  One point remains.  Mr Webb contends that no members of the public were present so his conduct could not be disorderly.  It is true that the police did not lead evidence from any of those in the foyer, but the same claim was advanced in the District Court and the Judge found, relying on  Sergeant Single’s evidence, that members of the public were there.   Some of them joined in Mr Webb’s cries of “police brutality”.  That finding was open to the Judge, and I can see no reason to disturb it.   The aspects of Mr Webb’s conduct which the Judge found disorderly

were his raised voice and aggression toward the police, neither of which the public should be prepared to tolerate in a courthouse. He observed that the registrar had found the incident very frightening.  These findings were available to him.  I agree that the public is entitled to expect that courthouses will be safe places, free of aggressive behaviour,  whether it is directed toward law enforcement  officers or anyone else.   It was Mr Webb, rather than the police officers, who  was acting aggressively.

[17]  The appeal is dismissed.

Miller J

Solicitors:

Crown Solicitor’s Office, Nelson for Respondent