Kant v Police

[2013] NZHC 1626

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000388 [2013] NZHC 1626

BETWEEN  SUDHIR KANT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   1 July 2013

Appearances:           M J Kidd for Appellant

B Hamlin for Respondent

Judgment:                1 July 2013

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            M J Kidd, Auckland

KANT v NEW ZEALAND POLICE [2013] NZHC 1626 [1 July 2013]

Introduction

[1]      In a decision delivered on 7 February this year this Court dismissed an appeal by the applicant Mr Kant from his conviction on two charges of assault relating to Mr and Mrs Bailey.  He now applies for leave to appeal to the Court of Appeal.

Background

[2]      The background to this matter is that there was a history of tension between Mr and Mrs Bailey and the applicant.   That arose out of the access arrangements relating to Mr and Mrs Bailey’s granddaughter, the child of their daughter and the applicant.  The present incident arose out of access arrangements with the child on

18 February 2012.  The child was with the appellant.  The arrangement was that Mr and Mrs Bailey were to collect the child from him and they went to his place to collect the child.  There was a confrontation at the door.  Mrs Bailey’s evidence was the child was distressed and reaching out to her and that when she went to take the child by the hand the appellant roughly pushed her away, striking her on the right shoulder with his right hand.  The push was done with sufficient force to cause her to stagger.   She had recently had an operation on that shoulder, which the appellant would have been aware of.   Mr Bailey said that he then stepped up and told the appellant  he was a coward amongst other things, he was then pushed forcefully with both fists or hands to his chest causing him to reel backwards.

[3]      The applicant had sought to invoke s 56 of the Crimes Act 1961 as a defence to his actions.

[4]      In upholding the conviction entered in the District Court and dismissing the appeal this Court considered that the Baileys were entitled to be on the property because they had an implied licence to be on the property.  The appellant had not effectively revoked that implied licence and in the alternative, and in any event, the Court found the appellant was not able to rely on s 56 because his contact with the complainants, Mr and Mrs Bailey, was not for the purpose of removing them from the property as required by s 56.

[5]      The application for leave to appeal to the Court of Appeal is pursued on the

grounds that:

it is a question of law whether the prosecution has disproved on the balance of  probabilities the revocation of the licence had not been communicated unequivocally. The defendant does not have to prove anything and this Court

failed to deal with the issue of the onus of proof.

Secondly, under s 3(2) of the Trespass Act 1980 it is a defence to a charge under  that Act if the victims were to prove it was necessary for them to remain in or on the place concerned for their own protection or protection of some other person. It is said that was not the case and the Baileys should

have left when asked to do so.

[6]      It is said that this Court erred in failing to deal with the above propositions.  It is suggested the general public importance is that the prosecution failed to disprove s 3 of the Trespass Act was inapplicable.

Principles

[7]      For leave to be granted a party, such as the applicant in this case, is required within 21 days (or such further time as the Court may allow) to make application for leave, and importantly must satisfy this Court that the question of law involved in the appeal is one which, by reason of its general or public importance, or for any other reason ought to be submitted to the Court of Appeal for decision.

Decision

[8]      The first point is that the application for leave is considerably out of time. The application should have been brought by 28 February 2013.  It was not brought until 16 May 2013.  There is no evidence before the Court to explain the substantial delay in seeking leave to appeal.  If there was sufficient merit in the application that would be a factor influencing whether the delay ought to be excused and leave granted.  There is a factor, however, that counts against the applicant in this case.

That is that the incident itself goes back to February 2012, now some almost 18 months ago.

[9]      However, I address the substantive issues raised by the applicant as noted.  If they raise matters of sufficient import then the Court might be inclined to extend the time for the application to be made.

[10]     As noted in this case the defence was s 56 of the Crimes Act, defence of a dwelling.

[11]     In relation to that it is well settled that the accused has only an evidential and not a persuasive burden.  The defence under s 56 will succeed if there is evidence before the Court which raises the issue and which leaves the Court in reasonable doubt.  No issue of law arises in relation to the application of s 56 in this case.  As I say the law is quite settled as to the burden of proof.  In this case the Court found that on the evidence the licence had not been revoked and the Baileys were entitled to be on the property.

[12]     The Court found in the alternative, in dismissing the appeal, that the force used was not used as a reasonable attempt to remove the Baileys from the property. Rather it was in the context of the confrontation arising out of his frustration with the access and the Baileys’ involvement.  The applicant was obviously annoyed at the events that led up to the confrontation and the Court was satisfied that that was the reason that he acted in the way he did, rather than acting in compliance with s 56. As a result he was not entitled to rely on s 56.  On the basis that factual issue was determined against the applicant the first issue raised falls away.

[13]     The second issue, which refers to and relies on s 3(2) of the Trespass Act was not raised in the District Court and was not raised before this Court.  It is entirely misconceived to refer to and seek to raise s 3(2) of the Trespass Act in any event. That Act is directed at the actions of the Baileys and whether or not they may have been in breach of the Trespass Act.  That is entirely irrelevant to the matter that was before the Court which was, that in seeking to rely on the defence under s 56 of the Crimes Act, the applicant had used force to remove the Baileys as trespassers from

his property.  As noted, the Court determined that he had not used the force he used for that purpose and accordingly s 56 did not apply.  He was guilty of assault.

Result

[14]     There is nothing raised in support of the application to suggest that there is a question of law raised, let alone any question of law of such general or public importance that the matter should be referred to the Court of Appeal.

[15]     Accordingly, I decline to grant leave to bring this application out of time and in any event would have dismissed the application on its merits.

Venning J