Goffe v Police HC Nelson CRI 2011-442-2

[2011] NZHC 63

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2011-442-2

JOSEPH TE AHU GOFFE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 March 2011

Counsel:         B Hunt for Appellant

M A O'Donoghue for Respondent

Judgment:      1 March 2011

ORAL JUDGMENT OF RONALD YOUNG J

Introduction

[1]      Mr Goffe had $3,500 worth of outstanding fines.  A bailiff had a warrant to uplift his property and sell it to pay for the fines.   The day on which the bailiff together with a police officer arrived at Mr Goffe’s house was not a good one for him. As the District Court Judge said:

That  morning one  of  his  pig  dogs  went  missing.    His  relationship  was coming to an end, and on top of that, the bailiff and the police officer arrived with a warrant in relation to unpaid fines.

JOSEPH TE AHU GOFFE V NEW ZEALAND POLICE HC NEL CRI 2011-442-2 1 March 2011

[2]      As events unfolded Mr Goffe was charged with assault and driving in a dangerous manner, as relevant in this appeal.  The assault alleged was a threatened application of force to the bailiff, Ms McDowell, the dangerous driving related to the circumstances under which he left his property and drove onto Chamberlain Street.

[3]      Mr Goffe’s case is that he had not ever threatened an application of force either  directly or  inferentially and  therefore  should  not  have  been  convicted  of assault and secondly there was no driving by him which could have been dangerous to members of the public on a public road.

Background facts

[4]      After the bailiff and the police officer arrived at Mr Goffe’s residence they showed him a warrant which entitled them to uplift property to sell.  Mr Goffe was clearly angry and emotional.  He was shouting, indeed screaming at the bailiff and the police officer.  The bailiff identified a motor bike which she proposed to seize under the warrant.  Mr Goffe was angry and upset and told her that it was not his bike and that it belonged to someone else.

[5]      The bailiff, Ms McDowell, said that when she was confronted by Mr Goffe he stood close to her, less than 20 cm away.   She said that he was screaming and extremely agitated.  She did not think he was listening to her and she was frightened. Constable Turner who was also present said the appellant was agitated using abusive language  and  wouldn’t  step  back  when  asked  to  do  so.    She  was  also  of  the impression that Mr Goffe was not listening to what Ms McDowell was saying.

District Court Decision

[6]      The Judge in convicting the appellant said:

[13]      Here the allegation is not of an actual assault, but rather a threatened assault, or a threatened application of force, and in relation to the threatened application of force, before I could convict the accused, I would have to be satisfied that he intended to convey to Ms McDowell that he was capable of harming her, that is, that he had the intention to convey to her that he was behaving in a threatening manner towards her.

[14]      I refer to two cases, Rao v Police (1990) 7 CRNZ 119, and also a comment by Justice Fisher in Lazarus v Police (1997) 15 CRNZ 127.  In that case, Justice Fisher held that it would be an assault only if the accused either intended to apply force to another or intended that another would be, or would feel, personally threatened. Also in Rao v Police, the Court noted that when an assault consists of a threat, it is enough if the defendant intends to cause apprehension, even if he does not intend to carry out the threat.

[15]     Here, Mr Goffe said in his evidence that he was standing close. However, he said it was so that he could read the warrant which was in Ms McDowell’s hands or on her clipboard.  He did accept, however, that he was being abusive at the time.

[7]      Assault is defined in s 2 of the Crimes Act in this way:

Assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose; and to assault has a corresponding meaning:

Discussion

[8]      The police must prove, beyond reasonable doubt, in a case such as this there was a threat by an act or gesture to apply force to the person of another and that the person making the threat has, or causes the other person to believe on reasonable grounds that he has, the present ability to affect his purpose.  As to the later aspect, that is, whether Mr Goffe had an ability to affect his purpose the appellant accepts that he did have that ability in the circumstances to assault the complainant.

[9]      The  appellant  says  that  the  Judge’s  conclusions  failed  to  focus  on  the necessity to prove a threat by an act or gesture to apply force.   I agree that the Judge’s  analysis  was  wrong.     She  concluded  that  Mr  Goffe’s  manner  was threatening.  What must be proved though is a threat by act or gesture to apply force. Without question Mr Goffe’s conduct that day was aggressive.   The accused was close to Ms McDowell and his actions were overbearing, indeed bullying.

[10]     No doubt the bailiff was intimated by his actions.   But this reprehensible behaviour was not a threat to apply force.   No doubt, as I have said, both the constable and the bailiff felt threatened by the way in which the appellant was acting.

However there was no evidence at all of any gesture, for example, shaking his fist or by any word, saying he was going to hit them, by which he threatened to apply force to either.

[11]     The  essential  point  in  this  case  is  what  the  Police  could  prove  of  the appellant’s intentions.  Intention can be inferred from the surrounding circumstances. Such an inference must be proved beyond reasonable doubt where, as here, it is an element of the charge.  Despite the unattractive and aggressive behaviour there was no evidence from which the Judge could infer an intention to apply force.   There were no threatening gestures, threatening words, simply aggressive bad behaviour.

[12]     For the reasons given, therefore, that conviction will be quashed.

Dangerous driving

[13]     The allegation of dangerous driving related to the actions of the appellant after his remonstration with the bailiff and police officer.   The evidence was that Mr Goffe got into his car, drove speedily down his private driveway, crashed through a chicken wire gate two metres from the road and then turned onto the road.  The allegation was that he drove onto the road without looking and/or that he could only see if other vehicles were coming along the road toward him if he stopped at the edge of the road and his property to check that the way was clear.

[14]     Constable Turner, who was the constable who had originally arrived with the bailiff, said that the trees went right to the end of his driveway and ran parallel to the gate.  She considered that the appellant could not have seen a vehicle coming along Chamberlain Street as he pulled out into the road.

[15]     Mr Goffe gave evidence.  He said that he had stopped at the intersection of his driveway and the road.  He said that far from knocking open his gate the gate was not latched and could easily be opened by hitting it with the bull bars of his vehicle which he did.  He said that he looked to the right before driving into Chamberlain Street.

[16]     The Judge concluded that Mr Goffe drove dangerously because he exited out of a blind driveway onto the road.   The appellant says there was no evidence on which the Judge could have based her conclusions.  The Judge, he said, did not find beyond reasonable doubt either that he failed to look both ways before leaving the driveway or that he was speeding or that his visibility was obscured to the extent that he should have stopped at the end of the driveway or that those factors created a reasonably  foreseeable  risk  of  danger  to  the  public.    No  effort  was  made,  the appellant said, to analyse the level of risk.

[17]     Finally   the   appellant   says   the   decision   was   wrong   because   it   was unreasonable.  The Judge could not have been reasonably satisfied to the required standard.

[18]     The respondent’s case is that the evidence supported the conclusion that the appellant   was   driving   fast,   hit   his   gate   without   stopping   and   turned   into Chamberlain Street.  The respondent says the appellant would have been unable to see whether any other traffic or pedestrians were coming along Chamberlain Street until he was out of the gate and into the road itself.  This was sufficient evidence to prove the charge beyond reasonable doubt.

[19]     To return to the constable’s evidence.  The constable’s evidence was that the

appellant turned left when he got to the road and that this was a country road with a

100 km per hour speed limit but with no centre line dividing the road.

[20]     As to visibility she said this:

Q:       What’s the visibility like when you get to the actual gate?

A:       I would say that the trees and that would block visibility.   You’d have to stop and have a good look when you reach that gate, you wouldn’t actually see the road further back on that driveway, you’d have to be right at the gate or further ahead of it to actually see it clearly.

[21]     The constable was asked:

Q:       What would you need to do to safely exit that driveway?

A:       Well I believe you’d have to stop and have a look and make sure

there isn’t anything coming out there being an open road as well.

[22]     The constable also mentioned that she considered the vehicle was going “too fast” for exiting onto the road.

[23]     As to this alleged offence the Judge said:

[20]     In   relation   to   this   matter,   I   prefer   the   evidence   of   both Constable Turner and Ms McDowell.   What Ms McDowell heard was the defendant hitting the gate at speed.  Given the manner of his driving and the exiting out of the driveway onto a public road, particularly a rural road with

100 kilometre an hour speed, I am satisfied that the manner of his driving was  dangerous,  particularly  given  that  he  was  exiting  out  of  a  blind driveway.  I reject his evidence that he stopped and reversed at the end of the driveway.  It is also inconsistent with his whole demeanour, not only leading up to him leaving the property, but also upon his return.  So I find that charge proved.

[24]     I am satisfied there is sufficient evidence based on this finding to establish the charge beyond reasonable doubt.  The essence of the fact finding was that the appellant had driven quickly down his driveway, collided at speed with his gate and had then without stopping driven on to Chamberlain Street, also at speed.  The Judge accepted that Mr Goffe could not have seen whether traffic was driving along Chamberlain Street.   This required him therefore to give way by stopping at the intersection of his property and Chamberlain Street.  Given Mr Goffe was pulling out into  a  road  with  a  100 km  per  hour  speed  limit  this  action  might  have  been dangerous to the public.

[25]     I agree with the Judge that once those factual findings were made the police

had established that the appellant’s driving might have been dangerous to the public.

[26]     For those reasons, therefore, the appeal against the conviction for dangerous

driving will be dismissed.

Ronald Young J

Solicitors:

B Hunt, Barrister, PO Box 5494, Wellington, email:  [email protected]

M A O’Donoghue, Crown Solicitor, PO Box 1382, Nelson