Kissling v The Queen

[2005] NZCA 95

IN THE COURT OF APPEAL OF NEW ZEALAND

CA403/04

THE QUEEN

v

DEAN RONAKI KISSLING

Hearing:21 April 2005

Court:Glazebrook, Baragwanath and Goddard JJ

Counsel:W T Nabney for Appellant

H D M Lawry for Crown

Judgment:4 May 2005 

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS

(Given by Glazebrook J)

Introduction

[1]       Mr Kissling was convicted, following a jury trial in the Tauranga District Court, of driving while disqualified and of injuring with intent.  He was sentenced on 20 September 2004 to 12 months imprisonment on the charge of injuring with intent and to one months imprisonment on the charge of driving while disqualified, those terms to be served currently.  Mr Kissling was granted leave to apply for home detention.

[2]       Mr Kissling’s Notice of Appeal indicated that he appealed against his conviction on the basis that Judge Rollo wrongly admitted the evidence that Mr Kissling had bitten the police constable’s finger.  At the hearing of the appeal, following a change of counsel, this ground of appeal was not pursued.  Rather, it was submitted that Judge Rollo had erred in instructing the jury that the police constable’s actions were lawful, thus compromising Mr Kissling’s defence of self‑defence.

Facts

[3]       Mr Kissling was stopped by two police constables just south of Te Puke while driving a car belonging to a Te Puke gang. It was quickly realised that Mr Kissling had previously been disqualified from holding a licence and had not regained it. In such circumstances, the impounding of the motor vehicle being driven is mandatory.  The Crown evidence was that Mr Kissling initially disputed the right of the police to take such a step, saying that the car belonged to the Filthy Few and that they would break his arms and legs if he lost the car.  Subsequently, he got out of the car and was told that he was being placed under arrest.  The Constable went to apply handcuffs.

[4]       Mr Kissling then put a hand into his pocket and appeared to pull something out in his clenched fist. The Constables feared that it might have been a weapon and told him to open his hand. However, Mr Kissling immediately thrust his hand towards his mouth.  Constable Wilson’s evidence was that he tried but failed to prevent Mr Kissling from putting what he thought was the small, concealed object into his mouth. The Constable believed that the object might have been a point bag of methamphetamine. The Constable then grabbed Mr Kissling by the jaw and a brief roadside struggle ensued.  Constable Wilson’s evidence on this point in full was:

So you conveyed to him the car was being impounded.  What was the next step …  He got out of the vehicle.  Once he was out of the vehicle I told him he was under arrest and asked him to place his hands on the roof of the car which he appeared initially compliant.  Then he thrust his right hand into the right hand pocket of his pants.

Just explain where he was standing and you were standing when this occurred. … It is a two door car.  We were standing directly beside his drivers door and he was looking over the roof of his car basically.  He exited the vehicle when I told him to put his hands on the roof.

You were standing at the left towards the rear of his vehicle. …Yes I was slightly behind him and on his left shoulder. … So he had his hands on his roof. … I am not sure if his left hand actually made it to the roof but he made an indication based on his body language he was going to do that.  Then … And his right hand went into his pocket and he left it there for some period of time, not a long time but long enough for me to say Pull it out of your pocket.

Why did you say that. … Obviously I was concerned, I didn’t know what he was likely to have in there, a weapon or sorts or anything, there could have been anything in there and I was pretty keen to get his hands in handcuffs and have his hands out of his pockets so I could make sure there wasn’t going to be any harm coming to myself or partner.  Basically it happened very fast from there on.  He pulled his hand out of his pocket.  I asked him to open his hand up.  What did it look like. … It appeared to me to be more than a clenched fist, he had something balled up in his hand.  It was more than just like he was making a fist, he had something in the palm of his hand.

What happened to that hand. … I asked him to open it up and then he basically just put his hand up to his mouth and appeared to put something into his mouth.

What did you do when you saw the right hand heading towards the accused’s mouth. … I tried to grab hold of his hand but it did happen quite fast.  I may have grabbed his wrist on the way up but he was too quick for me and put what he had in his hand into his mouth.

Where did you hand end up. … I grabbed him around the jaw area.  Which hand of yours. … My left hand and within obviously a few seconds Mr Kissling has his teeth clenched around my middle finger.  Why did you put your hand in his jaw area. … I was trying to grab hold of his jaw and prevent him swallowing whatever it was he had placed in his mouth.

What did you believe he was doing. … I believed he was putting a controlled drug or methamphetamine or something like that in his mouth.  I couldn’t see any other reason for him to put anything into his mouth.

For the help of the jury, can you just explain what a point bag of methamphetamine is. … A point bag of methamphetamine is a small self sealing plastic bag not much bigger than the person’s average thumb and carried a tenth of a gram of methamphetamine inside of which is a very very small amount.

[5]       As indicated, the Constable’s finger eventually ended up between Mr Kissling’s teeth. The Crown alleged that Mr Kissling continued to bite the tip of the Constable’s left middle finger for around a minute.  Eventually, pepper spray and a carotid hold were applied to Mr Kissling. Mr Kissling then released the Constable’s finger.

[6]       Mr Kissling’s account of the events differed in major respects from that of the police officers.  In particular, he denied that he had put his hand in his pocket or carried it to his mouth.  His version was that he had been pepper sprayed and had tried to drop to the ground.  He then felt a metal object hit his mouth.  While ripping the hand and the can away he had inadvertently closed his mouth.  When he realised that he had bitten the finger, he immediately let it go.  The jury obviously rejected Mr Kissling’s version of events.

Pre-trial ruling of Judge Rollo

[7]       Prior to the trial, Mr Kissling made an application under s 344A of the Crimes Act 1961 requesting Judge Rollo to rule that the evidence that he had bitten Constable Wilson’s finger was inadmissible at trial. Mr Kissling’s counsel then argued that the Constable’s insertion of his finger into Mr Kissling’s mouth was an unlawful search of a bodily cavity and the evidence arising therefrom should therefore be inadmissible.

[8]       Just before the trial began on 24 August 2004, and, after hearing evidence from both of the police officers involved, Judge Rollo held that Constable Wilson had not been attempting to search, or to seize, any suspected banned substance from inside Mr Kissling’s mouth, that he had not deliberately put his finger into Mr Kissling’s mouth, rather that had been an inadvertent occurrence (on his part), and that as a consequence his actions were not an unlawful search.

[9]       The Judge gave full reasons for that decision on 14 September 2004.  In those reasons, the Judge noted that prior to the pre-trial hearing he had met with counsel because he had had difficulty in understanding the contentions of Mr Kissling’s then counsel.  Counsel’s argument appeared to be that, if the Judge found the Constable had conducted an unlawful search, then he should rule the evidence inadmissible.  The Judge considered this trial concerns an allegation of injuring with intent to injure.  It is not a case where the prosecution evidence has arisen as a result of a search, whether conducted pursuant to statutory or common law powers. Further, it is not the lawfulness of a search but its reasonableness that determines whether the evidence obtained was admissible. Even if the search was unreasonable, evidence may be admissible pursuant to the R v Shaheed [2002] 2 NZLR 377 balancing test.

[10]     Judge Rollo formed the opinion that the purpose of the pre-trial hearing would be to determine whether or not Constable Wilson’s actions constituted an unlawful search of Mr Kissling’s mouth so that the jury could determine whether Mr Kissling’s reaction to it was permitted. That would leave open whether Mr Kissling was acting in self-defence.

[11]     Nonetheless, Counsel maintained that the appropriate legal corollary of a finding that an unlawful search had occurred was that the evidence should then be ruled inadmissible.  Mr Goodwin argued that the search of Mr Kissling’s mouth was prohibited by s 18A of the Misuse of Drugs Act 1975, and was therefore unlawful, and was also unreasonable in breach of s 21 of the New Zealand Bill of Rights Act 1990.  The Judge thought that Mr Kissling’s application was misdirected. He reiterated that this was not a search and seizure case, but rather an allegation of injury with intent. No improperly obtained evidence had been obtained from Mr Kissling’s mouth, regardless of the lawfulness or reasonableness of such a search. Judge Rollo said that the case did not concern admissibility but process.

[12]     Judge Rollo recognised that, if the search had been lawful, then the jury would start from the premise that Constable Wilson was entitled to insert his finger into Mr Kissling’s mouth. Mr Kissling might not have been entitled to bite it. However, if it had been unlawful, it would have constituted an assault. The jury would then start from the premise that Mr Kissling was entitled to defend himself by using reasonable force against the Constable’s unlawful actions. Such reasonable force might have included biting the Constable’s digit.

[13]     The Judge saw no merit in Counsel’s arguments that, if this was an unlawful search, evidence of Mr Kissling’s actions in biting Constable Wilson’s finger for around a minute should be inadmissible. He said that the law did not give “a carte blanche to an accused to react, or over-react, to an unlawful action by another, whether police constable or citizen”. He said that the response had to be proportional to the harm perceived. A person who unreasonably responds to an assault becomes an “assaulter”.

[14]     However, the Judge noted that these comments presupposed that Constable Wilson deliberately inserted his finger into Mr Kissling’s mouth. After examining the evidence in some detail, the Judge considered it clear that the Constable had not attempted to search or seize any suspected banned substance from Mr Kissling’s mouth, and that he had not deliberately inserted his finger into Mr Kissling’s mouth. Accordingly, the Constable’s actions did not constitute an unlawful search and there was no issue regarding the admissibility, or otherwise, of the evidence.

[15]     He therefore advised the jury in his preliminary remarks, as agreed with counsel, that its starting point, in considering the evidence in the trial, was that this was not an unlawful search of Mr Kissling’s mouth.

[16]     The Judge considered that his ruling did not prejudice Mr Kissling’s defence, as it still left open a general challenge to the credibility and reliability of the Crown witnesses and the probable defence of self-defence.

The parties’ submissions

Mr Kissling

[17]     Mr Nabney, for Mr Kissling, submitted that Judge Rollo was wrong to find that Constable Wilson had acted lawfully in taking hold of Mr Kissling’s jaw. In his submission, the Judge should have summed up to the jury on the basis that, as a matter of law, the Constable was not lawfully entitled to grab Mr Kissling by the jaw, and they should have considered Mr Kissling’s defence of self-defence in that light.

[18]     In Mr Nabney’s submission, the Crown does not seek to rely upon any statutory authority for the use of force. Constable Wilson gave evidence that he was not conducting a search under the Misuse of Drugs Act. Even if the Crown purported to rely on this Act, Mr Nabney submitted that there could be no search pursuant to s 18 as there was insufficient evidence to give rise to the belief that there was even any object in Mr Kissling’s mouth. Nor was the force used a necessary part of Mr Kissling’s arrest. Furthermore, there is no suggestion that Constable Wilson used the force to prevent Mr Kissling committing an offence which would be likely to cause immediate or serious injury to himself, such as to bring this matter within s 41 of the Crimes Act 1961.

[19]     In any event, Mr Nabney submitted that, even if the search was authorised by law, force is only justified if necessary and the law does not authorise expediency in relation to preventing the disposal of evidence (R v Hapakuku (1999) 16 CRNZ 520 at [14]). In Mr Nabney’s submission, R v Jefferies [1994] 1 NZLR 290 makes it clear that, in the absence of any statutory authority conferring such an action by the officer, an officer stands in no different position from any other citizen. That case further held that the power of search consequent on arrest is confined to a reasonable search for things which may be evidence of the person’s guilt or which may be used to injure or facilitate escape. Mr Nabney submitted that the search did not relate to evidence in respect of driving while suspended, for which Mr Kissling was arrested. Nor could there be any suggestion on Constable Wilson’s evidence that Mr Kissling had a weapon.

[20]     The jury, instead of considering whether Mr Kissling had used force in response to Constable Wilson’s unlawful assault, was, in Mr Nabney’s submission, left to consider self-defence in light of the lawful application of force by the Constable. Mr Nabney submitted that the direction to the jury in this respect led to a miscarriage of justice and that the jury’s verdict should accordingly be set aside.

[21]     We note that Mr Nabney did not seek to impugn any part of the Judge’s summing up.  He accepted that, if the Court finds the constable’s actions were lawful, there is no cause for complaint.

The Crown

[22]     Mr Lawry, for the Crown, submitted first that it does not appear that the Judge went further in his directions than was set out in [1] above – ie that there was no unlawful search of Mr Kissling’s mouth.  However, in Mr Lawry’s submission, the Judge would have been entitled to advise the jury that Constable Wilson’s grip on Mr Kissling’s jaw was lawful.  In his submission, the Constable was legally entitled to use reasonable force on Mr Kissling who was resisting arrest. Alternatively, Mr Lawry submitted that the urgency of the circumstances entitled the Constable to prevent disposal of the evidence.

[23]     Mr Lawry relied on s 39 of the Crimes Act, which authorises the Constable to use reasonable force to effect the arrest and handcuffing of Mr Kissling. The Constable was required to restrain Mr Kissling because he failed to follow instructions and, during the handcuffing process, put his hand to his pocket and then to his mouth. The Constable did not know what Mr Kissling was doing and believed that he was attempting to ingest prohibited drugs. As far as the Constable knew, Mr Kissling may have been endangering himself, as was the case in R v Roulston [1998] 2 NZLR 468.

[24]     In Mr Lawry’s submission there are two problems with Mr Nabney’s submissions. First, if it were held that the Constable’s actions were unlawful, this would mean that police must simply stand by and watch if a person, who is refusing handcuffs, decides to put something potentially dangerous or illegal in their mouth.

[25]     Secondly, the Judge will have directed the jury to determine whether the force allegedly used in self-defence by Mr Kissling was reasonable in the situation as he believed existed at that time. Mr Lawry submitted that whether or not Constable Wilson was acting lawfully is irrelevant to that issue. Mr Lawry submitted that there was nothing wrong in the Judge directing the jury that the actions of the Constable were lawful. This direction could not have prejudiced Mr Kissling, as the jury was required to look at the circumstances from Mr Kissling’s point of view.

Discussion

[26]     The lawfulness of the Constable’s actions in taking hold of Mr Kissling’s jaw must be assessed against all the circumstances.  Mr Kissling was in the process of being arrested after having been found driving without a licence in a gang vehicle.  He was about to be handcuffed.  In this context he put his hand in his pocket, raising a reasonable apprehension that he was reaching for a weapon.  Instead he pulled his hand out of his pocket in a balled fist and brought that fist up to his mouth.  In our view it was a reasonable inference for the Constable to draw that there was something in Mr Kissling’s fist that he had deposited in his mouth.  It was also a reasonable inference (and indeed the most likely position) that it was something he wished to conceal from the police and therefore something illegal.  Given the likely size of the object, the Constable’s conclusion that it was a point bag of methamphetamine was a reasonable one.

[27]     Mr Nabney submitted that it was not an available inference as the Constable had not seen any package.  In his submission, there may have been nothing in Mr Kissling’s fist and nothing put in his mouth.  We do not accept that submission.  Mr Kissling had put his hand in his pocket.  He is unlikely to have done that in the circumstances without wishing to take something out of that pocket. The Constable’s evidence was that Mr Kissling had not simply made a fist but that his hand looked as if it contained something. The item could not be seen, precisely because Mr Kissling was trying to hide it.  There also seems to us no reason why Mr Kissling would have put his fist to his mouth if not to convey that there was an object he wished to insert into it.  Mr Nabney suggested that the object may have been chewing gum but was unable to explain why Mr Kissling would have wished to chew gum while being arrested or why he would conceal the gum in a clenched fist.

[28]     While R v Roulston [1998] 2 NZLR 468 entailed a search under warrant, we consider the present case to be indistinguishable in principle. In Roulston, in the course of a lawful search, the police noticed that the suspect had a small orange package in his underpants. The suspect quickly put the package into his mouth. The constable thought that he was attempting to swallow it and grabbed him by the throat to stop this from happening. A struggle ensued and the package dropped to the floor where it was retrieved and found to contain drugs. It was held that the actions of the police in trying to prevent a suspect destroying evidence were both lawful and reasonable in that case, given the suspect’s deliberate act in placing the drugs in his mouth (in that case) in order to provoke the police to use force and to avoid the seizure of the drugs. The Court said (at 521) that, in such circumstances “there does not seem to us to be a persuasive case for preventing the police using reasonable force to take possession of the drug as contemplated by s 18(3).” This Court considered that the actions were also justified in that case under s 41 of the Crimes Act 1961 as the suspect had, by placing the drugs in his mouth, placed his health or life at risk.

[29]     In this case, although the exact contents of Mr Kissling’s balled fist was not known to Constable Wilson, it was, as indicated above, a reasonable conclusion that it was drugs and that Mr Kissling was attempting to conceal those drugs.  The Constable was therefore justified in performing a search without warrant under s 18(3) of the Misuse of Drugs Act.  In addition, although the amount of the drug the Constable thought was involved was small, there was still danger of the plastic point bag obstructing Mr Kissling’s airways.

Solicitors:

Crown Law Office, Wellington