Auckland District Court Judge Grant Fraser dismissed a private prosecution of Court of Appeal Registrar Clare O’Brien (pictured) for common assault yesterday, preventing a criminal trial. The judge cited the Porirua District Court and Wellington High Court had already determined the Registrar was the victim of the assault by a process server September of last year outside the Court of Appeal building in Wellington and not the offender.
Three New Zealand judges have now altered Ms O’Brien’s signed Statement of facts to Police on 24 September 2013, the day of the incident. In that statement, Ms O’Brien admitted to pushing Richard Creser after he served her with court papers outside the Court of Appeal in Wellington. Her account states Mr Creser then accused her of assault before committing an assault against her.
Ms O’Brien, a former police officer, asserted a pattern of victimhood in this initial signed statement to Police, including her earlier inability to get Ministry of Justice Security to take action against an unidentified person who took her photograph as she was crossing the street.
No injury was claimed and, notwithstanding her initial statement, Police prosecuted Mr Creser at O’Brien’s request. The prosecution was transferred from Wellington to sleepy Porirua, under a veil of secrecy. A week before trial this past February, it was learned footage of the incident from video cameras on the Court of Appeal building and the National Library had been destroyed. It came out at trial the Court of Appeal camera had captured interaction between Creser and O’Brien, but O’Brien testified it was destroyed because it did not show the alleged assault.
Police were not aware of the camera surveillance until after they filed the prosecution against Creser, long after it had been destroyed. O’Brien was the only witness to the incident for the police prosecution.
In defence Mr Creser testified Ms O’Brien assaulted him twice and broke his camera, before pointing to Ms O’Brien’s own evidence that she pushed him before any claimed assault on her.
At the conclusion of Mr Creser’s criminal trial, Judge AIM Tompkins took some time to collect himself in the empty courtroom before ruling Ms O’Brien was wrong about the sequence of physical contact but correct in her testimony that she was the victim of assault, “ It was only after that assault had occurred that the complainant, then fearing for her safety, pushed Mr Creser away so that she could safely enter the building.” The judge found this beyond reasonable doubt account was “consistent” with murmurings heard by a staff member in the building and on this basis did not feel it necessary to address Ms O’Brien’s contradicting statement to police that she had pushed Mr Creser first (notably a statement she gave to Police before Court of Appeal staff erased the surveillance video).