Laird v The Queen

[2004] NZCA 251

IN THE COURT OF APPEAL OF NEW ZEALAND

CA154/04

THE QUEEN

v

ROY DUNCAN LAIRD

Hearing:27 September 2004

Coram:Glazebrook J
Potter J
Salmon J

Appearances:  A R Laurenson for Appellant

M F Laracy for Crown

Judgment:6 October 2004 

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1]        In January 2001 Mr Laird was found guilty by a jury in the District Court at New Plymouth, along with his co-accused, Mr Christiansen, of assault on a constable with intent to obstruct the constable in the execution of his duty – see s192 of the Crimes Act 1961. Both were convicted and sentenced to four months periodic detention. In October 2001 Mr Christiansen successfully appealed both his conviction and sentence. Mr Laird now seeks leave to appeal out of time.

Background

[2]        Mr Laird, Mr Christiansen and another friend, a Mr Cameron, were outside a bar in New Plymouth in the early hours of the morning of 5 February 2000. They had been drinking at the bar and had left at closing time. Mr Cameron was urinating in the gutter. When he was hailed by a passing police patrol car, Mr Cameron ran away. A police officer chased after him and wrestled him to the ground. Mr Laird and Mr Christiansen ran up to where their friend was being arrested. The Crown case was that Mr Christiansen then grasped the police officer around the throat in a choker hold while Mr Laird grabbed one of the constable’s arms so that the officer was pinned to the ground on top of Mr Cameron. The police officer let Mr Cameron go and dislodged Mr Laird and Mr Christiansen. The three friends then ran off but were later located and arrested.

[3]        Mr Christiansen claimed, at the charge room at the police station and at trial, that he had intervened because he believed the police officer was using excessive force to arrest Mr Cameron. He said that he was particularly concerned for his friend who had had a fracture of his back. At the police station Mr Laird denied assaulting the officer and said that he had not been concerned at Mr Cameron’s arrest. At trial, he admitted assaulting the officer. He said that he had tried, at the police station, to minimise his involvement, in the hope that he would be able to leave for Australia to work as he had planned to do the following day. He said that he did not want to mention at the police station that he had been concerned about Mr Cameron’s back or that he considered the officer was acting “over the top” because that would have given him a motive to be involved. This did not strike us as a totally implausible explanation of his lack of frankness at the police station.

[4]        Mr Laird, Mr Christiansen and Mr Cameron were tried together. The defences at trial for Mr Laird and Mr Christiansen were that they believed the constable was not acting in the execution of his duties due to the use of excessive force (s192) or, in the alternative, that they were acting in the defence of Mr Cameron (s48).

Mr Christiansen’s successful appeal

[5]        Mr Christiansen appealed on the ground that the Judge’s summing up inadequately directed the jury as to the requirement of intent under s192 and unsatisfactorily rolled together the two separate defences. As noted above, this Court in R v Christiansen CA 196/01, 24 October 2001, allowed the appeal and quashed Mr Christiansen’s conviction and sentence.

[6]        Richardson P, for the Court, began by setting out the approach to both defences. After referring to R v Thomas [1991] 3 NZLR 141,143 he said, at [7], that the use of excessive force takes a constable out of the scope of his or her duty and an accused would lack the intent required by s192(2) if he or she had an honest belief that the constable was using excessive force in effecting an arrest. The Court in Thomas (at 144) had also expressed the view that it was difficult to see any cogent reason why self-defence or defence of another should not justify the use of force if the accused did not know the officer was acting in the execution of his or her duty or honestly believed the officer was not so acting. Richardson P said, therefore, at [9], that lack of mens rea and the positive defence of another under s48 were quite separate defences.

[7]        Next Richardson P set out the relevant passages from the summing up. He said that the difficulty with the summing up was that the Judge had never clearly stated that Mr Christiansen had two distinct defences which the jury had to consider separately. Rather, the Judge had from the outset merged lack of intent under s192(2) and defence of another under s48. Whenever the Judge had referred to matters relevant to s192, the summing up tended to roll on to s48 considerations as if there was only one defence involved, whereas, although there is a degree of common ground and factual overlap, each has a different focus – s192 requiring an honest belief in excessive force, being subjective, and s48, with the requirement of reasonable force in the defence of another, being objective.

[8]        As a result Richardson P was satisfied that the Judge had failed to direct the jury as to the need to assess the two defences separately and, in the result, had inadequately directed the jury as to the requirement of intent under s192. The Crown had accepted that it would not be appropriate to order a retrial as Mr Christiansen had no previous convictions, had apologised for his part in the incident and the offence was one that the Judge had considered could be dealt with by a short period of periodic detention. Mr Christiansen’s conviction was therefore quashed and there was no order for a retrial.

Appellant’s submissions

[9]        Mr Laird now seeks leave to appeal out of time. He has filed an affidavit to explain the delay. In that affidavit he deposed that, because of this incident, he had had to put off his plans to travel overseas until he had finished his periodic detention and amassed sufficient funds. He left for the United Kingdom in December 2001. Just before he left, Mr Laird heard that Mr Christiansen’s appeal had succeeded. He was surprised as he had not been told of his right to appeal and he instructed his counsel to prepare an appeal. As he left to travel in the United Kingdom before the appeal was prepared there were some difficulties in completing the documentation but eventually the papers were signed and returned. They were, however, not filed until after Mr Laird returned to New Zealand in late 2003. In June 2004 Mr Laird’s then counsel, after a Crown memorandum had been filed criticising counsel’s actions, recommended that Mr Laird change counsel, which he did.

[10]     Referring to the principles set out in R v Knight (1997) 15 CRNZ 332, Mr Laurenson, for Mr Laird, submitted that it is in the interests of justice to extend the time for this appeal. It was submitted that the relevant principles are the strength of the appeal, lack of prejudice to the Crown, the practicality of the remedy sought, the impact on others, and the reasons for the delay. In this case he submitted that:

(a)this appeal has considerable strength given that the Court allowed Mr Christiansen’s appeal on, it is submitted, the precise points of this appeal;

(b)there is no prejudice to the Crown in this case as the Crown has all the information and documentation available to it to respond properly;

(c)the remedy sought is to have the conviction and sentence quashed and the Crown does not seek a retrial;

(d)allowing the extension of time would have no impact on others or on the administration of justice as the circumstances of this case are specific to Mr Laird; and

(e)while there has been significant delay this was, as explained in Mr Laird’s affidavit filed in this Court, due to Mr Laird’s overseas travel and a large measure of delay by his previous counsel.

[11]     On the merits of the appeal, Mr Laurenson, for Mr Laird, submitted that the same principles apply in relation to Mr Laird as applied to Mr Christiansen and accordingly, as a result of that earlier decision, Mr Laird’s appeal should necessarily be allowed. It was submitted that both Mr Laird and Mr Christiansen relied at trial on the absence of the necessary mens rea under s192 and the defence of another under s48. This Court, in Mr Christiansen’s case, reaffirmed the decision in R v Thomas [1991] 3 NZLR 141 that both defences are available to an accused person in situations such as these.

[12]     In Mr Laurenson’s submission, both defences were also available to Mr Laird on the evidence, as the trial judge accepted and the summing up shows that the Judge treated Mr Laird’s and Mr Christiansen’s defences as one and the same. As this Court was satisfied that Mr Christiansen had raised an evidential basis to rely on both defences then, in Mr Laurenson’s submission, Mr Laird’s evidence also provides a sufficient basis for him to rely on both defences. Both men gave evidence as to the police officer’s actions being “over the top” and “unreasonable”.

Crown submissions

[13]     The Crown submitted that no compelling reason has been given for the long delay, of some two and a half years after this Court’s decision in Christiansen, in filing the application for leave to appeal. The Crown said that Mr Laird learned of Mr Christiansen’s successful appeal in late 2001 and instructed his counsel to file an appeal which was never filed. Even when Mr Laird returned to New Zealand in December 2003 he still did not prosecute the appeal promptly, as he did not file his notice of application for leave to appeal until 3 May 2004. In the Crown’s submission, it is hard to avoid the impression that Mr Laird delayed pursuing the appeal for reasons of his own convenience, which does not accord with the principle of finality, although the Crown did accept that counsel delay was a factor.

[14]     At the same time, however, the Crown acknowledged that the Court’s decision as to whether to grant leave is likely largely to depend on the merits of the appeal. It was also acknowledged that the presence of a conviction on Mr Laird’s otherwise unblemished record must be of importance in his eyes and, unless his position is materially different from that of Mr Christiansen, there may be a sense or an appearance of unfairness or disparity if his application is not granted.

[15]     On the merits of the appeal, the Crown accepted that Mr Laird had advanced his defence at trial on two bases and that this had been accepted by the Judge in his summing up. It also accepted that the defences put forward for Mr Christiansen were identical and that the merging or conflation of the defences, as identified by this Court in Christiansen, must apply equally to Mr Laird’s case if there was an evidential basis for the defences in Mr Laird’s case.

[16]     Ms Laracy, in her oral submissions, submitted that there was no evidential basis for Mr Laird to argue that he lacked mens rea. An honest belief that a police officer is using excessive force is not, in her submission, despite the Court’s comment in Christiansen referred to at para [5] above, necessarily sufficient to found an evidential basis for a jury to conclude there was an honest belief the police officer was acting other than in execution of his or her duty. The evidential basis was present in Thomas and Christiansen because of evidence as to a belief that the police were beating the suspect. She submitted that Mr Laird’s evidence did not reach this level. She accepted, however, that there was an evidential foundation in Mr Laird’s case for the s48 defence and said that that defence was, in any event, on Mr Laird’s own admission in evidence, his primary defence. 

[17]     In its written submissions the Crown did not go so far. It had submitted that the effect of the conflation of the two defences in the summing up was likely to be different in respect of each accused. In Mr Christiansen’s case, it was submitted that there was a stronger basis for the argument under s192(2) and, in that situation, the need for a clear direction from the Judge took on more significance. In its written submissions the Crown had apparently accepted that there was an evidential basis for Mr Laird to claim lack of mens rea under s192 but submitted that it was substantially weaker than in the case of Mr Christiansen. These differences in the evidence relevant to each of the accused, in the Crown’s submission, affected the impact of the Judge’s direction on their respective cases and, therefore, whether a miscarriage of justice occurred in Mr Laird’s case.

[18]     In Mr Christiansen’s case, the Crown pointed to the evidence he gave of seeing the constable pull Mr Cameron to the ground with what appeared to him to be excessive force. He had also said that the officer was beating up Mr Cameron and opined that the officer’s actions were completely unreasonable and over the top. By contrast, in the Crown’s submission, Mr Laird’s evidence about concern for Mr Cameron and his perception of the officer’s actions was markedly more muted. He did not assert the same level of aggression and extreme force on the part of the officer described by Mr Christiansen. At most, Mr Laird described the officer “roughing up” Mr Cameron. The Crown also pointed to the consistency between Mr Christiansen’s statement at the police station and his evidence at trial.

[19]     If the Crown’s submissions are not accepted, the Crown does not seek a retrial. It accepts that, in that case, the case of Mr Laird could not otherwise reasonably be distinguished from that of Mr Christiansen.

Discussion

[20]     We deal first with the merits of the appeal. We accept Ms Laracy’s submission that an honest belief that the police were using excessive force does not necessarily equate to an honest belief that the police were not acting in the execution of their duty. This is not the same, however, as saying that an expression of belief that the officer was acting with excessive force cannot provide an evidential basis for the lack of the necessary mens rea. Mr Laurenson submitted that accused persons are unlikely to articulate an honest belief that the police were not acting in execution of their duty. A person is much more likely to express themselves in the manner Mr Christiansen and Mr Laird did, dubbing an officer’s actions as “over the top” or “unreasonable”. We accept that submission. Such statements would, in our view, be capable of providing an evidential foundation for the defence to be raised. Whether they equate to a reasonable possibility of a lack of mens rea, we regard as a matter of inference for the jury. We apprehend that Ms Laracy was concerned that this defence could be too easily resorted to. As this Court said in Thomas, (at 143), however, considerations of reasonableness as a test of honesty should provide an adequate safeguard against resort to glib assertions of belief.

[21]     In any event, we do not accept the Crown’s submission that Mr Laird’s evidence about concern for Mr Cameron and his perception of the police officer’s actions was markedly more muted than in the case of Mr Christiansen. We see no significant differences between the evidence at trial of Mr Christiansen and Mr Laird. Mr Christiansen spoke of the officer beating Mr Cameron up. Mr Laird spoke of him roughing Mr Cameron up. As Ms Laracy conceded, neither roughing a suspect up or beating him up can be seen as actions in the execution of a police officer’s duty. Any difference in the descriptions of the perception of the force used was, in our view, also just as likely to be a consequence of the differing means of expression between two individuals.

[22]     We note that Mr Laird in fact gave quite a clear indication that he considered the officer was acting outside the scope of his duty in the following exchange:

You know when someone runs away from the Police the Police Officer is going to stop him somehow don’t you…yes I know that but I didn’t expect him to stop him the way he did I considered it unnecessary over the top.

[23]     Mr Laird had earlier given evidence of the police officer bringing Mr Cameron down by means of a head high tackle. He said:

Then Brian [Cameron] was running, he had a staggered sort of run and the Police Officer tackled him across the back of the neck with his right arm

Where did the Police Officer come from…from the patrol car across the road, I could see him running across the road to intercept Brian.

How was he running…fast full speed

What happened when he caught up with Brian…he tackled him to the ground and he knocked him off his feet when he tackled him. Then he went out of view.

[24]     In our view, there was a clear evidential foundation in Mr Laird’s case, in the evidence he gave at trial, for both the lack of mens rea defence and the s48 defence. For the same reasons this Court gave in Christiansen it is apparent in Mr Laird’s case that the Judge’s summing up did not spell out the need to assess the two defences separately and, therefore, did not adequately direct the jury on the requirement of intent under s192.

[25]     As Mr Laird’s position was the same as that of Mr Christiansen, we consider that it is appropriate to grant leave to appeal out of time and to allow Mr Laird’s appeal. Although the delay was a very long one and Mr Laird could certainly have acted much more promptly, counsel delay appears to have been a significant factor. The interests of justice are also an important consideration in decisions whether or not to grant leave. In our view, the merits of the appeal are so strong that Mr Laird would be justified in feeling a sense of unfairness if this conviction, which is his only one, was to stay on his record while Mr Christiansen, who was in exactly the same position as he was, has had the slate wiped clean. Finally, there is no prejudice to the Crown in granting leave to appeal in these circumstances as the Crown does not seek a retrial.

Result

[26]     For the reasons given, Mr Laird’s application for leave to appeal out of time is granted, the appeal is allowed and his conviction is quashed. There will be no order for a retrial.

Solicitors:
Govett Quilliam, New Plymouth for Appellant
Crown Law Office, Wellington