Aue v Police - [2013] NZHC 637

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000316 [2013] NZHC 637

BETWEEN TEMAERA AUE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 25 March 2013

Appearances: D P Nairn for Appellant
W N Fotherby for Respondent

Judgment: 27 March 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 27 March 2013 at 3:00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140
Fax: (09) 336-7629 – Email: william.fotherby@meredithconnell.co.nz

Counsel: D P Nairn, P O Box 76661, Manukau 2241
Email: nzbarrister@xtra.co.nz

AUE V NZ POLICE HC AK CRI-2012-404-000316 [27 March 2013]

Introduction

[1] At 5.05pm on 5 December 2011 a 111 call was made from 52B Otara Rd, Otara. The caller was Mr Terbo Aue. He was asking for help with his adult son, Temaera Aue, who is the appellant. Temaera Aue was reportedly being verbally abusive but there were no weapons involved and the Police assessed the situation as
being “no apparent risk”.1 The Police had no units available at the time. Two police

officers attended at about 9pm.

[2] One of the officers, Constable Roberts, went round the back of the house, where he found the appellant and his partner in the doorway of a shed. The appellant’s partner said that they had been using cannabis. Constable Roberts asked them to come to the front of the property so that he could speak to them, which they did. However, when they got to the front of the property they found Constable Tai speaking with Mr Aue senior at the front door. Mr Aue senior, who appeared intoxicated, was telling Constable Tai, in colloquial terms, to leave the property.

[3] Constable Roberts sought to speak to the appellant about the cannabis. The appellant, like his father, told the officer to leave the property. Neither man would discuss the 111 call. The appellant was aggressive and yelling at Constable Roberts, who warned him that he risked being arrested. He still did not calm down. He was arrested for disorderly conduct but resisted the arrest and subsequently spat at Constable Roberts.

[4] The appellant was convicted following a defended hearing in the Manukau District Court before Judge McElrea2 on charges of disorderly behaviour,3 resisting arrest4 and assaulting a police officer.5 He appeals his convictions on the grounds that:

(a) His conduct did not amount to disorderly behaviour;

(b)The implied licence by which the police officers came onto the property had been revoked prior to his being arrested and the Police

1 The internal Event Information record.
2 Police v Aue DC Manukau CRI-2011-092-018673, 10 August 2012.
3 Section 4(1)(a) Summary Offences Act 1981.
4 Section 23 Summary Offences Act 1981.
5 Section 10 Summary Offences Act 1981.

were therefore not acting in the execution of their duty when they arrested him. An essential element of the offences of resisting arrest and assaulting a police officere could therefore not be proved.

[5] Mr Nairn,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aue v Police

Details

AGLC: Aue v Police [2013] NZHC 637
Case: [2013] NZHC 637
Decision Date: 27 March 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Temaera Aue appealed against his convictions for disorderly behaviour, resisting arrest, and assaulting a police officer. The convictions arose from an incident where police officers attended a property in Otara following a 111 call reporting verbal abuse. The appellant resisted arrest and spat at a police officer. Aue argued that his conduct did not amount to disorderly behaviour, and that the police were not acting in the execution of their duty when they arrested him, as the implied licence had been revoked. The court allowed the appeal in relation to the charge of disorderly behaviour, finding that the conduct did not substantially disturb the normal functioning of the neighbourhood. The court dismissed the appeal in relation to the charges of resisting arrest and assaulting a police officer, finding that the officers were lawfully on the property when the arrest was made. The convictions for resisting arrest and assaulting a police officer were upheld.

The court held that the principle of necessity may permit entry onto private property in response to a 111 call, but only where there is a true risk to human life or a threat of serious physical harm. In this case, the police attended the property four hours after the 111 call was made, and there was no apparent danger to anyone when they arrived. The court found that the principle of necessity did not apply, and the police were lawfully on the property when they arrested the appellant. The appeal against the convictions for resisting arrest and assaulting a police officer was therefore dismissed. The conviction for disorderly behaviour was quashed.

Orders