Brown v Police [2012] NZHC 1516 (29 June 2012)

Last Updated: 9 July 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-419-45 [2012] NZHC 1516

BETWEEN RICHARD MAYNARD BROWN Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 29 June 2012

Counsel: Appellant in person

R Annandale for Crown

Judgment: 29 June 2012

_{JUDGMENT OF RODNEY HANSEN J}

This judgment was delivered by me on 29 June 2012 at 3.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ...............................

Solicitors: Almao Douch, P O Box 19173, Hamilton for Respondent

(Email: [e-mail] )

_{Copy to: Mr RM Brown, 66 Heath Street, St Andrews, Hamilton}

RICHARD MAYNARD BROWN V NEW ZEALAND POLICE HC HAM CRI-2010-419-45 [29 June 2012]

Introduction

[1] After a defended hearing before Judge Tompkins in the Hamilton District Court, Mr Brown was convicted, under s 7 of the Summary Proceedings Act 1981, of fighting in a public place. He was fined $250 and ordered to pay Court costs of

$130. He appeals against conviction and sentence.

[2] The appeal was filed within time in May 2009. It has had a chequered history. At one stage the appeal was struck out when Mr Brown did not appear. After his absence was explained, the appeal was reinstated by Ellis J.[1]

[3] Further delays were occasioned by efforts to locate a DVD of closed circuit television footage of the scene. This was eventually found. It has been viewed by the Crown Solicitor, Mr Brown and, by agreement since the hearing, by me.

Background

[4] The charge arose out of an altercation in Garden Place, Hamilton, on

13 November 2009 between Mr Brown and a group of youths. There was a fight in which Mr Brown was punched and kicked. He says he acted in self-defence after he was attacked. The prosecution case was that he provoked the fight and struck the first blow.

[5] The evidence on both sides is conveniently summarised as follows in the decision of Judge Tompkins:

[2] The police evidence, based primarily on the account given by two passersby in Garden Place at about 11.00 am on 13 November 2009, is that Mr Brown made himself conspicuous by walking around and yelling in a very aggressive fashion sufficient for one of the witnesses to phone the police. That witness described how, after she had re-emerged from the shop where she worked, following her phone call to the police the incident started getting very violent and Mr Brown approached a group of two or three males, essentially, provoking them to fight, and she said it was he who threw the first punch. The two or three males then converged on Mr Brown and clearly he came off second best as a result of their ministrations.

[3] When the police arrived in Garden Place a few moments after the original phone call, Mr Brown was described by the attending officer as ranting constantly. In his defence, the defendant claimed to have been in effected provoked by members of the same group of males, making insulting gestures and comments to him and eventually one of them, according to the defendant, ran across Garden Place and tried to punch him, at which point the defendant punched him back.

[6] Judge Tompkins then went on to make his finding:

[4] Having heard the witnesses give their evidence today, I am satisfied that Mr Brown, whilst animated, expressive and indeed somewhat melodramatic in the delivery of his evidence today, had but a passing acquaintance with the reality of what happened that day. I am satisfied that whilst he clearly came off second best in the ensuing scuffle, he was not, in entering into that confrontation, acting to defend himself from what he believed at the time to be a genuine risk of imminent harm. Rather, relying on the evidence of the two police witnesses, I am satisfied that what occurred was that Mr Brown, for whatever reason, got angry and, after a period of verbal aggression towards the world at large, confronted the three males and initiated a fight with them. In those circumstances, he is convicted.

Grounds of appeal

[7] The notice of appeal sets out the following grounds of appeal:

(a) The Judge’s finding of facts is against the weight of evidence;

(b) The Judge’s decision is wrong in law; and

(c) The sentence is manifestly excessive.

[8] There has been no suggestion of an error of law. The sole issue on the appeal

against conviction is whether the Judge’s finding is against the weight of evidence.

Decision

[9] I have reviewed the transcript of evidence and, as earlier mentioned, viewed the surveillance footage. Had the surveillance footage been of assistance, I would have been prepared to admit the DVD for the purpose of the appeal. However, I

agree with the views of both Mr Brown and the Crown that the few images of relevance to the issues are insufficiently clear to be of any assistance.

[10] The Judge’s critical findings of fact are fully supported by the evidence. The two onlookers who gave evidence painted a vivid picture of Mr Brown’s aggressive and provocative behaviour immediately before the incident. As the Judge said, one of the witnesses called the police at the urging of a passerby who was alarmed by Mr Brown’s actions.

[11] The critical question was, however, whether Mr Brown initiated the physical violence or whether, as he contended in evidence, a member of the group threw the first punch. If it was the former, Mr Brown’s claim of self-defence could not succeed. If the latter, he had an arguable defence.

[12] The Judge preferred the prosecution evidence. He obviously had concerns about Mr Brown’s reliability as a witness. He was clearly entitled to prefer the evidence of an independent witness who had a clear view of how the altercation developed.

[13] The appeal against conviction cannot succeed.

[14] The maximum penalty for the offence of fighting is a $1,000 fine. In my view, the level of the fine could not be regarded as manifestly excessive, having regard to the circumstances of the offending and Mr Brown’s history of offending which spans over twenty years. The fine is also in line with sentences imposed in similar cases to which I have been referred.[2]

Result

_{[15] The appeal against conviction and sentence is dismissed.}

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[1] Police v Brown HC Hamilton CRI-2010-419-4513, 31 August 2010.

[2] MacLeod v Police HC New Plymouoth CRI-2004-443-2, 25 February 2004 and Johnston v

Police HC Christchurch CRI-2009-409-92, 30 September 2009.