Police v Bradshaw [2016] NZDC 11517 (24 June 2016)

Last Updated: 1 February 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT QUEENSTOWN

CRI-2014-059-000426 [2016] NZDC 11517

NEW ZEALAND POLICE

Prosecutor

v

CRAIG ROBERT BRADSHAW

_Defendant

Hearing:	14 June 2016
Appearances:	Sergeant I Collin for the Prosecutor L S Collins for the Defendant
Judgment:	14 June 2016
Reasons:	24 June 2016

JUDGMENT OF JUDGE B A FARNAN [REASONS - JAT FINDINGS]

[1] The defendant faced a Judge alone trial on 14 June 2016 for a charge alleging that on 13 June 2014 he, with intent to injure Gareth John Johnson, assaulted the said Gareth Johnson. A separate breach of bail charge was withdrawn at the outset of the Judge alone trial.

[2] At the conclusion of the hearing on 14 June 2016, I found the charge proven and, owing to the late time of day, indicated that my written reasons would be

_{released at a later date, which I now do.}

POLICE v BRADSHAW [2016] NZDC 11517 [14 June 2016]

Background

[3] On the evening of 12 June 2014 and the early hours of 13 June 2014, the defendant was in the central area of Queenstown with two male associates. The three men had been drinking. One of the associates, referred to during the trial as “male one”, was extremely intoxicated. The defendant was referred to during the course of the Judge alone hearing as “male three”.

[4] These three men had variously been at the Ice Bar, where male one had broken an ice sculpture; they had been refused entry into the adjacent bar; they had also been refused entry at other bars; and had been told to leave another due to the intoxicated state of male one and, in particular, due to the language of the defendant’s associate referred to as “male two”.

[5] By about 2.00 am on 13 June 2014, all three men were attempting to gain entry to The Bunker Bar in Cow Lane. Mr Johnson, the complainant, was the doorman working at The Bunker Bar that evening.

Prosecution case

[6] It is the prosecution case that there was a deliberate attack on Mr Johnson by the defendant and his two associates, initially after male one - but also male two and the defendant - were refused entry to The Bunker Bar by Mr Johnson. This resulted in Mr Johnson being punched by all three men and, when on the ground, kicked by the defendant, resulting in Mr Johnson suffering injuries including bruising and a contusion to the side of his face. Mr Johnson was sober that night; the defendant and his associates were not.

Defence case

[7] The defendant denies assaulting the complainant. He says that although he grabbed Mr Johnson in the course of this incident, it was because Mr Johnson had male one in a choke hold and the defendant was trying to get Mr Johnson off, and away from, male one. The defendant denied kicking the complainant at all, saying

this would not have been possible on that night, due to an injury to his left ankle sustained in 2012 which ended his basketball playing career. The defendant was previously a New Zealand basketball representative.

Issues for determination

[8] It is not in dispute that the defendant was involved in an incident with Mr Johnson in the early hours of 13 June 2014 in Cow Lane. What is in dispute is whether the defendant’s actions that night constituted self-defence, or defence of another (male one).

The decision making process

[9] Before I begin my consideration of the evidence, it is important that I set out my role in the summary hearing.

[10] Essentially, I am required to decide whether the essential elements constituting the alleged offences have been proved beyond reasonable doubt. This is a criminal prosecution. The onus is on the police to prove the elements of each charge beyond reasonable doubt. There is no onus on the defendant to prove or disprove anything. All facts need not be proved beyond reasonable doubt, only the elements of the charge.

[11] In this case the defendant has given evidence. The fact that the defendant gave evidence does not change the onus or standard of proof that I have earlier referred to.

[12] I have considered all of the evidence that has been placed before me in this case. This includes the evidence given on oath, the s 9 agreed facts, and the exhibits.

[13] Clearly, the evidence that I heard in this case, with the various conflicts, cannot all be correct. The divergence in the evidence simply does not allow for that to occur. As I have said, I have looked at all of the evidence with the aim of being objective, careful, impartial, and dispassionate in my assessment of the evidence.

[14] It has been necessary for me to consider the honesty, reliability and credibility of each witness. Clearly, I do not have to accept everything that a witness says, or reject everything that a witness says. I am entitled to accept and reject parts of what a witness said in their evidence.

[15] In considering the evidence of each of the witnesses, I have considered the reasonableness, coherence, and probability of the evidence of each witness. I have considered their evidence in terms of whether their evidence is consistent with, or is supported by, other evidence.

[16] I have particularly and cautiously examined evidence that I considered was contradictory, inconsistent and unsupported.

[17] There are other matters that I have also taken into account in considering the evidence of each of the witnesses. These include:

a) Whether witnesses were under the influence of alcohol at the time they made their observations.

b) The reliability of the witnesses and their powers of observation.

c) The opportunity the witnesses had to perceive material facts and the ability of the witness to articulate what was perceived.

d) The memory and judgment of the witnesses.

e) The interest that any particular witness may have had in the outcome of this case. By this, I mean whether the witness had a motive to lie, exaggerate, distort or minimise the actions of any of the parties.

f) The relationship between the witnesses; whether witnesses could be described as independent or whether a relationship existed between the witnesses.

g) The reasonableness, coherence and probability of events occurring in the manner described by witnesses.

h) How the witness performed under cross-examination.

[18] I have considered whether the matters that I have raised above have either adversely, or positively, affected my view of the witnesses' evidence. I am also aware that a witness, although honest and sincere, may be genuinely mistaken about events. A witness needs to be not only honest and sincere, but also reliable and credible.

[19] I have reminded myself that inaccuracy about secondary, marginal or unimportant facts often arises because the attention of the witness was focused on central facts.

[20] Witnesses do not all see the same things. Witnesses do not place the same weight on what they see. Witnesses may also have different abilities to recall matters from their memories.

[21] Evidence can often be accurate about essential details, but not about secondary or minor matters.

[22] I should also state that in cases involving anger, tension and high emotions, inconsistencies between witnesses are to be expected.

[23] I have also borne in mind the timing between when this particular incident is alleged to have occurred, namely June 2014, and the date of the fixture in June 2016.

[24] I also wish to emphasise that in reaching a decision in a summary hearing, it is neither necessary, nor am I required, to articulate findings about every item of evidence. My role is to determine whether the prosecution has proven the elements of the alleged offences beyond reasonable doubt. In doing that, however, it is necessary for me to resolve some primary disputes over the facts.

The complainant – Gareth John Johnson

[25] It was Mr Johnson’s evidence that on the evening of 12 June 2014 and the early morning of 13 June 2014, he was employed as a doorman by Bronco Security. He had worked for Bronco Security for about eight years. On this specific evening he was working at The Bunker Bar in Cow Lane, Queenstown.

[26] He performed his duties by being positioned just below the Steinlager signage (as shown in photograph 10) at street level. He was the only security officer working at The Bunker Bar that night, which he described as being “a quiet night”.

[27] Mr Johnson said there was adequate lighting in the area, which enabled him to make a good observation of persons in the area.

[28] On that evening, Mr Johnson was scheduled to work from 10.00 pm. He was not drinking that night, due to his workplace requirement of zero alcohol consumption.

[29] In the early hours of Friday 13 June, at about 2.00 am, Mr Johnson noticed three males approaching him. He said one, in particular, started stumbling around and, from his observations, was clearly intoxicated. This man became known throughout the hearing as male one.

[30] Mr Johnson said male one approached him in quite a steadfast manner and came very close to him, within his personal comfort zone. Mr Johnson denied male one entry to the Bar, due to his level of intoxication. Male one’s response was to say to Mr Johnson “What the fuck do you mean, you some big time bouncer?”. That, Mr Johnson said, reinforced his decision to deny entry.

[31] The second of the three males, referred to throughout the hearing as male two, then asked if he could go up into the bar, which was said in an abrupt manner. Mr Johnson’s response was to ask him for ID, to which male two said “What the fuck ... why do you need my ID?” Mr Johnson responded by also denying male two entry into the bar.

[32] Mr Johnson described male one as a 5’10” Caucasian; male two as a 5’6” (shorter) Maori or Pacific Islander. He could not remember what either of these men was wearing.

[33] Mr Johnson said he could remember male three clearly as he was very tall, of medium build, wearing a grey t-shirt or top. It is not disputed in this case that the defendant is about 6’8” tall and he is the man referred to as male three.

[34] Mr Johnson said it was after male one, or two, was denied entry that the assaults started. He said male one was directly in front of him, almost touching him; male two was to his left; and male three was between males one and two. Both males two and three were about half a metre from Mr Johnson; he felt that were crowding him. He felt he had been polite to males one and two, but he was sensing their aggression and had to prepare for the worst. He knew the manager of The Bunker Bar was upstairs in the bar; but the security guard at the bar close by was, at that time on that night, not there.

[35] Mr Johnson described the attack on him happening abruptly and fiercely. He said male one had advanced on him in an aggressive manner and when Mr Johnson stood his ground to hold him back, male three grabbed Mr Johnson by the cusp of his neck onto his shirt. Mr Johnson was still holding on to male one, and tried to move male three - identified as the defendant - off him. Male one was punching Mr Johnson on the left side of his face, more to his lower jaw. As Mr Johnson pulled male three’s arms off him, he said he grabbed male one’s arms “like a grapple movement” to stop male one from punching him. He said punches then came, which had to be from males two and three.

[36] Mr Johnson said he can specifically remember male three, as he was taller and he made multiple hits on him “coming in a downwards move”, as male three was so tall. He said that male two was out of his visual range but made multiple blows to Mr Johnson’s head.

[37] Mr Johnson described being out into the middle of the road, still holding onto male one, when males two and three swamped him, and Mr Johnson went to the

ground. He let go of male one and rolled to get onto his elbows. He noticed male three, who kicked him in the left side of his head with a “conversion style kick” from male three’s right foot. Mr Johnson saw male three’s leg raised. After the kick, Mr Johnson was dazed and disorientated, and said he might have been knocked out for a few seconds, with a throbbing head.

[38] Mr Johnson described managing to get up and thought he needed to defend himself as male one was still trying to punch him; male three was saying “did you like that?” after which Mr Johnson turned and saw another security guard - now known as Julian Joel - and yelled at him to ring the police.

[39] Mr Johnson then described the bar manager who “ran down” (from The Bunker Bar) saying “Let him go” while male two had him by the neck, with male three punching him and saying words to the effect, “We fucked you up ...you liked that”.

[40] After the police were called, Mr Johnson says males one and three were still punching him, and male two was holding him.

[41] Mr Johnson said that the injuries to his face (referred to in photographs 1 and 2) were as a result of the defendant’s (male three’s) actions of kicking him while he was on the ground. He described the kick to the head as “quite hard” and the contusion on the left side of his temple was sore for some months.

[42] Mr Johnson said he was 100 percent sure it was the defendant who was the tall male who kicked and punched him.

[43] Mr Johnson did not accept in cross-examination that the defendant did not kick him when he was on the ground. He accepted that he made a statement to the police when the events were close in time, but said his memory was blurred due to the assault.

[44] When it was put to Mr Johnson that he put male one in to a headlock, he did not accept that proposition. He said the incident all happened “so fast” and accepted

he could not be 100 percent sure whether either male one or two went up the stairs towards The Bunker Bar.

[45] Mr Johnson would not accept in cross-examination that he was the aggressor. He did not see Mr Joel until he was on the ground after he had been kicked, but he did not dispute that Mr Joel might have phoned the police before he asked him to.

[46] In cross-examination, Mr Johnson said male one was the aggressor who started the attack, punching him five to six times, but did not kick Mr Johnson when he was on the ground. However, he did not accept that his eye injury was caused by a punch from male one, nor did he ever hold male one’s neck. He could not recall others trying to pull him and male one apart.

[47] Although challenged on several occasions that male three did not kick him, Mr Johnson did not accept this proposition. He said he landed on the ground on his right side. He had lost his grip on male one and rolled over onto his elbows. He was clear he saw male three run in with a rugby kick, he saw his leg and demonstrated a low kick with some, or a lot, of pressure in the kick. He said male three, the defendant, planted his left foot and kicked with his right foot.

[48] Mr Johnson accepted he spoke to two policemen on the night and signed Constable Uhrle’s notebook in which it was recorded by Constable Uhrle, within three minutes of the alleged assault, that Mr Johnson “thought” the tall guy kicked him.

[49] Mr Johnson accepted those were the contents of the constable’s notes. He said he was in a lot of pain and could barely remember the exact notes, but he did accept he had contact with Constable Uhrle. Mr Johnson said, in giving his evidence in Court, he had just wanted to stick to the facts of what he could remember, rather than refresh his memory.

[50] Mr Johnson said in cross-examination that he was 100 percent sure it was the defendant who kicked him. He did not accept he possibly confused males two and three. He summarised his evidence as:

Holding male one, trying to stop him, felt heavy weight of two on him, lost grip of male one, saw male three do a rugby kick.

[51] Mr Johnson did not accept that male three was pulling him off male one. He said the kick to his head had a big impact on him and he repeated that it was 100 percent male three; and he was not genuinely mistaken in that it was male two’s leg and not male three’s.

[52] Mr Johnson also told Constable Hamlin that the tall guy punched him twice and the red sleeved guy (male one) punched him twice.

[53] When it was put to him that multiple people were involved, Mr Johnson said he only saw males one, two and three. He was not sure if Mr Joel was present earlier than he had said in his evidence in chief, but he did not agree that male three did not say “you like that” as if he was enjoying the situation.

[54] Mr Johnson did not accept male three’s (the defendant’s) only involvement was touching Mr Johnson to separate Mr Johnson from male one.

[55] Mr Johnson confirmed in cross-examination that the blows came from all three who assaulted him multiple times, that he is 100 percent positive who kicked him (being the defendant), and 100 percent sure all three assaulted him all at once.

Julian Denny Joel – eye witness

[56] Mr Joel is now an investment manager; but on the evening of 12 June and early hours of 13 June 2014, he was employed as a bouncer at a local exotic dancing establishment. He had started work between 9.00 and 10.00 pm and finished about

1.30 am. He did not know Mr Johnson personally before this night, but he was aware Mr Johnson was a doorman by occupation, having seen him around previously, and knew of him as “G”.

[57] Mr Joel was walking to his car when he entered Cow Lane, and immediately saw and heard what he described as “a fracas” occurring by the steps near The Bunker Bar. He gained the feeling that the incident may have been arguing

before he arrived on the scene. He saw the doorman, Mr Johnson, who he recognised, being pushed and shoved towards the stairs. He also recognised the other three men from earlier in the night when he had asked them to leave the dancing establishment he had been working at that night.

[58] Mr Joel described one of the men pushing and shoving Mr Johnson, with the other two standing directly behind, yelling abuse. He remembered one of the men was very tall. Mr Joel said he yelled at these men, telling them to stop what they were doing as it was not necessary. He described trying to separate and disburse them, with his hands on the three men, trying to shield the doorman.

[59] Mr Joel said he did not want anyone to get hurt. He heard lots of swearing including “Fuck you”. Mr Joel was not successful in getting the men apart, and sensed the hostility between the different parties.

[60] Mr Joel described that the doorman, Mr Johnson, was being attacked by the other three, saying it was “difficult to remember now but there was pushing and shoving, with fists flying”. He described Mr Johnson as being “on the defensive”. He said he saw fists from two of the men trying to hit the doorman, and that he received a glancing blow himself. Mr Joel said one of the two men was the defendant.

[61] Mr Joel said he called the police because he could not stop the situation himself.

[62] Mr Joel said that when he said he was going to call the police, the defendant said “Good, as he [Mr Johnson] had hit [him] first”.

[63] Mr Joel said Mr Johnson was defending himself, and he noticed nasty contusions on one side of his face. He said Mr Johnson seemed emotionally upset. It was clear to Mr Joel that Mr Johnson’s face had started to swell up. He described a “massive swelling”.

[64] Mr Joel described the defendant’s group at the dance club with one (male one) as “very intoxicated and abusive to one of the girls at the club”. When Mr Joel told them as a group to leave, he said their reaction was “not pleasant” and comments were made like, “We are not fucking going anywhere” and one demanded his money back and threatened to “smash [his] fuckin’ face in”, as well as them making other aggressive comments.

[65] Mr Joel accepted the defendant was not the one swearing and threatening, and, in fact, was the most helpful. This incident at his bar was at about 11.00 pm.

[66] In cross-examination, Mr Joel could not remember if The Bunker Bar manager was present in Cow Lane, or if they were all on the steps. He did say all three were trying to grab and hit Mr Johnson. He described a “three on one” situation because they were trying to punch Mr Johnson, and that they would not stop.

[67] Mr Joel accepted the defendant said he got punched by Mr Johnson; he did not accept the defendant was trying to keep the other two from Mr Johnson, nor did he accept what the defendant did was “put in an odd cheap shot”. He said the attack continued after he rang the police.

[68] Mr Joel accepted he did not see the defendant kick anyone.

[69] Mr Joel said he was trying to be the peacekeeper that evening. He did not see any of the three males trying to be peacekeepers that night.

[70] In re-examination he said what he observed was a “three on one” and that if they had wanted to stop the situation with Mr Johnson, they could have walked away. Mr Joel described Mr Johnson as “very much on the defensive, agitated and upset”. He said Mr Johnson’s aggression was “all verbal”. He considered all three of the males to be equally culpable for the attack on Mr Johnson. He did not see any injuries on the three males, only to Mr Johnson. Mr Joel said it was a far-fetched proposition that the defendant was only reaching over Mr Johnson.

Constable Urhle

[71] The final prosecution witness was Constable Urhle. He confirmed that he was called to the incident in Cow Lane on 13 June 2014.

[72] The officer spoke to the complainant, Mr Johnson, and observed swelling on one side of Mr Johnson’s face. The constable described Mr Johnson as “talking vigorously” and being “upset”. He said Mr Johnson gave him his account of what happened and the constable wrote it down. He did not think Mr Johnson was dazed or confused, but he was clearly agitated.

[73] Constable Urhle confirmed there were no CCTV recordings available of this incident, notwithstanding cameras in the area.

Defence case

[74] The defendant, Mr Bradshaw, chose to give evidence. He was not required to do so.

[75] Mr Bradshaw confirmed he used to be an international basketball player and that in 2012 he had reconstructive surgery to his left ankle which, at times, has had an impact on his mobility. He said he had to give up his basketball career after this surgery, but now, in 2016, he is much more mobile. It was Mr Bradshaw’s evidence that in 2014, at the time of this incident, he still had limited mobility and would not be able to make the kicking manoeuvre as alleged by Mr Johnson. He said he could not run, jump, or play basketball.

[76] It was the defendant’s evidence that he and the other two males he was with, had travelled to the South Island for an All Blacks Rugby Test in Dunedin, but visited Queenstown first. He said that the other two men were previously known to him but were not friends of his; rather, they were friends of his brother who was supposed to be on the trip.

[77] Mr Bradshaw said that over the course of the evening of 12 June 2014, he and his two associates had visited five bars, including a strip club, before ending

up in Cow Lane. He said they approached Mr Johnson and male two was already up the stairs waiting to be let in.

[78] Mr Bradshaw agreed that male one was refused entry to The Bunker Bar because he was intoxicated, and he confirmed they had been excluded from other bars that night due to intoxication issues.

[79] He said male one did not like being refused entry and attempted to jump the rail of the stairs to get up the stairs. Mr Bradshaw said Mr Johnson responded by getting male one in a chokehold, and both he and male two tried to pull Mr Johnson off male one.

[80] Mr Bradshaw also described Mr Johnson having male one in a chokehold on the ground for about two to three minutes. He said they – himself and males one and two - were the victims, and repeated that he was trying to release male one from the chokehold. He denied kicking Mr Johnson. He said he could not kick him because of the surgery as he could not run or jump, and that it took a year or two before he could walk properly. He said he could not weight bear and to kick he would have had to balance on one foot, planting a foot, and that kicking would not be possible by him.

[81] The defendant did not accept he punched Mr Johnson or say to him words to the effect, “Did you like it?”. He accepted he grabbed Mr Johnson by the scruff of his neck, but said it was to get him to release his hold on male one, not to assault him.

[82] During cross-examination, the defendant accepted he and his two associates had been kicked out of two bars and refused entry to another earlier in the evening. Mr Bradshaw accepted he had been drinking that night and that he was moderately intoxicated (being 5 out of 10, on a scale of 1 to 10).

[83] When challenged by Sergeant Collin that Mr Joel did not see Mr Johnson holding male one in a chokehold, his response was that Mr Joel was not there at the beginning of the incident and may not have been there when there was a choke hold

on the ground. It was his evidence that Mr Johnson must have got injured from the pushing and shoving.

[84] Mr Bradshaw said he was particularly concerned about Mr Johnson’s chokehold manoeuvre towards male one, and that is why he could not just move away. He accepted male one was very intoxicated and that they were excluded from other bars due to intoxication issues. He described that when Mr Johnson was on the ground, Mr Johnson was lying on his back, with male one lying on his back on top of Mr Johnson’s stomach, and with Mr Johnson also applying a chokehold to male one.

[85] Mr Bradshaw denied kicking Mr Johnson and said that it was not physically possible for him to kick Mr Johnson, as claimed by Mr Johnson. Mr Bradshaw also said at one stage of his evidence, that the others were assisting Mr Johnson’s holding male one in the chokehold.

[86] Mr Bradshaw accepted he did not mention the chokehold to the police, and accepted that he had been drinking for about five hours before the Cow Lane incident and that he was too drunk to drive.

[87] Mr Bradshaw reiterated his evidence that Mr Johnson effectively had male one in a choke hold, both when the incident started and when Mr Johnson was on the ground.

Assessment

[88] I find as a fact that the defendant and his two associates were intoxicated in the late evening and early hours of 12 and 13 June 2014.

[89] I find as a fact that the defendant and his associate had already been kicked out of two bars and refused entry to a third on this evening, prior to their going to Cow Lane. In my view, as a consequence of being refused entry or being removed from other bars, this should have resulted in them walking away from The Bunker Bar in Cow Lane when refused entry.

[90] I find as a fact that after they were refused entry to The Bunker Bar, male one advanced on the complainant aggressively, and male three (the defendant) grabbed the complainant by the cusp of his neck.

[91] I find as a fact that all three men were punching, pushing, and shoving the complainant, with the complainant trying to hold on to male one to stop the assault.

[92] I do not accept that the complainant held male one in a chokehold at any stage. My assessment is that the complainant and the independent witness were sober, and the defendant and his two associates were intoxicated and aggressive. Mr Joel, the independent witness, observed a “three onto one” situation. He considered the defendant and his associates as the aggressors.

[93] Both Mr Joel and the complainant remembered the defendant, in particular, due to his distinctive height.

[94] I find as a fact that the complainant ended up on the ground. In doing so, he lost hold of male one, and was kicked by the defendant while on the ground. While I accept the defendant has had a leg injury prior to this incident and would, after his operation in 2012, have had limited activity, the kicking was described as being by his right - non-injured leg - and would have required only a momentary period on his left leg. I prefer the evidence of the sober complainant to that of the defendant, and that the complainant clearly identified the defendant as the male who kicked him.

[95] My assessment of the witnesses was that Mr Joel was fair and impartial. He had seen the defendant and his associates' behaviour - male one, in particular - earlier in the evening. He was trying to play a peacemaker role. He never saw the complainant have male one in a chokehold at any time.

[96] While I accept Mr Joel may not have seen the whole incident, the defendant’s own evidence was that the complainant had male one in a chokehold, both on the ground and when they were both standing.

[97] The complainant, in my view, was sincere in his giving of evidence. This incident had had an impact on him and he was remembering the night as best he could. He made some appropriate concessions, for example he accepted some of the men may have gone up the stairs that night and that Mr Joel may have called the police before Mr Johnson asked him to.

[98] I do not accept the defendant’s evidence that he and his associates were victims that night and that the complainant was the aggressor. This was a “three on one” situation.

[99] I do not accept that the complainant, and Mr Joel, and one other person were acting aggressively towards the defendant’s group. The complainant suffered serious injuries; neither the defendant nor his associates were injured. The defendant gave evidence of a number of matters that were not put to the prosecution witnesses, including that the complainant, Mr Joel and one other person were aggressive towards the defendants.

[100] The onus is on the prosecution to satisfy me beyond reasonable doubt that the defendant assaulted Gareth Johnson with intent to injury him. I am left in no doubt that the defendant both punched and kicked the complainant.

Result

[101] For the reasons given above, I confirm that I find the charge proven. [102] The defendant is remanded to 17 October 2016 at 2.15 pm.

[103] I will not enter a conviction as the defendant wishes to make an application under s 106 to be discharged without conviction. I have already timetabled the filing of submissions and evidence.

B A Farnan

District Court Judge