F v Police HC Whangarei CRI 2006-488-32

[2006] NZHC 1014

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2006-488-32

F

Appellant

v

THE POLICE

Respondent

Hearing:         5 September 2006

Appearances: R Bowden for appellant

K R Thomas for respondent

Judgment:      8 September 2006

JUDGMENT OF ALLAN J

Solicitors:

R Bowden, PO Box 1862, Whangarei

Crown Solicitor, Whangarei

F V POLICE HC WHA CRI 2006-488-32  8 September 2006

[1]      On 24 May 2006, the appellant was convicted on a charge of careless driving, pursuant to s 37(1) of the Land Transport Act 1998, following an earlier defended hearing before Justices of the Peace.  He was ordered to pay Court costs of $130, and to attend a driver re-training course.  He now appeals against conviction.

The issue

[2]      Early in the  morning of 12  November  2005, the  appellant’s vehicle  was parked in the Kentucky Fried Chicken parking area, on the eastern side of Bank Street, in central Whangarei.  His vehicle attracted the attention of some five young men, who for reasons which appear below, appear to have taken exception to the appellant.  He became concerned for his personal safety, started his engine, and left the parking area at speed.  As he drove onto Bank Street, his vehicle collided with that being driven in a southerly direction towards the central business district.  The Justices concluded that the appellant had operated his vehicle carelessly.

[3]      Mr Bowden does not attack that finding.  Instead he argues that the appellant is entitled to invoke the common law defence of duress of circumstances, and that accordingly, the appellant ought  not to have been convicted.   The issue on this appeal is whether that defence was open to the appellant.

The law

[4]      Section 24(1) of the Crimes Act 1961, codifies the common law defence of compulsion by providing:

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.

[5]      That subsection refers to instances where the source of the threat or duress is a person or persons present when the offence is committed:   Kapi v Ministry of Transport (1991) 8 CRNZ 49 at 54-55;  Police v Kawiti [2000] 1 NZLR 117 at 119-

120.  In R v Kapi the Court of Appeal held that the s 24 defence of compulsion was inconsistent with an argument that s 20(1) of the Crimes Act nevertheless operated to preserve a common law defence of duress by threats:  see R v Hutchinson CA92/03 7

July 2003 at [38].

[6]      But a second limb of the common law defence of necessity, known as duress of circumstances,  has been recognised (at  least  tentatively)  in this country as a surviving common law defence preserved by reason of the provisions of s 20(1) of the Act:  Kapi at 57;  R v Lamont CA442/91 27 April 1992;  R v Kawiti at 120;  R v Hutchinson [39]-[43].  In Hutchinson the Court of Appeal reviewed its own decision in Kapi and assumed for the purposes of that case, without deciding, that the defence of duress of circumstances exists in this country, and that the elements are those outlined in Kapi.  The Court emphasised however, that it had not had the benefit of full argument on the question of whether the defence of duress of circumstances does indeed exist in New Zealand, nor on the question of whether the elements outlined in Kapi were appropriate when considered in the context of the Crimes Act, or any other enactment.

[7]      Mr Bowden relies on the common law defence of duress of circumstances to the exclusion of the codified defence set out in s 24(1) of the Act, which he accepts is not applicable on the facts of this case.  Given the weight of authority in favour of the  current  availability of the  defence,  I  am  content  to  consider  Mr  Bowden’s argument upon the basis that, in principle, the defence is available in these (relatively rare) cases, which can be brought within the relevant principles.

[8]      The elements of the defence as outlined in Kapi at p 57 and summarised by the Court of Appeal in Hutchinson at [34] are as follows:

a)        A genuine belief formed on reasonable grounds of imminent peril of death or serious injury;

b)       Circumstances in which the appellant has no realistic choice but to break the law;

c)        A breach of the law proportionate to the peril involved.

[9]      In Hutchinson the Court of Appeal added an additional element necessarily implicit in the Court’s view:  the need to establish a nexus between the imminent peril of death or serious injury and the choice to respond to the threat by unlawful means.

Discussion

[10]     Mr Bowden raised the defence before the Justices and provided them with a copy of the decision in Police v Kawiti.  They held that the appellant fell well short of establishing on an objective basis, imminent peril of death or “grievous harm”.  In using the latter term, they were echoing the language of s 24(1) rather than the need for “serious harm” as articulated in Kapi and Hutchinson.   But as appears below, nothing turns on that in this case.

[11]     The  Justices  also  held  that  there  were  various  options  available  to  the appellant, other than to cause a collision.   The defence of duress of circumstances therefore failed.

[12]     Mr Bowden submits that on the facts of this case, the Justices ought to have found that the appellant had a genuine belief, based on reasonable grounds, that he was in peril of serious injury.  On his analysis the following factors led, he submitted to a necessary finding of duress of circumstances:

a)       It was well after midnight early on a Saturday morning in a deserted carpark in Bank Street;

b)       The appellant was the only male in the car.  He had two young women with him.   The male companions who had formerly been in the car were nearby, but not immediately available to assist him;

c)        An unidentified group of five males approached the car. d)   As a group they were angry, yelling and swearing;

e)        There was an attempt to open the driver’s door of his car;

f)        One or more of the persons in the group kicked or hit the car on several occasions.

[13]     It is necessary to provide some further factual context so that Mr Bowden’s submission may be properly assessed.  There is evidence that the group of five males was yelling and swearing.  The question of whether they were truly angry is difficult to determine on the evidence, which is somewhat equivocal.  What is of significance is that at least one member of the group thought that one of the young women in the car was his girlfriend.  He called for her by name.  The appellant had only just met the two young women in his car, and seems to have been unaware of their names.

[14]     There was no evidence that any member of the group outside the car carried a weapon, and it was not suggested that the appellant reasonably thought an attack with a weapon was  likely.    Rather,  as the  Justices  accepted,  the  appellant  was concerned that  he would  be “punched hard out”, which I take to  have been an expression of a fear that he would be hauled from his car and manually assaulted. Whether, viewed objectively, that was a realistic possibility, may be doubted.   He had succeeded in winding up the windows of his car and locking the doors, so short of breaking windows, those outside would not be able to reach the appellant. He did not explain in evidence how he thought he might be attacked.

[15]     Mr Bowden nevertheless submitted that it would have been reasonable for the appellant to fear an assault which would leave him with abrasions or even perhaps a broken arm.

[16]     In  advancing  that  argument,  Mr  Bowden  submitted  that  the  concept  of “serious injury”, to which the cases refer, is not the same as that of “grievous bodily harm” which settled authority defines as being harm that is “truly serious”.   Mr

Bowden submitted that  “serious  injury”  must  be  regarded  as  injury that  is  less serious than grievous bodily harm.  The term “injure” is defined in the Crimes Act

1961 as “actual bodily harm”, that is, harm which is something more than merely temporary or trifling.  He submitted that the level of harm reasonably contemplated by the appellant in this case amounted to “serious injury” for the purposes of the relevant defence.

[17]     Mr Thomas submitted that the level of serious injury contemplated by the common law defence was well beyond what the appellant could reasonably have feared in this case.  He submitted that serious harm must be taken to mean “really serious harm” and to be in effect, the common law equivalent of grievous bodily harm which is the level of harm to which s 24(1) refers.

[18]     It is unnecessary to carry the discussion of this interesting question further in this case because I am satisfied that while the appellant may have been generally apprehensive about his situation, he did not have reasonable grounds for believing he was in imminent peril of serious injury however defined.   He was relatively safe inside his vehicle.  The level of behaviour of those outside it was no doubt to some degree distressing to those inside it, but viewed objectively it went no further than that.

[19]     The Justices found that while the appellant was genuinely concerned that he might be “punched hard out”, that level of apprehension fell short of meeting the requirement   for   the   common   law   defence,   because   he   had   no   reasonable apprehension of qualifying harm.   I agree, and add that there was nothing in the evidence to suggest that an injury as serious as a broken arm was a possibility

[20]     The appeal therefore fails on this ground alone.  It fails also on two further grounds which I discuss only briefly.

[21]     I agree with the Justices’ rejection of the argument that the appellant had no realistic choice but to break the law.  The incident seems to have had its genesis in the suspicion held by the group outside the car that the girlfriend of one of their number was inside it.  The appellant knew that.  He did not know the names of the

girls in his car, but could have asked them.  Had he done so, it would have emerged that neither was the girlfriend concerned.  It is highly likely that disclosure of that fact would have brought the incident to a close.

[22]     Further, while it may very well have been reasonable for him to have driven his car at some speed to the edge of the carriageway, so as to put some distance between him and those who had been surrounding his car, there is no evidence to suggest that he remained in any sort of peril by the time he reached the roadway. Indeed, there is evidence that when the appellant drove off, those who had been surrounding the car scattered in various directions.  On the evidence, none followed his car.

[23]     That  being so, there is no  apparent  justification for his decision to  drive across the path of an on-coming vehicle.  One option was for him to turn left, instead of crossing the road in order to turn right.   That option would have significantly reduced the chance of a collision.   Or he could simply have waited for the few seconds it would take for the on-coming vehicle to clear him.  The evidence is it was the only vehicle visible on the road in either direction.

[24]     I agree therefore with the Justices who held he had options other than to break the law.

[25]     The third requirement is that the breach of the law must be proportionate to the peril involved.  Here, Mr Bowden submitted that:

Careless Use of a motor vehicle is a low-level crime.   It is appropriate to take the level of offending into account when assessing the proportionality of the response.

[26]     Because I  have held  that  nothing that  occurred on  the  night  in  question justified the appellant in breaking the law, it is unnecessary to deal directly with that submission, save to say that circumspection ought to be exercised when the Court is asked  to  entertain  a  defence  of  duress.    As  was  said  in  London  Borough  of Southwark v Williams [1971] Ch 734 at 746 by Edmund-Davies LJ:

… necessity can very easily become simply a mask for anarchy.

[27]     Finally, in my opinion the appeal must fail because there is no nexus between the claimed duress and the appellant’s careless driving.  That much is clear from the appellant’s own evidence.  In examination in chief he said:

Now when you say you left, what sort of speed did you leave? … Umm, I just drove away, like, he was right by my door so I drove away, I’d say I would have been going about 15ks.

It said that you said to the Police that you floored it, what do you say that?

… I didn’t floor it straight away, not at all, but then I came to the footpath

and then I was like, tried to split across the road, I saw a car coming from my right, I looked left and it was clear, I looked right and I saw a vehicle coming but I judged it that it was further enough away for me to pull out, and I pulled out and I was just about on the median strip and all of a sudden the lights were right on my car and just crashed.

So what you are saying is when you pulled out, although you pulled out quickly, you say you looked? … I looked yeah.

And you could see a car? … Most definitely yeah and I could judge how far it was up the road.

How far up the road do you say it was? … 30-40m.

[28]     That evidence establishes that the appellant had an opportunity at the edge of the roadway to look to the right, then to the left, and finally to the right again.  He saw the on-coming vehicle but judged that it was far enough away from him to enable him to turn safely in front of it.

[29]     That assessment was wrong.  But the collision arose through a simple error of judgment, not by reason of any claimed duress, which, if it ever existed, had, in my opinion, dissipated.  If the appellant had time to look to his right, then to his left and then to his right again and to make a decision to cross in front of an on-coming vehicle, then he cannot properly contend that in doing so he acted under duress. Accordingly, he is unable to establish a nexus between the claimed imminent peril of serious injury on the one hand, and his choice to respond to that threat by unlawful means (careless driving) on the other.

[30]     In my view, the Justices were right, largely for the reasons they gave, to reject the defence of common law duress.

[31]     For the foregoing reasons the appeal fails and is dismissed.

C J Allan J