A v Police HC Auckland CRI-2004-404-393
[2006] NZHC 1283
•25 October 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2004-404-393
CRI-2006-404-136
A
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 21 September 2006
Appearances: A G Speed for Appellant
A R Burns for Respondent
Judgment: 25 October 2006 at 3:00 pm
RESERVED JUDGMENT OF COURTNEY J
This judgment was delivered by me on25 October 2006 at 3 pm pursuant to r 540(4) of the High Court Rules
Solicitors: Meredith Connell, P O Box 2213, Auckland
Fax: (09) 336-7629
Counsel: A G Speed, P O Box 941, Shortland Street, Auckland
Fax: (09) 379-6433
A V NZ POLICE HC AK CRI-2004-404-393 25 October 2006
[1] Mr A was involved in an altercation with noise control officers and police on April 2004, as a result of which he was convicted on charges of resisting a constable and disorderly conduct. He appeals against the convictions on the ground that he did not give evidence in the District Court, although he had instructed his counsel that he wished to do so and that, as a result, there is likely to have been a miscarriage of justice.
[2] In my decision 4 September 2006 I found that Mr A did instruct his counsel that he wished to give evidence but was not called to do so, as a result of a misunderstanding. I also determined what evidence Mr A would have given, had he been called. I now consider the question whether Mr A ’s failure to give evidence is likely to have resulted in a miscarriage of justice.
[3] The events of the night fell into two parts. The first was the period up to the point that Mr A ’s son, Michael, emerged from the house carrying a machete and a meat cleaver. However, the charges that are the subject of the appeal relate to the second period, when Michael began to advance holding the weapons and was subsequently shot by police. I found that Mr A would have given the following evidence about the relevant period:
a) He was arrested twice. The first time involved an unsuccessful attempt by Constable Cann to handcuff him;
b) After the first arrest, when he was being restrained on the ground, he saw his son Michael approaching holding a machete and meat cleaver;
c) Michael slipped, with the weapons still in his hands;
d)He took the weapons from Michael. He heard people shouting at him words to the effect of throw down the weapons or drop the weapons;
e) He proceeded down the driveway with the intention of putting the weapons away or throwing them away. He threw them towards the bottom of the steps;
f) Michael got up and ran towards the policemen and was shot;
g)Mr A walked up the driveway and Constable Cann took his hand and told him that he was under arrest for being in possession of weapons or words to that effect.
[4] The original ground of appeal was that Constable Cann’s evidence about Mr A being arrested twice took his counsel by surprise because that was not apparent from the summary of facts. However, the ground of appeal now advanced focuses on the District Court Judge’s finding as to what happened before Mr A was arrested the second time. Mr Burns did not object to this change of tack and I therefore consider the appeal as it is now advanced.
Resisting Constable Cann in the execution of his duties
[5] The District Court Judge’s decision in relation to the resisting charge appears to have been based on a finding that Mr A had struggled to prevent Constable Cann arresting him. At [20]:
So I find on the facts before me that in law Mr A was lawfully arrested at that point for disorderly behaviour. It was his obligation to co- operate by allowing the Police to take him away in the Police car without struggling, without resisting and allowing the Police to handcuff him in the circumstances. It had been a violent day and the Police were entitled to require him to be handcuffed. To struggle in that manner was unlawful.
[6] Only two of the police witnesses gave evidence of there being an actual struggle between Mr A and Constable Cann. Detective Lujnevich said:
Immediately after the incident with Michael the defendant has picked up the machete and my focus has gone from Michael to the defendant, he then threw the machete in the vicinity of his house, at which stage my focus went back to Michael and he was dealt with by Constable Cann. I do recall that he was on the footpath just up from where I was and he continued to shout and I could see that the guys were struggling with him to control him.
On the verge of getting to a property he stopped, he said something, yelled out and threw the machete and the other item on to the property. At this stage I instructed the defendant to get down on to the ground, he refused my request, I asked him again to get down on to the ground before going forward and I instructed the defendant once again to go down to the ground. He braced himself and at that stage using my foot I tripped and at the same stage my colleague took the right arm of the defendant he took him down to the ground. Once on the ground I struggled to handcuff the defendant, I asked him to comply and he eventually, after about 30 seconds, complied and placed his hands behind his back. Throughout the procedure the defendant was continually swearing and abusing myself and my colleague.
[8] The only civilian witness to give evidence, Mr Taylor, did not refer to a struggle:
Obviously once the other person [Michael] was injured he went towards the instrument which was blocked on the ground to pick it up then he was told by the Police to leave it, he walked away and that’s when he was apprehended by the Police.
[9] Mr A ’s evidence would have been that after he had thrown the weapons away he walked up the driveway where Constable Cann took his hand and arrested him.
[10] Mr Burns accepts that, given the conflict between Constable Cann’s evidence and that of Mr A , there is a likelihood of a miscarriage of justice having occurred in respect of the resisting charge as a result of Mr A not giving evidence.
Disorderly conduct
[11] Mr A was charged under s 3 Summary Offences Act 1981, which provides:
Every person is liable to imprisonment for a term not exceeding three months or a fine not exceeding [$2,000], who, in or within view of any public place, behaves, or incites or encourages any person to behave, in a riotous, offensive, threatening, insulting or disorderly manner that is likely in the circumstances to cause violence against persons or property to start or continue.
[19] Was it disorderly behaviour in those circumstances at that time and place and what was going on to pick up items of evidence, weapons that had been used by his son, and carry them off in the manner that has been described and refusing to put them down after being told on a number of occasions? I think it is an inescapable conclusion that it was disorderly in those circumstances, at that time, at that place for Mr A to carry off with these weapons. The Police had no idea what he was going to do with them. It would have been quite straightforward for him to put them down and say – I am just securing them and making them safe. He did not. Had he said – I’m just taking them away to make them safe, and put them down when told to do so, even at the second time when told to do so, I think there would have been no disorderly conduct.
[20] It was the persistent and continual disobedience of the directions of the Police which were lawful directions to put the weapons down. In those circumstances, at that time, in that place it was disorderly. I think it was likely in the circumstances to cause violence against a persons to start as it was highly likely that the Police would react by seizing Mr A and that is what happened and a violent struggle then took place.
[13] Mr Speed submitted that the Judge’s finding of “persistent and continual disobedience” might well have been different had Mr A given evidence. In particular, he might then have been in a better position to ascertain the extent to which Mr A could actually hear the commands being given, in light of his impaired hearing (which impairment has been accepted by the Crown). Mr Speed also submitted that the Judge might have been influenced by Mr A ’s evidence that he only intended to remove the weapons from the vicinity for safety.
[14] Mr Burns submitted that the District Court Judge’s finding at [19] was, in fact, consistent with the evidence that Mr A would have given and, as a result, there is no likelihood of a miscarriage of justice. Mr Burns submitted that, on Mr A ’s own evidence, he heard at least one command. Ignoring that command would have been sufficient to establish the charge of disorderly conduct. Therefore the Judge’s finding of “persistent and continual disobedience”, even if unjustified, would not lead to a likely miscarriage of justice.
[15] The test for what constitutes behaving in a disorderly manner is well settled:
Melser v Police [1967] NZLR 437 (CA) at 446. I refer to the principles identified in
Ceramalous v Police 7 CRNZ 678, 682 and applied by Ellen France J in Phillips v
Police (2004) 20 CRNZ 1106, 1109:
a) The test is objective, requiring the Court to consider whether the conduct would be regarded as disorderly in the mind of a reasonable person.
b) The judgment of the conduct in question is a matter of degree, depending on the time, place and circumstances.
c) The conduct must amount to an interference with the rights of others sufficiently serious as to warrant the interference of the criminal law.
[16] The relevant circumstances in which Mr A ’s conduct was being judged were:
•There had already been an altercation and a physical scuffle between Mr A and police as a result of which Mr A had been arrested and was in the process of being handcuffed;
•Michael A had emerged from the house carrying dangerous weapons and, on the police version of events, had been shot;
•On Mr A ’s version of events Michael had slipped and dropped the weapons, Mr A picked them up, was told to drop them and then Michael ran towards the police and was shot.
[17] On either version of events the tension at the scene must have been palpable. The police were armed and were clearly prepared to respond with some degree of force to take control of the situation. Even if Mr A ’s version is correct, and he picked up the weapons before his son was shot, it would have been obvious to any reasonable person from the police commands to drop the weapons that there existed a high level of concern and tension among the police present that night.
[18] It is against that background that the District Court Judge had to decide whether Mr A ’s failure to drop the weapons after being commanded to amounted to disorderly conduct. Given the circumstances that existed on that night I think that Mr Burns’ submission is right that there was an adequate basis on which to find the charge had been proven even if Mr A had heard only one command to put down the weapons. On his own evidence he did hear the command to drop the weapons but he continued walking towards the weapons and picked them up. The fact that, as a result of his impaired hearing, he may not have heard other similar commands is not relevant because, given the seriousness of the situation, the charge would have been proven at the point he ignored the command that he did hear.
[19] I do not think that Mr A ’s intentions regarding the weapons are relevant. The test to be applied is an objective one, not to be determined by Mr A ’s subjective intentions. Once he had thrown the weapons away it was obvious that his intentions were peaceful. However, he did not articulate those intentions and until he had actually disposed of the weapons his intentions could not possibly have been obvious to the police. I therefore consider that Mr A ’s conduct was disorderly.
[20] There is, however, a further issue; a charge under s 3 required Mr A ’s disorderly behaviour to be likely, in the circumstances, to cause violence against persons or property to start or continue. Mr Speed relied on Scott v Police (1994) 12 CRNZ 207, in which the police failed to prove a charge of disorderly behaviour against a woman who had become intoxicated in the bar of a motel and assaulted the motelier. Anderson J considered that those present in the bar were most unlikely to become violent towards the intoxicated guest and therefore this requirement had not been satisfied.
[21] “Violence” is not defined in s 3. But in ordinary usage it has a wide meaning. The Oxford English Dictionary includes the following relevant definition:
The exercise of physical force so as to inflict injury on, or cause damage to, persons or property; action or conduct characterised by this; treatment or usage tending to cause bodily injury of forcibly interfering with personal freedom.
[22] In Haines & Ors v Police (HC TIM APPS96/86, 4/87 and 95/86) Williamson J held that the word was apt to describe a number of different situations, including a set of physical circumstances being set in train with the probable result that persons would suffer injury. I consider that “violence” as it is used in s 3 is capable of including a wide range of both acts and consequences of acts.
[23] Mr Speed submitted that there was no likelihood of violence because the only persons present who might act violently were the police, whose actions could not have been intended to have been the subject of s 3 because they would simply have been acting in the course of their duty. I do not accept that submission. It cannot be suggested that a forceful response by the police is not violent. The use of batons, firearms or pepper-spray, for example, would all be characterised in everyday language as being violence. Even the usual measures taken by the police to exercise physical restraint, such as handcuffing, would be regarded as violent in everyday language.
[24] Nor is there anything in the purpose of s 3 that would suggest that violence by the police acting in the course of their duty was not intended to fall within the second limb of s 3. Violent action by the police of the kind I have referred to is sanctioned by the law for public policy reasons. But while force by the police is sometimes necessary, it is not regarded, even by the police, as an ideal outcome. Conduct by members of the public that would tend to result in a forceful response by the police must be regarded as undesirable. In addition, such conduct carries with it the danger that other members of the public will be drawn into the situation, thereby causing more violence. For these reasons I conclude that a forceful police response should be regarded in the same way as a forceful response by any other person.
[25] If the police version of events is correct, Mr Ali’imatfitafi’s son was shot as a result of him advancing towards the police carrying a machete and a meat cleaver. In ordinary usage, this would be would be characterised as violent. When Mr Ali’imatfitafi then took up the weapons it must have been likely that the same action would be taken if he did not drop them. The Crown case is that the police had already shot Mr A ’s son by the time Mr A picked up the weapons. If that were so, then there must have been a very high likelihood that the
police would feel sufficiently concerned at Mr A retrieving the weapons to take forceful action to prevent him from doing so.
[26] I observe further that, if the circumstances were as Mr A claims, i.e. that Michael had not yet been shot when Mr A picked up the weapons then, quite apart from any reaction from the police, I would consider the actions to fall within s 3. Michael was the person who had initially brought the weapons into the scene. If he was still physically competent there was an obvious danger that he would try to retrieve the weapons from his father, thus presenting a risk to both his father and to the police and inviting a violent response of the type that, in fact, did occur.
[27] While I agree that the Judge’s finding of “persistent and continual disobedience” may have been different had he heard from Mr A , I do not think that the outcome of the case would have been any different. Instead of a finding of “persistent and continual disobedience” there would simply have been a finding of disobedience. But there is no doubt that, even on Mr Ali’imatfitafi’s version of events, his conduct was disorderly and likely to cause violence to start or continue.
Conclusion
[28] On the basis of the evidence that I have found Mr A would have given, I hold that:
a) There was the likelihood of a miscarriage of justice in relation to the resisting charge as a result of him not giving evidence;
b) There was no likelihood of a miscarriage of justice on the disorderly conduct charge as a result of him not giving evidence. The appeal is therefore dismissed in relation to this charge.
[29] The next step is for me to hear the evidence of prosecution witnesses and
Mr A and make a determination on the resisting charge. I note
Mr Burns’ indication of a possibility that the police will not proceed further with the resisting charge. Mr Burns is to file a memorandum by 3 November 2006 indicating whether this is to be the case. If the matter is to proceed then a hearing date should
be allocated, allowing three hours.
P Courtney J
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