Police v Livingstone [2017] NZDC 16983 (21 September 2017)

Last Updated: 7 March 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT KAIKOHE

CRI-2016-027-001063

[2017] NZDC 16983

NEW ZEALAND POLICE Prosecutor

v

TED RUAWAI LIVINGSTONE Defendant

Hearing:	08-09 June 2017
Appearances:	Sergeant S Wilkes for the Prosecutor S Nicholson for the Defendant
Judgment:	21 September 2017

RESERVED JUDGMENT OF JUDGE C M RYAN

Introduction.

[1] On the evening of 18 July 2016, [victim 1], an agricultural contractor living in rural Northland, sustained a number of injuries. His partner, [victim 2], sustained a blow to her head leaving a lump.

[2] The police case is that the defendant Mr Livingstone wounded [victim 1] with intent to injure him and assaulted [victim 2] with intent to injure her.

[3] Mr Livingstone has been charged on or about 18 July 2016, he committed an offence against s 188(2) Crimes Act 1961 in that he wounded [victim 1] with intent to injure him. The maximum penalty is seven years.

NEW ZEALAND POLICE v TED RUAWAI LIVINGSTONE [2017] NZDC 16983 [21 September 2017]

[4] To establish this charge, the police must prove two essential elements:

• (a) Firstly, that Mr Livingstone wounded [victim 1]. In other words, caused him an injury in a nature of a cut or laceration; and
  
• (b) Secondly, that when he did so, he intended to injure [victim 1]; that is he intended to inflict bodily harm on [victim 1] which was more than trifling or transitory.
  

[5] The police case is that Mr Livingstone caused the injury by striking [victim 1] with a bottle more than once.

[6] Mr Livingstone is also charged that on or about the same date he committed an offence against s 193 Crimes Act 1961 in that he assaulted [victim 2] with intent to injure her. The maximum penalty is three years. To establish this charge the police must also prove two essential elements:

• (a) Mr Livingstone deliberately struck [victim 2];
  
• (b) That when he did so, he intended to injure her.
  

[7] Again, the police case is that Mr Livingstone assaulted [victim 2] by striking her on the forehead with a bottle.

[8] Although Mr Livingstone consented to the charges being heard together, I remind myself that it is important that each charge is considered separately and that a separate decision is reached in relation to each charge.

Onus and standard of proof.

[9] The onus of proving these charges rests on the police. There is no onus on Mr Livingstone to prove that he is innocent. There is no requirement or expectation that Mr Livingstone should give evidence.

[10] Mr Livingstone has chosen to give and call evidence, but that does not alter the fundamental proposition that the onus of proving the charges rests on the police.

[11] The police must prove all the necessary elements of the charges beyond reasonable doubt. I will be satisfied beyond reasonable doubt if I am sure that Mr Livingstone is guilty. If I am sure of guilt, then it is my duty to find him guilty. If I am left with a reasonable doubt – a doubt that I consider reasonable in the circumstances of the case – then it is equally my duty to find Mr Livingstone not guilty.

Facts not in dispute.

[12] I turn now to the evidence I heard at trial and begin with the facts which are not in dispute.

[13] On the evening of 18 July 2016, [victim 1] was at his home in the rural region of Towai, east of Kaikohe and south-east of Kawakawa. Present were also [victim 1]’s partner [victim 2] and [her young children].

[14] [Witness A] was [victim 1] former neighbour. They had always got on well. [Witness A] drove to [victim 1’s] home at about 6.00 pm on 18 July 2016 with a group of males, including Mr Livingstone, his son [witness B], [witness C] and two men called [witness D] and [witness E], the latter with protruding incisor teeth or “buck teeth.”

[15] These men were unknown to [victim 1] or [victim 2]. Their arrival was unexpected. Nonetheless, [victim 1] invited them into a shed converted into a bar area and they consumed his home-distilled alcohol there.

[16] Scuffles broke out between [witness A] and his associates, which became more intense as the evening progressed.

[17] At some stage in the evening [witness A] left the property with Mr Livingstone’s son, [witness B].

[18] After a bottle was smashed outside the home, [victim 2], who came outside to sweep up the glass, swore at the visitors and asked them to leave. [Victim 1] came out of the bar and accused the men of either talking to or trying to “chat up” his partner. He fought with [witness E] and the two men had to be separated.

[19] One of those separating them was [victim 2]. [Victim 1] shrugged off those separating him, hitting [victim 2] in the face. She said she was going to take the children and leave.

[20] The visitors moved toward their car. While it is not disputed that a fight broke out between [victim 1] and one of the visitors, the identity of that other person is disputed.

[21] [Victim 1] was left with a 2.5 centimetres cut above his nose between his eyebrows, a 3.5 centimetres cut on the right side of his forehead below his hairline and a large laceration to the right side of the scalp to the top of his head, more towards the back, with surrounding boggy swelling.1 He said in evidence that he received about 17 stitches, possibly more and re-stitched to stop an arterial bleed2 and that evidence was not challenged.

[22] The photographs of the injuries taken on 19 July show that each was a crescent or semi-circular shape accompanied by extensive bleeding. The cuts to [victim 1’s] head are consistent with the shape of the edge of a bottle or a similar circular object.

[23] The photographs also show a lump on the left side of [victim 2’s] forehead.

Issues to be determined in this case.

[24] There can be no dispute that [victim 1] was wounded as proven by the lacerations and the bleeding. The size and number of lacerations clearly show that the person who caused the lacerations intended to injure [victim 1].

1 As confirmed by the formal written statement on 29 May 2017 of Roisin Bainbridge, an Emergency Medicine Registrar at Whangarei Hospital, admitted pursuant to s 9 Evidence Act 2006.

2 NOE page 35, lines 14-15, 24-27.

[25] The issue is whether the police have proven beyond reasonable doubt that the person who wounded [victim 1] with intent to injure him was Mr Livingstone.

[26] There is no dispute that [victim 2] sustained a lump to the head.

[27] The issue is whether the police have proved reasonable doubt that she was intentionally struck in the head, that the person who did so was Mr Livingstone and that he did so with intent to cause her actual bodily harm.

Police case.

[28] The police called three witnesses and Mr Livingstone called three, including himself. I propose to summarise the evidence for each side, bearing in mind that the police must prove Mr Livingstone’s guilt and he does not have to prove anything. I will then making findings as to credibility and reliability. These are crucial in this case.

(a) [Victim 1].

[29] [Victim 1] was able to recall Mr Livingstone among the six visitors because he was a big man with a number of tattoos,3 longish hair and a grey goatee.4

[30] When asked if he knew why [witness A] turned up with people unknown, [victim 1] replied “I – it was never established”.5 He said that was uncommon for [witness A].6 It was not put to him that the visitors paid him for his home-brewed alcohol although defence witnesses [witness C] 7 and [witness A]8 later said so.

[31] [Victim 1] recalled that [victim 2] was preparing dinner9 which seems consistent with the time of arrival about 6.00 pm. The men had not brought alcohol with them. They began to consume [victim 1’s] home brew which he had decanted

3 NOE page 4, line 33.

4 NOE page 5, line 1.

5 NOE, page 5, lines 2-21.

6 NOE page 5, line 17.

7 NOE page 142, line 29.

8 NOE page 214, line 27.

9 NOE page 9 line 20.

into 750 millilitre glass beer bottles.10 He also had homemade vodka.11 He estimated that the percentage of alcohol in his home brewed vodka varied between 34 and 37 percent but he had never tested the beer.12

[32] Challenged under cross-examination that he had told his visitors that his alcohol was 80% proof, he denied saying that, because such a high percentage was not possible.13 He said “If you drank 80% proof it would kill you.”14 He explained when re-examined that the process of making alcohol means that you cannot filter alcohol to make it safe unless it is lower than 50%.15 In other words he would not have told the visitors something which was so incorrect.

[33] He said he had consumed four vodkas that night but no beer as he does not consume it unless haymaking.16 He denied having had several drinks by 8.00-8.30 pm.17 While not admitting he was drunk, he accepted that he “knew he’d had a drink.”

[34] [Victim 1] described the conversation with people from a different background to his own as “good”, “interesting” and “wonderful.18. He spoke to Mr Livingstone almost the entire time and there was no animosity between them.19

[35] Things began to change when a younger person from the visiting group went outside and returned a little agitated. [Victim 1] sensed that something was “going to go bad”.20 Under cross-examination, he accepted that the younger man had protruding teeth21 but while he could not recall the name [of witness E], he did not dispute that this was the young man’s name.22 [Witness A] “had words” with [witness E] and “held

10 NOE page 9, lines 28-34

11 NOE page 10, lines 9-10.

12 NOE page 36 line 28-page 37 line 1

13 NOE page 46, lines 6-13.

14 NOE page 67, line 10.

15 NOE page 67, lines 13-16

16 NOE page 35, line 12.

17 NOE pge 45, lines 19-20

18 NOE, page 10 lines lines 17, 23.

19 NOE page 13, lines 7-8; 12-13.

20 NOE, page 11, lines 13-16.

21 Noe page 42, lines 27-31

22 NOE page 43, lines 9-15.

him against the wall.”23 At that stage, [victim 2] came into the bar and told [witness A] “Look we’ve got kids inside; we don’t want none of this trouble, we don’t have this here”.24

[36] [Victim 1] was not specific about the trouble [witness E] was causing other than to say he was arrogant and trying to start trouble, including making racist remarks.25 He could not recall [witness E’s] lunging at, grabbing or punching at him26 but did recall that [witness E] was drinking the home made vodka “straight out of the bottle.” He accepted in re-examination that [witness E] may have lunged at him but did not make contact.27

[37] He denied that [witness E] had struck him on the back of the head, requiring intervention by Mr Livingstone and [witness A] or that [witness C] also “picked on him” before he was “plumped on the table and went to sleep”28 about 8.30 pm. He denied going to sleep at any time in the evening.29 He denied any suggestion that after being knocked down by one of the visitors in the shed, [victim 2] came in to help him up and his elbow or elbows struck her in the head above her right eye.30

[38] He did recall that [witness E] went outside about 8.30-9.00 pm when it was dark and smashed a vodka bottle on the concrete driveway.31 [Victim 2] went out and reprimanded [witness E], saying to him “Look you know we have children we don’t do this sort of thing, you know, they run round here. This is their play area”.32 [Victim 1] recalled that there was an apology from one of the men.33

[39] [Victim 1] walked out to make sure that [victim 2] was all right but [witness E] pushed him to the ground.34 He then grabbed [witness E] by the ankles, pulling him

23 NOE page 11, lines 13-16.

24 NOE page 11, 30-31.

25 NOE page 11, line 34 to page 12, line 4.

26 NOE page 44, lines 27-30

27 NOE page 67 line 21.

28 NOE page 47, lines 1-2.

29 NOE page 46, lines 27-28.

30 NOE pages 47, 8-11; 67, lines 25-27.

31 NOE page 13, lines17, 24-27;

32 NOE page 14, lines 8-11

33 NOE page 48, line 20-21.

34 NOE page 18 lines 21-23

to the ground. Bad language broke out between them with [victim 1] saying “Why don’t you f-off, get in your car, get out of my property, you’ve got no respect.”35 [Victim 2] and another person separated them with [victim 2] screaming at the visitors to get into the car and leave.

[40] [Victim 1] denied that at this point, he flicked his hands back to shrug off those helping him and struck [victim 2] in the head, leading her to say “Fuck you, I’m out,

I’m off with my kids, I’m out of here.”36

[41] He did accept that the visitors heeded [victim 2’s] direction to leave and soon were all in the car except for Mr Livingstone who was at the side of the car near the front passenger’s seat where he had just put [witness E]. He accepted that Mr Livingstone had been affable all night and had assisted the troublesome [witness E] into the car but could not explain why Mr Livingstone suddenly turned on him.37

[42] [Victim 1] had not noticed that [witness A] and [witness B] had left the scene and assumed they were in the car38 although was told by [witness A] a day or two later that he and [witness B] had left on foot.39 [Victim 1] then moved to the front of the vehicle. He admitted that he was yelling abuse at the visitors, “telling them to get the mut-get that young fellow out of there and f-off.”40

[43] He walked around to the left hand side of the vehicle where Mr Livingstone was standing and “next minute he [Mr Livingstone] slugged me one, like punched me”.41 [Victim 1] described Mr Livingstone as swinging his fist over the top of the door and striking [victim 1] with a closed fist to the left hand side of his face, just in front of his ear, knocking him to the ground.

[44] He was challenged about that evidence by Mr Nicholson. First, the vehicle was an Isuzu Bighorn and it was put to him that the top of the door would be at eye level

35 NOE page 15, lines 1-2

36 NOE page 64, lines 20-23.

37 NOE page 49, lines 23-page 50, line 1.

38 NOE page 15, line 25.

39 NOE page 55, line 13.

40 NOE page 177-8.

41 NOE, page 16, lines 22-24.

or higher. How then could Mr Livingstone have reached over it?42 [Victim 1] described Mr Livingstone as a tall man which indeed he is and deposed that he was able to reach over the door and strike the much shorter [victim 1] from above. He was on the other side of the door and was just standing there (although clearly yelling abuse), not expecting to be hit.43

[45] Secondly, this is not something he told the police at the time or shortly afterward. [Victim 1] said that it was something he later remembered, recalling “bits and pieces as time goes on.” He said he had not been assisted in his recollection by anyone else.44

[46] He denied the propositions put to him by Mr Nicholson; that in fact he approached [witness E] in the front passenger’s seat to punch him before [witness C] leaned over from the back seat; that it was [witness C’s] punch together with the amount of alcohol [victim 1] had consumed which sent [victim 1] to the ground; that [witness E] leapt out and began fighting with him again; that this sequence of events led to his injuries.45

[47] [Witness 1] said that after Mr Livingstone had knocked him to the ground, Mr Livingstone came around to his side of the door and hit him again in the head with a closed fist.46 Mr Livingstone did not say anything. [Victim 1] felt the pain of the blow.47 He said that after being hit, he was not capable of hitting back or defending himself.48

[48] There was a beer bottle on the ground. He saw Mr Livingstone picking it up before hitting him with it while he was on the ground49 and in “no situation to run away at that stage”.50 The bottle did not break.51 He denied that Mr Livingstone

42 NOE page 40, lines 26-34.

43 NOE page 41, lines 1-4

44 NOE 41, lines 17-18.

45 NOE page 50, line 33- page 51 30.

46 NOE pge 18, lines 15-26

47 NOE, page 19, line 3.

48 NOE page 42, line 7.

49 NOE page 19, lines 20-21.

50 NOE, page 20, line 29.

51 NOE page 60, line 31.

separated him from fighting with [witness E] or that Mr Livingstone held his hands out between them like a giant gull.52

[49] [Victim 1] said that Mr Livingstone in fact struck him on the bridge of the nose with the bottle.53 [Victim 2] rushed over, yelling “F-off, cut it out, that’s enough.”54 She grabbed [victim 1] by the arm but [victim 1] said she did not touch Mr Livingstone as she is not the sort of person to do so.55 He denied that he called out to her “grab the gun, get the gun!”56

[50] Mr Livingstone turned and struck her with the bottle above the eye in a “backhand swing”57 causing her to stumble backwards before immediately returning to [victim 1] and striking him on the top of his head twice more with the bottle.58 [Victim 1’s] eyes became full of blood.59 He denied that the injuries to his head were caused by his head hitting the ground after being struck by [witness C].60

[51] The next thing he recalled was a paramedic speaking to him when he was in bed inside his house. He did not know how he got from the driveway to his bed. He was not sure whether he had lost consciousness.61 Under cross-examination, he accepted that the ambulance may have arrived at about 11.00 pm so some five hours after the drinking session with his visitors began.62

[52] [Victim 1] further deposed that there was nothing preventing the vehicle from leaving the property and no reason why Mr Livingstone could not have simply got into the vehicle and driven or been driven away.63

52 NOE page 51, line 31- page 52, line 3.

53 NOE page 21 line 7.

54 NOE page 21, line 23.

55 NOE page 22, line 19

56 NOE page 50, lines 21-25.

57 NOE page 23, line 6

58 NOE page 21, lines 13-17

59 NOE page 23, line 33

60 NOE page 68, line 26-page 69, line 10.

61 NOE page 25 lines 27-29

62 NOE page 39, line 30-

63 NOE page 28, lines 25, 29

[53] [Victim 1] denied that [victim 2] told [witness A] when he visited them after the incident “Oh the police have got it all wrong”.64 Mr Nicholson tried to suggest to [victim 1] that he had told the police “I managed to get away from Ted and [victim 2] and I went inside the house and locked the door”. However, there are two different ways of reading that statement and [victim 1] explained that what he meant was that he “got away from Ted. And [victim 2] and he went inside.”65

(b) [Victim 2].

[54] [Victim 2] deposed that she lives in Whangarei. It was clear from her evidence that she was not living with [victim 1] but on the evening of 18 July was staying overnight with her children.

[55] She recalled a group of people turning up at about 5.30 pm while she was inside with the children, getting the dinner ready and that [victim 1] was outside. The visitors began to drink with [victim 1] who at one point came into the house to get a bottle of alcohol and remarked “I’ve never met such friendly people. It’s amazing.”66

[56] At about 8.30 pm or 9.00 pm a banging sound from the bar area drew her attention and she went in. She found [witness A], whom she had only met once before67 and another man whom she described as the “bucktooth man.”68 She did not know his name but it is clear she was referring to [witness E].

[57] [Witness A] was banging the man’s head against a milkshake machine hanging on the wall and holding a knife to the man’s neck, telling him “I’m going to kill you”. She exclaimed “I got my fucking kids here. Can you please stop”? He backed away, dropped the knife, put his hands up and said “I’m sorry. I should have had more respect.”69 Under cross-examination, she said she had asked them to leave at that point and had done so up to eight times before the evening was over.70

64 NOE page 55, pages 24-26.

65 NOE page 64, line 30-page 66, line 29.

66 NOE page 111, lines 4-5.

67 NOE page 72, line 29

68 NOE page 75, line 13

69 NOE page 75, line 32-page 76, line 2

70 NOE page 101, lines 1-15.

[58] She then saw a pickaxe in the bar. It had a long wooden handle, about the length of an arm with yellow tape on its two sided head, the type of pickaxe used in the “olden days.” She noticed it because firstly tools in the house were normally put up high because of the children and secondly, it “wasn’t ours because we don’t have a pickaxe”.71 She asked whose it was but no one owned up. 72 She hid the pickaxe by putting it in the garage.73

[59] When it was suggested to her the men could not have found the pickaxe had she hidden it she said the there was a mirror in the garage so perhaps the men could have seen where she put it and one young man asleep in the vehicle could have been awake when she moved the pickaxe. This was of course speculation by the witness. Her evidence was that she had taken the pickaxe to the garage where it could not be used and given that Mr Livingstone had it later in the evening, she was surmising as to how it could have been retrieved.

[60] When Mr Nicholson put to her that there was no such pickaxe, that evidence would be given the there was none and that it was odd for her to put the pickaxe away where it could be seen, she did not back down and said that she had taken it out of the bar so that it would not be pulled out again and she did not understand why it was there in the first place.74

[61] She then left the bar, explaining that she did not want to stay out there as her children were inside the house.75 She saw Mr Livingstone and another large gentleman trying to calm [witness E] down on the driveway before they returned to the bar to continue drinking. She said they were all affected by alcohol including [victim 1] and [witness A]76 although when re-examined, she described their level of intoxication as five out of 10.77

71 NOE, page 94, line 31.

72 NOE page 94, lines 29-30

73 NOE page 87, lines 4-33

74 NOE page 97, lines 8-9.

75 NOE page 77, line 24.

76 NOE page 102 line 3, 5, 26

77 NOE page 118, line 1.

[62] Mr Nicholson put to her that after the knife and pickaxe incidents, she must have been concerned and surely she would have asked [victim 1] to do something especially as there were children in the house. She said that it was not her house to make demands.78 However, she did feel intimated by them and thought that [victim 1] was probably feeling the same way. She did not feel she could make five people of their stature leave.79

[63] She denied being involved in any incident in the bar in which [victim 1] was involved in a physical altercation and he ended up hitting her in the head.80

[64] She had been in bed for a while, possibly 20 minutes when she heard the sound of a bottle breaking on the driveway.81 She went outside through the garage and said “Who broke the bottle? My kids play on this driveway?” She said [witness E] apologised and offered to clean it up.82 She told the visitors “fuck off and leave” before cleaning the broken glass herself with a blue shovel and brush.83

[65] [Victim 1] came out of the bar asking who was talking to her. She accepted under cross-examination that he could have been concerned that the men were “chatting her up” but she considered that it was more that she had gone outside and put herself in a dangerous situation with volatile visitors.84 [Witness E] pushed [victim 1] onto the ground and [victim 1] then grabbed [witness E] legs in a rugby tackle causing [witness E] to fall “flat on his face.”85 She and one of the younger visitors pulled the two men apart, “trying to keep them under control.”86

[66] [Victim 1] then flicked his hand back in a “get off me” motion. She denied that he punched her in the head because “I wouldn’t be with him now if he had punched me in the head.”87 She described it both in evidence-in-chief and cross-examination

78 NOE page 98, line 21.

79 NOE page 99, lines 26-33.

80 NOE page 91, lines 1-10

81 NOE page 98, line 34.

82 NOE page78 line 30-page 79, line 2

83 NOE page 79, lines 7-11.

84 NOE page 112, lines 24-25.

85 NOE page 80, lines 2-30

86 NOE page 81, lines 14-15.

87 NOE page 113, line 23.

as a flick. She called him a “bloody prick”88 in response. She said she was leaving with the children because she did not want to be there “with all the kerfuffle that was going on”89 but could not leave because the visitors’ vehicle was in the way.

[67] They took their time in leaving, she said, and could not find their remote control device. She even climbed into the car to help them search for it.90 She turned to go inside and saw Mr Livingstone putting [witness E] into the front passenger seat of the vehicle and trying to hold him in the car. As she went through the garage she heard a crack, which she described as “not a usual noise you would hear.”91

[68] She walked back outside to investigate. She said there are lights outside the house and in the garage so she could see what was going on.92 When she got outside, she saw Mr Livingstone, by the door of the vehicle, hitting [victim 1] who was also by the door. “There was being abuse thrown both ways”93 but there were no punches being thrown back and forth; only one person was throwing punches, namely Mr Livingstone. She denied that [victim 1] punched [witness E] in the car.94 She denied that [victim 1] called to her to “get the gun.”95 There was, she said, no mention of a gun at all.

[69] She saw Mr Livingstone hit [victim 1] twice with his fists before picking up a bottle which she described as being like the ones in a Swap-a-crate96 and struck [victim 1] with it, “sound effects and all”.97 [Victim 1] just stood there, unable to fight back. [Victim 2] screamed at Mr Livingstone to stop.98

[70] After Mr Livingstone struck [victim 1] with the bottle once, [victim 2] rushed over to grab her partner, shouting “That’s enough, fuck off.”99 Mr Livingstone then

88 NOE page 91, line 34.

89 NOE page 92, line 2.

90 NOE page 99, lines 18-20.

91 NOE page 82, lines 18, 21.

92 NOE page 82, lines 14-16

93 NOE page 83, 8-9.

94 NOE page 115, lines 20-21.

95 NOE page 90, lines 15, 22-33

96 NOE pge 84, line 17.

97 NOE, page 83, line 18.

98 NOE page 84, line 5.

99 NOE page 84, line 10.

struck her above the temple on the left side of her head100 before returning to [victim 1] and striking him on the head with the bottle twice more.101 She did not see the bottle coming. Had she done so, she would have moved out of the way as she was sober and would have had fast enough reflexes to do so.102 She described the blows to [victim 1’s] head as “meaningful” while he was on the ground on his hands and knees.103

[71] She was then able to pick [victim 1] up, telling Mr Livingstone to leave and that she was going to call the police. [Victim 1] was shaking. Blood was coming from a hole between his eyes “just squirting like”.104 It was also streaming out of the side of his head and across the back of his head. He was covered down to his bellybutton in blood. He did not have those injuries when she walked into the garage after the [witness E] incident and did not have them when she first came out having heard the “crack” sound.

[72] As she took [victim 1] away, she saw Mr Livingstone move to the back of the vehicle and take out the pickaxe she had seen earlier in the evening, saying “Wanna go?”105 She thought Mr Livingstone was talking to [victim 1] because there was no one else apart from her outside the vehicle and [victim 1] was leaning on the vehicle until she took him inside.

[73] Mr Livingstone and the others stayed with the vehicle for five to 10 minutes after she rang the police and an ambulance. She went to the children’s room from which she saw the vehicle move to the gate where Mr Livingstone got out, yelling and screaming at those in the vehicle. They stopped further down the road and she could hear them yelling and screaming further. The vehicle then reversed into the driveway before leaving again.106

100 NOE page 85, line 9.

101 NOE page 85, line 19.

102 NOE page 85, lines 11-12.

103 NOE page 85, lines 26, 31.

104 NOE, page 86, line 26.

105 NOE page 87, lines 1-2.

106 NOE page 89 lines 11-22

[74] After the police and ambulance arrived, Mr Livingstone returned. She screamed at the police to get him off the property because she did not want him there.107

[75] When [witness A] visited them a couple of days later, she told him he was

“a mongrel for leaving his shit there and why he didn’t take it with him”108 meaning that he had left the other visitors at the house. He brought them there and should have taken them with him. She denied that she told him that the police “have got it all wrong.”109

(c) [The Constable].

[76] [The Constable] was the officer in charge who interviewed Mr Livingstone. Mr Livingstone said that he had consumed about eight bottles of home brew. He did not know what the occasion was or what the fight was over. He went on to say “There was no fight.” 110 When it was put to him that an occupant of the address had identified him as involved in a fight, his response was “I’m a good Samaritan. It was not me.”111

[77] [The Constable] photographed the beer bottle on the driveway because [victim 2] said that it had been used in the assault. The photographs show a beer bottle near some blood spatter on the concrete driveway. He did not send the bottle away for forensic testing. He did not go into the bar area.

[78] [The Constable] tried to contact [witness A] and left voice messages, but received no reply. He was not able to ascertain the identity of anyone other than [witness A] and Mr Livingstone who had been at [victim 1’s] property. Because no one else had been identified, no one else had been charged.

107 NOE page 90, lines 2-3.

108 NOE page 117, lines 9-10.

109 NOE page 117, lines 8-9.

110 NOE page 121, line 20.

111 NOE page 121 line 23.

[79] Under cross-examination, [the Constable] said that no one had mentioned the knife and the pickaxe to him.112 I take it from that evidence that the vehicle was not searched for a pickaxe. The Constable was present when Mr Livingstone drove back to the vehicle with somebody else in the four wheel drive. He transported Mr Livingstone to the Kawakawa police station so he could be properly interviewed. The “somebody else” appears not to have been identified or interviewed. Mr Livingstone was given the opportunity to make a further statement but exercised his right to silence.

[80] [Victim 1’s] and [victim 2’s] evidence largely corroborated each other. That is not surprising, either because they have colluded, or discussed what happened or because what they say occurred did so. Their credibility and reliability is crucial.

[81] Turning to the police evidence, Mr Nicholson’s cross-examination highlighted what could have been done when investigating the case, but which was not. The car which returned to the house was not searched nor was any forensic evidence obtained from it, including blood. Even though [victim 2] had not told the police about the pickaxe, such a search may well have revealed its presence or absence. Mr Livingstone’s clothes were not seized, examined and tested.

[82] Nonetheless, [victim 1’s] DNA on Mr Livingstone’s clothes may not have been conclusive if he was involved in separating [victim 1] and [witness E]. The presence of DNA on the bottle may not have been conclusive either as anybody could have consumed alcohol from it and given its proximity to the blood spatter there was the possibility of contamination if the bottle had rolled on the ground and picked up blood in this way as opposed to being used to strike [victim 1].

[83] Even if [the Constable] incorrectly thought that [witness A’s] name was [name deleted], he clearly had his phone number, because he rang and left messages, he knew that [witness A] had been [victim 1’s] neighbour and [victim 2] had texts from [witness A’s] partner.113 Such information may have yielded a full name, a place of residence and/or work leading to the possibility of a police visit. Enquiries may well have

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revealed the names of Mr Livingstone’s known associates. The person who was with Mr Livingstone when the car returned to the house may have yielded some useful information.

[84] At the same time, [witness A] did not return phone calls. [Witness C’s] and [witness A’s] attitude to the police which became obvious during cross-examination may have meant little co-operation even if the police had approached them before trial. However, there might have been further information provided had the police sought it.

[85] There were no independent eye-witnesses. Those who were clearly injured and assaulted were upset and in shock when spoken to by police. Nonetheless, more could have been done to bring further evidence to Court.

Defence evidence.

[86] As I have mentioned, there were three defence witnesses. I remind myself that this does not change the obligation on the police to prove their case beyond reasonable doubt.

[Witness C].

[87] [Witness C] was 20 years old at the time he gave evidence and lived at Matawaia. He deposed that on 18 July 2016 he was with Mr Livingstone (“Ted”) and [witness A] together with [witness E, witness D and witness B]. [Witness E], he said, was his father-in-law. Ted had been a neighbour for years and they had become quite close. [witness B] was Ted’s son. [Witness A] was Ted’s cousin and [witness E’s] cousin. Everybody knew everybody. 114

[88] [Witness C] said that the group went out to get alcohol in town, but the journey “took us the wrong way and [witness A] ended up taking us there to get some home brews which were 80 percent”.115 He thought they arrived at [victim 1’s] place at

114 NOE page 130, lines 4-16.

115 NOE, page 130, lines 22-24.

about 6.00 or 7.00 pm116 which is reasonably consistent with [victim 1’s] and [witness 2’s] evidence about the time of arrival. [Witness A] was driving Mr Livingstone’s big Isuzu vehicle,117 consistent with [victim 1’s] acceptance when cross-examined by Mr Nicholson that the vehicle was an Isuzu Bighorn.118 It only had two doors, so that the front seat had to be moved forward to climb into the back seats.119

[89] [Witness C] and [witness B] began having a game of Fuzzball with [victim 1] 120 after he had welcomed them in. This was not put to [victim 1]. [Witness C] said that after one or two bottles of home brew, everybody was “bloody pissed” and arguments began. 121 He said that he however was the sober one there.122 Everyone else was affected by alcohol, including [victim 2] who he said was coming in and out during the evening, at one stage with her son and she was “having a glass.”123 This was not put to [victim 2] who had earlier given evidence to the contrary.

[90] Under cross-examination, [witness C] said for the first time that [victim 1] was paid $60 for the alcohol.124 This was not put to [victim 1]. It was not clear whether this was a koha or an agreed purchase price.

[91] While [witness 1] had deposed that he had sat next to Mr Livingstone and talked to him for most of the night, [witness C] deposed that [witness A] sat between them.125 This was not put to [victim 1].

[92] Despite the initial welcome, [victim 1] and [witness E] began “egging each other” on all night from arrival or after the first one or two bottles. He saw [witness E] grab [victim 1] and they were “just throwing a couple of little punches at each other pissed as”.126 Mr Livingstone grabbed [witness E] and [witness C] grabbed [victim 1], both trying to separate them. [Witness C’s] role in this incident was not put to

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[victim 1]. Then [witness D] took “a blind shot” at [witness E] which escalated into a further fight. 127 This was not put to [victim 1].

[93] Just as [witness C] went to take [victim 1] away, [victim 1] “turned at me and had a go at me...”128 This was not put to [victim 1]. [Witness C] said he “kind of sat” [victim 1] towards the table, which was put to [victim 1], and told him to stay there out of the way because otherwise he would get hurt, which was not put to [victim 1]. Under cross-examination, this became [witness C] throwing [victim 1] on the table because he had “stepped me out prior to it.129” He also said that he did it because [victim 1] had hit [victim 2].130

[94] Under cross-examination, [witness C], when referred to the pickaxe, said “it was put back into the truck after the first part of me pushing [victim 1] over.”131 A few minutes later, he denied its existence.132

[95] Under cross-examination, [witness C] also accepted that [witness A] had [witness E] up against the wall, banging [witness E’s] head against the wall, at about two fights after the first fight and that [witness A] told [witness E] to “pull his head in.”133 He denied there was a knife134 and said that although they were fighting among themselves, these were “both bros and uncles” and would never do that to each other135 although they would get into fights in which they punched and hit each other.136

[96] He added that [witness A] also held him, namely [witness C], against the wall, wrongly blaming him for hitting [victim 1] when in fact [witness E] and [witness D] were the ones who had done so.137 [witness D’s] involvement was not put to [victim 1].

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[97] [Witness C] said that [victim 2] then came in to grab [victim 1] who turned and gave her “a little elbow in the face”138 although he could not say where the elbow struck her.139 He thought this occurred about 8.00 pm because at this time he was ringing his mother-in-law.140 [Victim 2] then walked out of the bar area. Under cross- examination, this became an elbow and a punch to the left eye141 although in fairness to [witness C], he later clarified to Sergeant Wilkes that the punch to [victim 2’s] eye occurred later, towards the end when [witness D, witness E and victim 1] were fighting near the shed. 142

[98] He added that [victim 1] told [victim 2] to “fuck off” which was not put to either of them and contradicted their evidence. [Witness C] had not mentioned the second punch to [victim 2] in his evidence-in-chief and had instead deposed that he did not see her involved in any conflict.143

[99] [Witness C] thought four to five fights took place that evening. He said that “[witness A] was more of a sober one”144 trying to break up the warring parties namely [witness D, victim 1 and witness E]. Again this was not put to [victim 1]. [Witness C] added that [victim 1] came from behind Mr Livingstone and kept throwing punches at [witness E] so [witness C] had to “jump in.”145 This was not put to [victim 1].

[100] [Witness C] added that Mr Livingstone was trying to calm down [witness E] because “he knows what [witness E] can get up to if it leads on.”146 At about 10.00-10.30 pm another fight broke out between [victim 1, witness E and witness D] so [witness C] and others had to step in to break it up. 147This was not put to [victim 1]. [Witness C] said that he apologised to [victim 2] and told her that he would try his hardest to get the visitors out of the house.148 This was not put either to [victim 1] or

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[victim 2]. The problem, [witness C] said, was that they kept sitting down after the fights and being “mates with each other”. 149

[101] [Victim 2] called them all idiots and told them all to “fuck off”,150 which while not specifically put to [victim 2] although it was consistent with her evidence that she asked them to leave more than once and prior to the bottle smashing incident.

[102] Under cross-examination, [witness C] said for the first time that about half an hour before the fight in the shed, [victim 2] brought her son into the shed and consumed some of [victim 1’s] home-brewed spirits.151 This was not put either to [victim 1] or [victim 2].

[103] While [witness C] did not hear the bottle being broken, he saw it afterwards. When [victim 2] came out with a dustpan and brush, it was he, not [witness E], who apologised152 and offered to help clean up.153 This was not put to [victim 2]. Under cross-examination, he said that evidence that [witness E] apologised was “false” because [witness C] apologised “while there was a fight going on in the shed”154 between [witness A, witness D and witness E], the implication being that none of them were outside to apologise. As Sergeant Wilkes observed at the time, that had not been put to either [victim 1] or [victim 2].

[104] [Witness C] deposed that [victim 2] asked who broke the bottle, no-one answered and she asked the visitors to leave, all consistent with her own evidence but inconsistent with a fight going on in the shed. In the meantime[victim 1] was in the bar, slouched over the table asleep for about 15 minutes155 while there was a fight going on in the shed.

[105] [Witness C] said that he, [witness D] and Mr Livingstone had placed [witness E] in the front passenger seat when [victim 1] ran out of the bar and “rarcked everyone

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up again” by accusing them of trying to “chat up his missus”. He came “throwing punches” towards the door of the car so [witness E] jumped out.156

[106] [Witness E] and [witness D] then had a fight near the shed. [Victim 1] joined in. [Witness C] and [witness B] pulled [witness D] away leaving [witness E] and [victim 1] to fight, “rolling around on the ground being stupid”.157 He thought this was about 10.40 or 10.50 pm because he had again rung his mother-in-law.158 He disagreed that [witness E] had first pushed [victim 1] to the ground and [victim 1] had then pulled [witness E] down. They grabbed each other, he said. [victim 1] fell on the ground and [witness E] fell on top of him.159 However, when Sergeant Wilkes put to [witness C] [victim 2’s] version of events about the physical encounter between [victim 1] and [witness E], he agreed.160

[107] They pulled [witness E] off and just as [victim 2] came over to grab [victim 1], he told her to “Fuck off” and hit her at which point she said she was taking the children and leaving. Both children were outside, one holding [victim 2’s] hand.161 This emerged during cross-examination and was not put to [victim 1] or [victim 2].

[108] [Witness C] and the others managed to get [wtiness E] back into the truck. [Witness C] then climbed into the back passenger’s seat behind [witness E]. He did not describe how he was able to do so given that the vehicle only had two doors and the front seat had to be slid forward. He then heard [victim 1] say to [victim 2] “Grab the gun” which in his words “put everyone into panic.” 162 Mr Livingstone was outside the car, trying to push [witness E] back into the passenger seat, when [victim 1] came flying up behind him “for a king hit.” 163

[109] [Witness C] said he could not let [victim 1] hit [witness E] so “I turned in self- defence once I had heard “gun” and I – it was actually me who had hit him from out

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the side of the window and he fell back towards the door”. 164 [Witness C] then carried on pulling his father-in-law back into the car because he did not want to be shot. He did not see Mr Livingstone do anything. He did not see any bottle.

[110] To Sergeant Wilkes, [witness C] explained that he had punched [victim 1] from the back seat leaning over the front passenger’s seat. He pushed [witness E’s] head just to the side just as [victim 1’s] hand came forward then he hit [victim 1] and pulled [witness E] in.165 He said he was trying to pull [witness E] in with his right hand.166 He also accepted the proposition put to him by Sergeant Wilkes that he was using his right hand to strike at [victim 1]. 167

[111] When Sergeant Wilkes put it to him that he could not have hit [victim 1] from that position because he is right handed and his right hand would be inside the car his response was “See you’re just confusing me man”.168

[112] [Witness C] accepted that he did not notice anything untoward about [victim 1] as he approached the vehicle. 169 He then said it was “pitch black” so he could not see how [victim 1] looked. When asked how he could see that it was [victim 1] rushing toward the car as opposed to Mr Livingstone who was also outside the car, he then said that the car was facing towards the shed with its lights on.170 When it was suggested to him that he therefore could see how [victim 1] was, [witness C] replied “Oh now you’re just confusing me and its pissing me off.”

[113] [Witness C] said that he was then able to jump into the driver’s seat, it would appear from the back left passenger’s seat and start the car while Mr Livingstone stood on the passenger side, trying to put [witness E] back in since he was now half out of the car, he and [victim 1] still trying to get to each other. Although [witness C] did not have a licence he drove he said because of the reference to the gun. He reversed the vehicle, accepting that he did not know what Mr Livingstone was doing as he

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reversed.171 He then said he could see ahead while looking in his rear vision mirrors and he saw “no one hitting anyone.”172 He could see where everyone was.

[114] He saw Mr Livingstone walking towards the gate, so he picked him up and drove away. Her considered that everyone (excluding him) was drunk and stupid so why blame one person?173

Mr Livingstone.

[115] Mr Livingstone deposed that he was between [witness A] and [victim 1] when seated174 although he was moving around the bar all the time.175 [Witness D] and [witness E] began fighting. He grabbed [witness E] in a bear hug while [witness A] grabbed [witness D]. [victim 1] then came behind Mr Livingstone and hit [witness E] on the side of the head. 176

[116] [Witness C] then pushed [victim 1] over. Mr Livingstone let [witness E] go on his promise to behave himself and told [witness C] to “fuck off.” [Victim 2] then came in to help [victim 1] off the floor and [victim 1] struck her somewhere on the heads. She said “up you’ and let him go. Under cross-examination, he said he did not accept [victim 2’s] denial that this incident happened.177

[117] In the meantime, [witness D] and [witness A] were still fighting. [Witness D] did not really want to fight, said Mr Livingstone. He was just “put in that position.”178 Mr Livingstone calmed everything down as he has a “bad habit of jumping into people’s problems.” 179He later described himself as enjoying having a beer with people and he could have been a policeman, stopping people from fighting

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anywhere.180 He said that he “wished we just all go. I felt pretty rude in someone’s house to be fighting and all that.”181

[118] Mr Livingstone did not see the bottle being broken but heard [victim 2] ask who had broken it. Everyone was inside the bar at that stage except [witness E].182 Mr Livingstone was not quite sure when in the evening that incident happened. He did say that it was followed by more fighting between [witness A] and [witness E], and [witness D] and [witness E].

[119] He did not recall [victim 1’s] involvement saying that the only time he saw [victim 1] “backhand” his wife, demonstrating it with an elbow, was when he was on the ground in the bar earlier that evening.183

[120] He then recounted trying to put [witness E] in the car which took some time. He accepted Sergeant Wilkes’ suggestion to him that his recall of this part of the evening was hazy. He said he could only remember “bits and pieces of those little sort of skirmishes.” 184 He said that by this stage he had consumed about eight bottles of home brew but was able to walk and was getting to a state of being drunk but not there yet.185 When I asked him why he was trying to get [witness E] into the car, he replied “Because he was trouble.”186

[121] Once [witness E] was in the vehicle, Mr Livingstone went to the driver’s side, bent back the seat and climbed into the back seat with [witness D] and [witness C] (“all three of us”).187[Witness E] remained in the front passenger’s seat. [victim 1] then came to the vehicle and “smacked [witness E] through the window.”188 [Witness C] then punched [victim 1].189 [Witness E] leapt from the car so Mr Livingstone jumped out his side and rushed to the other side of the car, with a beer bottle in his hand.190

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[122] He found [Witness E] and [victim 1] “still fighting” so he grabbed [witness E] and with his beer bottle he said “Fuck off, eh” to break them up.191 [Victim 1] was on the ground and [witness E] was hitting him so Mr Livingstone parted them, which he demonstrated to me by holding out his long arms. [Witness E] went back to the vehicle and [victim 1], still on the ground, yelled “go get the gun, go get the gun; I’m going to shoot these fucking cunts.”192 He denied hitting [victim 2] or [victim 1] with the bottle.

[123] Mr Livingstone said that [victim 1] then “went to have another crack at [witness E]” so Mr Livingstone threw the bottle on the ground because he could not grab them with a bottle in his hand. He told [witness E] to hurry into the car because [victim 1] was going to shoot them.193

[124] When Mr Nicholson asked Mr Livingstone if he saw [witness A] with a knife, in the bar room while holding [witness E], Mr Livingstone now recalled the scuffle between [witness A] and [witness E] in the bar earlier in the evening and that [witness A] slammed [witness E] against a wall.194

[125] Under cross-examination, he said he left [witness A] to it because he was a good fellow who could handle [witness E].195 What was going on between [witness A] and [witness E] was behind him and he did not notice what they were doing. He just knew [witness A] did not carry knives.196

[126] He denied that there was a pickaxe and explained that he never carries such a thing in his car, as he is pulled over a lot by police.197

[127] Mr Livingstone then said that [witness A] and his son had left on foot and [witness C] was the “dedicated driver.”198 Under cross-examination, he said that both of them had hopped into the back seat and he, Mr Livingstone, was going to drive. He

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said that he was just getting into the driver’s seat. When the contradiction between his earlier evidence that he was in the back seat and his evidence that he was getting into the driver’s seat was put to him by Sergeant Wilkes, Mr Livingstone then said:

A; Yeah-no, no, we hopped out again and then that fight happened. We were gonna leave first when I first piled them all, got them in the car and we were gonna go off until that fella came, Andy came.

Q;In your words, [witness C] knocked him to the ground?

A; No, [witness E], [witness E] went and had a go at [victim 1] again and then we piled him back in the car and [witness C’s] the driver.

Q; Then what, sorry?

A; Then [witness C’s] gonna be the driver, drive us off.

Q; And it was after that, is it you say [victim 1] came up and [witness C] punched him?

A; Yes.

Q; And you were in the back of the car at that stage? A; Yep.

Q; So [witness C’s] in the back of the car with you? A; Yep.

Q; And he punched?

A; He punched, yep.

Q; [Witness E’s] in the front seat?

A; He went to actually save [witness E] from getting hit from the-

Q; I understand that. [witness E’s] in the front seat, where’s [witness D]? A; [Witness D’s] in the back too I think.

Q; Three of you in the back?

A; Yeah, thereof us, there was three of us in the back.199

[128] After Mr Livingstone had shoved [witness E] back into the car for a second time, he walked up to the gateway and they left, Mr Livingstone encouraging [witness C] to drive quickly because of the gun.

[129] The truck then ran out of diesel so Mr Livingstone then walked to a home nearby to ask for diesel. He then saw police lights, wondered if they were going to [victim 1’s] home so asked one of the young people at the home to take him back there.

[130] He was closely cross-examined about this evidence. If he was so concerned about the threat of a gun, why did he return to the address where such a threat had been made? Mr Livingstone said he was worried about his boy. He said he did not know that [witness B] and [witness A] had left. He then said he was told by the others before they all left but he did not know where they had gone.200

[131] Sergeant Wilkes also put to Mr Livingstone a prior inconsistent statement in that he had told Constable Brothers that there was no fight whereas he had told the Court there were several. His response was that the police did not ask him.201 Finally, he told Sergeant Wilkes that when he and the others left the property “I wanted to beat the whole lot of them up. I did.”202

[Witness A].

[132] [Witness A] deposed that he had known [victim 1] for 7-10 years and had been his neighbour for five. He brought Mr Livingstone, his son [witness B, witness D, witness E and witness A’s] nephew [witness C] to [victim 1’s] place and it was a great

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party with singing. [Victim 1, witness E and witness D] were getting on well because [victim 1’s] father had taught at the school the others had attended.203

[133] All was going well until [witness E] grabbed [victim 1]. [Witness A] said that he head butted [witness E] or [witness C]. He could not remember which one but they were punching [victim 1].204 This contradicted the evidence of [witness C] and Mr Livingstone. In fact, under cross-examination, [witness A] went further and said that [witness C] had “hit [victim 1] from behind, and that’s what I saw.”205

[134] He said he was the sober driver when they arrived. The others had already been drinking prior to arrival. Mr Livingstone was only drinking beer, the others whisky.206

[135] He said that he was trying to hit [witness E], and Mr Livingstone was trying to grab [witness D], which contradicted Mr Livingstone’s evidence. They had them against the wall and [victim 1] was on the ground. He “probably had [witness E] against the wall” when [victim 2] “jumped in.”207 She jumped into the battle, he said, but significantly did not say that [victim 1] struck her. He had no idea why [witness E] was “strangling” [victim 1] which contradicted everyone else’s evidence.

[136] [Witness A] denied the presence of any knives or a pickaxe although later said that he did not know whether she had found a pickaxe or not. It was news to him.208 He added “she could have found one, she could not have found one, who knows?”209 He said he may have used harsh words to [witness E], for example ‘I’ll kill ya” in the “heat of the battle.”210 He added that “[s]omething may [have been said] something might not have, who knows.”211

[137] He admitted leaving on foot with [witness B] which he now regretted. He explained that he left because “I felt embarrassed and I took people there so if I left,

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people might leave. I just – I had to go.”212 He told me he hoped that they would follow him.213 When he was being driven home by his wife they were stopped by police twice so he “knew something was up.”214The police were looking for two short men with no teeth, bucked teeth and tattoos and since “we got none of those” they were let go twice.215

[138] When he visited [victim 1] and [victim 2] a few days later he apologised and they “ripped me a new arsehole off” 216which I took to mean that they abused him for leaving his violent friends behind. He added that [victim 2] said that the police “got her statement wrong.” 217

[139] He also said that no police officer had ever contacted him before the Court case. Mr Nicholson was the only legal person who had.

Assessment of credibility and reliability.

[140] In this case there is a conflict between the evidence of the police witnesses and the evidence of Mr Livingstone and his witnesses. Their accounts of the same events significantly differ. Therefore it is necessary for me to assess the credibility and reliability of their evidence.

[141] Because Mr Livingstone elected to give and call evidence I will consider his evidence and that of [witness C] and [witness A] first as a number of possible consequences may flow from whether I accept or reject the defence evidence or if the defence evidence raises a reasonable doubt.

[Witness C]

[142] It was difficult to know whether [Witness C]’s obvious agitation in the witness box, reluctance to be at Court, speed of delivery and frustration with and hostility

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toward the police prosecutor was because he needed to go to a tangi where he was to cook, or because of his youth or other factors. [Witness C] frequently interrupted Sergeant Wilkes’ questions. Hostility toward the police is not a persuasive factor when assessing credibility and reliability. Of course someone who dislikes the police can tell the truth.

[143] [Witness C] was a difficult witness to follow because of the speed at which he gave evidence and the conflicts, both external and internal, in his evidence.

[144] [Witness C’s] evidence was externally inconsistent because it contradicted Mr Livingstone’s and [witness A’s] evidence that [witness C] behaved aggressively toward [victim 1] in contrast to [witness C’s] depiction of himself as trying to resolve the tussles between the others and it contradicted [victim 2’s] evidence that she was not drinking with the men and that the buck toothed man [witness E] had apologised for the broken bottle. [Witness C] claimed he was the one who apologised.

[145] He said he was there the whole time, in contrast to [witness A’s] evidence that he had to be sent outside for 10 minutes to calm down. He said that [victim 1] struck [victim 2] twice in the head when her evidence was that it was one backhand flick outside.

[146] His evidence was also internally inconsistent. The rapid change of heart about the presence of the pickaxe, and the contention that he was the only sober one then the description of [witness A] as sober and the acceptance that [victim 1] was sober at least when the fighting began are two obvious examples.

[147] His description of trying to put [witness E] into the front seat, then getting into the back seat behind [witness E] presented some logistical and physical difficulties given that this was a two door Isuzu and the front seat had to be slid forward or bent back for him to get in, which could not have occurred if [witness E] was already in the front seat.

[148] His evidence that he was leaning over the front passenger seat, holding [witness E] with his right hand and at the same time or shortly afterwards using that

same right hand to punch [victim 1] through the window or open door of the vehicle with sufficient force to knock him to the ground is implausible. His ability to then get from the back seat on the left side to the driver’s seat on the right side of a two door truck was also implausible.

[149] I have already listed the many statements made by [witness C] which were never put to [victim 1] or [victim 2]. I do not blame Mr Nicolson for that. [witness C] seemed to be saying whatever popped into his head which would have been impossible for counsel to predict. When challenged as to the inconsistencies in his evidence, he simply blamed the police for confusing him.

[150] [Witness C] clearly tried to place himself in the best possible light, stopping not starting fights, apologising for others’ misbehaviour and protecting [witness E] from [victim 1’s] unprovoked belligerence outside. He also tried to place the defendant in the best light he could.

[151] I found [witness C’s] evidence to be unconvincing, lacking in credibility and reliability and reject it as unworthy of belief.

Mr Livingstone’s evidence.

[152] I turn to Mr Livingstone’s evidence. I have already highlighted the contradictions between the evidence that [witness C] was the designated driver, that he was in the back seat when he is said to have punched [victim 1] and that Mr Livingstone was in the back seat but was going to drive. That three large men were in the back seat, one was in the front seat and there was no one in the driver’s seat is implausible.

[153] Much was made of Mr Livingstone’s stretching his long arms like a gull to separate [victim 1] and [witness E]. Yet on Mr Livingstone’s own evidence, [victim 1] was on the ground and [witness E] was hitting him. Mr Livingstone could separate them with his arms out if they were scuffling standing up, but not if one was on the ground.

[154] A further inconsistency was Mr Livingstone’s depiction of himself as trying to solve conflict and break up fights yet wanting to beat his whānau and friends up at the end of the night.

[155] Mr Livingstone’s evidence that he climbed out of the vehicle with a bottle in his hand is telling. So too is his evidence that he held the bottle while separating the two men fighting but a few minutes later he said he dropped the bottle because he could not separate them while holding a bottle. Those two pieces of evidence are contradictory. So too is his evidence that despite being worried about the threat of a gun, he later returned to the scene, ostensibly to seek his son who he already knew had left with [witness A].

[156] The contradictions and implausibilities especially around the time of the offences alleged against him are significant. In addition, Mr Livingstone struggled to remember details because he was intoxicated at the time.

[157] In conclusion, I find that Mr Livingstone’s evidence lacked credibility and reliability. I am unable to accept it.

[Witness A’s] evidence.

[158] There was little in common between [witness A’s] evidence and that of [witness C] and Mr Livingstone. He did not see [victim 1] strike [victim 2] in the bar. He described [witness C] as one of the aggressors. He gave equivocal answers about the words he said to [witness E] and the presence of the pickaxe. He was clearly uncomfortable in giving that evidence and did not want to commit to a position.

[159] [Witness A’s] evidence that he left [victim 1’s] home with [witness B] because if he left, his friends might do so also, was belied by his later evidence that he was able to walk away from the house to a road juncture, call his wife and have her pick him up without seeing the group, notice them following him or going back to get them.

[160] He admitted that when the police stopped them twice on the way home, seeking among other people a man with bucked teeth, when [witness E] of course had bucked teeth, he “knew something was up”. He said and did nothing.

[161] [Witness A] left his decade-long neighbour, someone with whom he said he got on, outnumbered by drunk, angry men he did not know. That [victim 1] was himself affected by alcohol, with a partner and two children, in an isolated area far away from any help made him particularly vulnerable. These factors, coupled with the aggression shown toward him by [witness E] and [witness C] earlier in the evening when less affected by alcohol, mean that it must have been reasonably foreseeable to [witness A] that there was a real risk [victim 1] might be physically harmed.

[162] I gained the very clear impression that [witness A] did not tell me the full story about what happened that night, why he brought Mr Livingstone and others to [victim 1’s] home and why he left them there. I do not intend to guess and speculate as to what the full story might be. I simply find that I was not told it.

[163] [Witness A’s] contention that, upset by the injuries to her partner and angry at [witness A] for leaving his violent and drunk associates behind, [victim 2] then told [witness A] something potentially helpful to Mr Livingstone namely that the police “got her story wrong” I find implausible.

[164] Through his evidence it was very clear that [witness A] was torn between his former neighbour and his whānau and associates. This caused him to be economical with the truth. Again, I found that his evidence lacked credibility and reliability and I am unable to accept it.

[Victim 1’s] evidence.

[165] In my view [victim 1] understated the amount of alcohol he consumed and his denial of falling asleep in the shed appears incorrect. However, he clearly welcomed the strangers into his home and clearly did not start the conflict that began to emerge, directed in part at him. He did not ask the visitors to go despite that problem, but instead continued to drink with them. His evidence depicted him as a convivial man,

happy to party even with strangers and as a hard bushman, prepared to overlook swearing, swaggering and scuffles amongst men in whom he recognised a kindred or fascinating spirit. That approach was confirmed by the other witnesses.

[166] As the evening wore on and he was more affected by alcohol, I find that he too became aggressive and belligerent, fighting with [witness E], flicking his hand back at his partner and rushing up to the truck to scream abuse when a more sensible approach would have been to keep away.

[167] He was honest about that and did not minimise his behaviour which could well have caused Mr Livingstone and others to apprehend that he was about to assault someone. Had Mr Livingstone then hit him with a hand or fist or pushed him over without more, the issue of self-defence or defence of another would clearly have been open. Given [victim 1’s] behaviour and the threat perceived, such force might well have been reasonable in the circumstances.

[168] However, [victim 1] gave detailed evidence that Mr Livingstone went well beyond that and struck him three times with a bottle when he was not in a position to respond. He had already been knocked over by Mr Livingstone. That is well beyond any self-defence or defence of another. The injuries were not slight. There was no evidence that Mr Livingstone had any injuries.

[169] I found the details provided by [victim 1] as to how he was injured and who did so to be consistent, cogent, credible and compelling. Had he wanted to lie about how his injuries were sustained, then choosing [witness E] as his assailant might have been more shrewd as there was clear evidence by all witnesses as to the antipathy between them and equally clear evidence that he and Mr Livingstone had got on well during the night. In fact this was the point raised by Mr Nicholson on cross- examination; how could it be Mr Livingstone when there had been no problems between them earlier? Surely that could not make sense.

[170] Given the evidence I heard, it does make sense. [Victim 1] was drunkenly belligerent. He approached the car yelling and screaming. Mr Livingstone was also drunk. By his own admission, he wanted to beat up his own whānau and friends. He

too was angry. By his own admission he left the vehicle with a bottle in his hand and approached [victim 1].

[171] He denied self-defence or defence of another. His defence was that it did not happen. Even if self-defence or defence of another was open on the evidence, striking someone on the head with a bottle three times causing significant injury goes too far, especially when that person had no weapon and was on the ground.

[172] I prefer the detailed evidence of [victim 1] on this point to that of Mr Livingstone’s which was vague and inconsistent. While [victim 1] was questioned about the height of the vehicle door and whether the tall Mr Livingstone could have hit the shorter [victim 1] over the top of the door, I heard no evidence about the height of the door so have to put that to one side.

[173] I accept [victim 1’s] evidence that Mr Livingstone also struck [victim 2] in the head with a bottle. A backward flick to the head would not cause the bruise in the photos and the attempt by Mr Livingstone and [witness C] to explain away the lump to [victim 2’s] head with the allegation that [victim 1] struck her in the head inside the bar much earlier in the evening I reject as unconvincing.

[Victim 2’s] evidence.

[174] I also found [victim 2] credible and reliable. She did not try to minimise her attitude towards the visitors and her swearing at them. She was prepared to tell me that [victim 1] probably did fall asleep in the bar because that is usually what he does after he has been drinking and that she would not try to reason with him after he has been drinking thus letting me know he is difficult when drunk. In other words she was not trying to depict either of them in a particularly favourable light.

[175] Accordingly, had she heard [victim 1] call out to her to get the gun, she would have said so. That she denied that this occurred is telling. I accept her evidence on that point.

[176] She was clear that [victim 1] did try to shrug her off when she went to help him up after the tussle with [witness E], that she swore at him for doing so and that she said she was going to leave. Again, this was evidence against her interest and that of [victim 1].

[177] Her evidence that if [victim 1] hit her she would no longer be with him had the ring of truth. She said so in a no-nonsense manner. Her refusal to look at the photographs of [victim 1] injuries and the blood on his face and upper torso seemed genuine as opposed to theatrical.

[178] I am not required to decide whether a knife was used or a pickaxe brought to the shed. Mr Livingstone is not charged that he threatened [victim 1] with a weapon namely a pickaxe. While [victim 2] did not tell the police about such things I note that she was focused on [victim 2], the severity of his injuries and how he got them. In those circumstances it is understandable that she told them how the injuries were caused and did not give details about the bigger picture or other less significant events.

[179] [Victim 2’s] evidence of seeing Mr Livingstone striking [victim 1] three times with the bottle corroborated [victim 1’s] evidence, as might be expected. Either they concocted a story together before the police arrived that night as [victim 1] lay bleeding or the stories dovetail because they are true. I find that the latter applies in this case.

[180] [Victim 2’s] description of rushing toward [victim 1] when Mr Livingstone was hitting him and screaming for him to stop was I found a natural reaction to what was happening and a wish to pull her partner away from harm. I accept her evidence that Mr Livingstone saw her getting in the way and struck her to the head to prevent her further involvement. He did so with sufficient force to achieve that purpose. It was not accidental.

Conclusion.

[181] I find that the police have satisfied me beyond reasonable doubt:

• (a) Firstly, that Mr Livingstone wounded [victim 1], in other words, caused him an injury in a nature of a cut or laceration by striking him on the head three times with a bottle ; and
  
  • (b) Secondly, that when he did so, he intended to injure [victim 1]; that is he intended to inflict bodily harm on [victim 1] which was more than trifling or transitory.
    

[182] I also find that the police have satisfied me beyond reasonable doubt that:

• (a) Mr Livingstone deliberately struck [victim 2] in the forehead;
  
• (b) That when he did so, he intended to injure her.
  

[183] I find Mr Livingstone guilty of both charges.

C M Ryan

District Court Judge