Police v Wadsworth [2016] NZDC 7415 (28 April 2016)

Last Updated: 27 October 2016

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT LEVIN

CRI-2015-031-001215 [2016] NZDC 7415

NEW ZEALAND POLICE

Prosecutor

v

CLAYTON WADSWORTH

_Defendant

Hearing:	28 April 2016
Appearances:	Sergeant S Chamberlain for the Prosecutor M O'Sullivan for the Defendant
Judgment:	28 April 2016

_{ORAL JUDGMENT OF JUDGE J D LARGE}

[1] Clayton Wadsworth appears today on a charge of with intent to injure Denon Beaumont assaulted the said Denon Beaumont. That is a charge pursuant to s 193 Crimes Act 1961 and is liable to a maximum penalty of three years imprisonment.

[2] The essential ingredients of the charge are that there has to be an assault by Mr Wadsworth upon Mr Beaumont and that assault is with the intent to injure Mr Beaumont. The police must prove that Mr Wadsworth was assaulting Mr Beaumont with the intention of causing actual bodily harm. While the harm intended must be such as be calculated to cause some discomfort or interfere with health and enjoyment of life, it must also be something that is more than transient but it need not be permanent or long lasting.

[3] In this case the allegation is that Mr Wadsworth kicked Mr Beaumont while he was on the ground outside at a property in Levin on 5 September last year. It is common ground from all of the witnesses that there was a party held at the address of Hannah Yates and her mother Sarah Yates, both of whom gave evidence today. There is no dispute amongst any of the witnesses that the young people attending were drinking and were under the influence of alcohol. There is no question or I do not believe any issue with that and I am satisfied that clearly was the background for the incident that occurred that night.

[4] The prosecution allege that Mr Wadsworth kicked Mr Beaumont and they rely on the specific evidence of Sarah Yates.

[5] First however the evidence of Mr Beaumont himself who clearly said that he has no actual recollection of the events other then recalling a fight when he was knocked out and then he could not remember much that night waking up in hospital. He said he had a sore head, was a bit sore, had gashes on his head and lumps but he is not quite sure how they came to be sustained by him.

[6] Ms O’Sullivan, counsel for Mr Wadsworth challenged him and suggested that he was so drunk that he was falling over but Mr Beaumont had no recollection of all of the propositions put to him by Ms O’Sullivan which is consistent with his lack of recollections that night. The only thing he does seem to recall is remembering getting into a fight with his friend Ricky one of the police witnesses.

[7] The second witness was Mrs Yates, mother of Hannah. She was quite clear in her evidence that when she came home there were seven or so people still in Hannah’s sleepout or rumpus room or wherever the party was or gathering was. She heard some loud and heated exchanges and as she was concerned she offered to take people home.

[8] No one took her up on her offer but what she then said was I think quite important. She clearly saw that Mr Beaumont was on the ground and she saw him get kicked. She said that very clearly and I place a great deal weight on her evidence in that she was probably one of the only sober people there at the time of the events.

[9] It maybe later in the evening other sober people arrived but at that time she clearly had a good recollection and she saw Mr Beaumont get kicked twice. She likened the kick to like a rugby or a soccer kick and said it was hard enough for her to be concerned as a mother. She was not able to say where it landed on Mr Beaumont but she clearly said it was in the upper body area, not in the legs. When she went over to see him she noticed he was still. She was concerned enough to ring an ambulance. In cross-examination she confirmed that she could not see where the kicks landed but she definitely said they connected because her words were “he stopped moving.” She saw him go down and she saw him get kicked and she saw two kicks.

[10] Hannah Yates then gave evidence confirming the party, confirming the altercations, the arguments and the fact that Mr Beaumont was acting badly and had been asked to leave. Clearly he was affected by alcohol and a great deal of time was spent examining or questioning about the sobriety or lack of sobriety of Mr Beaumont and his behaviour.

[11] I think that is something of a red herring in that it does not assist the determination I have to make. The issue is not whether Mr Beaumont was drunk or not, what I have to consider is whether or not Mr Wadsworth kicked him and then when he did so that is in circumstances where there can be an intention to injure him and in doing so assaulted him. That is the focus I intend to concentrate on because that is the issue that I have to be concerned with.

[12] Ms Yates did not have too much of a memory of the statement she made to the police that night. She was challenged by the police. I allowed the police to put the statement she made to the police to her to assess her memory. I was concerned about the lack of memory from her even after she had her statement and it maybe that she was endeavouring to assist her friend Mr Wadsworth. However, she did acknowledge that she saw Clayton and Ari kicking Denon while he was on the ground. Her evidence was that she remembered both were kicking him. In her statement to the police she said that she kicked him to the head, that was a statement made at the time.

[13] When Ms O’Sullivan challenged Ms Yates about that Ms Yates was agreeable to every proposition put to her by Ms O’Sullivan. Ms O’Sullivan is obliged to do so but realistically I found Ms Yates’ evidence to be more consistent with what she told the police or the truth being more what she told the police than what she was endeavouring to tell me today. I was concerned about her ability to recall but I am not suggesting that she was lying. If I had that thought I would cause other action to be taken.

[14] Ms Fogden another friend of Ms Yates then gave evidence. She was at the party and she was the girlfriend of Mr Ari Harmer. Mr Beaumont was behaving like an idiot and trying to fight with everybody and there seemed to be some suggestion that he had a fight with his friend Rain. That was something that she, Ms Fogden, did not see because she was outside but Mr Harmer made comment of that later in his evidence.

[15] Again Ms Fogden’s evidence was that she was outside, she was endeavouring to get Mr Beaumont to go home, trying to arrange a taxi for him. Ms Fogden was with her boyfriend Mr Harmer. He saw or he believed that Mr Beaumont had pushed or struck Ms Fogden and as a consequence, Mr Harmer became involved. When he was involved his friend Mr Wadsworth saw that and unfortunately for Mr Wadsworth he became involved as well.

[16] Clearly there was evidence from Mr Harmer that he was in a fight with Mr Beaumont and each struck each other twice or thereabouts to the head. [personal details deleted]. His evidence today was that he saw Mr Beaumont on the ground and he saw Clay kick him in the chest. He went over. Again Mr Harmer was perhaps inconsistent and I put it kindly that way when he gave the evidence today, that is inconsistent with the statement he gave to the police on the night in that he said he saw him kick him to the head. At that point Mr Beaumont appeared not to be moving and there was some issue as to whether or not Mr Beaumont was rendered unconscious by the kick. Be that as it may, when Ms Fogden (and Mikayla who did not give evidence) approached Mr Beaumont it appeared to them he was not conscious but at the time they assisted him up he became conscious. They then assisted him and he went in the ambulance.

[17] The evidence that I have to look at is also assisted by the evidence of Sergeant Pigott who when he arrived at the scene spoke or had been advised obviously of an assault. His evidence was that he had been advised of an assault as opposed to any other information. He has then made an inquiry of one of the young woman there to go and ask the young man to come out. Sergeant Piggott said that Mr Wadsworth came out and said, “The boy I kicked in the face was called Denon.” Those were very clearly noted by the sergeant in his notebook and there was no challenge made as to the sergeant about that evidence. That statement was made to the sergeant after the sergeant had given the initial Bill of Rights caution to Mr Wadsworth and therefore I think it is admissible and is clearly of some moment.

[18] The sergeant then stopped and gave a second Bill of Rights after he had been told that and then after receiving advice from or comments from Mr Wadsworth that he had given him two upper cuts and then Denon went to the ground. Mr Wadsworth then acknowledged to the sergeant that he, at that stage, kicked him in the chest area once. At that point the sergeant says he stopped the interview because it was being held in a police vehicle and there were other things going on outside and he requested Mr Wadsworth to go back to the police station. Mr Wadsworth did. At the station he was formally given another set of Bill of Rights and a written statement was taken. That written statement was produced as exhibit 1. In that statement again Mr Wadsworth acknowledged that he punched Denon at least twice to the head with a closed fist with his right hand. “This made Denon fall to the ground and then I kicked him in his chest area. I used my right foot and that is when I got taken away.”

[19] That statement of itself is sufficient to my mind to allow the police to satisfy the Court that the charge is proved beyond reasonable doubt. Any person who kicks another person who is prone on the ground, particularly if the person is prone on the ground following two punches by the assailant, clearly must have intended to injure him because people who are lying on the ground are completely vulnerable and so what I consider is that the charge has been proved. Clearly there was no obligation on Mr Wadsworth to approve anything. He is entitled to the presumption of innocence but looking at the weight of the evidence the reliability of Mrs Yates particularly and the corroboration of her evidence with the evidence of

Mr Wadsworh himself combined with the evidence given by the two witnesses who gave evidence today that made statements to the police confirming that they saw a kick to the head. I have no doubt whatsoever that the charge is proved and accordingly you are convicted Mr Wadsworth.

J D Large

District Court Judge