The Queen v Bull [2007] NZCA 478 (1 November 2007)

Last Updated: 21 November 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA363/07 [2007] NZCA 478THE QUEEN

v

REWITI STEWART BULL

Hearing: 10 October 2007

Court: Hammond, Baragwanath and Keane JJ

Counsel: H T Young for Appellant
F E Guy Kidd for Crown

Judgment: 1 November 2007 at 2.15 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by Hammond J)

Introduction

[1] Mr Bull was found guilty of assaulting Mr Dermody and Mr Rutledge, following a jury trial in the District Court at Invercargill. Judge Phillips sentenced him to 60 hours of community work. He now appeals against his conviction, in relation to Mr Dermody only.

Background

[2] Around 3:30 am on the morning of 23 October 2005, the corner of Esk and Dee Streets in Invercargill was a reasonably lively place. Men and women were milling around in what seems to be something of a gathering place in the central city. So much so that the particular vicinity is monitored by a Closed Circuit Television Camera (CCTV) which is remotely controlled by the Police. The film from that CCTV camera formed a critical part of the evidence in this trial.
[3] Mr Rewiti Bull found himself in a position whereby he was said to have committed four assaults within a very short space of time. The sequence of these assaults is of some importance.
[4] The first incident relates to a Mr Murch. He was walking down the street in Invercargill to where Mr Bull was standing on the corner of Esk and Dee Streets with his friends. Some altercation arose between the two men, the exact reasons for which are not clear. The video shows Mr Murch advancing on Mr Bull and Mr Bull retreating until a point where Mr Bull was backed up against a plate glass window with no further room to move back. It was well open to the jury to conclude that Mr Murch had given Mr Bull reason to feel he needed and was entitled to protect himself. Mr Bull undoubtedly landed one punch directly on Mr Murch of such force as to knock Mr Murch to the ground. Mr Murch was “out of it” for a time. In respect of this incident Mr Bull was charged with assault with intent to injure. He raised self-defence. The jury returned a verdict of not guilty on that count. It must either have accepted that defence, or conceivably it might have concluded that although there was an assault, it was not with intent to injure.
[5] The assault concerning Mr Dermody is second in the sequence. He was also proceeding down the street with one acquaintance and followed by others when he too encountered Mr Bull. On the Crown’s case, Mr Bull confronted Mr Dermody and struck him to the face. Mr Bull accepted that he had punched Mr Dermody to the face and that there was, thereafter, something of a scuffle. He also accepted that Mr Dermody did not hit him. But he contended that the altercation began in this instance with Mr Dermody threatening him, swinging a punch (which he deflected) that made him fearful for his own safety, and which his actions again an act of self-defence. The jury returned a verdict of guilty on this count. In logic it could have done so on the footing that – given an acknowledged blow on Mr Dermody by Mr Bull – it was not in self-defence, or that that blow, and others subsequently administered to Mr Dermody, was an excessive response.
[6] The third incident involved a Mr Hall. After the affray with Mr Dermody broke out, Mr Hall ran into the fray, grabbed Mr Bull, and began to exchange punches with him. Undoubtedly there were exchanges between Mr Bull and Mr Hall. Again self-defence was raised. The jury returned a verdict of not guilty.
[7] The fourth incident was in relation to a Mr Rutledge. Up until this point, Mr Rutledge was effectively a bystander. But he was then kicked by Mr Bull to the side of his body, and punched. The jury returned a guilty verdict on that count. Mr Bull has not appealed against that conviction.

The evidence at trial

[8] The evidence advanced by the Crown on the Dermody incident was as follows.
[9] Mr Dermody did not give evidence. He was a member of the Junior All Blacks at that time and apparently unavailable to give evidence. In any event, the Crown elected to rely on what could be seen on the CCTV film, and the evidence of bystanders. Mr Bull gave evidence on his own behalf.
[10] It is convenient to begin with Mr Bull’s account. It will be recalled that he had downed Mr Murch. He then said in evidence-in-chief that he first observed Mr Dermody and another man coming towards him, some 10 metres away. He claimed that Mr Dermody said, “I was going to get a hiding for what had just happened” (ie, his felling of Mr Murch). Mr Bull said that he walked on the diagonal on the footpath out on to the road a little “because I thought they were going to [go past me to] see their mate ... on the ground”. He said the two men did not however go over to Mr Murch, instead “they just come up to me and the guy in the maroon top [Mr Dermody] was still pointing at me and said a few times that I was going to get a hiding for what had just happened”. He said Mr Dermody was pointing at him. The two men came more or less face to face. Mr Bull said, “[Mr Dermody] was pointing and the [sic] he tried to take a quick jab at my head and I had my hand up still and I pushed it down with my left hand and took a swing at him [which connected]”. Mr Bull said, “I just knew that he was only interested in sorting me out and having a go at me about what happened and he was just trying to punch me and teach me a lesson or something”. Mr Bull also said that he was concerned because Mr Dermody’s mate (wearing a red t-shirt) was beside him, and “I thought the guy in the red t-shirt was going to join in as well and have a go at me”. Mr Bull acknowledged that thereafter he and Mr Dermody “got into a bit of a scuffle and I took a couple more swings at him, I don’t think any of them got him, I was holding his clothes wrestling him and trying to prevent him having a go at me”.
[11] Mr Hall said that he saw Mr Bull punching Mr Dermody. Indeed he claimed that was why he went to Mr Dermody’s side. Mr Rutledge said that he saw Mr Dermody being punched by Mr Bull, and that he saw Mr Dermody “backing off down Esk Street, being chased, punched”.
[12] The Crown case was based on what could be seen on the CCTV footage. Counsel were of the view that we should view that footage. We did so, several times, in open court in the presence of counsel. It is no part of the function of this Court to retry this case. It is not always or perhaps even most often, necessary or appropriate for this Court to view footage in this way. However, there is a distinct technical reason for our having done so in this instance which we will come to shortly.
[13] The footage clearly shows Mr Dermody advancing towards Mr Bull with his right arm – forefinger pointed – horizontally extended towards him. Whether that was a threat, or merely an admonition as to what had happened to Mr Murch is a difficult question. The footage did not show Mr Dermody delivering a “jab” to Mr Bull, before Mr Bull struck out at Mr Dermody.
[14] Mr Young endeavoured to deal with this awkwardness for his case by arguing that this was only CCTV footage, running frame by frame at two shots per second. He said that the jab might conceivably not have been picked up on the footage. No expert evidence was called in the District Court on this point, and no attempt was made to get leave to advance such evidence in this Court. The argument that a right jab by Mr Dermody could have been missed by the footage is an argument that potentially defies the space-time continuum. Intuitively, it seems highly improbable that he could attempt to throw a jab between the two frames separating the footage at 3:29:14 am and 3:29:15 am, and not have this recorded. And for all we know – it being the jury’s job to evaluate all of this – it may have been distinctly unimpressed by the argument being advanced by Mr Young.
[15] The difficulties on this point for this Court are obvious. The jury might have taken the view that the absence of any jab from Mr Dermody on the footage utterly belied Mr Bull’s account. And the jury was not obliged to accept Mr Bull’s evidence uncritically. As to that, Mr Bull was of course cross-examined on his belief. This exchange was recorded:

Q. You say at this time also that you were fearing for your safety?

A. Yep.

Q. Just as you did with Mr Murch?

A. That’s right.

[16] Mr Bull’s argument that he genuinely feared that he was about to be set upon by Mr Dermody and the man in the red t-shirt for what he had done to Mr Murch is not necessarily dependent on there having been a jab thrown by Mr Dermody; he could have had such a view arising entirely out of the total context of the whole incident, which may have been what he was suggesting in evidence. The frame following the episode in [13] shows Mr Dermody having moved still closer to Mr Bull whose left arm is seen having forced down Mr Dermody’s right arm. Mr Young relies on that frame as showing Mr Dermody having entered Mr Bull’s space and giving rise to the same kind of entitlement to defend himself as he asserted in relation to the first complaint (Mr Murch).
[17] The highest Mr Bull went in claiming that he was more generally fearful when dealing with Mr Dermody is at page 65, line 24 of the evidence:

17. So when the guy in the maroon top [Mr Dermody] took a jab at you, what was going through your mind?
1. I just knew that he was only interested in sorting me out and having a go at me about what happened and he was just trying to punch me and teach me a lesson or something.
17. Was he by himself at that stage or was there anyone else near to him?

A. The guy in the red teeshirt was just right beside him.

Q. Did that have any impact on what you were thinking at all?

1. Yes I thought the guy in the red teeshirt was going to join in as well and have a go at me.
17. Had you noticed where your friend Delwyn Johnson was at that time?

A. No I didn’t know where he was at that stage of it.

[18] At page 66, lines 5 – 15, however, Mr Bull appears somewhat to discount such a viewpoint. The person he had some concern about did not intervene and somebody that he did not anticipate did:

Q. Did you notice anyone else around you at that stage?

1. No I just remember him at that stage, I knew that the guy in the red teeshirt was still there but he hadn’t gotten involved or anything.

Q. Did anything happen while you were grappling with Dermody?

1. Yes, just this guy sort of appeared out of nowhere, quite a big guy in a white top and gave me a big punch to the head.
17. David Hall has already given evidence and claimed that he came in and tried to put you in a headlock?

A. Yes.

Q. Can you comment on that?

1. It was absolutely no headlock, he just swung into me with a good punch.

Q. So what happened after Hall punched you?

1. Well the three of us, I don’t know, I got a couple of punches in like someone punched me a couple of times, then Delwyn moved in and tried to break it up.

Q. So how was he doing that?

1. He just grabbed hold of the guy in the white hoodie and put his hands between the group sort of.

[19] If the matter stood there we would have had to resolve competing contentions. One is that it is difficult to see how this Court can properly interfere, on the facts, in this instance. We cannot know just what weight the jury placed on the various elements of what was to be seen on the CCTV. The members of the jury saw everything which was recorded; they observed the manner in which people moved towards each other and what they did. And there is no question the jury was correctly directed by the Judge on the particular issue: it was for the jury to determine Mr Bull’s belief at the time. The opposing contention is that Mr Dermody had no business approaching Mr Bull so closely and that it would be unsafe on the evidence for the jury to have excluded self-defence.
[20] The matter does not end there however. Counsel agreed the case was run in the District Court on the footing that there was an honest belief on Mr Bull’s part that he was justified in acting as he did, in self-defence. But as the Judge correctly instructed the jury, Mr Bull could not use in self-defence more force than was reasonable in the circumstances as he believed them to be. The Judge said:

... you must ask yourself whether the force that the accused used was reasonable in the circumstances as he believed them to be. For the defence to succeed there must have been a reasonable balance between the threat that the accused believed he faced and the force that he then used to meet the threat. That last point is for you the jury to decide, whether you as a jury think the force was reasonable. That the accused might have thought it reasonable is not the point at all. It is what you consider to be reasonable in the circumstances.

[21] As Ms Guy Kidd said, a plausible explanation for the jury verdict – although the issue received little attention at trial – could well be that the jury considered that Mr Bull had gone at Mr Dermody “too hard” in the particular circumstances.
[22] As to that possibility, the first point to note is that no appeal point has been advanced that the direction was somehow in error, or that the Judge should have dealt with it more fully, as to the facts of the particular case.
[23] What the Judge did was to follow a conventional course. If (as here) a defence is run in a particular way, the problem for a trial judge is whether to put all the elements of an offence to a jury. As a prudential course, most judges do so, without a great deal, if anything, more. Many judges say something like, “... but you may have little difficulty with that element”. A real difficulty with saying something more fully is that the judge may end up saying or emphasising something that the defence just does not want dwelt upon at any length, or really at all.
[24] We do not consider the Judge can be faulted for leaving this particular issue to the jury in the manner in which he did. To say something more than he did could well have deflected the jury away from the defence’s simply premise: “Mr Bull was set upon, and he was acting throughout in self-defence”. In short, if anything, the direction was more favourable to the defence.
[25] It all comes to this. It was for the Crown to displace Mr Bull’s assertion that he was acting in self-defence; it was also for the Crown to displace Mr Bull’s implicit assertion that the degree of force he used was reasonable. It was a case of assessing the evidence which was available, which as it happens was rather more than is to be had in many cases of this kind because of the CCTV tape. We cannot say that this jury got it wrong, and could not properly have reached the view that it did. In particular, the way in which Mr Bull went at Mr Dermody with some real determination after the altercation began may well have been the factor which influenced the jury in reaching a view that his reaction was excessive, and unlawful. Further, we remind ourselves that the appropriate degree of response is quintessentially a jury (community) standard.
[26] The appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington