Curtain v Police
[2021] NZHC 907
•27 April 2021
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 damaged, it was strange for him to have left the phone on the couch while the complainant was in a rage.
[7] In relation to the issue of self-defence, the Judge, acknowledged that it was for the prosecution to disprove that Mr Curtain had an honest belief in the circumstances as he believed them to be that he was justified to take the cell phone from the complainant in order to defend himself. However, he found himself unable to believe Mr Curtain’s claim that he thought the complainant was going to damage the phone, presumably by throwing it. The Judge noted that Mr Curtain’s evidence was that he was not sure of her intentions at the time.
[8] Judge Saunders also held that Mr Curtain’s use of force in the circumstances was unreasonable. Mr Curtain was aware that the complainant had previously suffered injuries to her wrist and was vulnerable to further injury. There was evidence that the complainant suffered a swollen wrist, decreased movement in her hand and loss of sensation in two of her fingers, as a result of the force Mr Curtain used.
[9] The Judge found an intentional application of force had been proved and that the prosecution had negatived both limbs of the test for self-defence. The Judge therefore held that the elements of the charge had been proven beyond reasonable doubt.
Approach to appeal
[10] Mr Curtain brings his appeal on the grounds that the Judge erred in his assessment of the evidence in finding that he was not protecting moveable property in which he had an interest or that he was acting in self-defence.2 In the case of a judge- alone trial, Mr Curtain is entitled to succeed on his appeal if the appeal Court is satisfied that the trial Judge “erred in his or her assessment of the evidence to such an
2 Crimes Act 1961, ss 48 and 53.
extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”.3 Any error, irregularity, or occurrence in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial constitutes a miscarriage of justice.4
[11] The appeal proceeds by way of rehearing. This Court is entitled to form its own view as to the facts and may reach a different view of the evidence from the trial Court.5 In that event, it will follow that the trial Judge will have erred and the appeal must be allowed.6 However, there remains an onus on the appellant to demonstrate that such an error has occurred.
The appeal
[12] Mr Curtain maintains the District Court erred in two material respects in finding the charge proved. First, he says it erred by finding that he did not have a claim of right in relation to the phone. Second, he claims the Court erred in finding that the force used was not reasonable either in relation to the defence of the item of property, namely the cell phone, or himself. Mr Nolan, on behalf of Mr Curtain, submitted that his client had a right to possession of the cell phone because he had purchased it. Despite having gifted it to the complainant, he gave unchallenged evidence that he was responsible for the payment of charges in respect of the phone and the cost of any repairs. Mr Nolan submitted that those circumstances provided proper grounds for Mr Curtain’s claim of right in relation to the cell phone.
[13] Mr Nolan submitted that the force used by Mr Curtain was reasonable in order to protect both the cell phone and himself. It was argued in the circumstances that no less force could have been used by Mr Nolan to protect the phone or himself and that the complainant’s action of lifting the phone as if to throw it whilst in an angry and aggressive state required him to take the phone off her. Had Mr Curtain not acted in the way that he did, Mr Nolan submitted he could have been hit by the phone or the phone could have been damaged. Mr Nolan also argued that the Judge erred in placing
3 Criminal Procedure Act 2011, s 232(2)(b).
4 Section 232(4).
5 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].
6 At [38].
weight on Mr Curtain having taken no further steps to protect the phone after taking it from the complainant because Mr Curtain’s concern related to the immediate risk of damage to the phone or harm to himself. It was submitted that there was no evidence to suggest the phone required any further protection once taken from the complainant and placed on the couch.
Analysis
[14] It is not disputed that Mr Curtain’s grabbing of the complainant’s hand constituted an intentional application of force to the person of another, nor is there any issue that Mr Curtain and the complainant were in a family relationship at the time of the incident. The ingredients of the charge were therefore established, subject to the defences of movable property and self-defence being disproved beyond reasonable doubt.
[15]The defence of movable property is provided by s 53 of the Crimes Act 1961:
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.
[16]The elements of this defence were set out in Singh v Police:7
(1)whether the accused is in peaceable possession of a movable thing;
(2)whether that peaceable possession is pursuant to a claim of right;
(3)whether the defendant is defending their possession even against the person legally entitled to possession; and
(4)whether the force used by the defendant was reasonable and stopped short of striking or doing bodily harm.
7 Singh v Police [2003] NZAR 596 (HC) at [15].
[17]Each of these ingredients needs to be considered in turn.
Was Mr Curtain in peaceable possession of the phone at the time of the offending?
[18] The meaning of the term “peaceable possession” was considered by the Supreme Court in Taueki v R, where it was held that it must be given a wide meaning.8 In that case, the Court was concerned with the meaning of “peaceable possession” in s 56 of the Crimes Act, which concerns the defence of land or buildings. However, the Court noted that “peaceable possession” is an element in each of the related provisions relating to the defence of property, including s 53.9 Whether there is possession and whether that possession is peaceable are questions of fact to be determined in the circumstances of the individual case.10 After noting that factual possession signifies an appropriate degree of physical control,11 the Court concluded:
[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.
(footnotes omitted)
[19] In the present case, the evidence is indisputable that at the time of the alleged assault the complainant had actual possession and control of the phone. Regardless of the exact circumstances that led to her having possession of that item (whether by gifting or otherwise), the phone was for the complainant’s use at the time. Mr Curtain had purchased the phone because the complainant’s old phone had become unreliable and he wanted to be able to keep in contact with her. Mr Curtain’s evidence was that “we’d made an agreement, right, it’s her phone”.
8 Taueki v R [2013] NZSC 146, [2014] 1 NZLR 235.
9 Taueki v R, above n 8, at [42]; Crimes Act 1961, ss 52–55.
10 Taueki v R, above n 8, at [48].
11 At [57], quoting Lord Browne-Wilkinson in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419 at [41].
[20] Mr Curtain’s belief that he had a legal claim over the phone does not assist him in terms of his claimed defence of a “movable thing” because he was not in peaceable possession of the item at the time. It is necessary that the force used was in defence of an item in his possession. The evidence disclosed that the complainant had both custody and control of the phone, not Mr Curtain. Regardless of whether he believed he had a legal claim or interest to it, it was the complainant who was in peaceable possession of the phone, not Mr Curtain. In the absence of this element being able to be established, the defence under s 53 was not available to Mr Curtain.
Did Mr Curtain honestly believe he had a claim of right to the phone?
[21] Because Mr Curtain was not in peaceable possession of the phone at the time he used force to gain possession, whether he had a “claim of right” at the time is irrelevant. However, for completeness and in deference to the arguments made by counsel, I also consider this element of the defence which was of some focus in Mr Nolan’s written submissions.
[22]A “claim of right” is defined in s 2 of the Crimes Act as:
… a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.
[23] In Singh v Police, it was held that a claim of right can arise when a person honestly or genuinely asserts and believes they have a right to possession of movable property, whether or not the belief has any foundation in law or fact and whether or not it is a reasonable belief, although the latter consideration will be relevant to the assessment of the genuineness of the defendant’s belief. However, despite the subjective nature of a “claim of right”, an honest belief in a mere moral rather than legal right will not be sufficient.12
[24] The Crown acknowledges that the existence of an actual claim of right in law is not necessary for the defence to be legitimately relied upon and that a defendant
12 Singh v Police, above n 7, at [28] and [30].
need only have had an honest belief in such a claim. However, Ms Lancaster submitted that the Judge had not erred in finding that Mr Curtain did not honestly hold a belief in a claim of right. It was noted the Judge had properly taken into account the fact that the phone was a gift and that Mr Curtain expected the complainant to keep up with payments. However, it did not make sense for him to have left the phone with her if he genuinely believed that he needed to physically take it from her to protect it from being damaged. This apparent inconsistency in Mr Curtain’s actions at the time was emphasised by the Judge in his decision.
[25] Mr Curtain’s failure to protect the phone from further damage after he threw it onto the couch before leaving the property, when he was purportedly concerned about the complainant’s volatile rage, was an aspect of the evidence that detracted from Mr Curtain having honestly believed he had a possessory right in relation to the phone. I acknowledge Mr Nolan’s submission that Mr Curtain’s actions related to his concern of the risk of damage from the complainant’s immediate action, which he interpreted as her being about to throw the phone, rather than to any concern that she may later damage that item. However, Mr Curtain’s evidence was that the complainant had become “very aggressive and quite abusive” so it appears the risk of damage to the item of property still remained.
[26] For myself, I can understand how Mr Curtain may have believed the immediate threat to the phone had passed, but the fact he then just threw it on the couch tends to undermine his claim that he acted in the way he did simply to protect the item of property. After almost immediately surrendering possession of the phone back to the complainant, Mr Curtain had no way of knowing what she could have done in the heat of the argument that he described. Ultimately, however, it is not necessary for me to come to any concluded view.
Was Mr Curtain defending his possession even against the person legally entitled to possession?
[27] In relation to this third element of s 53, the same difficulty arises for Mr Curtain, that he was not in possession of the phone at the time he used physical force. He was not defending his possession of the item, which, as the parties agree, was legitimately in the complainant’s peaceable possession, and not his.
Did Mr Curtain use reasonable force in defending his possession of the phone?
[28] The issue of the use of reasonable force is also a key question regarding the alternative defence put forward by Mr Curtain of self-defence of himself. For the purposes of s 53, the force used by the defendant must be reasonable and it must stop short of striking or doing bodily harm to the other person. In Hastings v Police, it was noted that striking a person differed from actions which involve pushing, holding or physically obstructing a person, although it was recognised that a push or shove could reach a level of force that might constitute striking.13 In that case, the Court determined that “[p]roportionate pushing and shoving, fending off and obstruction resulting in bodily contact would be permissible”.14
[29] Mr Nolan argued that Mr Curtain could not have used less force in the circumstances and there was nothing else he could have done to either protect the phone from damage or protect himself. The difficulties with that submission are twofold. First, Mr Curtain was aware that the complainant had suffered from a previous injury to her wrist and that her hand was susceptible to damage. On the earlier occasion, the complainant sustained a broken thumb in circumstances not dissimilar to the present, where there had been an argument and a fight between the complainant and Mr Curtain. Mr Curtain was aware of the vulnerability of that hand.
[30] Second, while the complainant acknowledged that there “wasn’t much force used” when Mr Curtain grabbed her hand and pulled it back, it was sufficient to cause soft tissue damage that required the complainant to see her surgeon and to receive physiotherapy. As earlier related, the complainant was reported to have suffered a swollen wrist and loss of movement and sensation in her hand. She described it as being painful and the hand was required to be placed in a support brace at the hospital.
Such injury goes beyond mere bodily contact or a “minor bruise”.15
[31] The trial Judge had the benefit of viewing photographs of the victim’s wrist following the assault. But even notwithstanding that advantage, it is apparent that when regard is had to the nature and degree of the claimed perceived risk, either to the
13 Hastings v Police HC Whangarei AP24/01, 19 July 2001.
14 At [30].
15 Ruwhiu v Police HC Auckland CRI-2008-404-259, 22 December 2008 at [18].
phone or to Mr Curtain himself, that the force used was disproportionate. It constituted bodily harm which is a level of force that is impermissible when relying on the defence provided by s 53.
Self-defence
[32] For the same reasons, Mr Curtain’s claim to having acted in self-defence must also fail. There was a degree of artificiality in running both defences which is apparent from Mr Curtain’s evidence that he “was more worried about damage to the phone than damage to myself”. I accept Mr Curtain may have had more than one reason for acting the way he did but it appears his perception of the immediate risk in the circumstances was to the phone rather than himself. Whatever his motivation, however, he was at the time aware of the complainant’s vulnerability and he was not entitled to use the type of force that resulted in bodily harm to the complainant.
Conclusion
[33]It follows that both defences upon which Mr Curtain sought to rely must fail.
Result
[34]The appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch