M v Police HC Auckland CRI-2006-404-39

[2006] NZHC 850

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-404-39

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Counsel:        F P Hogan for Appellant

M F Flanagan for Crown

Judgment:      21 July 2006

ORAL JUDGMENT OF BARAGWANATH J

Solicitors:

Crown Solicitor, Auckland

Counsel:

Mr F P Hogan, Auckland

M V NEW ZEALAND POLICE HC AK CRI-2006-404-39  21 July 2006

[1]      When this appeal was called yesterday there was available only a synopsis of the interview of the appellant rather than the entire videotape.   The hearing was adjourned until today to allow the tape to be viewed and a transcript made.  It is now common ground that Crown counsel in the District Court, although acting wholly in good faith in reliance on the synopsis, led the learned Judge into error.  The appeal against  conviction  is  allowed  on  the  Crown’s  concession  that  that  course  is inevitable.  The issues for me are whether there should be a rehearing, either in this Court or the District Court, and if necessary the question of the sentence of the appellant requiring that he be convicted and ordered to come up for sentence if called upon within nine months.  I undertook a hearing de novo on the papers.

[2]      The background to the case is, to express it neutrally, a domestic difference between the appellant and his wife which gave rise to an information alleging that the appellant, a male, had assaulted a female.   Two phases of an altercation were relied upon by the prosecution.

[3]      In relation to the first there was an arguable defence of self-defence, the Crown   being    unable   to    exclude    self-defence    beyond    reasonable    doubt. The conviction  rested  upon  a  subsequent  phase.    The  transcript  now  available records  that  following  an  argument  the  appellant  destroyed  his  wife’s  family pictures.  She took tapes of the weddings of the appellant’s sister and of his brother. His account to the interviewing officer was that when he was trying to grab the tapes from  her  and  she  was  trying  to  push  away  he  ended  up  touching  her  arms. The officer asked “OK so you grabbed her arms?”  The appellant responded “I think I may have yeah.”  The constable asked “How hard do you think you grabbed her?” The appellant replied “I don’t know it was hard enough but you know I was only trying to get the tapes off her but she was sitting on the couch with the tapes and I was trying to grab them off her.”   The constable asked “OK she has got a small bruise on her arm is that from?”  The appellant responded “When I was trying to get the tapes off her or it could be when she was trying to get into the kitchen and I was trying to shoo her away from coming in to the kitchen.”

[4]      It was the episode relating to the kitchen which had been the subject of the defence of self-defence.

[5]      The complainant declined to give evidence and so the only evidence in the case was the foregoing passage of the interview transcript.

[6]      Mr Flanagan submitted in support of the conviction that I should infer that the bruising to the complainant’s arms must have occurred during the tapes episode as a result of the grabbing which the appellant thought he might have performed. But on the account of the appellant the bruising could have occurred either during the tapes episode or on the earlier occasion.

[7]      Since the Crown cannot  exclude the  latter I am unable to  infer  that  the bruising occurred in the course of the former episode.  It follows that even apart from the defence advanced by Mr Hogan under s 53 of the Crimes Act 1961 the Crown case is limited to, at most, a grabbing of the complainant’s arms.  That is in law an assault.  If the evidence stood there I would have elected to view the videotape to see whether   its   playing   would   cast   further   light   on   what   the   appellant   was acknowledging had happened.

[8]      But that course is rendered unnecessary because of the statutory defence. Section 53 provides:

(1)       Every one in peaceable possession of any movable thing under a claim of right… is protected from criminal responsibility for defending his possession by the use of reasonable force, even against a person entitled by law to possession, if he does not strike or do bodily harm to the other person.

There is no evidence of striking or causing bodily harm.

[9]      I do not doubt that the wedding tapes which were in the possession of the complainant were of considerable sentimental importance to the appellant.  I equally understand how significant to the complainant must have been the family pictures which the appellant admitted destroying.  But notwithstanding his own contribution to the rise in temperature it was his right under s 53 to exercise reasonable force to defend  his possession of the wedding tapes.   Photographs produced in evidence

suggest that the appellant had been unsuccessful in his attempt.  The tapes are shown in a broken condition lying on the lawn outside and the actual tape portion pulled out of its container  in each instance.   Clearly the degree of force employed  by the appellant was insufficient to protect his possession of the tapes.

[10]   In these circumstances the Crown cannot in my view establish beyond reasonable doubt that the force used by him in his unsuccessful defence of their possession exceeded what was reasonable.

[11]     For these reasons, with the advantage of the full transcript which was not available to the learned and experienced District Court Judge, I am satisfied that the appeal must be allowed and the conviction is quashed together with the consequent

sentence.

W D Baragwanath J