C v Police HC Christchurch CRI 2009-409-121

[2009] NZHC 1419

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2009-409-121

BETWEEN  C

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 October 2009

Appearances: Andrew Bailey for Appellant

Kathleen Bell for Respondent

Judgment:      13 October 2009

JUDGMENT OF HARRISON J

SOLICITORS

Andrew Bailey (Christchurch) for Appellant

Raymond Donnelly & Co (Christchurch) for Respondent

C V POLICE HC CHCH CRI 2009-409-121  13 October 2009

Introduction

[1]      Mr C   appeals against his conviction following a summary trial in the District Court at Christchurch on one charge of assault.   The prosecution originally  charged  Mr C    with  assaulting  a  police  officer,  Constable  Scott Allison, in the execution of his duty.  Judge Somerville found that the officer was acting unlawfully in attempting to detain Mr C   without cause.  He amended the charge to one of assault which he found proven.

District Court

[2]      The relevant facts are not complex.  Mr C   was in the company of four others one evening in Christchurch.  All five were affected by alcohol.   They had earlier been involved in what the Judge described as ‘a confrontation further down the street with some neighbours’.  Some minor damage was done as a result.

[3]      The  police  arrived  in  a  van.     Four  or  five  officers  began  separately questioning  Mr C    and  his  four  companions.    Constable  Allison  questioned Mr C   in a bus shelter.  It was about 10 pm and dark.

[4]      Judge Somerville accepted evidence from Mr C  ’s friend, a Mr Stewart, that Mr C   is prone to argumentative and aggressive behaviour when drunk.  The Judge was satisfied that he displayed these characteristics when questioned by Constable Allison.  In the Judge’s words, Mr C   ‘is not particularly well disposed towards the police’.

[5]      Mr C   declined, as he was entitled, to answer the officer’s questions.  The Judge found that Constable Allison did not then have sufficient information in his possession to arrest Mr C  .   Thus he had no power to detain him.   The Judge found that Mr C   may well have felt subject to some form of restraint bearing in mind that he was within a bus shelter and the officer was blocking or limiting his route of departure or escape.

[6]      Judge Somerville proceeded on the premise that Constable Allison was acting unlawfully in impeding Mr C  ’s right to leave the bus shelter.   He made these critical findings:

[12]      Mr C  , in those circumstances, was entitled to use reasonable force to extract himself from that position. In fact, what he did was attempt to knee Constable Allison in the groin, not once but two or three times. This was  observed  by  Constable  Allison,  Constable  Stevens  and  Mr  C  ’s friend  Mr Stewart.  Even  Mr  C    himself  said  that  when  arrested  he continued to kick Constable Allison.

[13]     In other words, the kicking had begun prior to the arrest. It was the kicking that caused the arrest. That kicking was the use of unreasonable force in the circumstances. However, Constable Allison at that point was not acting in the execution of his duty. What I have instead is an assault by one person on another.  The charge will therefore be reduced from an assault on a constable to simply ‘assaulted Scott David Allison’. You have the right, Mr C  , to seek legal advice about that.

[7]      After amending the charge and giving Mr C   the right to seek legal advice (I assume that Mr C   did not object to the amendment), the Judge found the charge of assault proven: s 9 Summary Offences Act 1981.

Appeal

[8]      Mr  C    appeals  against  conviction  on  three  grounds.     His  counsel, Mr Andrew Bailey, has filed a careful and comprehensive synopsis of submissions in support.

(1)      Factual Error

[9]      First, Mr Bailey submits that Judge Somerville misinterpreted the evidence in finding the charge proven.   He submits that the Judge failed to make a critical finding to the effect that he accepted Constable Allison was an honest and reliable witness.  Moreover, he says that the Judge erred in interpreting critical passages of Mr C  ’s evidence both in chief and cross-examination.

[10]     This  ground  of  appeal  has  not  merit  whatsoever.    The  ratio  of  Judge

Somerville’s succinct decision is unambiguous.   He accepted Constable Allison’s

evidence corroborated by two others.  It was not in material dispute.  Indeed in the passages upon which Mr Bailey relies Mr C   admitted assaulting the officer.  In evidence-in-chief,  when  asked  to  give  details  about  an  alleged  advance  by  the officer, he said:

Well he turned and well just blocked me and that’s when I started ‘cos he then placed me under arrest and I continued to kick, to fight for my -, yeah.

[11]     Then, in more damaging fashion, when cross-examined by the prosecutor about whether he meant to say ‘I continued to kick’, Mr C   said:

Yeah I continued to kick because he then had me under arrest and of course I’m gonna fight for it ‘cos I’m under arrest and I’m innocent because yeah I had nothing to do with anything that happened that night.

[12]     These admissions were unequivocal and corroborated the evidence of three other witnesses.

(2)      Unreasonable Force

[13]     Second, Mr Bailey submits that the Judge was wrong to find that Mr C  ’s kicking  constituted  unreasonable  force  in  the  circumstances.    He  relies  on  the disparity between the size of Mr C   and the officer; the fact that the officer had already  subjected  Mr C    to  questioning  for  about  10 minutes;  that  Mr C   plainly wanted the questioning to cease and to be able to leave; and that Mr C   would have felt trapped or imprisoned.  Mr Bailey says that Mr C   would have realised that his chances of escaping were extremely low when the officer blocked his intended departure route.  Accordingly he says Mr C   was justified in using

‘firm force’ to attempt to escape from custody.

[14]     I also  reject  this  ground  of  appeal.    Mr Bailey is  correct  that  Constable Allison appeared to have little difficulty in overcoming the force used against him by Mr C  .    However,  that  is  not  the  point.    Whether  or  not  the  force  used  is reasonable is a question of fact and degree.

[15]     A helpful authority is Williams v Police [1981] 1 NZLR 108. A police officer wrongfully attempted to block Mr Williams’ path. Mr Williams pushed him

aside with his arm.  The officer persisted in blocking Mr Williams’ path.  He then forcibly pushed the officer back by about four or five feet.   He was charged with assaulting a policeman in the execution of his duty.

[16]     Hardie Boys J was satisfied that the officer was acting outside the course of his duty.  However, by pushing the constable Mr Williams was committing technical assaults.  The question then was whether or not his assaults were justified in law. Hardie Boys J  found  that  in  all  the  circumstances  the  degree  of  force  used  by Mr Williams was reasonable.  His appeal against conviction for assaulting a police officer  in  the  execution  of  his  duty  was  allowed.    Hardie Boys J  declined  to substitute a conviction for assault given its technical and reasonable nature.

[17]     Mr C    would  have  been  justified  in  acting  in  the  same  way  as Mr Williams.  He would have been immune from criminal responsibility if he had used direct but firm force to remove Constable Allison from his path of departure. But he went too far.   Mr C   was not entitled to kick or use his knee for the purpose of inflicting damage on a vulnerable part of the officer’s body.  His purpose was plainly to apply gratuitous force, not to facilitate his departure.  His actions were unreasonable.

(3)      Conviction

[18]     Third, Mr Bailey submits that the Judge erred in entering a conviction even if he found the assault was unreasonable.  He relies on the decision in Baker v Police [1997] 2 NZLR 467. He submits that Baker stands for the proposition that it is inappropriate to enter a conviction where the assault against the constable was a direct result of the constable’s actions.

[19]     However, a closer reading of Baker does not support that submission.  The issue on appeal, as Panckhurst J noted, was whether a constable was acting at the relevant time in the course of his duty.   The appellant had been convicted of assaulting the officer in that capacity even though it was of a ‘relatively minor nature’.   The underlying question was whether the officer had lawful authority to

enter a house.  If not, he acted in excess of his lawful authority and was not acting in execution of his duty.

[20]     In Baker Panckhurst J concluded reluctantly that the officer was not acting in the course of his duty to prevent a breach of the peace.  The conviction for assault on a police officer acting in the execution of his duty was quashed.   Panckhurst J considered whether or not he should in the alternative enter a conviction for common assault.  He did not give reasons for a brief conclusion that such a substitution was inappropriate.  The Judge’s conclusion, I infer, was the result of his characterisation of the assault on the police officer as of a minor nature.  The principles applied by Panckhurst J in Baker were essentially the same as those applied by Hardie Boys J in Williams although the results were different.

[21]     The principles are settled by Waaka v Police (1987) 2 CRNZ 370 (CA), cited by Ms Bell in argument today.  It was another case where a police officer acted in excess of his powers.  The officer stopped and questioned a person, advising that he would be detained until satisfactory answers were given.  The detainee retaliated by striking the police officer.  The Court of Appeal found that the officer acted outside of his powers.  Again a conviction for assault in execution of the officer’s duty was set aside.  However, the Court found that Mr Waaka’s actions were excessive and unjustified.  The appropriate course, as followed here by Judge Somerville, was to amend to a charge of common assault. A relatively minor sentence was imposed.

[22]     On analysis, as this brief review of the authorities confirms, this third ground of appeal is essentially a variant of Mr Bailey’s second ground.

[23]     Accordingly, for these reasons,  I am  satisfied  that  Judge Somerville had proper grounds for convicting Mr C   of assault.  All three grounds of appeal must

fail.  Mr C  ’s appeal is dismissed.

Rhys Harrison J