Birchall v Police

[2020] NZHC 2378

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-485-000062

[2020] NZHC 2378

PHILLIP BRIAN BIRCHALL

v

NEW ZEALAND POLICE

Hearing:

8 September 2020

Appearances:

T Luders for the Appellant

R H De Silva for the Respondent

Judgment:

11 September 2020

JUDGMENT OF COOKE J

Table of Contents

Relevant facts[3]

Events at the trial[15]

Approach to appeal[17]

Error in the conduct of the trial[23]

Opportunity to provide submissions[24]

Self-represented defendants[31]

Reconsideration of conviction[36]

Was there a miscarriage of justice?[39]

Section 53 – the defence of movable property[41]

Claim of right[44]

Peaceable possession[49]

Result[60]

BIRCHALL v NEW ZEALAND POLICE [2020] NZHC 2378 [11 September 2020]

[1]                 Mr Birchall appeals from the decision of the District Court convicting him of one charge of common assault following an altercation with his mechanic, the complainant.1 He was found guilty after representing himself at a Judge alone trial on 13 July 2020.2 He was sentenced to a $750 fine and ordered to pay court costs of $130 and an emotional harm repayment of $500.

[2]                 Mr Birchall appeals on the basis that he had a defence to the charge under     s 53(1) of the Crimes Act 1961 — the defence of moveable property — and that he was deprived of the ability to advance that defence because the District Court Judge did not allow him the opportunity to present any submissions. On appeal he says his conviction should be overturned.

Relevant facts

[3]                 There is no dispute about the Judge’s factual findings, and I set the relevant facts out largely as recorded by the District Court Judge.

[4]                 The complainant operates a mechanics business. Around the middle of March 2019 Mr Birchall needed some work done on his car. He had earlier sought to have that work done by another mechanic who could not do it in a timely fashion, so he called in to see the complainant at the complainant’s workshop in Upper Hutt. He was given an estimate for the required work of around $410 all up including GST.

[5]                 On the morning of 20 March 2020 he dropped his car into the workshop and left it there with an ignition key for the work to be done. He called into the workshop in the middle of the morning to see how the work was going. He spoke briefly with the employee who was working on his vehicle. The employee told him that it was going ok, and probably gave him an estimate of around an hour and a half or so until the work was finished.

[6]                 Mr Birchall left the workshop. He said that he was expecting a phone call to advise him when the work was finished, and also if the work was going to cost more than the initial estimate.

1      Summary Offences Act 1981, s 9, maximum penalty six months’ imprisonment or $4,000 fine.

2      New Zealand Police v Birchall [2020] NZDC 15990.

[7]                 The complainant said that Mr Birchall had not left a phone number so they were not able to call him. But in any event at around 2.00 or 2.30 pm Mr Birchall turned up to pick up his car. He bought with him a second set of ignition keys because he had left his Eftpos card in the car. He retrieved that card from his car which was parked in the street, and then went into the workshop and approached the mechanic. The mechanic advised Mr Birchall that there had been some unexpected issues and the cost would be about $80 more than the estimate of $410.

[8]                 This caused Mr Birchall to lose his temper. Judge Tompkins observed that this was inexplicable given that it was a “relatively paltry” increase in cost.3 The complainant gave evidence that Mr Birchall then “stormed out”. The complainant decided he had better retrieve Mr Birchall’s car that was parked out on the street. He cut through a slightly shorter route from the workshop to where the car was, and using the key left with him earlier that day went to unlock the door and drive the car back into the workshop premises.

[9]                 Very shortly after the complainant arrived at the car Mr Birchall also arrived with his own key. There was then a tussle between the two. The complainant said that Mr Birchall pushed him out of the way twice preventing him from unlocking the car door, and on the third such push the complainant described getting whacked across the chest by Mr Birchall’s forearm.

[10]              Eventually the complainant stepped back from the driver’s door. Mr Birchall entered the car, wound down the window, abused the complainant, saying that it was his car but “adding some obscenities for emphasis” and then drove off.

[11]              When engaging in cross-examination of the prosecution witnesses Mr Birchall did not dispute that this tussle had happened at the driver’s side door, but stressed that he had been given an estimate and that he was expecting a phone call if the cost of the work was greater than $410 all up including GST. That explanation was provided during Mr Birchall’s cross-examination of the complainant and the mechanic.

3      I note that this involved an increase of about 16 per cent, and that for many New Zealanders $80 would not be a small amount of money.

[12]              The Judge recorded  that  at  no  stage  during  that  cross-examination  did Mr Birchall dispute that there had been a tussle at the driver’s door of the car during which Mr Birchall had prevented the complainant from entering the car. Both the complainant, and the employee gave evidence of the tussle. The employee had witnessed it from the adjacent service station.

[13]              Mr Birchall stressed while cross-examining that he had offered to pay the original estimate, and had also invited the mechanic to retrieve the rest of the costs by going to court, or using the Motor Trade Association’s dispute resolution process.

[14]After setting out those facts Judge Tompkins held:

[12]      In those circumstances I am quite satisfied that the police have proved the charge of assault against Mr Birchall irrespective of the contractual dispute that arose prior to the assault. It is clear that the complainant, who had the key that was left in the mechanics  workshop, arrived at  the  driver’s  door  of Mr Birchall’s car very shortly before Mr Birchall did and there was then a tussle during which Mr Birchall either twice as witnessed by the mechanic, or three times as described by the complainant, pushed the complainant away from the car probably on the third such occasion Mr Birchall’s forearm being used to, as the complainant said, “Whack me across the chest,” to get him out of the way.

[13]      In those circumstances the charge is proved beyond reasonable doubt and Mr Birchall is convicted.

Events at the trial

[15]              Mr Birchall represented himself at trial. As is apparent from the above findings he cross-examined the prosecution witnesses. At the close of the prosecution’s case he elected not to call any evidence. It appears that the Judge did not give him an opportunity to present submissions at that point, and proceeded to deliver the oral decision convicting him of the offence outlined above.

[16]The notes of evidence then record the following exchange:

THE COURT:

Enter the dock please Mr Birchall.

MR BIRCHALL:

Is this the dock?

THE COURT:

That is the dock there, Mr Birchall. I take it from the cross-examination Mr Birchall, you have no relevant previous convictions, is that correct Ms Kensington?

MR BIRCHALL:

Yes, are you asking me Sir?

THE COURT:

Yes.

MR BIRCHALL:

Just one DUI 30 years ago.

MS KENSINGTON:

Yes, that's correct Your Honour.

MR BIRCHALL:

So I guess I forgot to mention section 53 of the Crimes Act offence of a – is that not relevant?

THE COURT:

Of self or property?

MR BIRCHALL:

Sorry?

THE COURT:

Defence of self or property? Self-defence.

MR BIRCHALL:

No, defence of moveable property.

THE COURT:

Yes, yes.

MR BIRCHALL:

I never mentioned that. Is it too late to mention it?

THE COURT:

It is indeed, that's why you should have retained a lawyer possibly Mr Birchall, but having concluded that the police have proved the assault beyond reasonable doubt, you are convicted and fined $750. Court costs, $130, there will be an emotional harm reparation payment of $500 to the complainant. Ready to proceed with the next defended hearing?

REGISTRAR:

Yes. It has a timing Sir of two hours.

Approach to appeal

[17]              An appeal against conviction in a Judge-alone trial is governed by s 232 of the Criminal Procedure Act 2011. The first appeal court must allow a first appeal if satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any other reason. Miscarriage of justice is defined under s 232(4) as any error, irregularity or occurrence in relation to the trial that created a real risk of affecting the outcome or resulted in a miscarriage of justice.

[18]              The assessment of the fairness of a trial is to be made in relation to the trial overall. The Supreme Court in Condon v R noted that a verdict will not be set aside merely because there has been an irregularity in one or even more than one facet of the trial. The irregularity must be such a gross, persistent or prejudicial departure from good practice that the court will have no choice but to condemn a trial as unfair and quash the conviction as unsafe.4

[19]              The Supreme Court recently re-examined the approach to assessment of evidence for conviction appeals in Sena v New Zealand Police.5 The Court held that appeals in such cases should proceed by way of rehearing in accordance with the well- established principles canvassed in Austin, Nichols & Co Ltd v Stitchting Lodestar.6

[20]              In the present case, Mr Luders argues that the Judge erred in failing to give Mr Birchall the opportunity to present submissions on the application of a defence under s 53(1) of the Crimes Act 1961 which provides:

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 or her authority, is protected from criminal responsibility for defending his or her possession by the use of reasonable force, even against a person entitled by law to possession, if he or she does not strike or do bodily harm to the other person.

4      Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].

5      Sena v New Zealand Police [2019] NZSC 55.

6      At [32]; and Austin, Nichols & Co Ltd v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

[21]              As Mr Luders points out that section has been successfully applied by persons in a similar position to Mr Birchall, including by  the  High  Court  in  Hasting  v New Zealand Police where a conviction for assault was overturned for the Court’s failure to apply s 53 in circumstances where a defendant had sought to retrieve a motorcycle wheel from a mechanic and there was a resulting struggle.7

[22]              It seems to me that the appeal involves two questions. The first is whether there has been an error or irregularity in the conduct of the trial. The second is whether that has resulted in an unfair trial.

Error in the conduct of the trial

[23]              On the first point, I accept Mr Luders submissions that there were material errors in the conduct of the trial. Those errors arose because Mr Birchall was not permitted to advance submissions on a defence that he wished to advance in circumstances where the Court should have allowed him that opportunity. There are three aspects of the conduct of the trial that are relevant to that assessment which I examine in turn below.

Opportunity to provide submissions

[24]              First it seems to me that the Judge erred because he did not ask whether the defendant wished to apply to advance closing submissions. The Criminal Procedure Act addresses the question on when submissions can be advanced. Section 105 provides:

105     Conduct of Judge-alone trial

(1)Unless the court directs otherwise, neither the prosecutor nor the defendant may make an opening statement other than,—

(a)in the case of the prosecutor, a short outline of the charge or charges the defendant faces; and

(b)in the case of the defendant, a short outline of the issue or issues at the trial.

(2)Unless the court directs otherwise, the prosecutor and the defendant must call evidence in the following sequence:

7      Hastings v New Zealand Police HC Whangarei AP 24/01, 19 July 2001.

(a)the prosecutor may adduce the evidence in support of the prosecution case:

(b)the defendant may adduce any evidence that he or she wishes to present:

(c)subject to section 98 of the Evidence Act 2006, the prosecutor may adduce evidence in rebuttal of evidence given by or on behalf of the defendant.

(3)Without limiting subsection (2), the court may give the defendant leave to call 1 or more witnesses (for example, an expert witness) immediately after the prosecutor has called a particular witness or witnesses.

(4)Unless the court directs otherwise, neither party may—

(a)make submissions on the facts; or

(b)address the court on the evidence given by either party.

(5)Despite subsection (4), the defendant, whether or not he or she intends to call evidence, may address the court at the end of the prosecutor’s case to submit that the charge should be dismissed.

[25]              It is important to appreciate that s 105 does not provide a complete code on the question of submissions. First, s 105(4) only addresses the question of submissions on the facts. It does not address submissions as to the law. Secondly, and in any event, this section contemplates the Court making a decision on whether submissions will be permitted. For both reasons the responsibility for ensuring a fair trial remains with the Judge. A Judge who fails to give a defendant an opportunity to explain why they should not be convicted cannot point to the terms of s 105 to justify that outcome.

[26]              In Sena v New Zealand Police the Supreme Court has recently reviewed appeals from Judge alone trials, and in addition to its findings in relation to the requirement to give reasons also addressed an alleged failure to consider a written closing submission. The Court said:8

[64] Given our conclusions on the adequacy of the reasons of the Judge which we have already given, we need say no more about this aspect but we add that in cases of factual complexity, judges would be well advised to seek submissions from counsel on the facts. These would be of assistance to judges in ensuring that the prosecution and defence cases are understood and dealt with in the reasons.

8      Sena v New Zealand Police, above n 5.

[27]              Similarly in R v Alexander the Court of Appeal dismissed an appeal on the basis that counsel had not been able to give a closing address in a Judge alone trial but noted that it “would have been better if the Judge had enquired whether counsel wished to address”.9

[28]              In Forster v Police the High Court allowed an appeal in circumstances where the District Court had not considered the application of s 53(1).10 Nation J held there was an error because the District Court Judge did not turn his mind to the potential for a s 53(1) defence, and that it needed to be considered even if not expressly raised.11 Such potential problems are avoided if the Judge checks with both the prosecution and the defence whether there are any particular matters that need to be addressed by way of submission. Here the District Court Judge did not address s 53 in his reasons, and no doubt he would have done so if he had enquired of Mr Birchall whether there was anything further he wanted to say in his defence.

[29]              In a busy District Court is it understandable that Judges may not see the need for submissions with more straightforward cases. But it may be beneficial for a Judge to ask the prosecution and the defence whether they wish to advance any such submissions, and then make an informed decision. It may also be advisable to give an opportunity for submissions if a party wishes to advance them.

[30]              In this case the fact that the Judge neither addressed s 53(1), nor asked whether Mr Birchall wished to advance submissions means that there was an error in the conduct of the trial.

Self-represented defendants

[31]              There is a further dimension in the present case. Mr Birchall was self- represented. In R v Condon the Supreme Court addressed the approach the Court should take in such cases.12 The Court distinguished between circumstances where a

9      R v Alexander CA 444/99, 2 February 2000 at [25]. The Court recorded that the Judge had adjourned before giving his verdict and that no request to make submissions had been made. It also said that the Judge’s view that he would not have been particularly helped by closing addresses was a reasonable one.

10 Forster v Police [2018] NZHC 2365.

11 At [60]–[61].

12 Condon v R, above n 4.

defendant does, and does not, make an informed choice to go to trial without a lawyer. But even when a defendant has made that choice the Court said:

[82]  The Court should examine the manner in which the Judge presided  over the trial, especially whether the Judge clearly explained the court procedures to the accused and thereby minimised the disadvantage of being unfamiliar with the trial process and with rules of evidence. It will be relevant also whether the accused had the benefit of guidance from a lawyer or an amicus at any time prior to or during the trial. The Court must have regard to the personal characteristics of the appellant, such as level of intelligence and education, previous experience in a courtroom and ability to express him or herself clearly and sensibly in that setting. It must look to see whether the case involved any difficult legal issues or had other complexities which might have benefited from analysis by a trained legal mind. It should also look at the nature of the Crown case and at how effectively the accused in fact managed to convey the nature of the defence in cross-examination of Crown witnesses, examining defence witnesses, giving evidence (if the accused chose to do so) and addressing submissions to the Court. Mason J pointed out in McInnis that the calibre of the accused’s forensic performance is a relevant but not a critical factor in the determination of fairness.13 The appeal Court should not be too ready to conclude from a reading of the transcript that the defence has been conducted as competently as counsel, with professional skill and detachment, would likely have done. A transcript does not necessarily convey the full atmosphere of the courtroom and in particular the demeanour of the accused before the jury. A fortiori, if the full transcript, including addresses, is not available.

[32]              Here Mr Birchall made an informed choice not to be represented by counsel. But it is also apparent from the notes of evidence that he was unfamiliar with the processes. A person in Mr Birchall’s position was exercising three roles: he was exercising his right to cross-examine the prosecution witnesses; he could give evidence himself in his defence; and he could exercise a right to present submissions to the Court if allowed to do so. The separation between those three roles would not be obvious to someone without familiarity with trial processes. It may be as well good practice for Judges to explain at the outset of the trial the different roles that a defendant may have when acting for themselves at a Judge alone trial.

[33]              The notes of evidence record that at the outset the Judge explained that the Police had to prove the case beyond reasonable doubt, that Mr Birchall was not obliged to give evidence and could be cross-examined if he did, and that he could call other evidence. That was appropriate advice. But the Judge did not go on to explain the different roles Mr Birchall might exercise during the trial. It became apparent during

13     McInnis v R (1979) 143 CLR 575 at 583.

Mr Birchall’s cross-examination that he did not properly understand the difference between his role in asking questions, and his role in giving evidence. Many of his questions appeared to involve him giving evidence. The Judge told him several times that he could give evidence if he wanted to. But it was apparent that he was struggling to understand, or at least apply these different functions. Indeed the Judge himself appears to have relied on Mr Birchall’s questions as providing his version of events in his factual findings.

[34]              When Mr Birchall then indicated at the close of the prosecution case that he did not want to call any evidence the Judge could then have asked him whether he wanted to say anything else in his defence by way of submission. The Judge may have thought that Mr Birchall had, through his questioning, already conveyed most of what he wanted to say, and there was little advantage of asking for more. But it was apparent that Mr Birchall was not grasping the different functions well, and the problem is that it became apparent after the Judge  delivered  his  reasons  for the  conviction  that Mr Birchall did want to raise a defence. Even then the Judge does not appear to have given Mr Birchall an opportunity to make submissions on his sentence.

[35]              It seems to me that, following the approach in Condon, an unfair approach was adopted to the hearing.

Reconsideration of conviction

[36]              There is then a further aspect. After he had delivered his reasons for the conviction, Mr Birchall advised the Court that he had wanted to advance the defence of defence to property. He asked if it was too late to mention it. The Judge replied “It is indeed, that’s why you should have retained a lawyer possibly Mr Birchall”.

[37]              With respect that was not an appropriate response. In circumstances where the Court is advised that a defendant had wanted to raise a defence, but had not been given an opportunity to do so, it is appropriate for the Court to consider immediately recalling its decision to consider the matter that was not addressed. Mr Luders submitted that s 177 of the Criminal Procedure Act could apply in such circumstances. This section allows a Judge to engage in a retrial on “any terms the Court thinks fit”. As the authors of Adams on Criminal Law note the Courts “take a pragmatic approach

to the ordering of a rehearing … guided by an overriding principle of fairness”.14 Irrespective of the precise jurisdictional basis it would have been a relatively easy matter for the Judge to recall the entry of the conviction, hear submissions on the defence, and then decide whether the defence was made out. It seems to me that that is what he should have done in the present case.

[38]              For those three related reasons I accept that there were irregularities in the conduct of the trial.

Was there a miscarriage of justice?

[39]              The fact that there has been an irregularity in the conduct of the trial does not mean that the appeal should be allowed, however. As the Supreme Court outlined in Misa v R to meet the requirements of s 232(4)(a) there must be a miscarriage of justice.15 In Wiley v R the Court of Appeal described the position in the following way:16

[26]      Dealing first with subs (4)(a), the terms “error, irregularity or occurrence” reflect the breadth of matters that might be regarded as giving rise to a miscarriage of justice. Any such error, irregularity or occurrence may have arisen in the trial itself or in relation to the trial or affecting the trial. We do not attempt to define the range of matters which could fall within the scope of this part of the definition. Suffice to say, it covers all the matters that have hitherto have been regarded as affording grounds for appeal including errors of law (no longer specifically stated to be a ground of appeal). As noted in Sungsuwan, the courts will always reserve the flexibility to identify and intervene to prevent a miscarriage of justice however caused.17 A broad approach is supported by s 25(h) of the NZBORA and the need to ensure the right of appeal is effective. For ease of reference only, we will use the term “error” to include error, irregularity or occurrence.

[27]      Under subs (4)(a) the court must be satisfied that an error has created a real risk that the outcome of the trial was affected. We accept the Crown’s submission that it is appropriate to adopt Tipping J’s formulation of the approach to the assessment of what amounts to a real risk. In Sungsuwan, he said a real risk arises if there is a reasonable possibility that a not guilty (or a

14     Simon France (ed) Adams on Criminal Law – Procedure (looseleaf ed, Thomson Reuters) at [CPA 177.02].

15     Misa v R [2019] NZSC 134.

16     Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.

17     Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.

more favourable verdict)18 might have been delivered if nothing had gone wrong.19

[28]      The use of the term “real” means that the inquiry is concerned with realistic rather than theoretical possibilities. Errors that could not have had any effect on the outcome of the trial cannot found a successful appeal against conviction on the basis of a miscarriage of justice, as was noted by the Supreme Court in Matenga.20

[40]              In the present case it seems to me that the ultimate question is whether a defence under s 53 was made out on the evidence. Mr Birchall elected not to call any evidence at the trial. This is not a situation where any procedural irregularity at trial deprived a defendant of advancing evidential material. The only thing that Mr Birchall was deprived of was the ability to advance a submission. Moreover any theoretical advantages that the Judge may have heard in seeing and hearing the evidence are not meaningful in terms of the issues to be addressed in relation to the defence. This Court on appeal is in just as good a position as the trial Judge in assessing the potential defence. The ultimate question is whether, on the facts as proved at trial, the prosecution established the charges beyond reasonable doubt notwithstanding the defence.

Section 53 – the defence of movable property

[41]The relevant elements of the defence under s 53 are:21

(a)The defendant is in peaceable possession of a moveable thing.

(b)The defendant is in peaceable possession pursuant to a claim of right.

(c)The defendant is defending his or her possession even against a person legally entitled to possession.

(d)The force used by the defendant was reasonable and stopped short of striking or doing bodily harm.

18     A more favourable verdict could include an acquittal on some or all of the charges or a conviction on a lesser charge.

19     Sungsuwan v R, above n 17, at [110].

20     Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].

21     Singh v Police [2003] NZAR 596 at [15].

[42]              There are two initial features concerning s 53 of note. First it is one of a series of provisions in ss 53–56 dealing with defensive action in relation to property. They can be seen as a comprehensive set of provisions dealing with this issue.  Secondly   s 54 clarifies the scope of s 53. It provides:

54     Defence of movable property without claim of right

(1) Every one in peaceable possession of any movable thing, but neither claiming right thereto nor acting under the authority of a person claiming right thereto, is neither justified in nor protected from criminal responsibility for defending his or her possession against a person entitled by law to possession.

[43]              Reading ss 53 and 54 together makes it clear that there are two separate requirements. First the defendant must be in “peaceable possession” of the property, and secondly the peaceable possession must be in accordance with a “claim of right”. I deal with each requirement in turn.

Claim of right

[44]              As Mr Luders submitted “claim of right” is a defined term and means a “belief of a fact or matter of law,  even if it is based on ignorance or mistake of fact”.22  As   s 54 makes clear  peaceable  possession  by  itself  will  not  found  a  defence.  So Mr Birchall needed to be in peaceable possession, and needed to show he believed he had a right to have possession of his car.

[45]              Mr Birchall elected not to give evidence. He accordingly gave no evidence that he believed he was entitled to possession of his car. I accept that that is not fatal as there could be evidence from the other witnesses that this was Mr Birchall’s belief. In advancing an argument that this was so Mr Luders referred me to the following passage of cross-examination where Mr Birchall questioned the employee of the mechanic:

Q.     You don’t remember me offering to pay 410 –

A.     I remember you offering to pay less than the bill, yeah.

Q.     Okay. ‘Cos even Tony mentions here I offered to pay 410 –

22     Crimes Act 1961, s 2, definition of “claim of right”.

A.     I remember you paying, offering to pay less, I do remember that, yes.

Q. Okay. And you know that I sent a cheque to him for 410 and he sent it back?

A.     Okay.

Q. Okay. You didn’t. Okay. And so... Okay. All right. And then what happened was we didn’t reach an agreement, right? Do you remember me talking about an analogy of, that I was a builder and I said, “Look, hey, if I did some work on your house Tony and it cost more that I quoted you, it wouldn’t be fair to nail your front door up.” Do you remember me saying that?

A.     I do remember you having that conversation, yeah.

[46]              That does not involve the witness accepting that Mr Birchall believed he had right to possession. It amounts to Mr Birchall saying that he argued that the exercise of the lien was unfair. The witness’s acceptance that he said this does not mean that Mr Birchall had a belief that he was entitled to override the lien and have possession. Indeed the exchange recognises the existence of the mechanics right to have possession because of a lien. That is confirmed by what Mr Birchall had earlier asked the complainant:

Q.     Okay, well in your statement you said that I offered to pay you $410.

A.     Yeah, and what did I say?

Q.     Okay, and you said to me, “You’re not getting your car back.”

A.     Until you pay the bill.

Q. Bill full, right and my issue was, you felt that you could hold me to ransom and you didn’t –

A.It’s not actually a ransom, but we can actually have a worker’s lean on the –

Q.     I under – it’s true.

A.     Yeah.

Q. As a mechanic, if you put your car into the garage and quote the job,  what is the repairer – a repairer’s leg – is the legal right for a repairer to hold goods, is that correct?

A.     No.

Q.     That’s what the consumer says?

A.     Because those goods belong to me until you’ve paid for it.

Q. I accept that and I understood that, right, but there was this issue of disrespect and you weren’t there when Richard said this to me, okay, I’m just saying to you –

A. Disrespect, I don’t understand that –

[47]              The Judge then intervened in the questioning to say that he could not put questions of law to the witness.

[48]              As I have said Mr Birchall’s questions are not evidence. But in any event the prosecution witnesses did not give evidence that Mr Birchall believed he had a right of possession even without paying for the goods. So there was no evidence before the Court that Mr Birchall had that belief.

Peaceable possession

[49]              In terms of peaceable possession, this requirement was addressed comprehensively by the Supreme Court in Taueki v R.23 The Court held:

[64] “Peaceable possession” must be given a meaning that gives due scope to both the ss 52–56 defences and the s 91 forcible entry offence. The character of the possession in s 56 which justifies limited use of defensive force is not concerned with the quality of the possessor’s title to the property, nor, generally, the basis on which possession was acquired. Overall, the meaning of “peaceable possession” which best fits the context of the Crimes Act is simply possession that has been achieved other than in the context of an immediate or ongoing dispute. In brief, it is possession obtained and maintained before the employment of the physical force the use of which the person seeks to justify.24

[50]              In the present case I am satisfied that Mr Birchall was not in peaceable possession of his vehicle when he pushed the complainant. The vehicle had been delivered by Mr Birchall to the mechanics to be repaired earlier in the day. Possession had passed to the mechanics for that purpose. They had been given the keys to the vehicle and had a lien in relation to the vehicle entitling them to possession until the bill for the repairs was paid.25

23     Taueki v R [2013] NZSC 146, [2014] 1 NZLR 235.

24     See Lows v Telford (1876) 1 App Cas 414 (HL)

25     See Casey Laws of New Zealand Lien (LexisNexis, Wellington) at [11]; referred to in Bay Flight 2012 Ltd v Flight Care Ltd [2012] NZHC 484, [2012] NZAR 436 at [22]-[23].

[51]              It does not matter that the vehicle was parked in the street, rather than in the workshop. The mechanic still had possession of it. The mechanic had parked the car in the street, locked it, and retained the keys. The mechanic retained control of the vehicle, and retained the mechanic’s lien. Neither does it matter that Mr Birchall said when he questioned the witnesses that he accessed the vehicle using a second set of keys and retrieved his Eftpos card prior to going into the workshop. Those actions were not inconsistent with the continuation of the mechanic’s lien over the vehicle.

[52]              There was then a dispute about the price that Mr Birchall needed to pay. During that dispute the mechanic  specifically  said  he  was  exercising  the  lien.  Mr Birchall then left the workshop and attempted to take the vehicle notwithstanding the lien. He was only able to attempt to do so because he had brought along a second set of keys. The first set of keys remained with the mechanic, reflecting the mechanic’s right of possession under the lien.

[53]              There was then a contest between the mechanic and Mr Birchall to get to the vehicle, unlock it and drive it away to win the contest for possession. Each had a set of keys. As it happens the mechanic got there first. But that does not matter. Prior to the dispute initially breaking out in the workshop, and Mr Birchall making the attempt to take the car without paying for the repairs, it was the mechanic that had peaceable possession of the vehicle.

[54]              Indeed what the case comes down to is the suggestion Mr Birchall should be able to take the vehicle without paying for the repairs and thereby defeat the mechanic’s lien. He was not entitled to do that. He was accordingly not entitled to use force to have possession of the vehicle under s 53. The defence is a shield not a sword. It is not a section that gives justification for a person to seek to take possession of property when another person has a right of possession. The section is more limited.

[55]              It may be that some of the earlier cases will now need to be considered in light of the clarification provided by the Supreme Court in Taueki. But none of them is directly on point in any event. In Hastings v Police the general situation was similar, although the property in question was a wheel rather than a vehicle, and the defendant had taken physical possession of the wheel inside the mechanics workshop before the

tussle took place.26 So the defendant can be said to have been in peaceable possession prior to any dispute. The Court also found that there had been no assertion of a lien.27 Those two features means that it is different from the present case.

[56]              I also note the other authorities which contemplate that s 53 may be available where a defendant has lost immediate possession.28 But they seem to me to involve the defendant still taking action to defend the taking of the property when a contest for possession is realistically still alive, and the defendant is still defending the peaceable possession he or she previously had. Each of those cases will turn on their own facts. As the Supreme Court outlined in Taueki, what is important is whether a defendant has been in peaceable possession, and is acting defensively on the facts.29

[57]              I also reject Mr Luders argument that the case turns on very fine distinctions on precisely who had possession of the vehicle, and in those circumstances this Court on appeal should not determine those matters as they required express findings of the trial court.   I do not agree.   The facts as found were clear.   Based on those facts   Mr Birchall did not have peaceable possession before the tussle occurred.

[58]              For these reasons I conclude that Mr Birchall was not in peaceable possession of his vehicle before pushing the complainant away from it. I have earlier held that he did not call any evidence that he believed he had a right to possession. It is apparent, therefore, that s 53 was not made out on the facts established at trial. It follows there has been no miscarriage of justice notwithstanding the irregularities at trial.

[59]              For completeness I note that, had it been necessary to assess whether the force used by Mr Birchall was reasonable, I may well have accepted Mr Luders submission that it would not be appropriate on appeal for the Court to find against Mr Birchall on this issue. It is true that the Judge held that on the third occasion of pushing away that Mr Birchall “probably” whacked the complainant across the chest. But probability does not meet the required standard of proof, and in any event the Judge’s findings

26     Hastings v Police, above n 7, at [4].

27 At [20].

28     Ruwhiu v Police HC Auckland CRI-2008-404-0259, 22 December 2008; Manase v Police HC Auckland CRI-2006-404-39, 21 July 2006; Forster v Police, above n 10.

29     Taueki v R, above n 23.

were not directed to the elements of s 53. So I would not have held against Mr Birchall on this point alone.

Result

[60]              For the above reasons I accept that there were material irregularities in the manner that the trial was conducted, and in particular material failures by the Judge to allow Mr Birchall to properly present his defence to the charges. But I conclude that there has been no miscarriage of justice as a consequence as I am able to fully assess the defence that is raised, and have concluded that it is not available. In particular  Mr Birchall was not in peaceable possession of his vehicle, and neither did he believe he was entitled to possession when he pushed the complainant three times in order to take that vehicle.

[61]For these reasons the appeal is dismissed.

Cooke J

Solicitors:

Public Defence Service, Wellington for the Appellant Crown Solicitor, Wellington for the Respondent