B v Police HC Auckland CRI 2008-404-8
[2008] NZHC 1175
•24 July 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2008-404-000008
B
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 24 July 2008
Appearances: G Anderson for Crown
I Jayanandan for Respondent
Judgment: 24 July 2008
ORAL JUDGMENT OF VENNING J
Solicitors: Crown Solicitor, Auckland
Copy to: I Jayanandan, Auckland
B V NEW ZEALAND POLICE HC AK CRI 2008-404-000008 24 July 2008
[1] Following a defended hearing before Judge McAuslan the appellant Mr B was found guilty of one charge of male assaults female and another charge of intentional damage of a mobile phone. Mr B appeals from those convictions.
Background
[2] Mr B and the complainant formerly lived together. The complainant was at Mr B ’s home one evening after work. An issue arose between them as to the division of certain items of property between them. The discussion quickly degenerated. Mr B told the complainant to “f” off. She refused. The situation then worsened. It very shortly became physical. The complainant described an incident where the appellant was trying to push her through the doors from the deck to the lounge. She wouldn’t go. They were wrestling and jostling with each other. She said Mr B picked her up and threw her on the ground. She said she landed on her back.
[3] The complainant then described a second incident where Mr B started to pick up her cigarettes and threw the beer can that she was drinking from away. She responded by throwing the t.v. remote and her handbag at him. After that she said Mr B came into the lounge and chased her around the couch. She said he picked her up. She fell down off the couch, and he grabbed her legs and dragged her through the lounge and into the kitchen.
[4] As a result of the altercation between the two the complainant suffered at least one dislocated finger, general bruising to her body and grazing to her back. Mr B also suffered bruising during the incident. He says his lip was injured when the complainant threw her handbag at him.
[5] The complainant also described Mr B picking up her cellphone (which had fallen out of her handbag when she threw that at him) and smashing it on the deck. Mr B said he threw the phone away to stop the complainant
throwing it at him again. When she went to leave the complainant could not find her phone but a friend later collected it. Mr B left money with it to replace it.
[6] Mr B gave evidence. He did not accept he pushed the complainant onto the ground as she described in the first incident but did accept that he dragged her by the ankles about six feet between the lounge and kitchen. He said he let her go when her pants started to fall down. He denied injuring her fingers.
[7] The defence submitted that Mr B threw the complainant’s cellphone away in self defence to stop her using it against him again, referring to R v Haddon CA311/05 9 May 2006 as authority for the proposition that self defence can be a defence to wilful damage.
[8] In relation to the charge of male assaults female the defence submitted that while Mr B had dragged the complainant by holding her ankles for a very short distance he did so in an effort to remove her from his house and to stop her damaging property. The defence relied on ss 56 and 53 of the Crimes Act, defence of land or building and defence of movable property with claim of right. It was submitted that the evidence and the police case had not ruled out the defences.
Judge’s decision
[9] In finding the charge of wilful damage proved the Judge found the appellant had damaged the cellphone. She did not accept that the complainant was posing such a threat that the appellant had to destroy the cellphone in self defence.
[10] On the charge of male assaults female the Judge considered that the dislocated finger and/or bruisings and scrapes came within the definition of bodily injury so that the defences under ss 53 and 56 were not available. Further, the Judge did not consider the force used by Mr B was reasonable in the circumstances. For those reasons she found the charges proved and entered a conviction on the male assaults female charge.
[11] In support of the appeal counsel generally submitted that:
• the Judge made a number of errors in fact and law; and
• that the complainant’s evidence was inconsistent and did not satisfy the requirement of proof beyond reasonable doubt.
The factual errors
[12] At para [12] of her decision the Judge stated:
Clearly, the dislocated fingers and/or the bruising and scrapes which even you accept you were responsible for causing, would come within the realm of bodily injury.
(emphasis added)
Counsel submitted there were no evidence that the appellant accepted responsibility for causing the dislocated finger and/or the bruising.
[13] The Judge’s statement is to a degree ambiguous. The reference to Mr B ’s acceptance of responsibility could have been in relation to the bruising and scrapes. Under cross-examination it was put to the appellant:
And when you dragged her through to the kitchen, she received the graze on her back didn’t she and that’s consistent isn’t it Mr B ?.....Possibly.
[14] I agree that at its highest in terms of a concession the appellant only accepted it was possible he had caused bruising to the complainant’s back. But whether he accepted it or not was not material. His acceptance of it was not an element of the offence the police had to prove. It was unnecessary for the Judge to find whether the appellant accepted he had caused the injury or not to find the charge proved. The question was whether the appellant had caused the injuries as a matter of fact. There was more than sufficient evidence to establish that. The complainant saw a doctor on the evening of the incident. The doctor treated her for a dislocated finger and
damage to another finger. There is no suggestion that the dislocated finger was caused other than in the altercation with the appellant. Further, the complainant had photographs taken of her injuries including the graze on her back. She said the photographs (which were produced in evidence and show a graze on her back) related to the incident she described with Mr B . The placement of the graze was consistent with and supportive of her evidence that it was caused when she was dragged by the appellant on her back along the floor for between six feet and three metres. The appellant himself did accept that he dragged the complainant. There is nothing in this first point.
[15] Counsel also referred to the Judge’s comment that:
It is quite apparent that you caused her injuries and you have admitted causing the bruising on her back.
and criticised that finding.
[16] The same point applies. Even if the Judge did overstate the appellant’s concession it is not material. The appellant did admit dragging the complainant. The Judge was entitled to find that the graze was caused by the dragging. It was a reasonable and, in the circumstances, the only inference to draw as to the source of the injury.
[17] Despite that counsel submitted in written submissions that the evidence surrounding the graze on the back was insufficient to prove that the appellant intended to cause the complainant harm. Counsel however mistakes what is required at law for the charge to be proved. For the charge of assault by a male on female there are three elements required to be proved:
(1) application of force, which can be the slightest touching;
(2)that the application of force was intentional (as opposed to accidental); and
(3) that the assault was carried out by a male on a female.
[18] There is no issue that there was an application of force in this case and that it was carried out by a male on a female. The issue is whether the application of force was intentional as opposed to accidental. The appellant’s dragging of the complainant along the floor is clearly an intentional rather than accidental application of force to the complainant. It cannot be seriously argued otherwise.
[19] The Crown must then negate the defences raised which in this case were under s 53 and 56 of the Crimes Act. As relevant they read:
53 Defence of movable property with claim of right
(1) Every one in peaceable possession of any movable thing under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending his possession by the use of reasonable force, even against a person entitled by law to possession, if he does not strike or do bodily harm to the other person
56 Defence of land or building
(1) Every one in peaceable possession of any land or building, and every one lawfully assisting him or acting by his authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him therefrom, if he does not strike or do bodily harm to that person.
[20] Both only apply as defences if the force used is reasonable and the person in the position of the appellant Mr B does not strike or do bodily harm to the other person, in this case the complainant. There is no suggestion of a striking in this case. The issue is whether the appellant did bodily harm to the complainant. Bodily harm is not defined in the Crimes Act. It is generally accepted that the common law definition applies. It is said that all that is necessary is there should be a hurt or injury calculated to interfere with the health or comfort of the victim. It need not be an injury of a permanent character nor need it amount to what would be considered a grievous bodily harm. It need not be permanent or dangerous: R v Miller [1954] 2 QB 282. In R v Donovan [1934] 2 KB 498 the Court of Appeal at p
509 noted that it was necessary that the appellant’s action be “likely or intended” to cause injury.
[21] In this case there is the action of dragging the complainant against her wish along the floor in a vigorous way so that her clothes rode down, her body was
exposed to direct contact with the floor and was rubbed along it for a distance of at least six feet on the appellant’s evidence and three metres on hers. The Judge was entitled to draw the inference that such actions were likely or intended to cause hurt or injury of the nature referred to and required for bodily harm.
[22] Counsel next submitted the Judge was wrong to find that:
In your [the appellant’s] evidence you accepted that you threw and damaged the mobile phone.
While the appellant accepted throwing the phone he did not accept damaging it. Again strictly counsel is right but that does not address the particular issue that the Judge had to consider. On the complainant’s evidence the appellant repeatedly bashed the phone against the deck and damaged it in that way. On the appellant’s evidence he said he threw it away to avoid the complainant throwing the phone at him again. There was independent evidence that in any event the phone was damaged. The appellant has effectively conceded that by his actions, by leaving money to replace the phone when it was collected by the complainant’s friend. The issue is whether the appellant had a defence to the wilful damage charge on the basis that he threw the phone away for self defence. The evidence is at the time of that incident the complainant had thrown her handbag at him. The phone was in the handbag. It fell out and was on the table between them. There is no suggestion in the evidence the complainant was making her way towards the appellant to throw the phone at him again. The appellant clearly had other options available to him short of throwing the phone away. The phone was within his reach. If he wished to stop the complainant using the phone against him again he only had to pick it up and put it in his pocket. The Judge was entitled to find and draw the inference that the defence did not apply and that the appellant intended to damage the phone when he threw it away, even if the Judge accepted the appellant’s evidence on this issue in preference to the complainant’s evidence. If the Judge accepted the complainant’s evidence then the defence does not arise.
[23] Counsel then submitted that the Judge erred at law by stating that:
I do not find anything really turns on whether or not she was a trespasser. Clearly, it was your home and you told her to go.
[24] There is nothing in this point either. The Judge’s focus was on the second sentence, namely that the appellant was seeking to remove the complainant from his property as he was entitled to do. The Judge was simply noting that it didn’t matter whether or not the complainant was a trespasser. The appellant as owner of the property was entitled to ask her to leave and, if she refused, to remove her. But the submission does not address the issue of whether Mr B had caused bodily harm to the complainant when seeking to remove her. If any one of the elements was proven not to be made out then the defence is not made out overall.
[25] Counsel then submitted that s 53 allowed the use of reasonable force in defence of property and that the Judge was wrong to simply focus on the issue of bodily injury. But as discussed with counsel the only interpretation of s 53 is that both the force used must be reasonable and also that in using that reasonable force the person in the position of the appellant is not entitled to strike or do bodily harm to the other person. If either the force used is unreasonable or the complainant is struck or suffers bodily harm at the hands of the appellant then the defence is not available. As Ms Anderson notes s 56 also incorporates the requirement that the force must be reasonable. On the facts the Judge found that the force used by the appellant was not reasonable in the circumstances. That was open to her on the evidence.
[26] Counsel then submitted that the complainant’s evidence lacked credibility, noting inconsistency between the complainant’s evidence in Court and what she apparently had said in her statement to the police. In evidence she said that her dislocated finger occurred when they were in the kitchen. In her statement to the police she had said it happened when she was trying to get the appellant to stop dragging her round. The complainant was not, however, challenged on the basis of a prior inconsistent statement. Counsel just put to her that she had one dislocated finger as opposed to the two that she referred to. The circumstances of the dislocation and the injury to the finger occurring were not put to her. Counsel suggested during the course of submissions that perhaps a ground of appeal could be advanced on the basis of counsel incompetence. Of course if a ground of that nature is going to be raised then the appellant must give notice of such ground well in advance of the hearing. It is necessary to waive privilege so that an affidavit can be
obtained from counsel appearing for the appellant at the lower Court hearing. There is no substance in the point in my judgment. Quite apart from the evidence in relation to the dislocated finger and where it occurred, there was the more significant evidence of the dragging incident and in relation to that, the appellant’s own evidence was consistent with the complainant’s, at least in relation to the fact that he dragged her by her feet while she was on her back for a distance of at least six feet.
[27] Next, it is suggested that other aspects of the complainant’s evidence were inconsistent. This submission comes down to the issue of credibility and whether the Judge was right to accept the evidence of the complainant in preference to the appellant and if she did whether on the basis of that evidence she could be satisfied beyond reasonable doubt the elements of the charges were made out. In such a situation the appellant must persuade this Court on appeal that the Judge’s decision was wrong on these issues. Due consideration must be taken of the fact that the District Court Judge saw the witnesses where credibility is important. An appellate Court must exercise caution when facts found by the trial Judge turn on issues of credibility. That has been confirmed recently by the Supreme Court in the decision of Austin, Nichols & Co Incident v Stichting Lodestar [2007] NZSC 103 at para [13].
[28] Counsel then submitted that:
Issues such as whether or not bodily harm was caused intentionally by the appellant would depend on the availability of the defence of self-defence.
[29] Self-defence includes both subjective and objective consideration of the reasonableness of the force used. As noted, the Judge found the force used was not reasonable. The Judge was entitled to make that finding on an objective basis. It was unnecessary for the self-defence of the appellant for him to drag the complainant from the lounge to the kitchen. When dragging the complainant in that way he was not acting by way of self-defence. At best from the appellant’s point of view it could be said he was acting to remove her from his home in reliance on s 56 but for the reasons discussed above, in doing so he had to ensure that his actions did not cause bodily harm to the complainant. As his actions did cause bodily harm to the complainant the defence is not available.
Result
[30] For the above reasons the appeal must be dismissed.
Venning J
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