Hocking v Police

[2012] NZHC 3192

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-442-21 [2012] NZHC 3192

VERONIQUE JANA HOCKING

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 November 2012

Counsel:         A J Heward for Appellant

E J Riddell for Respondent

Judgment:      29 November 2012

I direct the Registrar to endorse this judgment with a delivery time of 3pm on the

29th day of November 2012.

RESERVED JUDGMENT OF MACKENZIE J

[1]      The appellant appeals against her conviction on one charge of driving in a dangerous manner contrary to s 35(1)(b) of the Land Transport Act 1998 and one charge of driving with excess breath alcohol (a third or subsequent offence) under s 56(1) of that Act.   She was convicted following a summary trial in the District Court at Nelson on 11 September 2012 before Judge Zohrab.

[2]      The  appellant  lived  alone.     She  had  been  in  a  relationship  with  the complainant,  which  had  recently  ended.    That  followed  an  incident  where  the

complainant had thrown a glass of wine over her, in front of her child.   She had

HOCKING V NEW ZEALAND POLICE HC NEL CRI-2012-442-21 [29 November 2012]

earlier, before coming to Nelson, been in a violent domestic relationship which had seen her hospitalised on a couple of occasions.

[3]      On 31 March 2012 the appellant was at home for the evening, and had consumed some alcohol.  The complainant visited, apparently to discuss property of his which was still at the address.  In the Judge’s words, he made a bit of a pest of himself.  He was made to leave the house and the door was shut.  He then climbed in through a window.  The appellant asked him to leave again.  He would not do so. She went out to the car and called police.   While she was in the car he left and walked down the driveway.  The appellant turned the car round and drove down the driveway to leave the property.   The complainant followed her in his car.   After driving a short distance from her home she stopped near Victory Square.   The complainant pulled up behind her.  She saw him open his car door and thought he was going to approach her again.  She tried to drive off, and reversed her car to do so.  She acknowledged that she may have struck his car on a couple of occasions but not deliberately. When the appellant returned home, there were two constables at her flat, having responded to her call.  The time log from police showed that they had arrived 15 minutes after the appellant’s telephone call.  One of the officers saw her vehicle drive in.  He administered a breath test.

[4]      The defence advanced by the appellant at trial was that she had no option other than to act as she did to avoid the peril she assessed she was in.  On appeal, counsel raises essentially that same defence, expressed in several  different legal formulations.   Included in those is a defence of self-defence, which was not specifically advanced at trial.

[5]      The Judge described the evidence in some detail.  He noted the background that the appellant gave of a previous relationship, the difficulties that she had had in that relationship and how she had resolved in future to distance herself from potentially difficult situations.  The Judge referred to her description of the incident which had led to the end of her relationship with the complainant.  The Judge then described her evidence about the complainant having come to her flat that evening, she having asked him to leave, and he having then returned through a window,

breaking the catch.    The Judge described her evidence from that point in these terms:1

In the event, he has left. She acknowledges that he had left and, when cross- examined about this matter, she decided that she had to leave the property because, based on her past experience with her former partner, she knew it would not have been over at that particular point. She acknowledged that there were other options but she panicked and, though these were not her words, I think what she was asking the Court to accept was that, given the attempts she had made to get rid of him on that particular night, given the fact that she had even managed to lock him outside but he had still come in through the window, based on what had happened then and what she characterises as, what was suggested to be, an obsession on his part, even though she had called the police, even though he had wandered down the driveway, she could not be confident that he would [not] then return to the property. So that is why she drove down the road.

She was not sure exactly where she was going to go. She turned the vehicle around. She conceded that she hooned down the driveway. She would not accept that there was any danger to Mr Trotter at that point, that there was any deliberate attempt to run him down or anything of that sort. She then turned on to the road and took off. She was not sure where she was going to go, but she ended up somewhere down Victory Square.

Down at Victory Square she was parked, trying to decide what she was going to do next, and what was the best thing to do in the circumstances, and then he has pulled up in his car, and she saw him open his car door, and she was thinking to herself anything could happen. At this stage, she is not sure exactly where she was, whether it be at the vet’s car park or whatever, but she could not go forward. She thought that anything could happen, so she reversed. She did not intentionally run into his car. She felt that she was trying to  get  out  of  a tight  spot,  and she  was  really panicking.  So  she acknowledges that she has struck his vehicle, but it was not deliberate bad driving on her part. She was trying to extricate herself from a tight situation.

So, in summary, as far as both situations are concerned, or both charges, she felt, and her words were, “I truly felt I was left with no other option at the time.” And what I am being asked to accept is that that is not something that she  has  just  come  up  with  for  the  purposes  of  this  hearing. That  is  in accordance with what she told the police on the night, because she had asked him to leave five or six times. He would not leave her alone, and would not leave the property. She asked him so many times that she felt that she had to leave herself.

He had grabbed her by the shoulders and had not let her past. She did not want to have anything to do with him, so that is why, after the argument, she got into her vehicle and drove around the block. And, similarly, down at the Victory Square area, she saw his window was down. She could see him moving towards her, so once again she felt she had no choice to do what she did.

1      New Zealand Police v Hocking DC Nelson CRI-2012-042-934, 11 September 2012 at [38]-[42].

[6]      Common law defences are preserved by s 20 of the Crimes Act 1961, to the extent that they are not altered by or inconsistent with the Act.  The common law does recognise that a defence of necessity, or duress of circumstances, might be available in some circumstances.  The metes and bounds of that defence are quite strictly circumscribed.    In  Kapi  v  Ministry of Transport  described  that  possible

defence in these terms:2

We consider on the authorities cited to us that a defence of necessity, if available in New Zealand, requires at least a belief formed on reasonable grounds of imminent peril of death or serious injury.  Breach of the law then is excused only where there was no realistic choice but to act in that way. Even then the response can be excused only where it is proportionate to the peril.

[7]      In R v Hutchinson the Court of Appeal applied that test, and added a further requirement in these terms:3

An unstated, but in our view necessarily implicit, additional element is 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.

[8]      The strictness of the test to be applied is affirmed by the decision of the Court of Appeal in R v Lamont.4   In that case, the appellant was charged with causing death by careless  use of a motor vehicle.    He had  driven at  an  excessive speed  and ultimately lost control of and crashed his vehicle after another vehicle had allegedly “tailgated” him, causing him to panic.  The Court of Appeal upheld the refusal of the trial Judge to allow the defence of “duress of circumstances” to go to the jury.  The Court of Appeal said:5

The type of emergency situations for which these defences may be available are those in which fear for life and limb is such as to compel breach of the law. If a breach of the law is by way of response to such threats and fear it is to be expected that the attribution would be immediate. Yet in this case, … despite it being put to him more than once the appellant gave no evidence that he feared death or serious injury. …

…

…   A concern at having his car hit or even shunted in the rear does not amount to fear of death or serious injury.

2      Kapi v Ministry of Transport (1991) 8 CRNZ 49 (CA) at 57.

3      R v Hutchinson [2004] NZAR 303 (CA) at [34].

4      R v Lamont CA442/91, 27 April 1992.

5      At 8-10.

[9]      Counsel for the appellant relied in the Court below on the decision of this Court in New Zealand Police v Kawiti.6   The Judge referred to that, and to Principles of Criminal Law, by A P Simester and W J Brookbanks.7     The Judge cited the following passage from the decision of Salmon J in Kawiti:8

Simester and Brookbanks synthesise the New Zealand case law on necessity with such English case law as is consistent and make the following observations about the operation of the defence of necessity in New Zealand:

1.The  perceived  threat  must  be  one  of  imminent  death  or  serious injury.

2.The defendant's perception of the threat must be either corrector reasonably based.

3.        The defendant's action must be in response to that perceived threat.

4.The defendant's response to the threat must be proportionate in the sense that  a  sober  person  of  reasonable firmness  sharing certain characteristics  of  the  defendant,  would  have  responded  in  like manner. (The qualifying characteristics remain to be determined in New Zealand.)

5.        The defence is not available to murder or attempted murder.

6.The defence is not available whenever the source of the threat is another person (such cases being covered by s 24).

[10]     The Judge addressed whether the defence could apply in this case, having regard to proposition 6.  The Judge considered that the defence was not available, because the source of the threat was another person, namely the complainant.  I agree with the Judge’s reasoning on this point.  On the appellant’s evidence, as described by the Judge, the requirements of the statutory defence of compulsion in s 24 of the Crimes Act 1961 were not made out.  The appellant’s evidence did not establish that she  perceived  a  threat  of  imminent  death  or  serious  injury.     Further,  the circumstances did not provide a reasonable basis for a perception of such a threat.

[11]     Despite rejecting the defence on that basis, the Judge went on to consider the other elements of the common law defence.  He discussed whether the appellant’s

response was proportionate.   He considered whether that test should be applied

6      New Zealand Police v Kawiti [2000] 1 NZLR 117 (HC).

7      AP Simester and WJ Brookbanks Principles of Criminal Law (3rd ed, Brookers, Wellington,

2007).

8      New Zealand Police v Kawiti, above n 6, at 123.

completely through the eyes of the defendant, or whether it should be a mixed objective  and  subjective  test.    He  noted  that  the  test  is  that  a  sober person  of reasonable firmness sharing certain characteristics of the defendant would have responded in like manner.  The Judge held that the defence was not, on the facts, available. Again, I agree with the Judge’s carefully reasoned judgment on that issue.

[12]     Counsel for the appellant also relies upon self-defence.  Mr Heward submits that the defence of self-defence available to women defendants has been developed on the basis of male experiences and definitions.  He submits that a threat of serious injury is quite a different test of degree for a woman as compared to a man, that the appellant did not have to wait for the attack which she feared before taking action, and that her action was no more than was necessary in the circumstances.  Counsel refers to a number of factors relevant to the appellant’s perception of the situation in which she faced.

[13]     Section 48 of the Crimes Act recognises that everyone is justified in using reasonable force in self-defence.   It can have application only where the offence charged is one which involves the use of force.  The section is not capable of being interpreted so as to provide a justification for the use of measures other than force in self-defence.  The section can have no application in a situation where the person threatened is not in a position to defend himself or herself by force, and resorts to some other means of defence.   If that other means is unlawful, for a reason other than that it involves the use of force, then any relief from the criminal consequences of that means of defence must be found either in the defence of compulsion under s 24, or the common law defence of duress of circumstances or necessity.   If that might be thought to give rise to a gender bias in the law of self-defence, that is not able to be avoided by applying s 48 to circumstances to which it is, on its plain wording, inapplicable.

[14]     In summary, on the facts of this case, as the Judge has found them, neither of the statutory defences in ss 24 or 48 was available nor was the common law defence of necessity or duress of circumstances.

[15]     As a final ground of the appeal against conviction, counsel submits that the Judge should have discharged the appellant without conviction under s 106 of the Sentencing Act 2002.  That submission does not appear, from the sentencing notes of Judge Zohrab, to have been advanced at sentencing.

[16]     The test to be applied under ss 106 and 107 of the Sentencing Act is set out by the Court of Appeal  in R v Hughes9  and Blythe v R.10     That Court said in Hughes:11

Although the heading to s 107 refers to “Guidance for discharge without conviction”, it is clear from the words of the section that the requirement in s 107 is mandatory. Before a court may exercise its discretion under s 106 to discharge without conviction, the court must be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the  offence.  Section  107  thus  provides  a  gateway  through  which  any discharge without conviction must pass. It stipulates a pre-condition to exercise of the discretion under s 106.

[17]     The assessment of the s 107 gateway involves a three step test assessment: first, the gravity of the offending;  second, the consequences of the conviction;  third, whether the second is out of all proportion to the first.

[18]     In relation to the consequences of the conviction, Mr Heward submits that the consequences for the appellant are serious in that this is a third drink driving conviction which may, on a further conviction, render her liable to imprisonment. The difficulty with that submission is that, if the fact that it is a third conviction is weighed in the side of the scales measuring the consequences of the conviction, then it must also be weighed in the side of the scales measuring the gravity of the offending.  When that is done, the consequence is not disproportionate to the gravity of the offending.  No other consequences of the conviction were advanced as being disproportionate to the gravity of the offending.  The s 107 gateway cannot be passed in this case because it cannot be said that the consequences of a conviction would be

out of all proportion to the gravity of the offending.

9      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

10     Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.

11     R v Hughes, above n 9, at [8].

[19]     The difficult situation in which the appellant was, or perceived herself to be, was relevant to the extent of her criminality.  It justified a more lenient sentencing response to the offending than would otherwise have been appropriate.  The Judge clearly and appropriately recognised that in the sentence he imposed.  He imposed a penalty which made allowance for the circumstances which the appellant had faced.

[20]     For these reasons, the appeal is dismissed.

Solicitors:           O’Donoghue Webber, Nelson, for Respondent

City Legal, Nelson, for Appellant

“A D MacKenzie J”