BUCHAN & RAMSAY v POLICE [2019] NZHC 3006

BUCHAN & RAMSAY v POLICE [2019] NZHC 3006 [19 November 2019]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECRI-2019-476-000011[2019] NZHC 3006BETWEEN REID ALEXANDER BUCHANAppellantAND NEW ZEALAND POLICERespondentCRI-2019-476-000012BETWEEN CHRISTOPHER ROBERT RAMSAYAppellantAND NEW ZEALAND POLICERespondentHearing: 29 October 2019Appearances: K C Beazley for the Appellant BuchanC M Ruane for the Appellant RamsayH Bennett for the RespondentJudgment: 19 November 2019JUDGMENT OF NATION JIntroduction[1] In a Judge alone trial on 1 April 2019, Reid Buchan and Christopher Ramsaywere convicted as parties under s 66(2) Crimes Act 1961 of injuring with intent toinjure by Judge Roberts. Judge Roberts sentenced both men on 31 July 2019 to fourmonths' community detention, 120 hours' community work and reparation of $877.50.They both now appeal conviction and sentence.Facts[2] Mr Buchan and Mr Ramsay were both aged around 36 at the relevant time.[3] The offending arose from a Halloween party in Twizel on the evening of 11November 2017. The exact details of the offending, and indeed the many other eventsof the night, were contested and subject to differing accounts from witnesses. Therewere four distinct incidents discussed at trial, likely occurring within about a 45-minute period in the early morning of 12 November 2017:(a) At the party on Omahau Crescent, there was a confrontation between MrBuchan and Mr Fleming. It appears Mr Buchan was arguing with MrFleming's partner. Mr Fleming punched or pushed Mr Buchan, and MrBuchan punched Mr Fleming at least once. There is no evidence MrRamsay was involved. It appears others then involved themselves in thefight and, in the words of one witness, "all hell broke loose". Two of thepeople involved were two Tongan men, Harvard Fale and Petelo Pouhila.(b) Nearby, friends or associates of Mr Buchan and Mr Ramsay were knockedover and injured by a car containing Mr Fale and Mr Pouhila. There wasno evidence either Mr Buchan or Mr Ramsay were involved in thisincident, although they became aware of it shortly afterwards and attendedthe scene.(c) Mr Buchan and Mr Ramsay were driven by a sober driver to Rata Road.They entered a house and confronted the occupants before leaving. Theywere looking for Mr Fale and Mr Pouhila. The car that was involved inhitting people was seriously damaged on their departure.(d) Mr Buchan and Mr Ramsay were driven back to where others weregathered around the people who had been hit by the car. On MackenzieDrive there was a confrontation, in which the Police allege Mr Buchan andMr Ramsay together assaulted Mr Fleming.[4] It was this last assault on Mackenzie Drive on which the Police based its case.District Court conviction decision[5] A large part of Judge Roberts' conviction decision summarised and attemptedto clarify the significant amount of evidence he had heard. Ultimately, the Judgeaccepted evidence that Mr Buchan and Mr Ramsay punched and kicked Mr Fleming,including while he was on the ground, on Mackenzie Drive. While he acknowledgedthat his focus had to be on the evidence on that specific incident, he considered theother incidents at and around the party as a relevant backdrop.[6] The Judge considered the injuries Mr Fleming sustained would not haveoccurred during the earlier altercation at the party on Omahau Crescent. He acceptedMr Fleming's evidence on this point, contrary to Mr Buchan's evidence, that hepunched Mr Fleming more than one at the Halloween party. However, later in thejudgment the Judge said:There is an evidential discrepancy of significance, the reality is that it matterslittle where Fleming sustained his injuries, the fact is he did For reasons Iwill develop I am satisfied that Fleming's injuries, however, were inflictedroadside on Mackenzie Drive.[7] On the Judge's reading of the evidence, Mr Ramsay and Mr Buchan's angerwas directed at Mr Fale and Mr Pouhila. Their anger at Mr Fleming appeared to bebecause they saw his actions as the catalyst of the bigger conflict.[8] The Judge considered that, on Mackenzie Drive, it was Mr Ramsay who threwthe first punch, knocking Mr Fleming to the ground, but he said the evidence of variousothers pointed to both Mr Ramsay and Mr Buchan, who had been togetherimmediately before the attack, then continuing to hit Mr Fleming while he was on theground. The Judge incorrectly recorded that two witnesses saw both punching andkicking, when only one witness mentioned kicking.[9] Using the language of s 66(2) Crimes Act to confirm the appellants' liability asparties, the Judge had "no hesitation concluding there was a common intent, an intentto assault" Mr Fleming, along with Mr Fale and Mr Pouhila. He found:abundant evidence attaching to the unfolding evidence to confirm theaffliction of such injuries and their seriousness was recognised by both as aprobable consequence of the common purpose each knowing it was a real orsubstantial risk, an injury of real seriousness would occur.Principles on appeal against conviction[10] Section 232 Criminal Procedure Act 2011 provides that the High Court mayonly allow an appeal against conviction if satisfied that the trial judge "erred in his orher assessment of the evidence to such an extent that a miscarriage of justice hasoccurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.1[11] Per the recent judgment of the Supreme Court in Sena v Police, the approachto this appeal is by way of rehearing, consistent with the judgment in Austin, Nichols& Co Inc v Stichting Lodestar.2 The Court explained further:3If an appellate court comes to a different view on the evidence, the trial judgenecessarily will have erred and the appeal must be allowed. But, to the extentthat Mr Jones was suggesting that the role of an appellate court is to considerthe issues de novo as if there had been no hearing at first instance, then we donot agree. Since it is an appeal, it is for the appellant to show that an error hasbeen made. Further, in assessing whether there has been an error, an appellatecourt must take into account any advantages a trial judge may have had.Because of this, where the challenge is to credibility findings based oncontested oral evidence, an appellate court will exercise "'customary'caution".4SubmissionsSubmissions for Mr Ramsay[12] Mr Ramsay, through counsel's submissions, acknowledged there was evidenceof a common purpose following the car incident and the common purpose was assault.However, Mr Ruane for Mr Ramsay submitted that all related to the pursuit of the twoTongan men. Mr Ramsay acknowledged, through counsel, that he took part in anassault on Mr Fleming on Mackenzie Drive but submitted it was effectively a separate1 Criminal Procedure Act 2011, s 232(4).2 Sena v Police [2019] NZSC 55; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103,[2008] 2 NZLR 141.3 Sena v Police, above n 2, at [38].4 Austin, Nichols & Co Inc v Stichting Lodestar, above n 2, at [13].and new incident. Counsel submitted Mr Ramsay had been involved in a one-on-onefight in which blows were exchanged. Mr Ruane acknowledged it would have beenappropriate for Mr Ramsay to have been convicted for fighting in a public place orcommon assault.[13] Mr Ruane identified a number of issues that he submitted affect the validity ofa conviction for injuring with intent to injure.[14] Mr Ruane said the Judge conflated the various incidents that occurred over thenight, without clear identification of what each appellant did during the MackenzieDrive attack. He took issue with the Judge's comment that "it matters little whereFleming sustained his injuries", stressing that Mr Ramsay was not involved in the fightthat occurred initially at the Halloween party at Omahau Crescent. Mr Ruane said itwas significant that Mr Fleming did not give evidence about where his injuries weresustained.[15] Mr Ruane submitted that the evidence relating to the nature of the MackenzieDrive attack was unclear. Primarily, Mr Ruane submitted the neighbour's evidencethat she saw kicking was uncorroborated, contrary to the Judge's comments. Counselsubmitted her evidence could be discounted, given she also said the figures looked likeshadows, and that she could not make out any facial features or recognise anyone. Noother witness, including Mr Fleming, mentioned kicking. Another witness expresslydenied there was "stomping or anything, just fists". Mr Fleming's evidence of theassault identified Mr Ramsay as punching him once around the mouth, and that therewere a number of other punches, but he was otherwise unspecific. Mr Ruanesubmitted that, even if kicking could be established, on the neighbour's evidence itcould not beyond reasonable doubt be attributed to the appellants.[16] Mr Ruane submitted that, without reliable evidence that the assault involvedkicking, a conviction for injuring with intent to injure could not be sustained.[17] Counsel also suggested there was at least a potential error in the way the Judgehad referred to Mr Buchan's comments to the Police when interviewed and the wayhe may have used Mr Buchan's statements as evidence against Mr Ramsay. Mr Ruanereferred to the fact the Judge had not clarified that Mr Buchan's statements to thePolice, per s 27(1) Evidence Act 2006, were inadmissible against Mr Ramsay as a co-offender.Submissions for Mr Buchan[18] When interviewed by the Police, Mr Buchan denied assaulting Mr Fleming onMackenzie Drive. Ms Beazley, for Mr Buchan, submitted there was no clear evidenceto support the Judge's finding on the specific roles that each appellant played in theconfrontation on Mackenzie Drive.[19] Ms Beazley highlighted Mr Fleming's evidence that he did not see Mr Buchanwhile he was being attacked on Mackenzie Drive. Mr Fleming said he knew MrBuchan "was around but [he] didn't actually physically see him".[20] Ms Beazley repeated Mr Ruane's submissions relating to inadequate evidenceof kicking, and the submission that injuring with intent to injure was thus too seriousa charge.[21] Ms Beazley submitted the evidence did not support a conclusion that MrBuchan and Mr Ramsay formed a common intention to attack Mr Fleming.[22] In a Police interview, Mr Buchan had accepted he punched Mr Fleming atOmahau Crescent but denied taking part in the assault on Mackenzie Drive. MrBuchan has not been charged in relation to the punch or punches at Omahau Crescent.Ms Beazley thus submitted that the evidence did not support convicting Mr Buchanfor injuring with intent to injure.Submissions for the Crown[23] Ms Bennett, for the Crown, submitted there was ample surrounding evidenceto show that from the outset, based on witness accounts, Mr Buchan and Mr Ramsaywere acting in concert when they embarked on a course of events to locate Mr Pouhilaand Mr Fale, and subsequently Mr Fleming. She submitted the prosecutionsuccessfully proved:(a) there was a shared understanding or agreement between them to locate andattack Mr Pouhila and Mr Fale if they found them, and Mr Fleming oncethey located him at Mackenzie Drive;(b) they agreed to help each other and participate to achieve their commonunlawful goal, which was evidenced by their pursuit of Mr Pouhila andMr Fale to Rata Road, and their pursuit of Mr Fleming on MackenzieDrive;(c) both Mr Buchan and Mr Ramsay attacked Mr Fleming on MackenzieDrive; and(d) they intended that the offence that eventuated be committed or knew thatthe offence was a probable consequence of carrying out the commonpurpose. Their intention could be inferred from their pursuit of Mr Fale,Mr Pouhila and Mr Fleming for retribution.[24] Ms Bennett pointed to the evidence of Nicholas Preston-Marshall, DanielJoseph Smith and Kushla Ann Marie Lindsay, who all said they saw both Mr Buchanand Mr Ramsay attacking Mr Fleming on Mackenzie Drive. Ms Bennettacknowledged that the Judge was mistaken to say Mr Preston-Marshall also witnessedkicking.[25] Ms Bennett submitted that, even though the Judge erred in saying Mr Preston-Marshall witnessed kicking, it was not an error which would amount to a miscarriageof justice because:(a) both defendants attacked Mr Fleming, with multiple punches thrown;(b) the neighbour's evidence of seeing kicking was detailed and whenchallenged she said she was sure. An appellate court should not intervenewhen it comes to observation of witnesses that the trial Judge had theopportunity to scrutinise, especially relating to credibility and reliability;(c) even if there was no finding of fact that either Mr Ramsay or Mr Buchankicked Mr Fleming, Mr Fleming's injuries, as a result of a joint attack,would support a charge of injuring with intent to injure;(d) Mr Fleming's injuries could not be attributed to the more minor altercationat Omahau Crescent; and(e) on all the evidence, the Judge was entitled to reject Mr Buchan'sexplanation that he was not involved in the attack on Mackenzie Drive.[26] Ms Bennett submitted there was no foundation to Mr Ruane's submission thatthe Judge improperly referred to Mr Buchan's police interview when considering MrRamsay's role in the offending. She said the Judge did no more than refer to theinterview to establish Mr Buchan's involvement in the common purpose, not inconnection with Mr Ramsay.[27] Ms Bennett submitted there was no error which led to a miscarriage of justicewhich would warrant overturning the convictions for injuring with intent to injure.Analysis[28] Mr Ramsay and Mr Buchan were convicted of injuring with intent to injure,under s 189(2) Crimes Act. The maximum penalty is five years' imprisonment. Pers 2 Crimes Act, "to injure" means to cause actual bodily harm. As discussed in Adamson Criminal Law:5As to actual bodily harm, all that is necessary is that there should be a hurt orinjury calculated to interfere with the health or comfort of the victim. It neednot be an injury of a permanent character; nor need it amount to what wouldbe considered a grievous bodily harm. The bodily harm may be internal orexternal, it need not be permanent or dangerous. It need not amount tomaiming, disfigurement, or disablement but it must be more than merelytransitory and trifling.[29] As set out by Mr Ruane, the Judge was required to find, beyond reasonabledoubt, that:5 Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [CA2.15.01].(a) there was a common intention to prosecute an unlawful purpose, namelyan assault, and to assist each other in that;(b) injuring with intent to injure was known to be a probable consequence ofthe prosecution of the common purpose;(c) there was an assault carried out by one or other of the appellants;(d) Mr Fleming was injured in this assault (and it was not sufficient to besatisfied that the injuries may have occurred in the earlier incident atOmahau Crescent); and(e) there was an intent to injure (and not merely to fight or assault).[30] Although those elements included what the Police had to prove for Mr Ramsayto be guilty as a party to the offence of injuring with intent to injure, Mr Ramsay wouldalso have been guilty of that offence if the evidence established that he was the personwho actually injured Mr Fleming through hitting and/or kicking him.[31] Although the Judge said that "it matters little where Fleming sustained hisinjuries", the Judge went on to say that, for reasons he developed, he was "satisfiedthat Fleming's injuries, however, were inflicted roadside on Mackenzie Drive".[32] Later in his decision, the Judge said:Aside from the injured the [six] persons the evidence indicates that Flemingwas on the ground at some point back in Mackenzie Drive. His injuries areconsistent with an elevated assault, he lost a tooth, his left eye is blackened.Fleming's evidence is that he was struck by Ramsay.[33] The Judge referred to both Mr Buchan and Mr Ramsay having an intent to geteven after the car was damaged. He decided:Arrival at the scene resulted in an immediate attack on Fleming by both Reidand Buchan. This was never going to be an even contest. Fleming was certain,at that juncture, to get the bash and that was the intent, it happened.[34] The Judge found: abundant evidence attaching to the unfolding evidence to confirm theaffliction [sic] of such injuries and their seriousness was recognised by bothas a probable consequence of the common purpose each knowing it was a realor substantial risk, an injury of real seriousness would occur.[35] Mr Ramsay, through his counsel, accepted the evidence established heassaulted Mr Fleming at that point but sought to characterise this as participating in afist fight. There was ample evidence on which the Judge could have reasonablyconcluded that the assault was not of that nature.[36] Mr Fleming said he had been talking to Ms Lindsay on Mackenzie Drive afterpeople had been hit by the vehicle. He said Ms Lindsay was saying to him that whathappened with the car had not been his fault, that he was giving her a hug and he "justsort of just got attacked". He turned around and saw Mr Ramsay punching him. Itwas around the mouth area. Most of the hits came to his left side and they were"relatively forceful". He said he was rocked and shocked by it, that there were "a lotof hits to the head", that he saw stars and was thrown around. He said that, after thefirst few strikes, he went to the ground, that he remembered trying to crawl away andjust repeatedly still being struck. He remembered Ms Lindsay screaming "just leavehim alone" and jumping on him. He said, after she did this, "they sort of backed off".Mr Fleming ran to the Police station. When cross-examined, Mr Fleming again saidhe had been giving Ms Lindsay a hug when Mr Ramsay ran or walked up and punchedhim. He again referred to his receiving a lot of punches to the head at quite a quickrate and seeing stars.[37] Ms Corlette, who was staying in a holiday house at 299 Mackenzie Drive, waswoken by the commotion at around 2.00 am, got up and looked out her bathroomwindow to see what was happening. She was independent of the people who had beeninvolved in the various altercations that night. She said she heard a lot of shouting,about eight people involved, in what she initially described as a fight. Under cross-examination she described someone being on the ground, someone kicking the personon the ground and other people trying to intervene and stop the fight. She said, whenthis was going on, she also heard yelling "stop it, stop, get away from him". Herevidence as to what she heard was consistent with the evidence of Ms Lindsay as towhat she said when she was trying to protect Mr Fleming.[38] Ms Corlette was clear that she had seen someone kicking the person on theground. She had not seen punches being thrown. She said the kicks were to the body,meaning to the body as a whole. She described the kicking motion as being "like witha full swing, like you would kick a soccer ball".[39] Ms Corlette acknowledged that what she observed happened "about two lampposts away" from where she was watching. She said she could not identify the facesof people involved. She said she "saw a dark figure kicking someone on the ground".She acknowledged that it was night time and dark but said there were street lights onand also car lights. She could not remember which way the car lights were pointing.[40] Ms Corlette's response to what she says she saw was to go outside the housewith her father to make sure it was not going to escalate and to see if they needed tosend for help. When they went outside, the physical fighting had stopped.[41] Reading Ms Corlette's evidence, I consider it could reasonably have beenaccepted by the trial Judge as evidence that, at the time Mr Fleming was on the ground,he was kicked by one of his assailants. The evidence on its own did not identify whothat assailant was.[42] Nicholas Preston-Marshall's evidence was taken before the Registrar beforethe trial. He described himself as a builder and volunteer fire brigade member inTwizel. He had been at the Halloween party earlier in the night. His evidenceindicated he had not been involved physically in the earlier altercations. He had seenMr Fale knock someone out and this person get hit with a car when he was lying onthe ground. He said he rang the Police and went to help the person who was on theground.[43] Mr Preston-Marshall later saw Mr Fleming hanging around and saw "twooccupants of the car sort of had a go at [Mr Fleming]". He said he did not know MrFleming well. He said, at the time, Mr Fleming had just been looking on at what washappening. He said the people in the car had been Mr Ramsay and a person who heknew as Reid. Reid would have been Mr Buchan. He said the car was being drivenby Dan Smith, a sober driver. He said he saw all three exit the vehicle and saw MrFleming being attacked for maybe about 20 seconds, being punched and being hit onthe ground. He said the people hitting Mr Fleming were Mr Ramsay and Mr Buchan.The driver, Mr Smith, was just "standing back".[44] Under cross-examination, it was suggested he was unclear as to whether he hadseen actual contact between the two assailants and Mr Fleming. Mr Preston-Marshallwas clear he had seen punches being thrown.[45] I am satisfied that, on that evidence, there was a reasonable basis on which theJudge in the District Court could conclude that Mr Ramsay injured Mr Fleming withintent to injure him. The evidence would have been sufficient to establish he wasguilty of that offence without the Judge having to accept that either he or Mr Buchanhad kicked Mr Fleming while he was on the ground or that the two of them were actingin concert at the time.[46] The evidence was sufficient to establish that Mr Ramsay had forcefully and ina sustained way inflicted a number of blows to Mr Fleming's head. The blows weresufficient to knock Mr Fleming to the ground and leave him at least dazed. They weresufficient to dislodge a tooth and cause bruising around his face. With the way MrPreston-Marshall described Mr Ramsay getting out of the car and immediately goingto attack Mr Fleming, there was sufficient evidence on which the Judge couldconclude, as he put it, that Mr Ramsay intended to "give Mr Fleming the bash". It wasmuch more than simply wanting to engage in a fight with him. He gave Mr Flemingno opportunity to resist.[47] On that basis, there was no error or miscarriage of justice in Mr Ramsay beingfound guilty of injuring Mr Fleming with intent to injure.[48] I am also satisfied there was a reasonable basis on which the Judge could findthat Mr Buchan and Mr Ramsay were acting in concert with the required knowledgeand intent for them to be guilty as parties to that offending.[49] Mr Fleming described how he got into an altercation with Mr Buchan at theHalloween party. He said he had not liked the way Mr Buchan was talking with hispartner at the time. He intervened and things got a bit heated, at which point he pushedMr Buchan down and went to leave him. He said Mr Buchan punched him in the backof the head, knocking him to the ground. This was not the subject of any charge. Afterthat, Mr Fleming saw Mr Buchan being hit by Mr Fale. He heard about people beinghit by a vehicle. He went back to see what had happened there. He said it was whenhe was back there that he heard Mr Buchan yell out "what are you doing here? Thisis all your fault".[50] It was at that time Mr Fleming said he remembered Ms Lindsay giving him ahug saying "this is not your fault", whereupon he was hit by Mr Ramsay.[51] Mr Fleming did not identify Mr Buchan as attacking him at that point but saidhe was unsure whether that had happened. Mr Fleming's head was towards theground. Mr Fleming said he was trying to crawl away and get to safety because hewas being "struck repeatedly". Mr Fleming said he did not see Mr Buchan during thetime he was being attached but he saw him "just prior to right there".[52] It was at Chelsey Lousley's house that the Halloween party was held. She hadgone to bed but got up when she heard a commotion outside the house. At that stage,she saw Mr Ramsay and Mr Fale fighting. She saw Mr Pouhila and Mr Fale walkdown the road. Mr Buchan and Mr Ramsay also went off down Omahau Crescent.She ended up going to the same place. She heard a car pull up and Mr Ramsay, MrSmith and Mr Buchan entered the property. She described them as being very angry,yelling, trying to find Mr Pouhila. Mr Pouhila was in the back bedroom of the housethey were in. Mr Buchan and Mr Ramsay left the house. Ms Lousley heard a lot ofglass smashing. She walked outside to find a car was all smashed up and Mr Buchanand Mr Ramsay were "off running down the driveway".[53] Summer-Rae Lousley described seeing the initial fighting outside the addressof the Halloween party. She said she had seen Mr Fleming on the ground there andthen she saw Mr Fale hit Mr Buchan. She also saw a one-on-one between Mr Ramsayand Mr Fale. She said that, after Mr Fale ran off, Mr Ramsay, Mr Buchan and MrSmith got into a car. Mr Smith was driving. She said the car "just shot down Omahautowards Mackenzie". She said she then went back into the house. She said MrRamsay, Mr Buchan and Mr Smith came back to the house a short time later, camebarging in and they were angry. She said they left again and about 30 seconds latershe could hear the windows of a car being smashed.[54] Mr Fale's evidence was taken before the Registrar on 28 January 2019. Hesaid he saw Mr Fleming being hit at the party and that he jumped in to try and protecthim. He said the person tried to fight back and attack him, and he ran down OmahauDrive. His cousin, Mr Pouhila, came past in a car and picked him up. Later he saidhe saw three people jump out of a car. The only one he knew was Mr Ramsay. Hesaid Mr Ramsay was chasing him on the road. Mr Pouhila ended up hiding in a houseon Rata Road. He said the three people in the car had been chasing him after theHalloween party.[55] In his evidence, Mr Smith said he was the sober driver for "the boys", referringto Mr Ramsay and Mr Buchan. He said he had known Mr Ramsay for his whole lifeand Mr Buchan for five or six years. He said that, during the Halloween party, he hadbeen "just cruising around", just waiting for the boys if they needed a ride anywhere,"so mainly outside". Mr Smith said that, after he saw an altercation between MrFleming and Mr Ramsay, Mr Fleming disappeared. He said that, after he had been onOmahau Drive, "we went back to the party". Someone came down and said they hadbeen hit by a car and he, Mr Ramsay and Mr Buchan had "jumped in the Subaru andtore off down the street to see how our mates were". He said, when they got to thescene, "it was just chaos". He said "we were just – adrenalin was pumping and wewent to look for the Tongans". He said that he, Mr Buchan and Mr Ramsay went andsaw what had happened. There were people on the ground. He said he and these twomen were making sure that "the boys were alright". Mr Smith said that he had jumpedback in the car and waited for the boys. He said the two Tongans were obviouslyhiding. When asked as to where Mr Buchan and Mr Ramsay had gone, he said theyhad obviously smashed a window in the car and then came back in and just said"drive".[56] Later, Smith saw Mr Fleming standing by himself. He heard Mr Fleming say"I didn't cause this" or "it's not my fault". Mr Smith said Mr Fleming was juststanding there not doing anything.[57] Initially, when giving evidence, Mr Smith said nothing about either Mr Buchanor Mr Ramsay assaulting Mr Fleming at that point. He was then referred to a Policestatement he made on 13 November 2017. He confirmed that in his statement he hadsaid "Chris [Ramsay] and Reid [Buchan] grabbed Sam [Fleming] and dragged himaway and they began fighting again". Mr Smith accepted that was what he told thePolice and that was what happened. He also confirmed he had told the Police that twogirls had tried to pull them apart as they were rolling around on the ground.[58] The Judge was not impressed with Mr Smith as a witness. Because of theadvantage he had in hearing Mr Smith give evidence, the assessment the Judge madeas to Mr Smith's credibility has to be given weight on an appeal. The assessment theJudge made however appears to have been entirely reasonable, given the record of MrSmith's evidence. Mr Smith gave a version of what happened between Mr Ramsayand Mr Buchan at the point where, as he described it, they grabbed Mr Fleming anddragged him away. He described what then happened between them all as being afight rather than, at the very least, the assault which it undoubtedly was. Henevertheless said that Mr Fleming had been "whinging about he didn't start this andit's not his fault, and it's like, mate, so the boys took him away".[59] In his decision, the Judge referred to this aspect of Mr Smith's evidence beinginconsistent with his earlier statement to the Police. He determined Mr Smith wasdeliberately being unhelpful and, for that reason, had allowed the prosecution to referhim to the statement he made to the Police.[60] Despite Mr Smith's apparent tailoring of his evidence to benefit Mr Ramsayand Mr Buchan, on such evidence as he did give, Mr Buchan and Mr Ramsay had beenjointly involved in an assault on Mr Fleming.[61] Ms Lindsay had been at the Halloween party. She knew both Mr Buchan andMr Ramsay well. She said she and Mr Preston-Marshall had been helping someonewho had been hit by a car. She said she had been hugging Mr Fleming. She felt aknock and let him go. She then saw Mr Buchan and Mr Ramsay running towards MrFleming. At some point after that, she jumped on Mr Fleming to cover him so no onecould touch him. She mentioned a number of people being around as she covered MrFleming on the ground. The people around included Mr Ramsay and Mr Buchan.[62] Constable Galbraith met with Mr Buchan at the Twizel Police Station at 2.00pm on 13 November 2018, approximately 33 hours after the events with which he wascharged. The Police took photographs of his hands. The photographs show whatappear to be bruises or discolouring near or around the knuckles of his right hand.[63] The constable who photographed Mr Buchan's hand confirmed that the middleknuckle on Mr Buchan's right hand appeared to be swollen in contrast to the otherhand when he took the photograph.[64] When Mr Buchan was interviewed by the Police, he denied he had beeninvolved in any assault of Mr Fleming after a person or people had been hit by the car.Mr Buchan did not give evidence.[65] After hearing all the evidence and hearing the DVD interview of Mr Buchan,the Judge said he rejected "out of hand Buchan's claim at interview he was notinvolved". He referred to the evidence of several witnesses as to the way Mr Buchanhad been involved in acting together with Mr Ramsay at various points after theHalloween party, after an incident had occurred with people being hit by a car andwhen Mr Fleming was punched on the ground.[66] Independent of the statements made by Mr Buchan to the Police when he wasinterviewed, there was ample evidence on which the Judge could reasonably find MrRamsay and Mr Buchan were acting in concert when there was an attack on MrFleming on Mackenzie Drive. I refer in particular to the evidence of Mr Preston-Marshall and Mr Smith as to how both Mr Ramsay and Mr Buchan were involved inat least an assault of Mr Fleming.[67] The evidence from those witnesses, which provided a reasonable basis for theJudge to conclude that Mr Ramsay had injured Mr Fleming with intent to injure and,in doing this, had been acting in concert with Mr Buchan, were sufficient to prove thatMr Buchan was guilty as a party to the offending by Mr Ramsay.[68] There was further evidence to prove, as against Mr Buchan, that he was a partyto this offending through what he said to the Police when he was interviewed. MrBuchan did try and distance himself from the damage which was done to the car theTongans had been in and also from the way Mr Fleming was assaulted when he wason the ground, but his denials of that offending did not carry any weight with theJudge.[69] Mr Buchan acknowledged that, at the Halloween party, after he said MrFleming had given him "a whack in the chops", Mr Buchan just got up and gave him"three good ones". He talked about going after "these bloody Tongans", of being inthe car with Mr Ramsay and of going to look for the Tongans. He said they had notfound the Tongans at the house they had gone into but said that, if they had been there"it would have been a different story you know". He said, if "we" had seen them, "itprobably would have been another, another scuffle". The Judge would justifiably haveconsidered this to be an understatement as to what would have occurred.[70] After this, when Mr Smith had driven them to the point on Mackenzie Drivewhere the assault on Mr Fleming occurred, Mr Buchan said that Mr Fleming hadarrived at the scene "out of the shadows". He said that Mr Fleming had said somethinglike "oh I'm just seeing that my mates are alright" and Mr Buchan was like "fuck offmate, if you hadn't of started all that none of this shit would have happened".[71] Mr Buchan agreed that, at that point, he was not happy with Mr Fleming, therewas "a scuffle" and Mr Ramsay was there. In responding to the Police, Mr Buchansaid it would probably have been Mr Fleming's own fault that he lost a tooth.[72] The Judge did say that Mr Preston-Marshall had seen Fleming "gettingpunched and kicked on the ground". In that, the Judge was mistaken. Mr Preston-Marshall had referred to seeing Mr Fleming just being punched. I do not consider thatmistake was crucial to the Judge's ultimate decision.[73] The Judge concluded:[36] The police, of course, are unable to identify the specific individualresponsible for the kicking but they do not have to. Buchan was quitedismissive of the fact Fleming was injured, "He probably deserved it," he said.Thus in his mind the purpose has been accomplished in relation to Fleming,he has been given a hiding. The long-term focus on violently offendingagainst Fleming and the Tongan shines through.[37] I have no hesitation concluding there was a common intent, an intentto assault both [Fale], the Tongan and Fleming the complainant. Both hadearlier been engaged physically with Buchan. The pursuit of the Tonganinvolves movement down the street and travel with the help of the sober driverto another address. Violence, given the behaviour of both and theacknowledgement of Buchan it would have been a different story had theybeen apprehended is obviously an ultimate intention.[38] Damage involving the car was, I am satisfied, effected by bothdefendants thus perpetuating an intent to get even. Arrival at the sceneresulted in an immediate attack on Fleming by both Reid and Buchan. Thiswas never going to be an even contest, Fleming was certain, at that juncture,to get the bash and that was the intent, it happened.[39] I find abundant evidence attaching to the unfolding evidence toconfirm the affliction of such injuries and their seriousness was recognised byboth as a probable consequence of the common purpose each knowing it wasa real or substantial risk, an injury of real seriousness would occur.[74] I consider there was a reasonable basis, on the evidence which I have referredto, for the Judge to conclude that Mr Ramsay and Mr Buchan had been jointly involvedin an attack on Mr Fleming intending to help each other, knowing that injury withintent to injure was a probable consequence of what they were jointly setting out todo. What eventuated was not in the nature of a fight. There were a number of blowsto the head. Those blows injured Mr Fleming and they must have been inflicted withintent to injure him in the way that occurred.[75] Accordingly, I cannot find there was any error in the way the Judge found bothappellants had been proved guilty of the offending they were charged with.Appeals against sentence[76] Both Mr Ramsay and Mr Buchan appealed against their sentences. Both weresentenced to community detention for four months with community work of 120 hoursand with them having to make an emotional harm reparation payment, each for$877.50. Mr Ruane accepted that, if Mr Ramsay remained convicted of injuring withintent to injure, that penalty was within range. Ms Beazley said that Mr Buchan hadalready completed part of his sentence.[77] I do not consider there is any basis on which it can be said the sentence imposedon either man was manifestly excessive.[78] The appellants have not established that a miscarriage of justice has occurred.[79] The appeals from Mr Buchan and Mr Ramsay against both conviction andsentence are dismissed.Solicitor:K C Beazley, Barrister, TimaruC M Ruane, Barrister, ChristchurchGresson Dorman, Timaru