Brown v Police

[2014] NZHC 2587

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-77 [2014] NZHC 2587

BETWEEN

DOUGLAS CLINTON BROWN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	13 October 2014
Appearances:	K M Leys for Appellant O Klaassen for Respondent
Judgment:	22 October 2014

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on

22 October 2014 at 1.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Auckland

Copy to:

K Leys, Manukau City

BROWN v NEW ZEALAND POLICE [2014] NZHC 2587 [22 October 2014]

[1]      This is an appeal against conviction.  Mr Brown appeals against conviction for driving with excess blood alcohol as a third or subsequent offence.   He was convicted by Judge Sinclair following a defended hearing in the North Shore District Court on 22 August 2013.  He wanted to elect trial by jury.  He was assured by the Judge that if he established a reasonable doubt he would be acquitted.

[2]      There was no dispute as to the alcohol reading and the procedure undertaken by the police.   The defence he ran was that he was under compulsion to drive because of threats of grievous bodily harm made by his son.

[3]      Since the death of his wife, Mr Brown lives with his son who is in his mid- twenties.  I am satisfied the family history that he has reasons at times for concern as to his physical safety in his son’s presence.

[4]      Mr Brown lives in Lake Road, Belmont.  His defence was that he had been drinking a bottle of wine in the afternoon when his son and his son’s girlfriend arrived home, and they were arguing.  He intervened into the argument.  He tried to protect the girlfriend and his son turned on him and hit him and he said, threatened to kill him.  He then “ran out the back” and got into a neighbour’s car.  The car is not the property of an immediate neighbour, but of a friend who leaves the car on his property with keys in it.  He said he had panicked and he drove away intending to go to the nearest police station.  He was aware the Takapuna Police Station was closed and believed the nearest station was at Sunnynook.  So he drove down Lake Road and across to Northcote;  a distance of several kilometres leading to the finding of fact which I think is critical to this issue:

[26]     I am clear from the evidence that you have given, that you had an argument with your son that evening.  I consider it is quite possible that that argument had an element of physicality and you were concerned about your son’s behaviour.   However I am not convinced that your son’s behaviour compelled you to drive from Belmont to Akoranga Drive, which must have been over six kilometres, until you reached the police checkpoint.

[5]      Those findings of fact have to be read against the law, which is contained in s 24 of the Crimes Act 1961, which provides:

24       Compulsion

(1)       Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion.

(2)       Nothing  in  subsection  (1)  of  this  section  shall  apply  where  the offence committed … is an offence specified in any of the following provisions of this Act, namely:

(a)      Section 73 (treason) or section 78 (communicating secrets): (b)     Section 79 (sabotage):

(c)      Section 92 (piracy):

(d)      Section 93 (piratical acts):

(e)      Sections 167 and 168 (murder): (f) Section 173 (attempt to murder):

(g)      Section 188 (wounding with intent):

(h)      Subsection (1) of section 189 (injuring with intent to cause grievous bodily harm):

(i)       Section 208 (abduction): (j)        Section 209 (kidnapping): (k) Section 234 (robbery): (ka)          Repealed.

(l)       Section 235 (aggravated robbery): (m)     Section 267 (arson).

(3)       Where a woman who is married or in a civil union commits an offence, the fact that her spouse or civil union partner was present at the commission of the offence does not of itself raise a presumption of compulsion.

[6]      The word “compulsion” is carefully chosen by Parliament and is backed up by the surrounding words of immediate death or grievous bodily harm from a person who is present when the offence is committed.

[7]      The fact that tells against the application of that section as a defence is the distance that Mr Brown drove.  At least over six kilometres.  It included passing the service station on Lake Road where he could have pulled off and rang the police.  He advised me on appeal that he did not have a telephone.

[8] The Judge made other findings of fact which do not assist Mr Brown, but I do not need to go into them. Critical findings of fact sufficient to eliminate the defence of compulsion are contained in paragraph [26]. I am satisfied accordingly, that the appeal cannot possibly succeed. It is dismissed.