Creser v Police [2014] NZHC 1524 (2 July 2014)

Last Updated: 23 July 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2014-485-18 [2014] NZHC 1524

BETWEEN	RICHARD JOHN CRESER Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	20 May 2014
Appearances:	Appellant appearing in person S Bishop for the Respondent
Judgment:	2 July 2014

_{JUDGMENT OF MALLON J}

Introduction

[1] Mr Creser was convicted following a defended hearing in the District Court on a charge of assault.¹ He appeals against that conviction.² He says that there was no evidence on which the District Court Judge (Tompkins J) could find the charge proven.

The evidence

[2] The incident giving rise to the charge occurred outside the Court of Appeal on 24 September 2013. The assault was said to have occurred after Mr Creser had served some documents on the Registrar of the Court of Appeal (Ms O’Brien) by putting them in her handbag. The issue was whether Mr Creser had grabbed

_{Ms O’Brien by the arm as she tried to enter the Court of Appeal building at the side}

¹ _{Summary Offences Act 1981, s 9.}

² _{Police v Creser DC Porirua CRI-2013-091-3082, 24 February 2014.}

CRESER v NEW ZEALAND POLICE [2014] NZHC 1524 [2 July 2014]

entrance on Aitken Street. Mr Creser denied doing so and said that it was

Ms O’Brien that assaulted him.

Ms O’Brien’s evidence

[3] Ms O’Brien gave evidence at the defended hearing. She referred to two earlier encounters with Mr Creser. The first was over the service of documents on behalf of Mr Siemer, a person with a number of proceedings in the Court of Appeal. Ms O’Brien told Mr Creser that Crown Law would accept service on her behalf but Mr Creser said that a process server would serve her at her home. The second encounter was a few weeks later when Mr Creser took a photo of Ms O’Brien on his phone as she was walking in the vicinity of the Court. The photograph subsequently appeared on a website operated by Mr Siemer.

[4] Turning to the incident of present relevance, Ms O’Brien was aware that earlier in the day Mr Creser was at the Court of Appeal wanting to serve new documents on her. She was not prepared to see him at that stage. Later that afternoon Ms O’Brien had an appointment out of the office. She returned to the Court of Appeal at about 5.15 pm. She walked up Molesworth Street to the main entrance. However, because it was after 5 pm, the doors were locked. She then walked around to the side entrance on Aitken Street.

[5] As she was walking down the Aitken Street side of the building she heard someone call out her name. She turned around and saw Mr Creser about 10 feet away in the angled car parks on Aitken Street outside the National Library. Mr Creser was holding out some papers and said that he wanted to serve them on her. She said “[n]o, you know, Mr Creser, that the Crown accepts service on my behalf. You serve them, not me.” Mr Creser responded by saying “[n]o, you’re being served personally and you’re served lady” or something like that. Mr Creser grabbed the straps of her handbag and stuffed the papers into the top of it. Ms O’Brien walked a few steps to the door. Mr Creser followed her.

_{[6] Ms O’Brien initially described what happened next as follows:}³

³ The emphases in all quotations have been added.

... when I swiped to open the door he was right behind me and he grabbed the door off me as I opened it and then put his body in front of it so I couldn’t secure the building. I couldn’t close the door. He put his hand on my arm and was trying to turn me.

[7] She was asked a few more questions about this. She was asked what she did when she could not close the door and said:

I turned around and tried to push him off the door. Because I wanted to get in and secure the building and I didn’t particularly want to be standing there with him. Um, so I was pushing him off and ... he said to me “That’s assault” ... “I’m gonna lay a complaint” ... I presumed he meant with the police. He ... just kept grabbing my arm and trying to turn me while I was pushing him off to say, “I just want to take your photo.” ... and I said “I don’t want my photo taken. Get off me”, and tried to push him so we were kind of pushing against each other trying, me to get into the building and him to stop me getting into the building and take my photo.

[8] Ms O’Brien said that he was not pushing hard, “just pushing me enough to try and turn me so, to stop me pushing him so, yeah”. She said that this confrontation took maybe 15 to 20 seconds. She said that one of her staff came out from her office and asked if everything was okay. This was enough for Ms O’Brien to move into the building and shut the door. She was “pretty shaken” from the incident, telephoned security and was advised to lay a complaint with the police. She said that she did not know what level this was going to escalate to “from phone calls and photos in the street to physically man handling me to serve papers which didn’t need to be served on me.”

[9] In cross examination Ms O’Brien was challenged about where Mr Creser first approached her and whether he had grabbed her handbag or just placed the documents in it. Ms O’Brien maintained Mr Creser first approached her in Aitken Street (not on Molesworth Street) and that he had grabbed her handbag. It was also put to her that she had seen that Mr Creser wanted to take a photograph of her, and she had swiped at his hand, grabbed the phone, pushed it away to stop him taking a photograph of her and damaged the phone. She denied this was what had happened. She was asked about the sequence of events when she tried to enter through the side door on Aitken Street. The exchange was as follows:

Q. Mr Creser hadn’t touched you at all at that stage, had you? You pushed

him.

A. He was barring my entrance to a building and trying to turn me to take a photo. As I turned to push him, yes, I probably pushed him first, you’re quite right, but he then tried to turn me further and said, “I just want to take your photo.”

...

Q. When you pushed Mr Creser away, you did that with an open palm and

you pushed directly outwards to push him back, didn’t you?

A. I’m here, he’s standing there, so yes, I’m pushing on his shoulder to try

and move him off the door, sideways off the door so I can push him.

Ms Churchman’s evidence

[10] The prosecution called evidence from Ms Churchman, who was employed as a Judge’s clerk at the time. She was working at her desk on the ground floor of the Court of Appeal. Her desk looks out on to the Vogel Centre, but by swivelling her chair she is able to see out of a large window on to Aitken Street. She initially heard some scuffling, which progressed to a heated argument. She could make out a female voice and a male voice. She heard the female voice say, with some anxiety, “[g]o away, get off me, get away from the door, let me go.” At this point she turned away from her computer to look outside to assess the situation. She heard the male say “[t]hat’s assault, you’re assaulting me, get off me. I’m going to take a photo of you. I’m going to report you.” She was not sure of the exact order of the words spoken by the male but all those things were expressed.

[11] Ms Churchman could see that the man was holding up his cellphone and was pushing against something, either the door or Ms O’Brien. She could not see Ms O’Brien from where she was positioned. She walked to the corner of her office and made eye contact with Mr Creser. He backed away. Ms O’Brien was then able to get through the door. She appeared to be very flustered and upset. Ms Churchman thought the whole incident from the time she first heard the scuffling took about 25 to 30 seconds.

Court security officer

[12] The prosecution called evidence from a security officer. On the Monday morning after the incident took place he reviewed CCTV footage from a camera

affixed to the Court of Appeal which looks out on to Molesworth Street, and a second camera affixed to the National Library which looks out on to Aitken Street.

[13] The security officer explained that the Court of Appeal camera had limited scope. He saw Mr Creser at the front of the Court at about 3.30 pm. He saw a car, with Mr Creser in it, drive around into Aitken Street. He did not check what could be seen on this camera later in the day. He did not make a request for this footage to be saved.

[14] On the footage from the National Library camera, the security officer saw the car pull into Aitken Street, Mr Creser leaving the car, walking towards Molesworth Street, and returning to the car. He also saw Ms O’Brien going to the back door of the Court of Appeal, Mr Creser approaching her about halfway from that door and Molesworth Street, and then following her to the back door. He was unable to see what happened at the back door because a tree obscured that area from view. He asked for this footage to be saved but assumed that had not occurred given that he was required to give evidence about what he saw when he viewed it.

Mr Creser’s evidence

[15] Mr Creser gave evidence in his defence. He said that he had called in twice to the registry on 24 September 2013, once at about 12 pm and again at about 3.30 pm, to let the staff know that he had some documents that he wished to serve personally on Ms O’Brien. He was with a friend, Ms Delaney. After this he and Ms Delaney parked and waited for about an hour and a half for Ms O’Brien to appear. They initially parked on Molesworth Street, but then they moved to Aitken Street to get a better view of the “access and egress points”. He saw Ms O’Brien leaving the main entrance and he went up the steps towards the blue ponds outside the front entrance.

[16] Mr Creser went to hand her the papers. She refused to accept service. He placed the documents into her bag (a different one to the bag Ms O’Brien said she had). He did not grab the bag. He pulled out a cellphone with a camera on it to take a picture. He went to focus the camera and press the button and “at that point she grabbed the camera”. She was getting a little hysterical and she screamed out “[g]et

your hands off me”. Mr Creser was surprised because he was simply serving papers on her. He could not see what the fuss was about. He tried to follow her to the door to take a picture. He put his foot in the door and was fumbling around trying to take a picture and “at that stage she pushed me in the chest”. He said “[w]ell, back off. That’s an assault there”. He did not mention going to the police. He just said “[h]ang on, that’s an assault. You laid a hand on me.” It was a shove, a push, with her open palms. He did not try and pull her around and he did not push her.

Ms Delaney’s evidence

[17] Ms Delaney gave evidence for the defence. She said that she was sitting in the parked car with Mr Creser on Aitken Street. Mr Creser attempted to put the document in Ms O’Brien’s handbag. Ms O’Brien immediately started saying “[d]on’t touch me. Get away from me” in an agitated tone, which surprised Ms Delaney. This interaction took place on Aitken Street. Ms Delaney could see the interaction and hear what was said clearly from her position in the parked car.

[18] Mr Creser followed Ms O’Brien to the side door of the court on Aitken Street, holding out the document which he was attempting to give her. When they were walking to the door Mr Creser was holding his cellphone trying to take a photo. When they got to the side door, Mr Creser was attempting to put the document in her bag and “as she pushed him back I saw him step back.” Mr Creser said “[y]ou know, that’s assault Clare”. Ms O’Brien said in an agitated and high pitched voice “[d]on’t touch me”. Mr Creser said “[w]ell, you touched me. You pushed me.”

The District Court decision

[19] The District Court Judge found the charge of assault proven. His assessment of the evidence was that the first interaction was on Aitken Street, as Ms O’Brien and Ms Delaney said. Having put the documents in Ms O’Brien’s handbag, he considered that Mr Creser followed her to the side entrance so that he could take a photograph of her. He considered that Mr Creser grabbed her by the arm to turn her around so that he could take the photograph. He considered that it was only after that assault that Ms O’Brien, fearing for her safety, pushed Mr Creser away. He

considered that the words overheard by the Ministry employee were consistent with that account.

My assessment

[20] Mr Creser says that there was no evidence to support the Judge’s conclusion that he had grabbed Ms O’Brien by the arm before she pushed him. He says that Ms O’Brien admitted that she pushed Mr Creser first. He says this was supported by all of the witnesses’ evidence that Mr Creser said “that’s an assault.”

[21] Having reviewed all the evidence I consider that there was evidence to support the decision that was reached. That evidence was from Ms O’Brien. According to Ms O’Brien’s evidence in chief, the sequence of events, once they reached the Court of Appeal side door, was that:

(a) Mr Creser grabbed the door and put his foot in it, he “put his hand on my arm and was trying to turn me”;

(b) she tried to push Mr Creser off the door so she was “pushing Mr

Creser”;

(c) Mr Creser said that this was an assault;

(d) Mr Creser “kept grabbing my arm” while she was “pushing him off” and saying that she did not want her photo taken and “[g]et off me”; and

(e) they were pushing against each other with Mr Creser “pushing me

enough to try and turn me” and to stop her pushing him.

[22] If that evidence was accepted by the Judge then Mr Creser did assault Ms O’Brien (by grabbing her arm) and, regardless of whether Mr Creser did or did not grab the handbag earlier, the grabbing of the arm by Mr Creser began before Ms O’Brien pushed Mr Creser.

[23] That sequence of events was supported by Ms Churchman’s evidence. She heard Ms O’Brien say “[g]o away, get off me, get away from the door, let me go”. If her evidence was accepted by the Judge, then Mr Creser and Ms O’Brien were at the door when Ms O’Brien said “let me go”. Implicit in those words was that Mr Creser had hold of Ms O’Brien when they were at the door contrary to Mr Creser’s evidence that he did not touch Ms O’Brien. It was after this that Ms Churchman heard Mr Creser say “that’s an assault” which is consistent with Ms O’Brien’s evidence that she pushed him away from the door after he had grabbed her to try and turn her.

[24] Mr Creser’s submission relies on Ms O’Brien’s statement in cross examination that “I probably pushed him first.” However immediately before that answer Ms O’Brien says that Mr Creser was trying to turn her. It can be inferred from that statement that Mr Creser was touching her in order to turn her. That is consistent with what she says happened after she pushed him, namely that he “then tried to turn me further”. I therefore take Ms O’Brien to be accepting that she was the first person to “push”, not that she was the first of them to touch the other. That evidence is therefore not inconsistent with her evidence in chief that Mr Creser was grabbing her to turn her, she then pushed him, he was still trying to turn her and then they were both pushing.

[25] Mr Creser says that his account, that he did not touch her at all and that she pushed him in an overreaction to his attempt to photograph her, is supported by the evidence from all witnesses that he said “that’s an assault.” He says that he knows what an assault is and is careful not to physically touch someone. However, if Ms O’Brien’s account is accepted it is conceivable that Mr Creser would say “that’s an assault” in response to Ms O’Brien’s push even if he had first grabbed her by the arm (to turn her to take a photograph).

[26] I say that because it is clear from Mr Creser’s account of the incident that he considered he was simply doing a job in serving documents on Ms O’Brien. He did not see why Ms O’Brien should have any issue with this nor with his intentions to document that service by way of a photograph on his cellphone. His whole perception of the incident was that he was doing a professional job and Ms O’Brien

was overreacting, especially when business of the courts involves service of documents on others. On his own evidence he was blocking the door and trying to get a photo. It is conceivable that he was holding her arm to get her to turn for the photo without thinking that there was anything wrong about that. From his view- point the push from Ms O’Brien could be regarded as unnecessarily aggressive which would account for his “that’s an assault” comment, and his wonder at how he was charged with an assault but Ms O’Brien was not.

[27] The evidence from Ms Delaney supports Mr Creser’s account in that the first physical contact she referred to was the push from Ms O’Brien. However it is apparent that Ms Delaney either did not see everything or inaccurately recalled what she saw. That is because Ms O’Brien and Mr Creser both said that he had put the documents in Ms O’Brien’s bag before they walked to the door. Ms Delaney on the other hand recalled that Mr Creser still had the document in his hand and was still attempting to put it in her bag when they got to the side door.

[28] In view of the competing accounts from Ms O’Brien and Mr Creser the Judge needed to assess the reliability of their respective evidence. He was entitled to accept Ms O’Brien’s evidence over that of Mr Creser and to find support for Ms O’Brien’s evidence in Ms Churchman’s evidence. He was also entitled to consider that Ms Delaney’s evidence did not cast a reasonable doubt about Ms O’Brien’s version of events. In these circumstances no miscarriage of justice has been demonstrated.

[29] Mr Creser’s written submissions raised two other issues. He accepted orally that they were side issues. First, Mr Creser was concerned that the Court of Appeal CCTV footage had not been kept as he believed it would have shown Ms O’Brien grabbing at his phone. However the altercation took place at the Aitken Street entrance (and the view from the National Library camera was obscured by the tree). There was no reason to retain the footage from the Court of Appeal camera which

apparently recorded nothing of relevance.⁴ Secondly, Mr Creser also contended that

_{his counsel was not competent. He said that his counsel was surfing the internet}

⁴ The security officer had not noticed anything relevant in it. The evidence of Ms O’Brien and Ms Delany was that the first approach was in Aitken Street. In these circumstances there was nothing improper in not retaining the footage.

instead of concentrating on the evidence. He said that his counsel should have sought an adjournment to obtain disclosure, submitted at the end of the prosecution case that there was no case to answer, and made a closing submission. However the disclosure relates to the CCTV footage and there was no footage retained to disclose. A submission of no case to answer would have failed given that the Judge accepted Ms O’Brien’s account that Mr Creser grabbed her by the arm. Closing submissions in a trial of this kind are not ordinarily made and there was no particular need for it here. These two side issues therefore do not assist Mr Creser.

Result

[30] The appeal is dismissed.

Mallon J