Ahmed v R
[2009] NZCA 220
•2 June 2009
For a Court ready (fee required) version please follow this link
IN THE COURT OF APPEAL OF NEW ZEALAND
CA528/2008
[2009] NZCA 220THE QUEEN
v
ABDULKADIR JUMA AHMED
Hearing:25 February 2009
Court:William Young P, Chisholm and Heath JJ
Counsel:M R Bott for Appellant
S J Mount for Crown
Judgment:2 June 2009 at 10 am
JUDGMENT OF THE COURT
ATHE APPEAL AGAINST CONVICTION IS ALLOWED AND THE CONVICTIONS ARE QUASHED.
BJudgment is entered in favour of Mr Ahmed together with verdicts of acquittal.
____________________________________________________________________
REASONS OF THE COURT
Chisholm and Heath JJ [1]
William Young P [82]
CHISHOLM AND HEATH JJ
(GIVEN BY HEATH J)Contents
Introduction [1]
Background [4]
Grounds of appeal [14]Analysis
Kidnapping or citizen’s arrest?
Introductory comments [18]
(ii) “Citizen’s arrest”: the statutory provisions [21]
(iii) What constitutes an “arrest”? [36]
(iv) Are the statutory immunities and protections engaged? [41]
(b) The offensive weapon charge [66]
(c) Should there be a re-trial? [77]
Result [81]Introduction
[1] Mr Ahmed was charged with kidnapping, male assaults female and possessing an offensive weapon (a knife) in circumstances that showed, prima facie, an intent to use it to commit an offence involving the threat or fear of violence.
Following a trial in the District Court at Wellington, before Judge Butler and a jury, Mr Ahmed was convicted on the kidnapping and offensive weapon charges, but acquitted on the count alleging assault. He was sentenced to 200 hours community work.
Mr Ahmed appeals against conviction.
Background
On the evening of 12 September 2007, Mr Ahmed visited an escort agency in Wellington. He made arrangements for a woman (known as “Ginger”) to attend at his hotel room, at about 9.30pm that night.
Ginger attended at Mr Ahmed’s hotel room, as arranged. She insisted on payment before any services were provided. Payment was made.
There is some dispute about what happened when Ginger first arrived. On Ginger’s evidence, Mr Ahmed paid the fee and they went and showered together. After that, Mr Ahmed brushed his teeth and then offered a toothbrush to Ginger to do likewise. Ginger asked why he wanted her to do that. Mr Ahmed said that he wanted to kiss.
On Mr Ahmed’s evidence, he and Ginger undressed, he wrapped a towel around himself and suggested they each take a shower and brush their teeth. Mr Ahmed told Ginger that he wanted her to brush her teeth because they would be kissing.
Whichever version is accepted, Ginger made it clear to Mr Ahmed that kissing was not included in her service. She explained, at trial, that that was because of the possibility of contracting a disease through passing of saliva.
Mr Ahmed required that Ginger repay his money to him before she left his room. At that point, the versions of events given at trial by Ginger and Mr Ahmed again diverge.
Ginger gave evidence of not being allowed to leave the hotel room and of Mr Ahmed punching her in the face and grabbing a knife. She said that she used her cellphone and spoke to someone from the escort agency who advised her to pay the money back, so that she could escape further detention. At some point, someone from the agency contacted the police.
[2] On the other hand, Mr Ahmed says that he tried to stop Ginger leaving, with the intention of calling the police. He says that Ginger hit him in the eye and kicked him in the stomach. He added that Ginger came at him with stiletto shoes. In response, he picked up a kitchen knife that was on a table, readily in view. Mr Ahmed says he then telephoned the police.
[3] At a time proximate to the scuffle, Ginger used her cellphone to record, on video, what was taking place. The video shows Mr Ahmed, naked from the waist up but otherwise with a towel around him. It appears that Ginger was on the bed. At one point the camera focuses on her bare foot, suggesting that at least one stiletto shoe had been removed by the time the video was taken. The videotape shows that Mr Ahmed was calm and, save for the moment when it was picked up from the table, the knife was kept behind his back.
[4] In sentencing remarks, Judge Butler explained his view of the facts as follows:
[4] [Ginger] came to your apartment, but I am satisfied there was then a state of complete confusion between the two of you. In part this arose from cultural differences, in part through language difficulties and simply because each of you had a different expectation of each other. You paid her money, but because of the dispute that arose between you and her there were no sexual services provided to you. You wanted your money back and she refused to give it to you. You prevented her from leaving your room. There was a long argument between the two of you. Part of that was recorded on her cellphone. At one stage you were holding a knife. She had been able to contact her agency and they called the police. When she gave the money back she was allowed to leave the room and you co-operated fully with the police. You have no previous convictions of any kind and that influences me heavily in the sentences that I will impose on you today.
Grounds of appeal
[5] Mr Bott, for Mr Ahmed, submitted that the kidnapping conviction cannot stand because the Crown had not excluded the reasonable possibility that Mr Ahmed was effecting a “citizen’s arrest” at the time Ginger refused to repay the fee to him. He contended that the Judge (in effect) took that issue away from the jury, when summing up.
[6] During the course of argument a further point emerged. As a result, Mr Bott submitted that the Judge failed to direct the jury properly on the charge of possession of an offensive weapon. He criticised the Judge’s failure to leave self-defence to the jury on that charge and his direction to the jury that Mr Ahmed had to prove he did not intend to use the knife to commit an offence involving bodily violence or threat of violence. Mr Bott submitted that the Judge ought to have directed the jury that the Crown had to exclude the reasonable possibility that Mr Ahmed acted in self-defence.
[7] Mr Mount, for the Crown, submitted that Mr Ahmed had no reasonable and probable grounds to believe an offence was being committed and, therefore, it was not open to him to suggest that he was acting to effect a citizen’s arrest.
[8] On the offensive weapon direction, Mr Mount submitted that s 202A(5) of the Crimes Act 1961 (the Act) puts the onus of proving a lawful excuse on the accused (see R v Busby CA211/01 26 September 2001 and R v Haqiqzai CA158/02 18 December 2002) and, therefore, the trial Judge’s directions on this issue were correct.
Analysis
(a) Kidnapping or citizen’s arrest?
(i) Introductory comments
[9] The offence of kidnapping is set out in s 209(b) of the Act:
209 Kidnapping
Every one is liable to imprisonment for a term not exceeding 14 years who unlawfully takes away or detains a person without his or her consent or with his or her consent obtained by fraud or duress,—
…
(b) with intent to cause him or her to be confined or imprisoned; or
….
[10] The essence of a kidnapping charge is that one person has detained another unlawfully with intent to cause that person to be confined. The Judge directed the jury on the kidnapping charge as follows:
[6] Now I will give you some legal definitions in relation to Count 1. Detention is the curtailing of a person’s freedom of movement, and to detain someone has a corresponding meaning. The detention must be unlawful. Obviously there are situations where people can be detained lawfully. The police can lawfully detain a person after they have arrested him or her. A customs officer could lawfully detain a person if certain conditions were met when you were coming into New Zealand. Judges can lawfully detain people, and often do by sending them into custody part way through a case. Those are lawful detentions, nothing wrong with those, they are all permitted by our law, usually by statutes, sometimes by common law.
Mr Bott has used, or raised the concept of a citizen’s arrest in relation to Count 1. In other words, detaining the complainant, lawfully, because she was not entitled to keep the money, and he was awaiting the arrival of the police. I have to tell you that it is not lawful to detain a person for the recovery of an alleged debt, or as the result of a business transaction going wrong between some people. You have to be careful that you do not confuse the concept of citizen’s arrest with the concept of someone taking the law into their own hands, because of course no citizen is entitled to do that.
Mr Ahmed must have felt aggrieved about the complainant’s refusal to give his money back, but as I say, no one is entitled to take the law into their own hands. These are matters that you will have to give consideration to when you decide the facts in that particular matter. A conditional detention, “give me back the money and you can go”, is still a detention. Now the complainant’s version of that, and that is just my own summary, you will need to have regard to all of her evidence and all of the other evidence, and these are my own words, not hers, comes this way. She said, “I went to leave. He wanted his money back. I told him he would have to deal with CJs about the money. He would not let me leave, he said I was not allowed to leave, unless I gave him the money back”. She goes on to say that, “he grabbed the door handle to prevent me leaving”, and then she talks about a blow to her face, which is Count 2.
Further on in her evidence, she talked about him possessing the knife and saying that she just wanted to leave, “But he wouldn’t let me do that”. “Trina”, she said, “Sent me a text saying, ‘Give him the money,’ so I gave it to him and said, ‘Let me go’”. She said that he then put the knife in the drawer. She said she would not leave until he put it away from himself, put it down somewhere else, and then she ran out the door and got into the lift. Now his evidence, as you have heard today and as has been raised in cross-examination of her, is in effect that he was effecting a citizen’s arrest, demanding the return of his money which he says she was not entitled to, and keeping her there until either he got the money back or the police arrived to right the situation.
(Save for the second paragraph, Judge’s emphasis in transcribed summing up.)
[11] As is clear from the summing up, the possibility of Mr Ahmed acting to effect a citizen’s arrest was squarely before the jury. The question is whether the direction given was adequate.
(ii) “Citizen’s arrest”: the statutory provisions
[12] Because New Zealand’s criminal law is codified, there is no common law right for one citizen to arrest another. Section 315(1) of the Act provides:
315 Arrest without warrant
(1) No one shall be arrested without warrant except pursuant to the provisions of—
(a) This Act; or
Some other enactment expressly giving power to arrest without warrant.
….
[13] Instead of conferring an express power for a citizen to effect an arrest, the Act contains a number of provisions that operate to justify arrest or to protect a person effecting arrest from criminal prosecution, albeit in limited circumstances.
[14] Sections 35, 36 and 37 of the Act provide:
35 Arrest of persons found committing certain crimes
Every one is justified in arresting without warrant—
(a) any person whom he finds committing any offence against this Act for which the maximum punishment is not less than 3 years' imprisonment:
(b)any person whom he finds by night committing any offence against this Act.
36 Arrest of person believed to be committing crime by night
Every one is protected from criminal responsibility for arresting without warrant any person whom he finds by night in circumstances affording reasonable and probable grounds for believing that that person is committing an offence against this Act.
37 Arrest after commission of certain crimes
Where any offence against this Act has been committed, every one who believes, on reasonable and probable grounds, that any person has committed that offence is protected from criminal responsibility for arresting that person without warrant, whether or not that person committed the offence.
(Emphasis added.)
[15] We agree with William Young P that there are “puzzling variations” among the specific terms of ss 35, 36 and 37 and that the purpose of the scheme is not easy to discern. Having said that, we consider that the “hierarchy of justifications and excuses” to which the President refers at [94] and [95] of his judgment is a fair summary of what can be discerned from the specific sections. The President’s analysis is broadly consistent with that of Richardson P in R v N [1999] 1 NZLR 713 (CA) at 720-721, to which we now refer.
[16] In R v N, a Full Court considered the concept of a citizen’s arrest, in the context of a de facto detention of a person alleged to have stolen property from a retail outlet. The Court discussed the nature of the statutory immunities. Delivering the judgment of the Court, Richardson P said (at 720-721):
In the original Criminal Code Act 1893 those separate references to arrest were taken out of the specific offence provisions of the draft code and replaced by an omnibus provision, s 337(1):
337. (1) Any one charged with a crime for which the punishment is death, or imprisonment with hard labour for three years or upwards on a first conviction, may be arrested without warrant.
The Crimes Act 1908 followed the same statutory scheme with ss 358 and 359 identifying the offences charged for which a person ``may be arrested without warrant''. In the 1908 Act, as in the 1893 Act and the draft code, this arrest power was at large, not confined to constables, but at the same time was restricted to persons charged.
Under all three statutes, 1893, 1908 and 1961, as under the draft code itself, arrest powers and immunities are separate and different concepts. That is explicit in s 40(1) and implicit elsewhere. In some cases, too, the immunity may apply only in relation to criminal proceedings, not civil. Thus under the 1961 Act the legislature has provided a graduated scale of protection for the private citizen. Full protection (``justified'') is given where the citizen acts on a request from a constable (s 34(1) and (2)) or where a citizen arrests a person he or she finds committing offences (s 35(a) and (b)). Protection from criminal responsibility is given where the citizen arrests a person he or she believes to be committing a crime by night (s 36), after the commission of certain crimes (s 37) and during flight (s 38). The distinction between powers and protections (or immunities or privileges) is of course generally recognised in the law.
A further feature of the 1961 Act is that while the immunity provisions continued under the same scheme and, essentially, the same language as previously, powers of arrest were sharply curtailed. Citizen arrest powers previously expressly applying to a large range of offences were restricted by the 1961 Act to situations where the citizen was called on by a constable (s 315(2) and s 317).
(Emphasis added.)
[17] Richardson P considered that there was no warrant in the statutory scheme or legislative history for concluding that an arrest immunity provision under the 1961 Act conferred a power of arrest. The Court held that the statutory protective provisions served a different purpose from empowering provisions and, as the Law Commission observed in Crown Liability and Judicial Immunity (NZLC R37, May 1997) at 83, various formulas directed to the persons protected, the form and scope of the protection and the requisites and qualifications involved are used in various statutes. Richardson P referred to the existence of almost 200 statutes, covering a vast range of activities and with quite different effects.
[18] The Court, in R v N at 720, importantly for present purposes, approved what the Law Commission said at 83 – 84, para C31:
There is a significant difference between the `no liability' provisions and the `no proceedings' provisions. The first formula means that the person is not committing a legal wrong: the person is not bound by the relevant law (generally of tort) and is not subject to the relevant substantive obligation. By contrast, the second set of provisions does not deny the liability of the person or the wrongfulness of the action; nor does it deny that the person is subject to an obligation. Rather, it states that no proceedings may be brought against that person for that (wrong) action or breach of obligation. That is to say, the first set of provisions is concerned with a lack of duty, the second only with an immunity from jurisdiction.''
[19] The Court continued (at 721):
In the Crimes Act, “Justified'” means “not guilty of an offence and not liable to any civil proceeding'”. “Not guilty of an offence'” is an exoneration whereas “Protected from criminal responsibility”, defined in s 2 as “not liable to any proceedings except a civil proceeding”, does not deny the wrongfulness of the conduct.
[20] R v N also makes it clear that a person who purports to effect a citizen’s arrest must do so with the intention of invoking the criminal justice system. At 718, Richardson P said:
… Where the restraint is imposed by a private citizen, the deprivation of liberty cannot be characterised as an arrest unless the private ``arrester'' is manifesting an intention to invoke the authority of the criminal law and set in train the processes of the criminal law. ….
[21] The issue in R v N was whether the New Zealand Bill of Rights Act 1990 (the Bill of Rights) was engaged. The accused had been charged with stealing property from a shop. Shop assistants had followed him after he left the shop. They located him nearby. The accused did not understand much English. When he tried to push past the assistants, they took hold of him and led him back to the shop. The property alleged to have been stolen fell to the floor from under his shirt, on return to the shop. Doors were locked and the accused was escorted to the shop manager’s office. The police were called. The accused was taken to the police station. At trial, the District Court Judge ruled that the accused had been arbitrarily arrested or detained and that, applying the relevant provisions of the Bill of Rights, evidence gathered in consequence was inadmissible.
[22] On appeal, this Court found that the evidence was admissible because there was no express power of citizen’s arrest or detention and the immunity provisions, “focussed and limited as they are”, could not be characterised as constituting a public function, power or duty, of the type to which s 3(b) of the Bill of Rights refers.
[23] On this appeal, the issue is different. It is whether the Judge directed the jury adequately on the “citizen’s arrest” point. The first question is whether what Mr Ahmed said or did was sufficient to effect a citizen’s arrest. The second is whether there was sufficient evidence for a reasonable jury, properly directed, to have found that one or more of the immunities conferred by ss 35, 36 and 37 of the Act applied, so as to justify Mr Ahmed’s actions or to protect him from criminal prosecution.
[24] In R v Asante-Mensah [2003] 2 SCR 3 (SCC), the Supreme Court of Canada considered what constituted an arrest without warrant, made by a citizen. The decision deals with the concept of “citizen’s arrest” as a matter of common law, something we have already said is not available in New Zealand. The discussion of the concept was in the context of whether a citizen could use reasonable force to make a lawful arrest under the Trespass to Property Act 1990 (Ontario).
[25] Binnie J, for the Supreme Court, observed that the concept of “arrest” by private citizens pre-dated the rise of a modern police force. At common law, a private citizen had both a right and a positive obligation to perform an arrest when a felony was being committed or had “in fact” been committed. Felonies were serious crimes, so the authority and duty on a private citizen to arrest for a misdemeanour was significantly more limited. In New Zealand, the seriousness of the offending required to gain the benefit of the immunity to which s 35(a) of the Act refers, is consistent with the felony/misdemeanour dichotomy.
[26] It was the development of a modern police force that brought about a transfer of law enforcement activities from private citizens to “peace” officers, whose powers were, in a sense, derived from that of the citizen, rather than the other way around. Generally, see Asante-Mensah at [36] – [40] and, in relation to the last point, Christie v Leachinsky [1947] AC 573 (HL) at 591 per Lord Simonds.
(iii) What constitutes an “arrest”?
[27] The term “arrest” is not defined in the Act. In R v P [1996] 3 NZLR 132, this Court considered whether an accused was under arrest at the time that spontaneous incriminating statements were made to police officers. Delivering the judgment of the Court, Eichelbaum CJ discussed the concept of “arrest”, for the purposes of s 23 of the Bill of Rights. The Chief Justice said (at 136):
In terms of R v Goodwin [1993] 2 NZLR 153, arrest is defined as a communication or manifestation by the police of an intention to apprehend and to hold the person concerned in the exercise of authority to do so; or, as long as the conduct of the arrester, seen to be acting or purporting to act under legal authority, has made it plain that the subject had been deprived of the liberty to go where he pleased.
[28] Additional assistance can be gleaned from English cases. In Alderson v Booth [1969] 2 QB 216 (CA), the issue was whether a law enforcement officer had effected a valid arrest by saying to a suspect “I shall have to ask you to come to the police station. ...”. Lord Parker CJ, with whom Blain and Donaldson JJ agreed, said (at 220-221):
There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying “I arrest you” without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear, as it seems to me, that an arrest is constituted when any form of words is used which in the circumstances of the case were calculated to bring to the defendant’s notice, and did bring to the defendant’s notice, that he was under compulsion and thereafter he submitted to that compulsion. (our emphasis)
[29] In R v Inwood [1973] 2 All ER 645 (CA), the Court of Appeal considered what constituted arrest without a warrant. For the Court, Stephenson LJ, after considering the competing submissions on whether an arrest had been effected, continued (at 649-650):
This court does not wish to say and cannot conclude as a matter of law that it had been made clear to the appellant that he had been arrested. We are of the opinion that, as counsel for the appellant submitted in reply, this is a question of fact. It all depends on the circumstances of any particular case whether in fact it has been shown that a man has been arrested, and the court considers it unwise to say that there should be any particular formula followed. No formula will suit every case and it may well be that different procedures might have to be followed with different persons depending on their age, ethnic origin, knowledge of English, intellectual qualities, physical or mental disabilities. There is no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man. However, what we think is clear is that it is a question of fact, not of law, and it must be left to the jury to decide whether a person has been arrested or not, at least where there is a real dispute as to the question whether the defendant understood that he was being arrested.
Here there was such a dispute. The appellant had been to this police station before in connection with the same enquiry and had been allowed to go free. He was told on the occasion of the assaults that he would be released when the police enquiries were completed, with nothing said about bail. He was a man of good character, who had never before been asked to go to a police station to help the police in their enquiries. Nevertheless, the jury might have concluded that the appellant must have understood perfectly well that he was under arrest and no longer at liberty, if they had been allowed to do so. They might well have reached this conclusion without the direction which the judge gave, but we cannot be sure. For this reason then there was, we think, a misdirection in withdrawing this question from the jury and the ruling which the judge gave was wrong.
(Emphasis added.)
[30] Two Canadian cases, R v Latimer [1997] 1 SCR 217 (SCC) and R v Asante-Mensah, conclude that an arrest may be effected by words and a restraint on liberty, accompanied by submission on the part of the person being detained: eg Asante-Mensah at [46]. Save for the qualification that an arrest can also be evidenced by conduct, the Canadian approach is broadly consistent with the concept of “arrest” articulated by this Court in R v P (at 136) and by the English Court of Appeal in Alderson v Booth (at 220-221).
[31] In line with R v Inwood, we are satisfied that the question whether an arrest has been effected is one of fact for the jury.
(iv) Are the statutory immunities and protections engaged?
[32] Both ss 35 and 36 apply in circumstances where an offence is being committed at the time arrest is effected. Section 37 only applies if an offence has already been committed. We regard the need for an offence to have occurred in the past as an insurmountable hurdle to the application of s 37 in a case such as this. On this point we part company with William Young P. In our view, the President’s classification and analysis of the facts into two stages is too artificial.
[33] In reality, the whole of the incident in issue arose out of a dispute about whether Ginger would return Mr Ahmed’s money to him before she left the room. On the present facts, any offending occurred contemporaneously. Therefore, Mr Ahmed’s conduct would need to fall within either s 35 or s 36.
[34] Section 35 operates to justify any act of arrest of any person “whom [the arrester] finds committing” a qualifying offence. If the offence were one for which the maximum penalty is not less than three years imprisonment, an arrest is justified at any time of the day or night. Justification for an arrest is limited to offences committed at night, where the maximum penalty is less than three years: s 35(b).
[35] Section 36 applies to protect an arrester from criminal responsibility if that person “finds [another person] by night in circumstances affording reasonable and probable grounds for believing that that person is committing an offence” against the Act.
[36] Whether either s 35 or s 36 applies in the present case depends on what construction is given to the phrases “finds committing” and “finds by night” in those two provisions.
[37] There have been cases in New Zealand which have considered the concept of “finding” a person about to commit a crime: eg Palmer-Brown v Police [1985] 1 NZLR 365 (CA), in the context of public order offences. The issue in Palmer-Brown was whether two men were “found in any public place behaving in a manner from which it [could] reasonably be inferred that” they were “preparing to commit a crime”: s 28(1) Summary Offences Act 1981.
[38] All three Judges in Palmer-Brown placed emphasis on the need for a correlation between the three elements of s 28(1): “is found”, “behaving in a manner”, and “is preparing to commit a crime”. McMullin J said, at 368-369:
The behaviour to which s 28(1) refers is behaviour at the time of finding. The words "is found" represent a present action. "Behaving in" is a present participle; and the inference to which the section refers is an inference to be drawn from behaviour at the time of finding. There is therefore an obvious contemporaneity between "is found" and "behaving" and the behaviour from which the inference of preparation for a crime is to be drawn. This view is reinforced by s 28(3) which it is convenient to repeat again with emphasis added:
"In determining for purposes of a prosecution under this section whether it can be reasonably be inferred from anything proved to have been done by the defendant at the material time that he was preparing to commit a crime, the Court may have regard to his previous convictions of a similar nature (if any), and for that purpose evidence of any such conviction shall be admissible accordingly."
The material time is the time of the occurrence of the behaviour in which the defendant is engaging at the time of his being found. If therefore there is a finding of a person in a public place but no concurrent behaviour from which an inference of preparation can be drawn, there is no finding for the purposes of s 28(1). I say that with the qualification only that whether behaviour is too remote in time from the moment the alleged offender is first seen must always be a matter of fact and degree. And I see no reason why, if there is a contemporaneity of observation and proscribed behaviour, subsequent behaviour should not be taken into account in accordance with the ordinary rules of evidence as similar fact evidence to rebut any defence that the "found" conduct, from which the inference of preparation can itself be drawn, was accidental or involuntary. But subsequent conduct cannot be used to put a complexion on earlier conduct, innocent in itself, which does not give rise to that inference.
[39] Discussing the context of the concept of “finding”, Somers J formulated a number of propositions, derived from the language and purpose of s 28. His Honour stated those propositions as follows, at 369-370:
1. The offence thereby created is one against public order. That emerges from the place where the behaviour must occur and from the requirement that the suspect "is found" in that place.
2. The necessity for a finding also means that the offence cannot be evidenced simply by a confession.
3. A person is "found" when he is seen or discovered or perceived to be present. Expressions such as "to come across" and "to light upon" illustrate the concept.
4. "Behaving" has reference to the way in which the defendant is conducting himself; necessarily that must include words then spoken by the defendant which explain or form part of the behaviour.
5. There must be a concurrence of finding and behaviour. The grammar points to that; the past participle "found" and the gerund (or substantive noun) "behaving" each relate to or describe the state or condition of the defendant. But it does not follow that the defendant must be behaving in the manner described in s 28 when first seen or discovered. If a person who is found behaving innocently begins to behave in the manner described in s 28 he is also found behaving in the latter manner.
6. A person who is accompanied by another to a public place and there behaves in the statutory way cannot be said to have been found so behaving by that other, although he may be relevantly found by some third person. So too a person who finds the propositus and then joins or accompanies him ceases to be a finder - this point is further mentioned below.
7. It follows that guilty behaviour by the defendant after being joined by one who found him is not within s 28 if reported only by such original finder; the latter has not found the defendant behaving in the guilty manner.
Greig J agreed with both judgments.
[40] The Oxford English Dictionary defines the term “finds” as “[coming] upon by chance or in the course of events” and “[discovering] or [perceiving] on inspection or consideration; to perceive or recognise the presence of”. The Collins Dictionary reveals three distinct definitions: to discover by chance, to discover by search or effort and to realise or become aware.
[41] The perception of presence and the realisation or awareness of presence both fit within the third and fifth propositions identified by Somers J, in Palmer-Brown. In our view, if a person were to perceive or become aware that another was committing a qualifying offence in their presence, that would be enough to trigger s 35 or s 36, depending upon the nature of the crime and the time at which the perception or awareness arises.
[42] Contrary to the President’s view, we do not consider that the sixth proposition is applicable. It is a proposition that is tailored more specifically to the public order offence discussed in Palmer-Brown. We consider that the third and fifth propositions, taken in conjunction with the dictionary definitions to which we have referred, are applicable in the context of s 36.
[43] In our view, there was enough evidence (see [57]-[63] below) for the Judge to put to the jury the possibility that Mr Ahmed was protected from criminal responsibility (in terms of s 36) for detaining Ginger in circumstances that afforded reasonable and probable grounds for believing that she was committing an offence against the Act.
[44] In directing a jury the Judge would have needed to identify a particular crime that Mr Ahmed might reasonably have believed was being committed. We consider that the most obvious candidate is the offence of obtaining money through deception (s 240 of the Act), based on Ginger’s refusal to return money paid to her by Mr Ahmed, which was paid in the honest belief that she would have sexual intercourse with him, without the imposition of any condition. Section 240 applies to any false representation used to obtain money from another.
[45] As what occurred took place during hours of darkness in September 2007, we are satisfied that was “by night”, for the purposes of s 36.
[46] Our reliance on s 36 means that we do not need to consider the type of arrest that would be justified by s 35.
[47] Although we differ with William Young P’s view that s 37 was engaged, we agree that a “restrictive view of the relevant statutory immunities” is required to avoid the type of fracas to which he refers arising: see [99] and [100] of the President’s judgment. However, we do not consider that our analysis infringes against that public policy goal.
[48] We deal next with the evidence. In doing so, we refer to the evidence given by Mr Ahmed which, if accepted, was the highest at which the “citizen’s arrest” point could be put.
[49] From what we have already said:
(a)There must be an evidential foundation for the accused believing, on reasonable and probable grounds, that a qualifying offence has been committed.
(b)There must be evidence indicating, by words or conduct, that the person suspected of committing the offence has been detained.
(c)There needs to be an intention to make contemporaneous contact with law enforcement officers, in order to invoke the authority of, and set in train, the processes of the criminal law.
These three elements encompass both the principles identified in R v N and the need for an arrester to make clear, by words or conduct, that the arrested person is not free to go.
[50] After Mr Ahmed explained how he had arranged to procure Ginger’s services, an exchange occurred, in examination in chief, about what happened in the apartment. To avoid the possibility of distorting the thrust of the relevant evidence in a summary, we set it out in full:
Q Can you tell us please what happened then?
AI gave her $180 of 20 notes. All of it. After she received the $180 she said, “There’s $20 remaining, even though I have walked to come to your place.” I told her, “Could you please ring the reception lady, she will confirm the price that we have agreed.” She then spoke to the reception woman and she said, “Okay that’s fine”. Then I [passed] on to her a towel and a toothbrush and then I started undressing myself and wrapped around my waist a towel. Then I ask her if she could please have a shower. Her response was, “What are you asking me for?” I said, “My aim is for you to have a shower and brush your teeth and then afterwards I too will have a shower and brush my teeth so that we could both be suitable to each other or clean enough to be together. Her response was, “No I’m not going to have a shower and I actually don’t understand what you’re requesting me.” I reminded her that the aim that I have called this service is so that we can have, um, sexual intercourse and prior we can proceed to that, this is what I would like both of us to do. If you are adamant not wanting to have a shower or brush your teeth then you can please go back now.
Q So you had some kind of disagreement with her?
A Yes.
Q And you asked her to leave?
A Yes.
Q Did you ask her anything else please?
AShe stood up and got her handbag, then I asked her, “Could I have my money back please – could you please return my money back please?” “Your money is already finished, it’s all up now. There is no money that I have to return to you.”
Q Why did you ask her for your money back please?
AThe agreement was for her to fulfil this service, which she did not or not willing to. I was also mindful that the time was around five to six minutes then from the time she had started and that’s why I asked my money back because there was no service done.
QYou used the term ‘my money’, why do you use the term ‘my money’?
AIt was – I’m saying that because it was rightfully my money. It was my property. She has not fulfilled part of her – of the agreement and that would not entitle her the money so the money was still mine since no service had been done or accomplished.
QWhen Ginger … went to walk towards the door to your house to go out, what did you do?
AI said to her, “You are not going to leave, you have got my money which you have no right to, what you are doing is actually a scam.”
QSo you told her that she couldn’t leave until she gave you your money, is that correct?
AThat is absolutely right.
QWhat did you believe would happen if she left with your money?
AThat I would not get my money because I have noticed that the behaviour and the treatment that I was getting from her, that she was not willing to fulfil the agreement which was to do that service for me and if she leaves then I won’t be getting my money back.
QSo did you try and stop her from leaving?
AYes, she asks me to let her go, to give her the security card, the swipe card so that she can leave. I said, “I won’t do that until you give me the money back.”
QWhat happened then please?
AShe started threatening and intimidating me.
QWhat do you mean by that please?
AWhat I mean by that is she rang somewhere, I don’t know, she was still standing, she was also text messaging to someone, I don’t know. She was also loud and shouting to me. She said, “You’re not going to get your money back, I’m not going to stay here long, I have to leave, I will be leaving, you can give me the swipe card and let me go.”
QWhy did she require the swipe card to go?
AWhen we were coming up the lift, I have to use the swipe card. I presume she thought when you wanted to go out, you will still need the swipe card, to go down. I realised that she was not actually aware that you could go down without the need of a swipe card. I intentionally said, “No I won’t actually give you the swipe card so you won’t be able to leave.”
QSo [Ginger] made to go to the door to get out, what did you do please?
AI actually walked towards the door, and I said to her, “No you are not going to leave unless you give me – unless you return the money to me.”
QWhat happened then please?
AShe actually hit me on my right eye, swiped me with the back of her hand, right into my right eye. I got frightened because she was really big and huge. I then pushed her backwards.
…
QMr Ahmed, you were saying that …, Ginger, struck you. What happened then please?
AWhen I pushed her back after she struck me on my right eye, she began to take her shoes off.
QWhat happened then please?
AShe grabbed both her shoes and the high heel point towards me and she was coming towards me. I looked around, of course that was very sudden, then I noticed a knife on top of the fridge. So I grabbed, I rushed and grabbed the knife.
QYesterday [Ginger] said in evidence that she was pointing – that you were pointing the knife at her head and stomach. What did you say to that please?
AI wasn’t pointing the knife towards her at all. I could honestly say that it was the knife who prevented her to further injure me or attack me. She would have – it is my belief that without that knife as a deterrent she could have done much damage to me or could have hit me further more.
QAt what stage did you dial 111 please?
AImmediately after I grabbed the knife, because I was frightened, it was the second thing that I could think of that the knife, would not be probably good enough to deter what was going on so I rang the 111 immediately.
QWhat was your aim in ringing 111 please?
AMy aim was I was in a dangerous situation with someone who have already me, coming on to attack me, a long stronger than me that I didn’t know the person’s manners or their background, I was frightened, I wanted for help. She got worse coming at me after she noticed that I rang the police.
QNow at some stage we saw yesterday, [Ginger] took a video of you with her phone, was this around the same time?
AWhen she was actually taking videoing, she was actually in charge of the whole room at that time.
QThat wasn’t my question, my question was at what stage was she using the phone to take a video?
AI was – I didn’t know what I have to do when she was taking – I even – could see that she was video taping, but there was nothing that I can do, she was doing what she wanted.
QNow we heard yesterday on the video that she said, “The cops are coming,” can you recall that?
AThat was right, what we heard from her yesterday that she was saying the cops are coming. I think when she was saying that and videoing those images, the police might have already been downstairs of the hotel. I think probably her aim was just to take those pictures so that she could use me – those against me. There was nothing that I could do, I was just – still have got my towel around me, um, I was rendered helpless.
QWhat was your response to being told that the police were coming?
AI was actually waiting myself for the police to come. It was me who rang the police first. I thought that I was the person who was ill-treated who’s property was taken against his wish. I need the help of the police. I was also injured, but I was powerless to do anything.
QCan you please tell us how you got the money back?
AShe actually got the money out of her purse or wallet and then she said, “Here is your money,” and handed in the money to me.
QWhat happened then please?
AI actually didn’t receive the money from her. I requested her to put the money somewhere aside beside her, but when she did I said, “Now you can just leave, please leave my room.”
QWhat happened then please?
AAs you enter my room, the door actually opens toward the bathroom, so the door actually goes and shuts the bathroom. I was not still quite sure that she actually meant well to give me my money and leave, I could not still trust her so I went into the bathroom waiting what she would do next. I was not even sure that finally what she was telling me was right or true.
QBut she left your room?
AYes. Immediately after she went out I shut the door. I regained my sense of calmness because I was huffing and puffing and I felt relieved after I shut the door.
….
[51] If his evidence were accepted, Mr Ahmed demonstrated an intention to detain Ginger. It was common ground that he prevented her from leaving until she repaid the money to him. Mr Ahmed had a belief that Ginger was trying to make off with his money, even though she had not provided the services for which he contracted. There was also evidence that he sought to invoke the processes of the criminal law, by calling the police.
[52] In the context of s 36 of the Act, Mr Ahmed was protected from criminal responsibility if he had reasonable and probable grounds to believe that Ginger was committing an offence. If the jury had accepted, as a fact, that Ginger was refusing to return money that Mr Ahmed had paid to her in the honest belief that she would have sexual intercourse with him, a verdict of not guilty on the kidnapping charge could have been returned.
[53] We consider that, in summing up to the jury, Judge Butler was dismissive of the suggestion of citizen’s arrest. He emphasised, on two occasions, that no one was entitled to take the law into their own hands. No direction was given on the effect of s 36 of the Act. For all practical purposes, the Judge took the “citizen’s arrest” point away from the jury.
[54] The circumstances in which Mr Ahmed sought to invoke the immunity were unusual. The basic facts do not provide a promising basis for a verdict of not guilty. Nevertheless, while we are of the view that invocation of the immunity should succeed only in rare circumstances, we cannot confidently say that a reasonable jury, properly directed, would have convicted. In saying that, we are conscious that the jury did not find Ginger’s allegations of assault proved beyond reasonable doubt.
[55] In our view, the Judge was obliged (at least) to explain the terms of s 36 to the jury and to direct them that they could not convict on the kidnapping charge unless the Crown had excluded the reasonable possibility that Mr Ahmed was entitled to the benefit of the protection afforded by that provision.
[56] This means that the appeal, on the kidnapping charge, must succeed.
(b) The offensive weapon charge
[57] The offensive weapon charge was brought under s 202A(4)(b) of the Act:
202A Possession of offensive weapons or disabling substances
…
(4) Every one is liable to imprisonment for a term not exceeding [2 years]—
…
(b) Who has in his possession in any place any offensive weapon or disabling substance in circumstances that prima facie show an intention to use it to commit an offence involving bodily injury or the threat or fear of violence.
….
[58] The section was discussed by this Court in both R v Busby CA211/01 26 September 2001 and R v Haqiqzai CA158/02 18 December 2002. Both of those cases considered an earlier judgment of Williamson J, in Tuli v Police (1987) 2 CRNZ 638 (HC).
[59] Both Busby and Haqiqzai declined to follow the approach taken in Tuli, namely that the onus lay on the Crown to exclude the reasonable possibility that the accused did not intend to use the weapon to commit an offence involving bodily violence or the threat of violence.
[60] Delivering the judgment of the Court in the later case of Haqiqzai, Anderson J said:
[26] The application of s202A(4)(b) is not without difficulty in cases where self-defence may be an issue. The difficulty arises, particularly, in connection with the ingredients of the offence and the requisite proof required of the Crown, having regard to the reference to “circumstances that prima facie show an intention”. The term “prima facie” must carry its usual meaning “at first appearance”. An intention engaged by s202A(4)(b) is therefore one to be ascertained objectively, by reference to actual circumstances, and in conjunction with mere possession. By contrast, s48 is concerned with subjective intention, namely an intention to defend, actual or threatened use of force not mere possession, and circumstances not as they actually were but as the user of force subjectively believed them to be. Also, s202A(4)(b) is concerned with an intention as to future use, whereas s48 justifies actual use of force
[27] Care is needed in defining the relevant circumstances in any particular case. They are such circumstances as are apparent. If, in a particular case, what the actual circumstances prima facie show admits the reasonable possibility that a person was in possession of a weapon in order to defend himself or another by using no more force than was reasonable in the apparent circumstances, it must follow that the Crown will not have proved the offence proscribed by s202A(4)(b).
[28] But if the apparent circumstances admit no such reasonable possibility, a mere assertion by an accused in other circumstances, such as in the course of a Police interview or testifying at trial, that the weapon was not possessed with an intention to use it to commit an offence, will not be a circumstance at the relevant time. There will be no obligation on the Crown to exclude the possibility of the alleged exonerating intention; it must be for the accused to establish that defence pursuant to subs (5).
[61] Having made those observations, Anderson J discussed the type of direction that a jury should be given when the state of mind of an accused is in issue:
[29] When directing a jury in respect of s202A(4)(b) a Judge should tell them to determine whether the accused was in possession of an offensive weapon or, as the case may be, a disabling substance. They must then examine the apparent circumstances, without reference to what the accused says was his or her state of mind, and decide whether such circumstances show, prima facie, an intention to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence. If they are satisfied of those matters the accused will be guilty unless he or she proves, on the balance of probabilities, that there was no intention to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence.
[30] If an accused should seek to justify pursuant to subs (5) on the basis that the possession was not with the intention to commit an offence but to use force justified by self-defence it would be an error for the Judge to direct the jury, as occurred in this case, that the Crown had to exclude that possibility. The Crown’s burden is to prove the circumstances prima face showing the prohibited intention. The accused’s burden is to displace the prima facie appearances by proving the absence of unlawful intent on the basis that he was in possession of the prohibited thing with the intention of defending himself or another and of using no more force in doing so than was reasonable in the circumstances as he believed them to be.
[62] In our view, Mr Mount was correct to submit that the Crown was not obliged to exclude the reasonable possibility that Mr Ahmed did not intend to use the weapon to commit an offence involving bodily violence or the threat or fear of violence. Both Busby and Haqiqzai are authority for that proposition.
[63] When directing the jury on this aspect of the case, Judge Butler said:
[8] The third Count is the Count relating to the knife. There are two things that the Crown has to prove beyond reasonable doubt. There is a bit of a twist to this charge and I will come to it when I have finished discussing these two things that the Crown has to prove. First the Crown has to prove that Mr Ahmed had possession of an offensive weapon. Nothing too tricky about the words, “offensive weapon”. They mean any article capable of causing bodily injury. Any article capable of causing bodily injury, in this case it is a knife. You probable have the knife in Court, you have seen it on a video clip and you have heard verbal evidence about it. Probably no difficulty for you to decide, although it is a matter for you, that the knife was an offensive weapon.
…
[10] The second thing the Crown has to prove is that the circumstances, prima facie, showed an intention to use the knife to commit a crime involving bodily injury or the threat or fear of violence. Those words are contained in the Count which you have in the indictment. Prima facie means at first sight, and it is an objective test. It is what a bystander would think if he or she had a ringside view of the circumstances at the time that the accused was holding the knife. I will come back to that.
It is a defence under this Count for an accused person to show that he did not intend to use the weapon to commit an offence involving bodily violence or threat of violence. Bodily injury or threat of violence. So there is a specific defence to this charge, but it is for the accused to prove that defence, and I will come to that in a moment.
….
[64] The Judge was consistent, in other parts of the summing up, in saying that the onus lay on Mr Ahmed to show that he did not intend to use the weapon to commit a relevant offence. Later in the summing up, the Judge made it clear that the standard to which Mr Ahmed was required to prove that element was the balance of probabilities. Accordingly, that part of the “offensive weapon” direction cannot be gainsaid.
[65] However, there is another aspect of the summing up which causes us concern. It is clear that the issue of self-defence was before the jury. While the concept of self-defence was explained to the jury in relation to the assault charge, it was not put expressly on the offensive weapon charge. On the basis of Haqiqzai, (at [30]), the accused could have displaced prima facie appearances by proving, on a balance of probabilities, that he was in possession of the knife with the intention of defending himself and of using no more force than was reasonable in the circumstances, as he believed them to be.
[66] Self-defence was put to the jury on the assault charge, on the basis that the Crown had to exclude the reasonable possibility of self-defence. The jury acquitted on that charge. It cannot be said that a reasonable jury, properly directed, would have convicted on the offensive weapon charge, even though the onus of establishing the elements of self-defence lay on Mr Ahmed.
[67] We conclude, therefore, that the direction on the offensive weapon charge was defective. Therefore, the appeal on count 3 also succeeds.
(c) Should there be a re-trial?
[68] Having decided that the convictions on both the kidnapping and offensive weapon charges should be set aside, we consider whether a re-trial should be ordered.
[69] Our impression, on reading the notes of evidence, is that the charge of kidnapping was a gross over-reaction to the events in issue. That impression is reflected in the sentence imposed by Judge Butler and his sentencing remarks: see [13] above. The “state of complete confusion” to which the Judge referred, brought about through cultural differences, language difficulties and opposing expectations, suggests strongly that the serious offence of kidnapping ought not to have been charged.
[70] It is not disputed that Mr Ahmed is a man of previous good character. From the video we have viewed, it does not appear that he acted aggressively. In the circumstances described by Judge Butler, we do not consider that a further trial is warranted, on either the kidnapping or offensive weapon charges.
[71] Indeed, had the offensive weapon charge alone stood, we would have considered carefully the possibility of discharging Mr Ahmed without conviction, on the basis that a conviction on that charge would have been out of all proportion to the gravity of the offence: see ss 106 and 107 of the Sentencing Act 2002 and R v Hughes [2008] NZCA 546 at [39]-[41].
Result
[72] The appeal against conviction is allowed. The convictions are quashed. In terms of s 385(2) of the Act, a judgment in favour of Mr Ahmed on both charges, together with verdicts of acquittal, is entered.
WILLIAM YOUNG P
Introduction
[73] I differ from Heath J as to why the kidnapping conviction should be set-aside but otherwise agree with his judgment. I will therefore focus my remarks on the kidnapping charge.
The competing narratives
[74] On Ginger’s account of events, the appellant physically prevented her from leaving the room, first by putting his hand on the door handle and then by punching her in the face. Well into the incident, he threatened her with the knife. Throughout, the appellant was insisting on her returning the money before he would let her leave. Eventually, Ginger gave the money to the appellant who then released her.
[75] The appellant accepted that he told Ginger that she could not leave until she returned the money. Ginger mistakenly believed she needed his swipe card to go down in the lift. She demanded the swipe card and he refused to give it to her. He walked to (or was already at) the door and told her that she was not going to leave until she repaid the money. Ginger tried to get the swipe card from him and then assaulted him, by striking him in the right-eye. She also forced her knee into his stomach. He was frightened of her (given her size) and he pushed her backwards. Her response was to take off her stiletto shoes and come at him, at which point, in self-defence, he picked up a knife. He then held the knife and called the police. He released Ginger once she gave him the money.
My approach to the facts
[76] There were some difficulties with the appellant’s evidence. It went distinctly beyond what he was recorded as having told the police. Ginger had injuries which were consistent with her narrative. He was driven to explain these away as self-inflicted, an explanation which does not seem very plausible. I also think it unlikely that Ginger thought that she needed to use the swipe card to use the lifts (or the fire stairs for that matter).
[77] All of that said, however, the jury found the appellant not guilty on the count of assault which means that we must approach the case on the basis that it is reasonably possible that his general narrative of events is correct.
Was there a detention and, if so, when?
[78] The questions just posed are easily answered on Ginger’s evidence. She was detained when the appellant physically prevented her opening the door and then assaulted her. This detention, later reinforced with the production of a knife, continued until she was released.
[79] On the appellant’s narrative there was also a detention, but when it occurred is not quite so clear.
[80] Recognising, as I do, that I risk being accused of an overly-refined analysis of the facts, there seem to me to be two possible times which must be addressed.
[81] The first relevant time is before Ginger assaulted the appellant (“stage one”). During this phase of events, he told her that he would not let her go, albeit that this may have been primarily associated with his refusal to give Ginger the swipe card (which she thought was necessary for the use of the lifts) and he went to (or stood) near the door in a way which physically impeded Ginger’s attempt to get there. It would have been open to the jury to have concluded that this admitted conduct amounted to a detention, but it is not inevitable that jury would have done so. After all, when two people are arguing, it is not altogether uncommon for one to say that the other is not going until the argument has been resolved and to reinforce that by standing between the other person and the door or by pocketing car keys, or something of that sort. It is a matter of judgment (of fact and degree) whether such conduct amounts to a detention.
[82] The second relevant time (“stage two”) is after the physical altercation and in particular after Mr Ahmed had armed himself with a knife. From this point on, the conclusion that Mr Ahmed was detaining Ginger was inevitable. As to this I note the following exchange in cross-examination:
QThe only reason she’s in the room is because you won’t let her go Mr Ahmed?
AIn the early stages that is absolutely correct. I didn’t want her to go without bringing or giving me my money back. However, after the physical altercation, the time I was damaged, I have got a black eye, from that moment on I was holding her so that the police could arrive.
The summing up
[83] When summing up on whether the appellant detained Ginger, the Judge did not distinguish between what I have described as stages one and two (no doubt because counsel had not done so). This is apparent from the extract from the summing up which appears at [19] of the judgment prepared by Heath J. On the Judge’s approach it was open to the jury to take into account his actions with knife (which occurred during stage two) in determining whether the appellant had detained Ginger. And, as Heath J has noted, the Judge in effect took away from the jury any defence based on justification or excuse under ss 35, 36 and 37 of the Crimes Act 1961.
[84] As will become apparent, I have concluded that these sections did not provide the appellant with a possible defence in relation to a detention at stage one. On the other hand, I consider that at least on Mr Ahmed’s narrative, s 37 did provide a distinctly arguable defence in relation to a detention at stage two.
The unavailability of a defence in relation to a stage one detention
Overview of ss 35, 36 and 37
[85] Given the issues in the case, I think it sufficient to focus on ss 35, 36 and 37 (which are set out in [23] of the judgment of Heath J) and leave on one side ss 34 and 38 (which are discussed in R v N [1999] 1 NZLR 713 (CA):
Section 35 provides justification (ie immunity from criminal and civil liability) for the person effecting the arrest but only if the person arrested was committing a specified offence.
Section 36 protects the person effecting the arrest from criminal (but not civil) liability and requires (1) a “finding by night” and (2) “reasonable and probable grounds for believing that [the arrested person] is committing an offence” against the Crimes Act.
Section 37 protects the person effecting the arrest from criminal (but not civil) liability but only where (1) an offence against the Crimes Act has been committed and (2) the person effecting the arrest believes on reasonable and probable grounds that the arrested person has committed the offence.
These sections overlap in terms of potential application and there are puzzling variations between them (for instance the “finds by night” requirement which appears in ss 35(b) and 36 but not in s 37, and the subjective “believes” requirement in s 37 as opposed to the objective test in s 36). As well, and as will become apparent, I think that the order in which the sections appear is not entirely logical.
[86] I do not pretend to be able to discern a complete rationale for the entire scheme. On the other hand, the sections seem to me to be broadly – although only broadly – consistent with the following rough hierarchy of justifications and excuses:
The strongest basis for a private arrest is where the arresting person finds the arrested person committing a relevant offence (s 35(a) and (b)). There is an actual offence, committed by the arrested person and there must be “finding” which is contemporaneous with the commission of the offence. In these closely defined circumstances, there is immunity from civil and criminal liability.
The next strongest basis is where an offence has actually been committed. In this situation, the arresting person is immune from criminal liability if he or she believes on reasonable and probable grounds that the arrested person committed the offence. There is no “finds” or “finds by night” requirement.
Where an offence has not necessarily been committed, an arrest is only subject to an immunity from criminal liability where the “finds by night” test is satisfied and the circumstances afford reasonable and probable grounds for belief that the arrested person is committing an offence.
The “finds” test
[87] Sections 35 and 36 are applicable only where the arresting person “finds” some one “committing” an offence.
[88] If, after A and B have been together for some time, B commits an offence and this comes to the attention of A, it is not an abuse of language to say that A has found B committing an offence. On the other hand, “finds” can also be used in a more restricted sense equivalent to “comes across” or “lights upon”, see Palmer-Brown v Police [1985] 1 NZLR 365 (CA) at 369 per Somers J. In the context of offences against public order, “finds” is given the more restricted of its two relevant meanings, as Palmer-Brown indicates. The six propositions advanced by Somers J in Palmer-Brown at 369 are not entirely easy to apply where, as here, the relevant statutory language is not built around the statutory concept of a “public place”. This means that there is an apparent conflict between propositions 5 and 6 with proposition 5 supporting the view that there may have been a relevant finding and proposition 6 (at least to my way of thinking) supporting the opposite conclusion.
[89] I note as well that there is Victorian authority which provides some support (albeit rather faint given the different context and statutory language) for the view that the approach exemplified by Palmer-Brown, while appropriate in public order cases, might not be applicable to powers of arrest, see de Moor v Davies [1999] VSC 416 and the cases referred to in that judgment.
[90] In light of the hierarchy of justifications and excuses (see [95] above), the less onerous the “finds by night” test, the greater the scope for an arrest in circumstances where no relevant offence has actually been committed. And where that is the case, the “arrested” person will be justified in using force to resist the “arrest” (by way of self-defence) or may choose to “arrest” the first “arrester”. All of this has the potential to bring about a serious fracas but in circumstances where both parties enjoy immunity from the criminal law.
[91] Because I am reluctant to immunise from criminal liability (and thus encourage) the sort of fracas which I have just postulated, I prefer a restrictive view of the relevant statutory immunities. Associated with this, I see the Palmer-Brown approach (and particular proposition 6) as broadly consistent with the sort of circumstances in which a citizen’s arrest would be appropriately justifiable or excusable. I also see this interpretation as most consistent with the most natural reading of s 36.
Had Ginger committed an offence at stage one?
[92] Sections 35 and 37 are engaged only where an offence has been committed. Allowing for the onus of standard of proof, they provided a defence to the appellant only if it was reasonably possible that Ginger had committed an offence. This issue must be addressed objectively and not just on the basis of what the appellant may have thought.
[93] The offending alleged against Ginger in relation to stage one involved assertions that she either deceptively obtained or dishonestly retained money paid to her by the appellant.
[94] I am unable to discern a plausible basis for suggesting that that Ginger had committed an offence at stage one. There is no reason to think that she accepted the money not intending to provide the relevant services and likewise no reason to think that she was acting dishonestly when she sought to retain the money.
Were there reasonable and probable grounds for believing that Ginger had committed an offence at stage one?
[95] This question (which is material to the application of ss 36 and 37) has in substance already been answered in [102] and [103]. But, for the sake of completeness, I record that I can see no basis for a belief on reasonable and probable grounds that Ginger had committed an offence.
Drawing the threads together as to stage one
[96] If there was a detention at stage one, ss 35, 36 and 37 did not provide a defence:
Section 35 was not engaged as Ginger had not committed an offence and the “finds” requirement was not been satisfied.
Section 36 was not engaged as the “finds” requirement was not satisfied and the circumstances did not afford reasonable and probable grounds for belief that Ginger had committed an offence.
Section 37 was not engaged because no offence had been committed and there were not reasonable and probable grounds for belief that Ginger had committed an offence.
The availability of an arguable defence in relation to a detention at stage two
[97] Based on the appellant’s narrative, it would have been open to the jury to conclude that the appellant was protected from criminal liability under s 37 for everything that happened after he was assaulted. From that point, there was a relevant crime (namely assault), he believed on reasonable and probable grounds that Ginger had committed that offence and, for the reasons explained by Heath J, his detention of Ginger arguably amounted to an attempt to invoke the criminal law (albeit that he did in fact release her once she handed the money back).
And so the appeal must be allowed
[98] A conclusion by the jury that the appellant’s conduct during stage one amounted to a detention, while open, was not inevitable and in his summing up the Judge told the jury that it could take into account conduct on the part of the appellant which occurred during stage two. In those circumstances it was incumbent on the Judge to leave the s 37 defence to the jury in relation to the stage two conduct of the appellant. This he did not do.
Solicitors:
Crown Law Office, Wellington
3