BEATTY v POLICE [2016] NZHC 190

BEATTY v POLICE [2016] NZHC 190 [17 February 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2015-404-225[2016] NZHC 190BETWEEN TONY BEATTYAppellantAND NEW ZEALAND POLICERespondentHearing: 4 February 2016Counsel: M L Wotherspoon for AppellantM J Hammer for RespondentJudgment: 17 February 2016JUDGMENT OF DAVISON JThis judgment was delivered by me on 17 February 2016 at 5:00 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel: M L Wotherspoon (Auckland) for AppellantMeredith Connell (Auckland) for RespondentIntroduction[1] The appellant, Mr Beatty, was found guilty on one charge of assault;1 one charge of threatening to injure with intent to intimidate;2 and one charge of possession of an offensive weapon3 before Judge Cunningham in the District Court at Auckland.[2] He now appeals against his convictions or, in the alternative, applies for discharges without conviction.Background[3] Mr Beatty and his family live in a rented property in Hillsborough.[4] On 12 June 2015, the owner of the neighbouring property arranged the survey of an area in front of the two houses.4 The result was that a piece of land that the Beatty family customarily used appeared from the survey pegs to belong to the neighbouring property.[5] On 13 June 2015, a contractor, Mr O'Brien, and his staff arrived at the address on behalf of the owner of the neighbouring property to erect a fence along the new boundary line in front of the two houses. The fence to be built would result in a loss of useable space at the rented property at which the Beatty family lived.[6] It is not in dispute that the Beatty family was not informed about the plans to construct a new fence.[7] It is agreed that when Mr O'Brien and his staff arrived, Mrs Beatty, first, came outside the house. The allegation against Mr Beatty is that soon afterward, he too came out of the house and became engaged in a heated discussion with Mr O'Brien, during which he struck Mr O'Brien in the face using his fist. It is clear1 Summary Offences Act 1981, s 9.2 Summary Offences Act 1981, s 21(1)(A).3 Crimes Act 1961, s 202A(4)(b).4 I note that Mr O'Brien was also present when the surveyors were at attendance to mark the sitefor the fence accordingly.from the evidence that a physical altercation between the two men followed, and injuries were sustained by both.[8] It is alleged that Mr Beatty then retreated and returned inside the house, and shortly thereafter returned with a wooden baseball bat in his hand. Although Mr Beatty did not use the bat to attack or apply force to Mr O'Brien, he is said to have chased Mr O'Brien with the bat whilst making threats to kill him.District Court decision[9] Before setting out the reasons for her decision, the Judge noted the focus of the case was on the allegations against Mr Beatty in relation to the charges he faced, noting that it was neither a trial of Mr O'Brien's conduct nor that of the Police.[10] The Judge nevertheless accepted that Mr and Mrs Beatty, and their son, Irvine, felt very aggrieved about how the Police had dealt with their complaints on the day of the incident, and that this meant some of the evidence given at the hearing was unconnected to the subject matter of the trial. She explained:5It comes down to the fact that they feel their version of events was not believed by the two police officers.[11] The Judge further noted:[69] a good deal of what Mr and Mrs Beatty told me in relation to Mr O'Brien's actions were not put to Mr O'Brien in cross-examination[70] The most serious allegation in relation to the charges before me wasthe one made by Mrs Beatty that Mr O'Brien's injury was self-inflicted.That amounts to accusing Mr O'Brien of deliberately setting Mr Beatty upfor a criminal prosecution[71] Mr Beatty gave evidence of a statement Mr O'Brien said that arelikely relevant to the issue of self-defence, for example, Mr O'Brienallegedly telling Mrs Beatty he was going to murder her. A statement what (sic) was not part of Mrs Beatty's evidence. This was not put to Mr O'Brien.[72] Mr Beatty also told me that Mr O'Brien threatened to kill him. This was not put to Mr O'Brien. However, Mrs Beatty did not corroborate this5 Police v Beatty [2015] NZDC 9905 at [64].[12] The Judge also acknowledged inconsistencies in the evidence given by the Beatty family which, in her assessment, cast doubt on the credibility of all the defence witnesses.[13] She also referred to a video recording which covered part of, but not the entire, incident. She was of the view that it was not helpful in assessing whether the charges against Mr Beatty were proven to the requisite standard, because it did not depict the entire incident from start to finish and did not actually show a punch connecting.6[14] In reaching her verdict decision, the Judge clearly preferred the version ofevents as described by Mr O'Brien. She said:7At no time when he was giving his evidence did Mr O'Brien do other thantell me what he believed happened. Unlike the Beatty family, he did not embellish or try to exaggerate what occurred.[15] The Judge's findings were as follows. She was satisfied that Mr Beatty madethe first strike and that this either caused Mr O'Brien's sunglasses to break which, inturn caused the injury, or the blow itself caused the injury.[16] She accepted Mr O'Brien's evidence that he was struck in the face and thathe was not expecting it or did not see it coming. She did not accept Mr O'Brien'sinjuries were self-inflicted.[17] The Judge rejected Mr Beatty's evidence that his actions were in the form of self-defence and in response to an attack or a perceived attack on him and/or hisfamily by Mr O'Brien. She explained:8That evidence came from Mr Beatty alone, it was not supported by any otherwitness nor does it make any sense. Mr O'Brien was a contractor there to do a job, to erect a fence. He did not know the Beatty family. He had no personal stake in the outcome apart from remuneration for building the fence. That he would threaten their lives seemed to me to be farfetched.6 At [74].7 At [81].8 At [78].[18] The Judge was satisfied that Mr Beatty had possession of an offensive weapon, namely, the bat. Although the bat itself was not necessarily an offensiveweapon, in the Judge's assessment, the way in which it was acquired and the way itwas held meant that the elements of the charge were met. The Judge relied on theevidence of Mr O'Brien which was that he was chased by Mr Beatty around a parked car with a bat in his hand in what was an attempt to get to Mr O'Brien. This wascorroborated by the evidence of two police officers who, at the scene, watched an electronic recording that recorded this (it is common ground that the relevant video recording was never sent to, or at least received by, the Police).[19] On the threatening to injure charge, the Judge was satisfied that threats to kill Mr O'Brien were made by the appellant in the manner described by Mr O'Brien.The Judge accepted that, at the relevant time and in the circumstances, such a threatwould have been taken seriously by Mr O'Brien.[20] The Judge declined an application under s 106 of the Sentencing Act 2002 to discharge Mr Beatty without conviction, finding there was no evidence as to the impact the convictions would have on his future ability to obtain employment as a mechanical engineering technician. The only evidence was that the appellant had applied for a job at the Hamilton City Council and that he was required to declare any convictions.[21] The Judge found that the gravity of the offending was not out of all proportion to the consequences of the offending, adding:9Were it just the one assault on Mr O'Brien I would have found that thethreshold test was met, but not to be outdone Mr Beatty then went inside, retrieved a baseball bat and my assessment of the evidence is that he was holding it in a threatening manner including threatening to kill Mr O'Brienat the same time.9 Police v Beatty [2015] NZDC 13889 at [12].SubmissionsFor the appellant[22] In Mr Wotherspoon's submission, the Judge erroneously made the findingsthat the appellant was the person who threw the first punch and that it was this punchwhich caused Mr O'Brien bodily injury (his submission being that the injuries Mr O'Brien sustained were as a result of a scuffle between the parties rather than adeliberate strike on the part of Mr Beatty). He submitted that, in the electronicfootage, there is no blood visible on Mr O'Brien's forehead and Mr O'Brien can be seen to be wearing sunglasses which are intact and being worn on his face in a conventional manner. This submission was made on the assumption that the videoed footage began recording after the moment Mr Beatty was said to have thrown the first punch, and was therefore submitted to be conclusive evidence that Mr O'Brien'saccount of having been punched in the face by Mr Beatty could not be correct.[23] Mr Wotherspoon submitted that, in the circumstances, there was an arguable defence under ss 53 and 56 of the Crimes Act 1961 which the Judge failed to consider.[24] Mr Wotherspoon accepted the elements of the charge of possession of an offensive weapon were met but said there was, nevertheless, proof on the balance of probabilities that Mr Beatty was in possession of the bat with the intention of defending himself and/or his family. On the evidence of one Constable, Mr Beatty did not swing the bat in anger. It was Mr Wotherspoon's submission that Mr Beatty did not wish to strike Mr O'Brien with the bat; it was simply that the bat was held by him in a striking position.[25] On the charges of assault and threatening behaviour, Mr Wotherspoon said the Judge wrongly dismissed the issue of self-defence, particularly since there was medical evidence stating that Mr Beatty had suffered injuries consistent with an assault on him.[26] In relation to all the charges, Mr Wotherspoon submitted that the Judge failed to comply with the tripartite direction in relation to the defendant giving or calling evidence as required by s 92 of the Evidence Act 2006.[27] Further, Mr Wotherspoon submitted that the Judge was wrong to observe that Mr O'Brien had little or no motive to threaten or assault Mr Beatty. In doing so, the Judge had reversed the onus of proof, and ignored the presumption of innocence. In any event, and by the same token, said Mr Wotherspoon, the appellant himself had no intent on assaulting a man he did not know.[28] Mr Wotherspoon pointed to Mr O'Brien's previous convictions (which include charges of common assault, giving false details, use of documents for pecuniary advantage, and receiving stolen property) to challenge Mr O'Brien'sveracity and credibility as a witness generally. Mr O'Brien's conviction history wasnot before the Judge.[29] Mr Wotherspoon also submitted that the Judge was wrong to refuse to grant the applications for discharge without conviction. In his submission, the convictions all arose from the one incident, which together, paint a picture of an unreasonable, violent and dangerous man who will be perceived as a threat to future prospective employers and immigration authorities.For the respondent[30] Ms Hammer, for the respondent, submitted the Judge had made no errors in her assessment of the evidence. The Judge was entitled to find that there were inconsistencies in the statements given by the witnesses for the defence, and it was open to her to prefer the evidence of Mr O'Brien, Ms Hammer said.[31] Having accepted Mr O'Brien's evidence, it could reasonably be inferred and concluded that it was Mr Beatty who struck Mr O'Brien using his fist, particularly given the proximity between the two men who were described as standing in a chest- to-chest position at the time.[32] In Ms Hammer's submission, there was no reversal of the onus of proof.Rather, the Judge made an assessment of the evidence as she was entitled and required to do.[33] It was also open to the Judge to conclude there was no credible narrative of self-defence, Ms Hammer said, and moreover, Mr O'Brien was unlikely to be anaggressor in a context where he had no personal stake in a land dispute relating to the neighbouring properties.[34] The Judge did not fail to give a tripartite direction, in Ms Hammer's submission. Furthermore, that Mr O'Brien was not cross-examined on his previous convictions did not affect the Judge's decision in a material way.[35] Finally, Ms Hammer submitted the Judge was right to refuse to grant Mr Beatty's application for discharges without conviction. No sufficient evidence was put before the Court setting out how the consequences of his convictions would be out of all proportion to the gravity of the offending (which, in her submission, they are not).Approach to appealsAppeals against conviction[36] Section 229 of the Criminal Procedure Act 2011 (the Act) provides a convicted person with a right of appeal against conviction. An appeal Court must allow a first appeal against conviction if satisfied that in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred.10 Section 232(4) of the Act defines the reference"miscarriage of justice" as meaning: any error, irregularity, or occurrence in, or in relation to, or affecting thetrial that –(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial, or a trial that was a nullity.10 Criminal Procedure Act 2011, s 232(2)(b).[37] Not every error will result in a miscarriage of justice. In Matenga v R, theSupreme Court stated "a miscarriage is more than an inconsequential or immaterial mistake or irregularity".11[38] A "real risk" exists when "there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.12[39] Not every departure from good practice will amount to an unfair trial. Theerrors or irregularities must be "so gross, or so persistent, or so prejudicial, or soirremediable" that the Court must quash the conviction.13[40] An appeal against conviction proceeds by way of rehearing. I am, therefore, required carefully to consider all matters which were before the Judge, but ultimately I must reach my own decision on the merits. The weight I give to the evidence is a matter for my judgement.[41] I observe that, generally an appellate Court will defer to findings of credibility made by the court below where that court has enjoyed the advantage of seeing and hearing the witnesses and the findings cannot be shown to be plainly wrong.14Appeal against refusal to discharge without conviction[42] Section 106 of the Sentencing Act gives the Court a discretion to discharge an offender without conviction. This discretion is subject to the test set out in s 107, which provides:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.11 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].12 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].13 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78] and [28].14 See R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [76], [83], [84]. Austin, Nichols & CoInc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5], [13].[43] In (CA447/2012) v R, the Court of Appeal stated the s 107 test as:15[W]hen considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exerciseits residual discretion to grant a discharge [44] In A (CA747/10) v R, the Court of Appeal concisely set out the three-step approach to s 107 assessments:16(a) Identify the gravity of the offending by reference to the particular facts of the case;(b) Identify the direct and indirect consequences of a conviction; and(c) Determine whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of offending.[45] The normal appellate principles in Austin, Nichols & Co Inc v Stichting Lodestar applies to the s 107 analysis.17[46] When the s 107 test is met, the Court then has a discretionary power to discharge under s 106, however when the test is satisfied this will usually result in a discharge.AnalysisCommon assault charge[47] As a starting point, I turn to the elements of the charge which are that:(a) Mr Beatty applied physical force to Mr O'Brien;(b) the application of force was deliberate; and15 Z (CA447/2012) v R [2012] NZCA 599 at [27].16 A (CA747/10) v R [2011] NZCA 328.17 Austin, Nichols & Co Inc v Stichting Lodestar, above n 14.(c) Mr O'Brien did not consent and the appellant did not believe thatthere was consent.[48] I agree with the Judge's observation that little can be taken from the videorecording when viewing it with the naked eye at normal speed. However, when reduced to a series of still images, these images clearly show that it was Mr Beatty who initiated the physical exchange and struck, or endeavoured to strike, the first blow.[49] I note there was conflicting evidence at trial as to what phase of the incident the video recording captured since it did not depict the entire incident from start tofinish. As I understand it, the Judge's view was that the recorded events followed the initial strike by Mr Beatty to Mr O'Brien's head. It was Mr Wotherspoon's submission before me at the hearing that the Judge's finding as to the sequence of events does not match the video footage because, in the recording, Mr O'Brien'ssunglasses were intact and being worn on his face, and there was no blood visible onor around his forehead. In Mr Wotherspoon's submission, the videoed incident musttherefore have captured the time of the first blow which, he submitted, had in fact been thrown by Mr O'Brien (as evidenced by Mr Beatty being shown in the video falling backwards onto the ground).[50] However, having carefully examined the video, and in particular, by capturing a series of still shots or images, I am satisfied that the video recording does in fact capture the moment in which Mr O'Brien was struck by Mr Beatty. The stillimages show:(a) Mr Beatty is the first to initiate physical contact. He has a clenched right hand fist, and with a round arm swing, clearly directs a punchtowards Mr O'Brien. Mr O'Brien is then shown to be in a position where he has either been knocked off balance or has lost his footing, consistent with him reeling from a punch.(b) In these images, Mr O'Brien is wearing his sunglasses on his face.The injuries Mr O'Brien suffered to the bridge of his nose, as shownin other photographic evidence, are entirely consistent with him having been struck in the face whilst wearing his sunglasses.(c) Initially, Mrs Beatty can be seen in the left corner of the frame moving a rubbish bin. She initially appears preoccupied but immediately reacts to what obviously develops into a physicalencounter between Mr Beatty and Mr O'Brien. She does this by either attempting to block Mr O'Brien from what was perceived to bean impending attack on Mr Beatty or by jointly assaulting Mr O'Brien. Her actions support the view that what is shown in these images is the moment when the physical encounter between the parties occurred for the first time. At the time he made the recording on his Smartphone, Mr Irvine Beatty can be heard yelling(presumably at Mr O'Brien) "don't touch him" and "leave him alone"which is, again, consistent with a physical altercation developing.[51] The video recording also shows that Mr O'Brien's reaction to Mr Beattythrowing a punch was, first, to use an open hand using his left arm, then to also throw a clenched right fist in what was either a defensive action or a counterpunch reaction.[52] While it is not clear from the footage whether or not Mr O'Brien's clenchedright fist contacted Mr Beatty in the face or head, the video does show the very close proximity between the two men immediately prior to Mr Beatty losing his footing and falling to the ground. There is therefore a real possibility that Mr Beatty was himself struck by Mr O'Brien almost immediately following his punch directed at Mr O'Brien. In terms of the sequence and circumstances, I am satisfied that any punch by Mr O'Brien directed at Mr Beatty was a defensive action, and a reasonableuse of force to defend himself from Mr Beatty's punch and aggression.[53] Relevantly, the video recording also demonstrates that the incident did notunfold in the manner described by Mr O'Brien, whose evidence the learned Judge accepted as both reliable and credible. For example, Mr O'Brien said he was struck unexpectedly by a punch that could have only been delivered by Mr Beatty.However, the video clearly shows the two men standing in a face-to-face positionwhich is inconsistent with Mr O'Brien's account that the assault on him was surprising or one that he did not expect.[54] Mr O'Brien then explained in evidence that, after staggering or reeling from the punch, he responded to Mr Beatty's assault by pushing him and then Mrs Beattyonto the ground. He was clear in his evidence that this was a push, not a punch. Again, his account is not borne out by the images captured from the video which show Mr Beatty falling to the ground as a direct consequence of a defensive or responsive application of force by Mr O'Brien when using a closed fist.[55] Accordingly, the video recording casts doubt on the reliability and credibilityof Mr O'Brien generally in describing not only the punch he received from Mr Beatty but also his actions that followed in response to Mr Beatty's aggression. It directly confronts Mr O'Brien's denial of having struck Mr Beatty to his face or kicking him while he was on the ground, despite medical evidence that is cogent and compelling18 to confirm Mr Beatty did in fact receive injuries of the kind and there being no other explanation for those injuries other than that they were caused by Mr O'Brien, and in the manner described by Mr Beatty.[56] Notwithstanding my abovementioned comments, my conclusion is that theJudge's overall finding on the common assault charge was not made in error. In light of all the circumstances, I accept that Mr Beatty without warning threw the first punch, and that this was deliberate. The issue of consent is not relevant in this case.[57] I briefly note that, having the advantage of seeing and hearing the witnesses,the Judge was entitled to cast doubt on the credibility of the defence's version(s) ofevents.19 The witnesses' version(s) of events for the defence are as follows:18 I note that it was put to Mr Beatty in cross-examination that the medical documentation was not genuine however this point did not appear to be taken any further by counsel and/or the Judge.19 It is established that, generally, an appellate court will defer to findings of credibility made by the Court below where that court has enjoyed the advantage of seeing and hearing the witnesses. See R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [76], [83], [84] and Austin, Nichols & Co Inc v Stichting Lodestar, above n 14, at [5], [13].(a) Mr Irvine Beatty said he was standing next to his mother, Mrs Beatty,at the time Mr O'Brien and his employees attempted to trespass ontothe property. He said Mrs Beatty was telling Mr O'Brien not to entertheir property and Mr O'Brien's response was to push Mrs Beattythree or four times and to continue trespassing onto the property. He said his father, the appellant, came out of the house after having heard Mrs Beatty shouting. The appellant then told Mr O'Brien to leave.He refused, and then picked up a rubbish bin and swung it at Mr and Mrs Beatty. That is when, Mr Irvine Beatty said, he picked up his Smartphone and began to video record what then happened. He saidhe saw Mr O'Brien punch his father at least twice in his jaw. Mr O'Brien then took a swing at him, missed, and the blow hit his mother.(b) In his evidence, Mr Beatty said he did not hit Mr O'Brien at anypoint. He said that he was inside the house when he overheard Mr O'Brien saying words to the effect, "I'm going to beat you up"; "I'm gonna take all this land from you"; "I'm gonna murder you"; and"this is my property you get out from here". As he stepped outside of the house, he saw Mr O'Brien pushing his wife; grabbing the rubbish bin and placing it onto their property. Mrs Beatty then took the rubbish bin and returned it to where it was initially located. The appellant said he then stood in between the rubbish bin and Mr O'Brien. Having crossed the boundary line, Mr O'Brien wasstanding face-to-face with the appellant. He said Mr O'Brien bumpedhim with his chest, pushed him away and punched him in his mouth area. He said the video recording captured the fourth and most forceful blow delivered by Mr O'Brien. Having been knocked to the ground, Mr O'Brien continued to attack him, directing kicks about 12 or 15 times to his right foot. He said he lay unconscious for approximately 10 minutes then recovered and went inside the house to retrieve his baseball bat.(c) Mrs Beatty said she was on the footpath when Mr O'Brien arrived andentered the rented property in an aggressive manner. She said to him,"don't enter the property, my landlord is going to come". Mr O'Brienpushed her and continued to walk in the direction of the rubbish bins,saying "this is not your property". Then he uplifted two rubbish bins and threw them onto the ground. Mrs Beatty then lifted them back up and went inside to call her husband, telling him to contact the Police. They both then came out of the house. She tried to telephone the property manager and the landlord but she was unable to contact either of them, then she telephoned the Police. She said she saw Mr O'Brien standing chest-to-chest with Mr Beatty. She heard Mr O'Brien say clearly, "you're not the owner, get out from my property, this is my property I will destroy your house andeverything." Mrs Beatty said Mr O'Brien first started pushing Mr Beatty, then punching him with both hands, many times, and knocking him to the ground. She said Mr Beatty did not attempt to hitMr O'Brien. Mrs Beatty herself then tried to push Mr O'Brien away; but he punched her and she was also knocked to the ground. Her son then ran to her and helped her up. During this time, Mr Beatty went back inside the house. She said that she did not see Mr Beatty come out of the house for the second time, as she was speaking with the Police on the telephone and being chased by Mr O'Brien.[58] I agree with the Judge's finding that this evidence was not necessarily consistent and, at times, conflicting, which meant there was not a coherent version of events for the defence. For example:(a) Mr Beatty said repeatedly that Mr O'Brien made threats to kill him and/or his family but this was not corroborated by Mrs Beatty or Mr Irvine Beatty.(b) Mr Beatty said that he had said nothing before Mr O'Brien struckhim, but Mrs Beatty's evidence was that her husband was exchangingwords with Mr O'Brien immediately prior to their physical exchange.(c) Mr Beatty said he came out of the house because he heard a commotion outside. Mrs Beatty said she entered the house to tell Mr Beatty to come out.(d) Mrs Beatty said she tried to push Mr O'Brien away after he attacked Mr Beatty, the result of which was that Mr O'Brien punched her andknocked her to the ground. Her son then ran to help her up. Mr Irvine Beatty said Mr O'Brien tried to take a swing at him, missed, but hit his mother.[59] Finally, I address the issue of self-defence and note that while Mr O'Brien'sdefensive action to the punch from Mr Beatty was entirely justifiable as an act of self-defence, the force being proportionate and reasonable in the circumstances, any further violence or use of force on Mr Beatty while he was on the ground would certainly not be justifiable as self defence (which is strengthened by photographic evidence of the injuries that Mr Beatty sustained and the medical attention required for these injuries).20 However, the learned Judge correctly decided that the proper inquiry to be undertaken required a focus on the allegations contained in the charges against Mr Beatty, and that it was neither appropriate nor necessary in the resolution of those charges to determine responsibility for Mr Beatty's injuries.[60] I agree with the Judge's finding that there was not a credible or plausiblenarrative of self-defence in the circumstances. As I have found, Mr Beatty threw the first punch. Therefore, to qualify as a justifiable act of self-defence this first punch must have been thrown as a pre-emptive strike, in response to the threats allegedlymade by Mr O'Brien (by allegedly using words to the effect that he was going to kill/ beat the appellant and/or his family) and which he believed to be true.[61] Mr Beatty's evidence suggests that he did not actually believe there was in fact any imminent force that needed to be resisted or prevented. It was more that he20 According to medical reports, the injuries sustained by Mr Beatty include loosened teeth and lacerations adjacent to injured teeth; a broken right foot; a fracture to the tail bone and a dislocated toe. Mr Beatty said he has difficulty in breathing and suffers from bleeding teeth and gums. Mrs Beatty said she suffered injuries to her head and body causing her trauma, headache and insomnia.felt annoyed about what Mr O'Brien was saying (if he did, in fact, say words to thateffect):Q. Mr Beatty, Mr O'Brien he's a builder. He's, he, he's there to erect the fence. He's not there to murder you. Would you accept that?A. Absolutely not.Q. You think he's there to murder you?A. He behaved in an unprofessional manner.[62] And again:Q. Mr O'Brien's not trying to take land away from you because you don't even own it do you?A. I don't own it.Q. He's not trying to take land away from you, it's not a personal thing.A. He should have behaved in a polite manner.[63] Indeed, it is one thing to say Mr O'Brien's conduct was impolite and/or unprofessional but it is quite a different allegation to say that he believed his conduct to be threatening in a manner provided for in s 48 of the Crimes Act 1961.21[64] Turning to the ss 53 and 56 defences, Mr Wotherspoon did not make submissions on the applicability of these defences at the hearing but I address them nevertheless. The sections provide:53 Defence of movable property with claim of right(1) Every one in peaceable possession of any movable thing under a claim of right, and every one acting under his or her authority, is protected from criminal responsibility for defending his or her possession by the use of reasonable force, even against a person entitled by law to possession, if he or she does not strike or do bodily harm to the other person.(2) [Repealed]21 Every one is justified in using, in the defence of himself or herself or another, such force as,in the circumstances as he or she believes them to be, it is reasonable to use.56 Defence of land or building(1) Every one in peaceable possession of any land or building, and every one lawfully assisting him or her or acting by his or her authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him or her therefrom, if he or she does not strike or do bodily harm to that person.(2) [Repealed][65] In my view, the Judge's failure to consider these defences has not resulted ina miscarriage of justice. First, the applicability of both sections is limited to circumstances where the person claiming the defence "does not strike or do bodilyharm to the other person". As I have already stated, Mr Beatty struck Mr O'Brien and the injuries sustained by Mr O'Brien were more than transient or trifling.[66] Secondly, I am not satisfied the force used by Mr Beatty was reasonable inthe circumstances. The Beatty's had telephoned the landlord and the propertymanager; called the Police; and told Mr O'Brien not to enter the property. I agree with the Judge's comment that all they had to do was go inside the house and waitfor the Police to attend at the rented property. Having remained in what wasevidently a stressful situation, Mr Beatty's use of force well exceeded the bounds of what was reasonable.Offensive weapon charge[67] The elements of the charge are set out as follows:(a) that the appellant had in his possession an offensive weapon; and(b) the appellant in the circumstances showed an intention to use it to commit an offence involving bodily injury or the threat or fear of violence.[68] It is not in dispute that the bat which was in the possession of Mr Beatty wasan "offensive weapon" within the meaning of s 202A(2).[69] For the purposes of s 202A, it is enough that Mr Beatty used the bat tothreaten Mr O'Brien or instil in him the fear of violence, which I am satisfied he did.At trial, Mr Beatty accepted that he retrieved the bat in order to threaten Mr O'Brienin the event another physical altercation were to develop. In evidence, Mr O'Briensaid the appellant was holding the bat: like you know as you're gonna hit a ball, just above, above yourshoulders, just ready to hit a ball.[70] That evidence is consistent with and corroborated by the evidence of Constables Montgomery and Pryor. Both Constables watched a Smartphone video recording shown to them upon their attendance at the Beatty property. They both recalled the footage showing Mr Beatty holding a bat in his right hand, moving it from his side up to his shoulder and then back down again.[71] The next issue is whether or not Mr Beatty's possession of the offensiveweapon was justifiable in the circumstances.[72] I do not consider it was reasonable for Mr Beatty to believe there was ever aneed to deter Mr O'Brien from any further act of physical violence. It is not indispute that by the time Mr Beatty went back into the house and retrieved the bat, heand Mr O'Brien had both ceased any physical aggression towards one another.There was nothing to suggest Mr O'Brien was acting in a manner indicative of anintention to engage in further physical activity. There was also no operative threat being directed at Mrs Beatty or Mr Irvine Beatty by Mr O'Brien at the timeMr Beatty went back inside the house to get the bat.[73] I am satisfied there was no justification whatsoever for Mr Beatty to have possession of a bat which he was clearly holding in a manner indicating an intention and readiness to use it (and thereby intimidating Mr O'Brien and his staff). By having the bat in his possession in the circumstances, and given the manner in which he was holding it, it was clearly being employed in a manner that was threatening.Threat to injure[74] The Judge's conclusion that the charge was proven is well supported by Mr O'Brien's evidence and his account of Mr Beatty threatening to kill him,"probably half a dozen times at least", while holding a bat in a threatening manner.[75] In determining this issue, the Judge was entitled to rely upon her assessment of the reliability and credibility of the witnesses and it has not been demonstrated or shown that her conclusion in relation to this charge was clearly wrong or unavailable on the evidence.Other matters[76] Mr Wotherspoon's submission on the tripartite direction was not pursued by him with any commitment at the hearing of this appeal, but nevertheless, I shall address those points raised in the written submissions.[77] It is established that when sitting without a jury, the Judge need not refer explicitly to the tripartite direction in giving judgment.22 The Judge was entitled to effectively reject the evidence of Mr and Mrs Beatty and find that the prosecution had proven the elements of the charges beyond reasonable doubt. Obviously, the Judge was well aware that if she rejected the evidence of Mr Beatty, and other defence witnesses, she would still need to be satisfied that the other evidence met the requisite standard of proof beyond reasonable doubt.[78] Criticism is made by Mr Wotherspoon of the Judge's comment thatMr O'Brien did not have any motive to act in a violent manner toward Mr Beatty.Motive in criminal cases can be relevant but is never an essential ingredient of proof of a charge, nor is it necessarily relevant and instructive when assessing the evidence of a witness. The absence of any reason on the part of Mr O'Brien to become embroiled in an argument or controversy may well inform the Court's assessment of a witness in a case such as this. It does not appear that the Judge placed undueweight on this factor but merely noted Mr O'Brien's position to be in contrast to theemotional state of Mr Beatty and his family, who were clearly upset about being22 Lolohea v Police HC Whangarei AP16/01, 19 June 2001 at [15].denied access to a small strip of land which they customarily used as part of theirtenancy. Mr O'Brien, on the other hand, was undertaking a work engagement as a contractor, and it was reasonable for the Judge to note that he did not have an emotional attachment to the issue. As a consequence, the Judge's assessment of his account of the events and of his reliability was reasonably informed to an extent by reason of that circumstance.[79] Furthermore, I do not agree that the Judge's failure to consider Mr O'Brien'sprevious convictions (relevant to the issues of self defence, veracity and propensity) meant that a miscarriage of justice occurred. The list of criminal convictions and traffic history to which Mr Wotherspoon referred is historic and of little or no relevance to the matters in issue. There is therefore no real risk that the outcome of the trial was affected. I note that the most recent conviction on which Mr Wotherspoon relied (being one charge of assault) is more than 10 years old and his other convictions date back to 1991.23Appeal against refusal to discharge without conviction[80] It is first necessary to consider the gravity of the offending. Although the maximum penalty for the offending is categorised as being low level, I would nevertheless categorise the circumstances of the offending as being moderately serious. I agree with the Judge's conclusion that, in this case, there were threeseparate charges against Mr Beatty arising from one incident but relating to different aspects of behaviour and criminal conduct.[81] Turning to the direct and indirect consequences of a conviction, I note that Mr Beatty is a qualified mechanical engineering technician. Although he deposed that his ability to work and travel may be jeopardised, he has failed to show that there is any real and appreciable risk that he will face difficulty in obtaining employment in circumstances where he has been unemployed for over a year, and has not provided evidence of any real attempt (bar his application to the Hamilton City Council) to secure employment.23 It dates to a common assault in 2004; giving false evidence in 1997; use of document for pecuniary advantage in 1993 and receiving stolen property in 1991.[82] Mr Beatty has produced an employment screening form to demonstrate that, in his industry, employers routinely ask for declarations about criminal convictions. I have no doubt that is indeed the case, but that is not to say that any such declaration will pose a bar to obtaining employment. The s 106 threshold requires something more than complaints about the general consequences of obtaining a criminal conviction.24[83] Similarly, the appellant has not shown that his convictions would impede entry into another country or region. His concerns are essentially speculative which, as I have said, cannot form the basis of a discharge.25[84] I acknowledge that Mr Beatty has no previous convictions, and I accept that these convictions, all arising from the one incident, will have an impact on someone with an otherwise unblemished record. However, when I turn to the overall balance, I am not satisfied that the consequences of these convictions are out of all proportion to the gravity of the offences. Each charge relates to a different or discrete aspect ofMr Beatty's overall offending during the course of the events that occurred on12 June 2015.Conclusion[85] For the reasons given, I dismiss the appeals against conviction on each of the three charges.[86] The Judge correctly and justifiably refused to grant Mr O'Brien dischargeswithout conviction. The decision is accordingly upheld.[87] Lastly, I comment briefly on the injuries sustained by Mr Beatty and Mrs Beatty, as described in the medical reports presented to the Court, and supported by the photographs. These injuries were significant and required medical treatment.In the circumstances, it is the Court's view that responsibility for these injuries was amatter that required, and still requires, Police attention if a complaint is made,24 Tuumaga v Police [2015] NZHC 1695 at [34].25 Brunton v Police [2012] NZHC 1197 at [16].notwithstanding that Mr Beatty was himself charged with offences arising from the incident.________________________________Davison J