Curtain v Police - [2021] NZHC 907

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-157

[2021] NZHC 907

BETWEEN
STEPHEN ANDREW CURTAIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 23 April 2021

Appearances:

C G Nolan for Appellant

J E Lancaster for Respondent

Judgment:

27 April 2021

Reissued:

28 June 2021

JUDGMENT OF MANDER J

This judgment was delivered by me on 27 April 2021 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

CURTAIN v NEW ZEALAND POLICE [2021] NZHC 907 [27 April 2021]

[1] The appellant, Mr Stephen Curtain, was convicted by Judge Saunders after a judge-alone trial of assaulting a person with whom he was in a family relationship, namely, his then partner.1 Mr Curtain now appeals his conviction on the basis the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.

Background

[2] The narrative that gave rise to the charge was not largely in dispute. Mr Curtain and the complainant got into a verbal argument about the complainant wanting Mr Curtain to lend her money to purchase cannabis and cigarettes. The complainant acknowledged that she was at the time addicted to cannabis. Mr Curtain had insufficient money and refused to lend her anything. This led to an argument that raged between them for approximately an hour.

[3] The complainant was holding a cell phone which she believed was hers. It is common ground that Mr Curtain had gifted her the phone and that she had assumed responsibility for paying for it. However, Mr Curtain believed that because he had purchased the phone and signed the contract it remained his financial responsibility. The complainant had been irregular in keeping up payments.

[4] During the verbal altercation, it was alleged that the complainant raised the phone in her hand. Mr Curtain maintained that he believed she was about to throw it. He moved forward to take the phone from her. He shoved her backwards and, by grabbing her wrists and applying pressure, took the phone from her and threw it onto a couch before leaving.

District Court decision

[5] At trial, Mr Curtain advanced two defences: defence of movable property and/or self-defence. Both defences were rejected by Judge Saunders.

[6] Judge Saunders found the defence of movable property was not established because Mr Curtain did not have a claim of right to the phone. The Judge accepted

1 Police v Curtain [2020] NZDC 25758; Crimes Act 1961, s 194A.

Mr Curtain had signed a contract to make payments for the phone but determined that because he had gifted the phone to the complainant on the basis she could keep it for her own use, and expected her to do so as long as she kept up with the payments, he had no entitlement to the phone. Judge Saunders further noted that if Mr Curtain was genuinely concerned about his liability for the phone if it were…

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.

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Details

Case: [2021] NZHC 907
Decision Date: 27 April 2021

CaseChat Overview and Summary

The appeal brought by Mr Stephen Curtain against his conviction for assaulting his then partner was dismissed by the High Court. The trial had taken place in the District Court, where Mr Curtain was found guilty of assaulting his partner by grabbing her hand and taking her phone, throwing it onto a couch, and leaving. Mr Curtain had argued that he was entitled to rely on the defences of movable property and self-defence, which the District Court rejected. Mr Curtain appealed on the basis that the District Court had erred in its assessment of the evidence and that a miscarriage of justice had occurred.

The High Court considered the elements required to establish the defence of movable property under s 53 of the Crimes Act 1961. The court found that Mr Curtain was not in peaceable possession of the phone at the time he used force to gain possession, and therefore, the defence was not available to him. Furthermore, the court found that even if Mr Curtain had a claim of right, it was irrelevant as he was not in possession of the phone at the time. The court also found that the force used by Mr Curtain was not reasonable and constituted bodily harm, which goes beyond permissible force under s 53. For these reasons, the appeal was dismissed.

In conclusion, the High Court found that the District Court had not erred in its assessment of the evidence, and the appeal was dismissed. The court held that both defences of movable property and self-defence were not available to Mr Curtain, as he was not in possession of the phone at the time and used disproportionate force.

Orders