Orr v Police [2016] NZHC 3070 (14 December 2016)

Last Updated: 21 February 2017

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2016-442-18 [2016] NZHC 3070

BETWEEN	DAVID FREDERICK ORR Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	13 December 2016
Appearances:	S J Zindel for the Appellant K B Bell for the Respondent
Judgment:	14 December 2016

_{JUDGMENT OF MALLON J}

Introduction

[1] Mr Orr was convicted on a charge of assault with a weapon¹ following a judge alone trial in the District Court (Judge Macaskill).² He was sentenced to 150 hours community work and ordered to make emotional harm payments to the victim of $650. He appeals against his conviction. The issue is whether the Judge erred in

concluding Mr Orr had not acted in self-defence.

The evidence

Background

[2] Mr Orr and the complainant, Mr McKenna, lived in neighbouring flats. Their respective flats were in a large house which had been converted into three flats. Mr Orr lived in his flat with his dog. Mr McKenna lived with his wife and their dogs.

_{Initially relations between the neighbours were cordial. However their relationship}

¹ _{Crimes Act 1961, s 202C (maximum penalty five years imprisonment).}

² _{Police v Orr [2016] NZDC 17812.}

ORR v NEW ZEALAND POLICE [2016] NZHC 3070 [14 December 2016]

deteriorated because of noise issues arising from the thinness of the wall between the two flats.

[3] Leading up to the incident that gave rise to the charge, Mr Orr had from time to time banged on the wall and shouted out to his neighbours when he felt they were making too much noise. Mr and Mrs McKenna thought Mr Orr was being unreasonable because they were just going about normal activities. They said he would complain when the microwave pinged, when they put their plates away in the kitchen, when they vacuumed, when their puppy ran around the house, and when their grandchildren visited.

Complainant’s propensity

[4] About 10 days prior to the incident giving rise to the present charge, Mr McKenna had been convicted of injuring with intent to injure. He told both Mr Orr and his neighbour in the third flat, Moana, about this. Mr Orr felt he was boasting about it and he did not like it. Mr McKenna denied boasting about it and was concerned about the charge. It was his first conviction for anything and he was

48 years old and he had pleaded guilty to the charge.

The incident the week earlier

[5] About a week prior to the incident there had been an exchange between Mr Orr and Mrs McKenna in the garden outside their flats. Mr Orr complained of the noise from Mrs McKenna vacuuming in the evening and from her puppy. In the course of this exchange Mrs McKenna called Mr Orr a “wanker” and Mr Orr called her a “Pommie git” or “bitch” and told her to “fuck off home”.

[6] Mrs McKenna telephoned her husband and told him about this incident. There is a dispute about how Mr McKenna responded to this. Mr McKenna’s account was as follows. He did not come straight home to confront Mr Orr. Rather, when he arrived home, Mr Orr was walking past with his dog. While they were on the street, he asked Mr Orr what had happened and demanded he apologise for calling his wife a “Pommie bitch”. Mr Orr replied along the lines of “I’m sorry. I wasn’t thinking straight and I will apologise to her.” He denied that his neighbour,

Moana, had called out “if you don’t f-ing leave McKenna, I will call the cops”. He went to Moana’s flat after the exchange because she had not been well at that time. He said “I hope you didn’t hear any of that because you know I wouldn’t want to disturb you”. He denied telling Moana he was going to “get” Mr Orr.

[7] Mr Orr’s version was as follows. After the exchange with Mrs McKenna, Mr Orr went back to his home and was sitting down watching television. The next thing he heard was his gate slam up against his shed and he saw Mr McKenna walking up his pathway. He described Mr McKenna as being “puffed up” and obviously angry. Mr McKenna came up to Mr Orr’s front door and was within an inch or so of him. Mr McKenna told him “you apologise to my wife”. Mr Orr said “no, you don’t insult me and I won’t insult you”. Mr Orr tried to say that it came down to courtesy and quietness. Mr McKenna would not listen. Mr Orr told him two or three times to get off his property. Mr Orr then heard his neighbour, Moana, say “fuck off or I’ll ring the cops” and that was when Mr McKenna left. As Mr McKenna left, he said “I’ll get ya, I’ll kill ya.”

[8] Moana gave evidence about this incident. She was in her lounge when she heard a car pull up really fast and hit the brakes. She saw Mr McKenna jump out and he came past her flat (Mr Orr and Moana share the same drive). Mr McKenna went to Mr Orr’s place. Moana heard a lot of yelling and was going to go over. But instead she yelled out “fuck off Mike before I call the cops”. Later that evening Mr McKenna came over to her place. Mr McKenna told her he was “gonna get him” (referring to Mr Orr).

Incident giving rise to the charge

[9] The incident giving rise to the charge took place at around 10.15 pm on

Saturday 28 May 2016. There was a dispute about what occurred.

[10] Mr McKenna’s version of events was as follows. He and his wife were watching television quietly. They had their grandchildren staying with them and their dogs were asleep, so they did not want to disturb anybody. They heard Mr Orr banging on the wall. They shouted “what’s the problem” and Mr Orr replied something like “keep the fucking noise down”. Mr McKenna went out for a

cigarette and Mr Orr was screaming and shouting over the gate, telling them to “keep the f-ing noise down”. He told Mr Orr to “go and get fucked”. Mr Orr disappeared and then he was at Mr McKenna’s front gate, screaming at him again to keep the noise down. Mr McKenna went to the gate, and as he opened it, he was hit on the head with something round. He could not see what the object Mr Orr was holding looked like. His glasses were knocked off and he had blood in his eyes. He tried to grab the object but was unable to do so. He tried to get up but was hit several more times. He put his arms up to protect himself, but was hit a few times on his arm, shoulder and hand. He was hit seven or eight times. He heard his wife screaming out and one of the neighbours came out to drag Mr Orr off him. He described the force of the blows as being “fairly hard”. It caused him two prolapsed discs in his lower spine and his hand was still not right. He had no chance to defend himself or retaliate and he had no explanation for the scratch marks on Mr Orr’s body. He did not have anything to do with stones being thrown on Mr Orr’s roof immediately before the incident.

[11] Mrs McKenna’s evidence at trial was as follows. She heard her husband and Mr Orr exchange words over the back gate. It was then quiet. The next thing she saw was Mr McKenna opening the front gate and Mr Orr raising a baseball bat. As Mr McKenna when through the gate, she saw Mr Orr hit him in the head with the bat. Mr McKenna fell to the ground and Mr Orr kept hitting him as he tried to stand up. Mr Orr’s hits were aimed at Mr McKenna’s body, and Mr McKenna’s hands were up to try and protect his head. The McKennas’ dog ran out, Mr McKenna got up from the ground and Mr Orr ran off. One of the boys from next door had just walked out as Mr Orr was going down the road. Mr McKenna’s head was split, his hand was cut and Mrs McKenna was trying to look at his ribs to see if there were bruises. Mrs McKenna did not recall anyone throwing any stones.

[12] Mr Orr’s version of events at trial was as follows. He was in bed asleep, when at about 10 pm he was woken up by yelling and banging from Mr McKenna in his kitchen. The noise carried on for two or three minutes so he told them to “shut the fuck up” and they did. He started to doze back off to sleep when he heard a strange noise. He got out of bed and heard stones being thrown on his roof. The McKennas had stones on their property and he assumed that the stones were being

thrown from their address. He put on his jandals and walked outside, grabbing a piece of wood from his wood pile for his own protection.

[13] He went along the footpath in front of the McKennas’ flat. He saw Mrs McKenna on the phone about to walk inside. He asked her who was throwing stones and she said she did not know. Mr McKenna then came around from the back of the garage looking “pumped” with a can in his hands. He was threatening to kill or “do” Mr Orr. You could “see the rage in him.” He came out of the gate and grabbed Mr Orr. Mr Orr broke away and was backing up and that was when Mr McKenna must have seen the piece of wood Mr Orr had, because Mr McKenna said “oh yeah” and “just kept on coming at him”. This was when Mr Orr hit him. He remembered hitting him only once. When Mr McKenna went down onto the ground, his arms were up. Mr Orr stopped and walked away.

[14] Mr Orr said he hit Mr McKenna because he thought Mr McKenna would “pummel” him. He is not a fighter. He does not like violence. He is on medication for a variety of conditions. He believed that he would have ended up in hospital if had not hit Mr McKenna. If he had tried to run away he thought Mr McKenna would have chased him. It all happened very quickly.

[15] Moana’s evidence was as follows. She was at home on the evening of

28 May 2016. She was woken up by her son who asked her if she could hear the stones on the roof. She did hear this, and she went out the front of the flat to see what was happening. She saw a bit of an altercation with Mr McKenna getting up off the ground. Mr Orr was holding a stick to his side. He walked off home. Her son had gone out there. Mr McKenna said “You tell that [Mr Orr] I’m going to fuckin kill him, there’s nowhere he can go or hide. I’m gonna fuckin kill him.”

The District Court decision

Propensity evidence

[16] The Judge accepted Mr McKenna’s previous conviction was an indication of propensity for violence in situations of personal confrontation, but said he was not giving it any weight. It was only one incident. He nevertheless considered Mr

McKenna was quite a forceful personality and was unlikely to take abuse lightly. Equally, Mr Orr did not hesitate to respond verbally to events that upset him.

Findings of fact

[17] The Judge accepted Mr Orr might have been right about stones being thrown on his roof. He found the McKennas’ denials unconvincing and Moana had also heard the noise.

[18] The Judge found that when Mr Orr picked up the piece of wood from his woodpile he was not concerned about others being present. In his statement to the police he had only said he was scared of Mr McKenna. He also found that Mr McKenna did not make threats as he came to the gate, rather he made them as Mr Orr was walking away. He considered this was consistent with Mr Orr’s statement to the police. Although the Judge did not say so, it was also consistent with the neighbour’s evidence.

[19] On whether Mr McKenna had grabbed Mr Orr and how many times Mr Orr hit Mr McKenna the Judge found:

[13] The complainant opened the gate and went through. He was immediately struck on the head by the defendant with the branch. While he was on the ground and struggling to get up, the defendant struck him several more times around the head, the hands and the body. I accept the complainant’s evidence in that respect, which was confirmed by his wife and the evidence of his injuries.

[14] While the defendant told the police that he hit the complainant only once and he initially maintained that stance in giving evidence, he eventually conceded that he may have struck him two or three more times. I find that he hit the complainant several times.

[15] The complainant and his wife said that the defendant hit the complainant as soon as he stepped through the gate and that the complainant made no attack on the defendant.

Acting in self defence?

[20] The Judge found Mr Orr did not hit Mr McKenna in self-defence:

[15] The complainant and his wife said that the defendant hit the complainant as soon as he stepped through the gate and that the complainant made no attack on the defendant. The defendant says that the complainant

rushed at him and that he hit him in self-defence, out of fear for his safety. I find it highly significant the defendant told the police on the night that he hit the complainant and that he should not have and said nothing that indicated he was acting in self-defence. I find that, when the defendant hit the complainant and continued to hit him, he was not acting in self-defence. He went to the scene with a tree branch in an aggressive frame of mind. He took the branch as a weapon. He hit the complainant out of aggression and not in self-defence against any attack.

Reasonable force?

[21] The Judge found Mr Orr used force out of all proportion. The Judge regarded the blows as not justified even as pre-emptive self-defence. The force was “grossly excessive”. Mr McKenna suffered a laceration to his forehead which required stitches, and bruises and grazing to his left shoulder and hands. Scratches on Mr Orr’s body, if caused by Mr McKenna, were likely to have occurred when Mr McKenna responded to the attack against him. If Mr Orr feared Mr McKenna might attack him then he ought not to have gone to his flat at all. Moreover, the Judge considered Mr and Mrs McKenna’s evidence about the attack “appeared to amuse” Mr Orr and this was “inconsistent with any regret or contrition.”

Appeal

[22] The appeal is brought on the basis that the Judge erred in a number of ways which were material to his assessment of credibility, such that a risk of miscarriage of justice arises.³ I agree that the risk of miscarriage arises for the reasons that follow.

[23] The first point is that the burden is on the prosecution to disprove self- defence and it must do so beyond reasonable doubt. There are three questions relevant to this:⁴

_{(a) what were the circumstances as Mr Orr honestly believed them to be;}

³ _{Criminal Procedure Act 2011, s 232(2).}

⁴ Crimes Act 1961, s 48; R v Sarich CA407/04 16 May 2005 at [34].

(b) has the prosecution proved beyond reasonable doubt that the defendant was not acting in self-defence at the time he inflicted the blow(s) to Mr McKenna; and

(c) has the prosecution proved beyond reasonable doubt that the force Mr Orr used was not reasonable having regard to the circumstances as he believed them to be.

[24] The Judge dismissed the evidence of Mr McKenna’s conviction 10 days before the incident saying he gave it no weight. This was on the basis that the evidence was being relied on to prove that Mr McKenna had a propensity to be violent when confronted. It is difficult on appeal to say whether the conviction should have been given any weight without having details about the circumstances of the offending. It appears the Judge may not have had that detail and therefore the Judge did not err in giving this no weight as propensity evidence.

[25] However the evidence was relevant for another reason. Mr Orr was aware of Mr McKenna’s recent conviction for violence. He felt Mr McKenna was boasting about it and he did not like this. His evidence was that he had picked up the piece of wood for protection and he struck Mr McKenna with it because he thought Mr McKenna was advancing on him and would hit him. Mr Orr’s knowledge of Mr McKenna’s recent conviction was relevant to the circumstances as Mr Orr honestly believed them to be.

[26] Also relevant to this issue, was the evidence about the incident the previous week. Mr Orr’s account involved aggressive and threatening behaviour by Mr McKenna. His account was supported by Moana’s evidence, who was sufficiently alarmed by what she heard to call out to Mr McKenna to leave or she would call the police. It was also partially supported by Mr McKenna’s evidence that he visited Moana after the incident because he was worried about the noise. That evidence is arguably not consistent with Mr McKenna’s account of a conversation in the street ending with Mr Orr saying he was sorry and would apologise to Mr McKenna’s wife.

[27] Mr Orr explained the relevance of this earlier incident in his statement to the police, which was produced as an exhibit at trial. The police officer asked Mr Orr why he took a piece of wood with him, and Mr Orr replied:

Because I’m scared of him, because the other day he came to my place and he abused me, he’s a tough little bugger.

[28] If Mr Orr’s account of the earlier incident was accepted, then he had reason to consider he might need protection when he picked up the piece of wood after hearing the stones on his roof. The Judge did not address this incident at all. The incident was also relevant to Mr McKenna’s credibility. If it was found that he was prepared to lie about or downplay that incident, it was possible he was lying about or downplaying his own aggression and intentions when he went through the gate towards Mr Orr. Added to that, the Judge had found Mr McKenna’s denial about throwing stones unconvincing. That too was consistent with Mr McKenna downplaying his own aggression leading to the blow to his head.

[29] The Judge rejected Mr Orr’s explanation that he took the wood for protection partly because Mr Orr had not said in his statement to the police that he was concerned about others being present. There are, however, a number of possible reasons for that. One is that the statement did not fully set out all of the things that were going on in Mr Orr’s mind at the time he picked up the piece of wood. Another is that Mr Orr may have exaggerated the reasons why he felt he needed protection, to improve his position in defending the charge. Regardless of whether he was telling the truth about fearing who might be present on the property, there was an evidential basis to find that Mr Orr did think he might need protection from Mr McKenna.

[30] On the second question, that is whether the prosecution had proved that Mr Orr was not acting in self-defence when he inflicted the blow(s), the Judge considered it highly significant that Mr Orr had “said nothing that indicated he was acting in self-defence.” This was not correct. Mr Orr had said to the police:

Next thing [Mr McKenna] comes out and says what the fuck do you want or something like that. He was all puffed up and had clenched fists. I told him to stop fucking chucking stones on my roof. Next thing he comes at me, fists raised, so when he got close, I whacked him with the piece of wood I had with me.

[31] This statement provided a narrative for a pre-emptive strike in self defence, especially when Mr McKenna accepted he was advancing through his gate towards Mr Orr when he was struck. Admittedly Mr Orr’s version of events had arguably changed at trial, or had been expanded upon, with his account of being grabbed by Mr McKenna. That variation was relevant to Mr Orr’s credibility. However I cannot defer to the Judge’s assessment of credibility on this topic given the error he made about the narrative for self-defence in Mr Orr’s police statement.

[32] I acknowledge the Judge also found it highly significant that Mr Orr told the police he should not have hit Mr McKenna. However that statement was made with the benefit of hindsight. Mr Orr described himself as “not a fighter” and he had inflicted a serious blow to Mr McKenna’s head. That statement of regret is not necessarily inconsistent with Mr Orr honestly believing at the time Mr McKenna was coming through the gate that he needed to do something to stop Mr McKenna from attacking him.

[33] On the third question, that is whether the prosecution had proven the force Mr Orr used was not reasonable in the circumstances as Mr Orr believed them to be, the number of blows Mr Orr struck was crucial to the Judge’s finding. In making that finding the Judge relied on corroboration of Mr McKenna’s evidence from his wife. However Mrs McKenna’s evidence at trial about this was inconsistent with her statement to the police made close to the time of the incident. In that statement she said she saw Mr Orr “bring a piece of wood above his head (I thought it might have been a baseball bat). He brought it down towards [Mr McKenna’s] head.” She made no reference in her statement to Mr Orr continuing to strike Mr McKenna repeatedly when he was on the ground.

[34] Defence counsel endeavoured to explore this inconsistency in cross examination of Mrs McKenna. The cross examination was as follows:

Q. ... in your statement you only describe one blow to your husband’s head from Mr McKenna which is quite different from what you’re telling the Court now, isn’t it?

A. Well at the time that I was making the statement my husband had gone to hospital covered in blood, what I’m telling the Court now is exactly what I seen. He got hit numerous times, not just the once.

Q. All right, so is your evidence that you just forgot to tell the police this quite important, well I suggest to you a quite important part of what happened that night?

[35] However the Judge intervened. The exchange that took place between the

Judge and counsel for Mr Orr was as follows:

The Court:

Mr Holloway, I have to tell you this sort of evidence really doesn’t carry much weight with me. People tell the police what they’re asked to at the time. The officers note what’s at the time and they sign the statement in an

emotional turmoil and so on, so really I’m –

Mr Holloway:

(inaudible 16:10:39) the re-examination.

The Court:

I’m much more interested in what the witness says in the witness box. If

there was a contradictory statement, if there’s a variation upon a theme. This

is sworn evidence, not –

Mr Holloway:

A large variation may I suggest Sir. From one blow to –

The Court:

I’m just suggesting to you there’s a little amount of weight I can give to that. We all know that police officers record what they hear at the time, there are problems of interpretation, I mean there are a lot of studies done about this

Mr Holloway, that’s the reality of it.

Mr Holloway:

I’ll move on Sir.

[36] This intervention meant that defence counsel did not fully explore the inconsistency of Mrs McKenna’s evidence at trial with what she said in her police statement on an important trial issue. She was not required to answer whether she had forgotten to tell the police this important detail, nor how the statement had been taken and whether she read it carefully before signing it as true and correct. Nor did defence counsel have the opportunity to test whether the statement to the police was more likely to be correct given the position from which she was watching.

[37] The Judge relied on support from Mr Orr’s evidence on this issue. The

evidence the Judge relied on came from his cross examination which was as follows:

Q. You said that you’ve hit him once?

A. As far as I know, that’s all I reckon, once, yes.

Q. As far as you know, so do you accept that you could have hit him more than once?

A. Possibly.

Q. So would you accept that you’ve possibly hit him up to eight times?

A. No. No, not eight times, no.

...

A. ... like I said I came up – when he grabbed me I came up and all I heard was, “Oh yeah”, and that’s when I – and he came at me again and I hit. Now I maybe hit him two or three times, I don’t know, but I remember hitting him and he went down and as soon as he went down I stopped. I backed off and I walked home.

[38] This support was weak. While Mr Orr acknowledged he might have hit Mr McKenna two or three times, his recollection was that he had hit him once, and he was certain he had not hit him seven or eight times and that he had not hit Mr McKenna when he was on the ground.

[39] The support provided by the photographs of the injuries was also equivocal. Apart from the photograph of the nasty gash to Mr McKenna’s head, the photographs were not particularly clear. It is not apparent from the photographs that the other marks were explicable only from being struck with the piece of wood, or whether they could be explained by Mr McKenna’s fall onto the ground once he had been struck by Mr Orr as was put to Mr McKenna in cross examination.

[40] The credibility of Mr McKenna’s account on this issue was also questionable. He described a neighbour as having to pull Mr Orr off him. The neighbour’s evidence was only that her son was out there. Mrs McKenna’s evidence and statement to the police did not support Mr McKenna’s account.

[41] Lastly, it was possibly unfair to place any reliance on Mr Orr’s demeanour when Mr McKenna and his wife were giving evidence. Demeanour is not always interpreted or understood correctly. In this case Mr Orr gave evidence that both Mr and Mrs McKenna were lying. Mr Orr’s reaction to their evidence, which the Judge took as amusement, could simply have been Mr Orr endeavouring to convey his disbelief at the evidence they were giving.

[42] While conscious of the advantages the trial judge had, for all these reasons I am unable to defer to his assessment of credibility. There were material matters that bore upon the credibility assessment which the Judge apparently did not take into account and there is a risk of miscarriage of justice.

Result

[43] The appeal is allowed. Mr Orr’s conviction is quashed. A retrial is ordered.

Mallon J