Titter v Police [2012] NZHC 2770 (24 October 2012)

Last Updated: 2 November 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-435-000001 [2012] NZHC 2770

BETWEEN LAURENCE OTENE TITTER Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 16 October 2012

Counsel: J K W Blathwayt for Appellant

I R Murray for Respondent

Judgment: 24 October 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 10.30am on the 24th day of October 2012.

_{RESERVED JUDGMENT OF COLLINS J}

Introduction

[1] On 23 May 2012 Mr Titter was convicted in the Masterton District Court on one charge of injuring with intent to injure. His conviction followed a defended hearing conducted before District Court Judge P A H Hobbs.

[2] Mr Titter now appeals on four grounds, namely:

(1) That Judge Hobbs undertook “an objective analysis of the circumstances” when deciding that Mr Titter did not believe that his

_{victim had aggressive intentions;}

TITTER V NEW ZEALAND POLICE HC WN CRI-2012-435-000001 [24 October 2012]

(2) That Judge Hobbs erred as a matter of fact when he rejected the defence of self-defence;

(3) That the Judge Hobbs applied the incorrect burden of proof in that he required Mr Titter to establish that he was hit in the head with a bottle;

(4) That Judge Hobbs wrongly concluded that the force used to repel the victim was not reasonable in the circumstances.

Background

[3] The incident in question took place on 30 January 2011 in the corridor of a hotel in Masterton. The police case was that after an exchange of words between Mr Titter and his victim, Mr Titter punched his victim several times in the head. As a result the victim received two black eyes and a broken nose. Mr Titter does not dispute the injuries suffered by his victim. His case is that the victim first struck him on the head with a beer bottle and that his actions thereafter were in self-defence.

The District Court judgment

[4] In conducting the defended hearing Judge Hobbs listened to the evidence from Mr Titter and two witnesses called in support of his case. He also heard from an independent witness who was present during the incident. Judge Hobbs also examined a recording taken from a closed-circuit TV that was overlooking the area in question.

[5] In assessing the defence of self-defence the District Court Judge noted that the police were under an onus to prove that Mr Titter was not acting in self-defence. Judge Hobbs posed the following questions:

(1) What were the circumstances as Mr Titter believed them to be? This required a finding of whether or not Mr Titter believed that his victim had aggressive intentions towards him.

(2) Was Mr Titter acting in self-defence?

(3) Was the degree of force used in self-defence reasonable?

First question

[6] In addressing the evidence, Judge Hobbs heard that Mr Titter believed that his victim confronted him and told him “to piss off or I’ll crack you one” which Mr Titter said he believed was a reference to the victim using the two bottles he was holding in his left hand. Mr Titter claims that the victim then struck him in the left temple with one of the bottles.

[7] The Judge took account of the evidence of Mr Gilbert, Mr Titter’s friend who was standing nearby, and who said he saw Mr Titter’s head move and assumed he had been struck in the head but did not see any blows. Mr Gilbert’s recollection of events was blurred through intoxication.

[8] Judge Hobbs heard the evidence of Mr Titter’s girlfriend, Ms O’Neill, who was not present during the incident but saw Mr Titter in the bar shortly afterwards, where she saw blood on his hands, cuts to his face and a lump on his head which Mr Titter explained was a result of being hit in the head with a bottle. Judge Hobbs treated this evidence as being less reliable because of Ms O’Neill’s interest in the matter. Judge Hobbs concluded that the injuries Ms O’Neill saw would be consistent with other injuries Mr Titter sustained during the altercation with his victim.

[9] Judge Hobbs then assessed the evidence of Ms Dongen, a sober and independent witness who was present during the incident. She stated she did not see the victim hit Mr Titter with a bottle, although she did hear a bottle break on the ground. Ms Dongen’s view may have been obstructed by Mr Gilbert, but she described the whole incident as “one-sided”, meaning that Mr Titter clearly had the upper hand during the altercation. Judge Hobbs preferred Ms Dongen’s evidence as being the most reliable. His Honour reasoned that because the area where the incident occurred was small (just a matter of a few square metres) he would expect

that Ms Dongen would have seen Mr Titter being struck with a bottle had that occurred.

[10] Judge Hobbs also examined footage taken from an oscillating CCTV camera located above the incident. The recording does not show Mr Titter being struck in the head. The recording does show the victim holding two beer bottles in his left hand, which he received from a young woman just before she entered a toilet. The Judge reasoned that it would not have been possible for the victim to have struck Mr Titter with one or more of the bottles without there being some photographic evidence of this occurring.

Was Mr Titter acting in self-defence?

[11] Judge Hobbs found that Mr Titter was not acting in self-defence. His Honour recognised that although the victim was holding a bottle, at no stage was it raised to suggest he was going to strike Mr Titter. Judge Hobbs interpreted the photographic evidence as showing the victim cowering at the end of the hallway trying to defend himself. Judge Hobbs also took into account Ms Dongen’s evidence that the victim could not defend himself and received several controlled punches.

Was the degree of force used reasonable?

[12] The District Court Judge concluded that although it is possible that the victim may have told Mr Titter to “piss off” there was no threat to the defendant and even if Mr Titter had been acting in self-defence, the force used was unreasonable in the circumstances.

Grounds of appeal

Subjective approach to the circumstances as believed by the appellant

[13] The first ground of appeal advanced by Mr Titter is that Judge Hobbs applied the wrong test to the first limb of self-defence. Mr Titter submits that Judge Hobbs applied an objective analysis as to what the circumstances were at the time, rather

than ascertaining the circumstances that the appellant perceived them to be. Mr Titter submits that a mistaken belief that he was struck in the head with a bottle can support self-defence even if that belief was unreasonable.

[14] I do not consider that Judge Hobbs erred. Where a defendant puts forward an explanation of the circumstances as he believed them to be the Judge is entitled to assess whether that explanation is credible or genuinely held.[1] This was reflected in the Judge’s comments that he would not accept the appellant’s explanation “uncritically” or “at face value”. It was necessary for the Judge to make a finding as to whether or not the appellant was in fact struck in the head. That finding

determined the credibility of Mr Titter’s subjective belief and the extent to which it was genuinely held. The Judge did not depart from the subjective standard; he simply made a finding of what the appellant actually believed the circumstances to be.

[15] The approach followed by the District Court Judge was entirely consistent

with the Court of Appeal’s decision in R v Sarich.[2]

Factual findings made by the District Court Judge

[16] Mr Titter claims that Judge Hobbs’ interpretation of the CCTV footage presented in evidence was erroneous. Mr Titter maintains that two photographs taken from the CCTV show the neck of a bottle in the victim’s right hand being held to Mr Titter’s left temple.

[17] Mr Titter also submits Judge Hobbs did not provide sufficient reasons for rejecting the evidence of his witnesses, who provided a consistent account that Mr Titter had been hit with a bottle, including a lump on his left temple.

[18] The reasons why the District Court Judge rejected Mr Gilbert’s evidence was that he was intoxicated and because he did not see any blows to Mr Titter’s head at

_{any stage.}

[19] In my assessment the District Court Judge’s findings of credibility need to be approached with caution. Judge Hobbs saw and heard all of the witnesses and reached a clear view that he preferred the evidence of Ms Dongen over the evidence of Ms O’Neill, Mr Gilbert and Mr Titter. In R v Munro[3] the Court of Appeal found that although it is difficult to assess credibility of a witness at first instance, assessment from a written transcript will not achieve better outcomes and there are

recognisable advantages in seeing and hearing witnesses in the context of the entire trial. This aspect of Munro was affirmed by the Supreme Court in Owen v R where their Honours recognised the advantages that trial courts have in assessing the honesty and reliability of witnesses.[4]

Evaluation of the evidence

[20] Having carefully viewed the CCTV footage several times (played at both slow and fast speeds) I am in no doubt Judge Hobbs was correct when he concluded that the victim did not strike Mr Titter on the head with a bottle. Instead there was an altercation in which Mr Titter, who is a strong and very athletic young man, displayed significant aggression and boxing skills to inflict a number of severe blows on the victim’s head.

[21] None of the witnesses saw a bottle strike Mr Titter’s head. One would have expected either Mr Gilbert or Ms Dongen to have seen this occur if it had happened. I accept however that it is possible Ms Dongen’s view might have been obstructed by Mr Gilbert.

[22] In R v Bridger the Court of Appeal held that in assessing whether an accused was acting defensively in perceived circumstances the Court can consider what the accused did in response to those circumstances.[5] Here Mr Titter claimed he was provoked into using force because he was first hit by a bottle. His aggressive reaction and the extent of injuries adds weight to his version of events. He told the

_{police when interviewed that he had been hit on the forehead with a bottle.}

[23] However, the evidence which I have seen does not support Mr Titter’s theory that he was hit on the head with a bottle prior to him punching the victim several times.

Burden of proof

[24] Mr Titter claims that the District Court Judge’s statement “I do not accept, however, that you were struck on the head with a bottle” shows that he failed to apply the correct burden of proof, requiring the prosecution to prove beyond reasonable doubt that the appellant had not been hit in the head with a bottle. Mr Titter says his witnesses’ evidence raise a reasonable doubt as to whether he had been struck in the head.

[25] The Crown is required to show that Mr Titter did not act in self-defence which would essentially require the Crown to show that the force he used was not a reasonable response in the circumstances. The Crown would need to show that Mr Titter was not facing a threat of imminent harm which would necessitate his response.

[26] However, in my assessment, the quote relied upon by Mr Titter from the District Court judgment is taken out of context. I do not think the Judge can be reasonably interpreted as saying that he required Mr Titter to satisfy him at the hearing that he was struck with a bottle. It is clear from the District Court Judge’s reasoning that he saw the overall burden as resting with the Crown and that his findings of fact on the first question were simply part of that evaluation.

Reasonableness of force used

[27] The final ground of appeal is against Judge Hobbs’ finding that the force used was unreasonable in the circumstances. This limb of self-defence is objective and requires the Judge to assess the reasonableness of the force used to repeal the threat,

taking into account the imminence and seriousness of the threat, and the other alternatives available to the defendant.[6]

[28] Mr Titter’s evidence was that he wanted to take his victim to the ground to ensure that he was not going to be struck again with the other bottle held in the victim’s left hand. The question is whether an ordinary reasonable person, when faced with the possibility of being struck again, would have thought it necessary to inflict the injuries that the defendant did on his victim.[7]

[29] Even if I were to accept Mr Titter’s evidence of the circumstances as he perceived them, the force he used was completely out of proportion to being hit in the head with a bottle. The injuries sustained and the victim’s apparent defencelessness throughout the altercation suggests the force used was unreasonable and excessive. Mr Titter claims that he had to eliminate the possibility that his victim would use the bottle he was holding in his left hand to strike him again by taking him to the ground. However, I consider a lower level of force could have been used to achieve that end. The photograph footage shows the victim being forced along the corridor during the altercation, ending up with his back up against a wall. The victim appears quite defenceless in the photographs, and in the words of the Judge Hobbs “cowering”. By his own admission, the victim was heavily intoxicated. Ms Dongen described the whole incident as “one-sided”.

Conclusion

[30] Therefore, I ultimately conclude that the appeal must be dismissed for the following reasons:

(1) Judge Hobbs did not err when he applied the relevant legal tests.

(2) Judge Hobbs made correct factual findings. In particular I agree with

_{Judge Hobbs’ findings that:}

(a) the victim did not hit Mr Titter on the head with a bottle;

and

(b) Mr Titter did not believe that he had been hit on the head with a bottle by the victim.

(3) Even if Mr Titter believed his victim was going to hit him on the head with another bottle the degree of force that Mr Titter used went further than was necessary to disarm the victim. Mr Titter did not act

_{in self-defence.}

_{D B Collins J}

Solicitors:

WCM Legal, Solicitors, Carterton for Appellant

Crown Solicitor, Wellington for Respondent

---

[1] _{Fairburn v R [2010] NZCA 44 at [39].}
[2] Sarich v R CA407/04, 16 May 2005 at [39].
[3] _{R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.}
[4] _{Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [15].}
[5] R v Bridger [2003] 1 NZLR 636 (CA) at [20].
[6] _{R v Wang [1990] 2 NZLR 529 (CA) at 536.}
[7] At 535.