IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-17 [2013] NZHC 609

BETWEEN	MATHEW IAN MALCOLM HENSON Appellant

AND	NEW ZEALAND POLICE Respondent

Hearing:	26 March 2013

Counsel:	RAB Barnsdale for Appellant
A Hill for Respondent

Judgment:	27 March 2013

JUDGMENT OF BREWER J

This judgment was delivered by me on 27 March 2013 at 10:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS
Michael Hunwick (Hamilton) for Appellant
Gordon Pilditch (Rotorua) for Respondent

COUNSEL Richard Barnsdale

HENSON V POLICE HC ROT CRI-2013-463-17 [27 March 2013]

[1]       Mr Henson appeals his conviction on one charge of assault with intent to injure.1

[2]       Mr Henson, who represented himself at trial, submits that he should not have been convicted because:

(a)	The verdict was against the weight of the evidence; in particular, there was insufficient evidence of intent to injure; and

(b)	His justification of self-defence was not dealt with adequately by the

District Court Judge.

[3]       In addition, the appellant seeks to have new evidence put before me at the appeal.   The evidence is contained in an affidavit of Cory Glen Hall sworn on
30 January 2013.

[4]       The appellant is represented in his appeal by Mr Barnsdale.

Background

[5]       On 21 October 2012, a brawl erupted at a 21st birthday party being held at the Litchfield School Hall.  The appellant was charged with assaulting Regan Carter and with assaulting Samuel Rhodes with intent to injure him.  The District Court Judge acquitted the appellant on the charge of assault.

[6]       As  is  common  with  charges  arising  out  of  brawls  between  a  significant number of people, particularly where alcohol is involved, different witnesses have different perceptions.  In this case, the District Court Judge relied upon the evidence of three witnesses who gave evidence that the appellant assaulted Samuel Rhodes
who was rendered unconscious “by a king hit from behind”.

1	Police v Henson DC Tokoroa CRI-2012-077-001219, 23 January 2013, Judge CJ McGuire.

A.         I seen, um, Sam get punched and knocked out, got punched from behind in the back of the head, he got knocked out and then, and then from on I was just trying to defend myself.

Q.         Where was Sam when he got, when you saw him getting punched out, where was he?

A.         He, he was coming out, cos he come out cos he seen me get hit, he was running out to help me and I turned around and seen him get whacked out, knocked in the back of the head, yeah.

[8]       The witness subsequently described the person who struck Sam as being “a big tall guy, wearing a red shirt”.3    The District Court Judge, from other evidence, concluded that this person was the accused.

[9]       Subsequently, the witness reinforced his evidence as follows:4

Q.	Now this person who hit Sam, where was he standing in relation to
Sam when he struck Sam?

A.	From behind him.

Q.	And what sort of blow was it? A.	A punch.
Q.	And where did that punch connect? A.	In the back of his head.
Q.	And as a result of being punched in the back of the head, what did
Sam do?

A.	He got knocked out cold.

Q.	Are you able to tell the Court how long he was out for?

A.	Would’ve been a couple of minutes before we dragged him back in,
inside and helped him up.
Q.	Did you see anyone else hit Sam? A.	Nah, not that I can remember.

2	Notes of evidence taken before Judge CJ McGuire on 23 January 2013, p4, lines 20-27.
3	Ibid, p5, line 4.
4	Ibid, p6, lines 1-15.

[10]     The second witness was Regan Paul Carter.  He gave evidence that he saw the complainant get punched in the back of the head by the appellant.  He confirmed that after the punch the complainant “was just out cold on the ground, knocked out”.5

[11]     In cross-examination by the appellant, the following exchange occurred:6

Q.	Okay.  Did you see Sammy Rhodes throw any punches at all?

A.         Yeah, I, he had punched someone before you hit him in the back of the head.

[12]     The third witness was Tiriti Eugene Warena Hughes.  His evidence was:7

A.         ... While I was fighting Andrew I noticed Sambo has run out of the hall, see what the situation there was outside. As soon as he ran out, as soon as he ran out of the hall he got a blind shot from the start of, oh as soon as he stepped out, he got blind shot.

THE COURT:

Q.	What do you mean by a blind shot?

A.         He got punched by someone he never seen.  Did not, did not see it coming.

[13]     He described the assailant as being a lot bigger than him, a lot older, with ginger hair and wearing a red hoodie.

[14]     Later,  in  cross-examination  by  the  appellant,  the  following  exchange occurred:8

Q.         Right, okay, so as they were – as Samuel Rhodes was coming out of the hall, how was he orientated before he got hit?

A.	Before  he  got  hit,  he  came  out,  walked  out,  stood  there  yelled,
“What’s going on” and then blind shotted.
Q.	So he was, he was standing there yelling what was going on? A.	Yes, he did not throw a punch before he got hit.

5	Ibid, p12, line 8.
6	Ibid, p12, lines 31-34.
7	Ibid, p18, lines 1-8.
8	Ibid, p21, lines 11-16.

[15]     Other witnesses gave conflicting evidence.   The appellant himself said in evidence that he was punched by the complainant, that he then tackled the complainant and that they fell to the ground.  His evidence was that the complainant was not knocked out at any stage when he was on the ground with him.  He said the two were pushing each other and that it was “a bit of a brawl type situation where we
had each other in sort of locks type thing”.9   Other witnesses called by the appellant

did not give direct evidence of the alleged incident.

[16]     The District Court Judge did not reject all of the evidence given by or called on behalf of the appellant. His conclusions were:10

[19]      I am prepared to accept that some of the things you did were about trying to end the fight, but I am equally satisfied that overall, until there were obvious injuries to quite a number of people, your role had not  been a peacemaker one.

[20]      So in summary, as you have been identified by three people as the person who assaulted Samuel Rhodes, as you acknowledge you say, you were punched by him, you tackled him and brought him to the ground.  That places you in the immediate vicinity when he was brought to the ground, but the evidence is that he was rendered unconscious by a king-hit from behind. I am satisfied that you are rightly identified as the person who struck that blow and knocked him unconscious.

[17]     In finding the charge proved, the District Court Judge added that he could infer  the  intent  to  injure  from  the  finding  that  the  complainant  had  had  no opportunity to react to the blow from behind.

Discussion

[18]     Mr Barnsdale submits that overall there was insufficient evidence to conclude that the assault identified by the District Court Judge was committed with intent to injure.  I disagree.  On the evidence preferred by the District Court Judge there was evidence of an assault of a nature, and with an effect, that could properly lead him to
find that element proved.

9	Ibid, p31, lines 23-24.
10	Police v Henson, above n 1, at [19]-[20].

[19]     Mr Barnsdale submits further that the justification of self-defence was not dealt with adequately by the District Court Judge.  It is true that the District Court Judge did not specifically deal with that point.   However, on the facts as set out above, there was no room for that justification.

[20]     I have no doubt that on the evidence before the District Court Judge he was entitled to enter a conviction.  His job was to decide what he could be sure of on the evidence and, given the nature of the evidence of the three witnesses upon whom he relied, he was entitled to conclude that:

(a)	The “king hit” was administered by the appellant; and

(b)	The nature of the “king hit” and the finding that it was delivered from

behind was sufficient to establish the intent to injure; and

(c)	The nature of the “king hit” and the finding that it was delivered from

behind negated self-defence.

[21]     The major issue for me on this appeal is what I should do with the affidavit of

Cory Hall.

[22]     The  affidavit  was  obtained  by  the  appellant  before  he  had  instructed Mr Barnsdale.   In it, Mr Hall corroborates the evidence given at the trial by the appellant.    In  summary,  he  deposes  that  the  appellant,  while  trying  to  be  a peacemaker,  was  punched  by  Samuel  Rhodes.     The  appellant  then  tackled Mr Rhodes and the two were pushing and punching each other on the ground.  He deposes that Samuel Rhodes was conscious but that then both he and the appellant were “rucked and kicked” on the ground.

[23]     An appellate Court will not usually receive evidence not put at the trial if it could reasonably have been adduced at the trial.  The appellant has not himself filed any affidavit on this point.   Instead, in his notice of appeal, he says that he was residing  in Australia  and  that  it  was  “very  difficult”  for  him  to  locate  all  the witnesses.  He asserts that he had had no prior association with Mr Hall.

[24]     In this regard, I note that the appellant was charged on 26 October 2012.  He went to trial on 23 January 2013.  I do not know what steps the appellant took during that period to locate Mr Hall.  Mr Hall does not depose to his whereabouts during this period.

[25]     The second inquiry an appellate Court will make when asked to consider new evidence is whether it is credible and capable of being believed.  The Court does not have to be satisfied that the evidence is true but if it is evidence that might be accepted by the trier of fact, and might materially influence the trier of fact in favour of the appellant, then a new trial will normally be ordered.

[26]     As always, and putting aside procedural infirmities, the overriding criterion is that the Court must do that which best serves the interests of justice.

[27]     In this case, Mr Hill for the respondent submits that the material in the affidavit adds nothing of substance to the case that was put before the District Court Judge.  His submission is that the District Court Judge relied on the three witnesses to whom I have referred above and that their accounts would overwhelm the account of Mr Hall.

[28]     I am tempted to accept Mr Hill’s submission.  I have no basis for finding that this is fresh evidence within the usual meaning of that term.   The affidavit is so sparsely expressed that I can draw no conclusions as to whether it is creditworthy or not.  However, if Mr Hall were to give the evidence contained in the affidavit, and if it were accepted by the trier of fact, the result would be an acquittal of the appellant on the charge. That being the case, I cannot allow the conviction to stand.

Decision

[29]     The appeal is allowed. The conviction is quashed. A retrial is ordered.

Brewer J