Paice v Police

[2022] NZHC 2820

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-4040-240

[2021] NZHC 2820

BETWEEN

KARL JOSEPH PAICE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 October 2021
Appearances:	S Petricevic for Appellant B Archibald for Respondent
Judgment:	21 October 2021

JUDGMENT OF LANG J

[on appeal against conviction]

This judgment was delivered by me on 21 October 2021 at 3.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Auckland

PAICE v NEW ZEALAND POLICE [2021] NZHC 2820 [21 October 2021]

[1]        Following a Judge-alone trial in the District Court Judge C J Field convicted Mr Paice on charges of intentionally damaging a gate and assault using a vehicle as a weapon.1

[2]        Mr Paice appeals against conviction. He contends the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.2

Background

[3]        Mr Paice was the successful bidder at an auction on the Trademe website. The auction related to the contents of a storage container situated in a complex operated in Henderson by the complainant, Mr Whalan.

[4]        Mr Paice and his partner went to the storage complex to uplift the contents of the storage container on the afternoon of 2 June 2019. They arrived in a utility motor vehicle that was towing a trailer. After paying the receptionist the amount required to uplift the goods Mr Whalan loaded them onto the utility and trailer. However, his vehicle and the trailer were not large enough to accommodate all the items in the container. He therefore went to drive out of the complex with the intention of returning later in the afternoon to pick up the remaining items.

[5]        At this point the receptionist told Mr Paice he would need to pay a bond if he wished to leave without taking all his items. This was to cover the cost of disposing of the items if he did not return to collect them.

[6]        Mr Paice did not know of this requirement. He became angry because he did not have sufficient funds to pay the bond. The receptionist made it clear, however, that Mr Paice would not be permitted to leave the complex without paying the bond.

[7]        A short time later Mr Paice drove his vehicle towards the sliding exit gate. The gate did not open automatically. In order to open the gate a code needed to be entered into a keypad on a post beside the gate. Mr Paice did not know the code to open the

1      New Zealand Police v Paice [2021] NZDC 9377.

2      Criminal Procedure Act 2011, s 232(2)(b).

gate. He drove up to the gate and deliberately rammed it with the front of his vehicle on six or seven occasions. This caused the gate to flex but it did not open.

[8]        Some minutes later Mr Whalan arrived at the premises, having been summoned by the receptionist. He immediately began recording events on his cellphone. Mr Paice and his partner were becoming increasingly angry because they believed they were being detained unlawfully. Shortly after Mr Whalan’s arrival Mr Paice tried to push the sliding gate off its rail but Mr Whalan intervened to prevent him from doing so. This caused Mr Paice to claim Mr Whalan had assaulted him. Mr Paice and his partner then remained in and around their vehicle for approximately 15 minutes whilst Mr Whalan continued filming them.

[9]        Eventually Mr Paice and his partner got out of their vehicle and, ignoring the protestations of Mr Whalan, they managed to push the gate off its rail. They then pushed the gate open, got back into their vehicle and went to drive away. As they did so Mr Whalan positioned himself in front of the vehicle, blocking its exit. Mr Paice continued to drive the vehicle slowly towards Mr Whalan until it came into contact with him. The collision caused an abrasion to his ankle. Mr Paice’s partner then got out of the vehicle and pushed Mr Whalan out of the way. This enabled Mr Paice to drive out of the premises.

[10]      The receptionist had called the police shortly after Mr Whalan arrived at the scene. The police found Mr Paice a short distance away and he was arrested.

The hearing in the District Court

[11]      The prosecution called both Mr Whalan and the receptionist to give evidence in support of the charges. Mr Paice cross-examined both on the basis that they had unlawfully detained him and his partner within the complex.

[12]      Mr Paice and his partner gave evidence in defence of the charges. They reiterated that they considered that they had been wrongly detained and that their efforts to open the gate were directed solely towards releasing themselves from detention.

[13]      The key evidence was not, however, provided by the witnesses. Rather, it comprised CCTV footage downloaded from cameras mounted within the premises. Although there were some gaps in the footage it depicted in real time what occurred at the critical stages of the incident. In addition, the prosecution produced film footage downloaded from Mr Whalan’s cellphone. This is less clear than the CCTV footage and only depicted the events that occurred after Mr Whalan’s arrival at the premises. By that stage Mr Paice had already rammed the exit gate with his vehicle.

[14]      The Judge was satisfied that Mr Paice intentionally damaged the gate by ramming his vehicle into it in such a manner that it was inevitable damage would occur. He also considered that Mr Paice had deliberately caused his vehicle to collide with Mr Whalan and this amounted to an assault using a weapon. The Judge then observed:3

[7]        That is not the end of the matter of course because Mr Paice maintains and I think with some justification that there was no legal basis to prevent him from leaving the premises. Again though it is important to appreciate that Mr Paice was not being prevented from leaving the premises and could have done so but without the vehicle and the trailer but nonetheless the manager in my view really had no legal right to effectively shut the vehicle in pending the payment of the amount in question so I can well understand Mr Paice’s anger at what was going on but I can also understand of course the reason for the requirement. It seems to me that it would have been a simple matter for Mr Paice to have obtained that money, come back and left it as a deposit, taking the rest of the goods which were his property after all with him on that second visit.

[8]        I am of course concerned about some of the legalities of this situation but Mr Paice in my view had no legal justification for running his vehicle into the gate repeatedly as he did. This was hardly in proportion in my view to the situation he was faced with, similarly and even more so the driving into Mr Whalan which is clearly captured on video.

Appellate approach

[15]      There is no dispute regarding the approach an appellate court must now take to a first appeal against conviction. In Sena v Police, the Supreme Court confirmed that conventional appellate principles apply to such appeals.4 This requires the appellate court to reach its own decision regarding the correctness of the judgment subject to appeal. The onus is on the appellant, however, to demonstrate error on the

3      New Zealand Police v Paice, above n 1.

4      Sena v R [2019] NZSC 55, [2019] 1 NZLR 575.

part of the Court below. As always, an appellate court will exercise “customary caution” when assessing any challenge to findings based on credibility where the trial Judge has the advantage of seeing and hearing the witnesses.5

Decision

Was Mr Paice unlawfully detained?

[16]      There was no dispute that the exit gate remained closed at all times and Mr Paice did not know the code required to open it. It seems that the receptionist was intent on keeping Mr Paice within the confines of the premises until Mr Whalan arrived to deal with the situation that had arisen. At one stage she suggested that Mr Paice and his partner were free to leave the premises on foot and without their vehicle and trailer. That would have been of little assistance because they lived in Drury and could scarcely have walked home from Henderson.

[17]      I consider the situation that occurred in the present case is broadly analogous to that which occurred in Clarke v Police.6 In that case a customer at a restaurant became involved in a dispute with the manager and a waiter about payment for some drinks he had ordered. He became abusive and the police were called. The waiter then locked the door so the customer could not leave the premises until the police arrived. The customer was convicted of disorderly behaviour. On appeal, Ronald Young J held that the appellant had been unlawfully imprisoned.7 He then observed:

[14]      It would be extraordinary indeed if the law did not permit an individual unlawfully imprisoned to use reasonable force to break out of his prison. The Crimes Act ensures that those who need to defend themselves or their property are able to do so as long as the response is reasonable and proportionate. The New Zealand Bill of Rights Act confirms that detention must not be arbitrary.

[15]      Here the actions of the appellant in raising the chair and abusing the waiter and manager were all directed towards his unlawful imprisonment. They occurred only after he had asked and been refused exit from the restaurant. His actions were not directed to doing violence to persons but towards breaking out of his confinement. His abuse was directed towards his release, albeit in explicit terms. His reaction was therefore proportionate to

5      At [38]-[40].

6      Clarke v Police HC Wellington AP109/02, 4 July 2002.

7 At [6].

the wrong done to him and directed towards ending the wrong. In such a situation the actions of the appellant were in my view justified in law …

…

[18] I conclude therefore that the appellant’s actions were justified. The appellant was entitled in the circumstances to use reasonable force to end his false imprisonment. What is reasonable will clearly depend on the circumstances from the perspective of the imprisoned. Here, as I have concluded, the actions of the appellant were reasonable and proportionate aimed at ending the imprisonment.

[18]      As the Judge in the present case appears to have acknowledged, neither the receptionist nor Mr Whalan had any legal right to refuse to let Mr Paice and his partner leave the premises in their vehicle. In doing so they effectively detained them unlawfully and against their will. Mr Paice and his partner were accordingly entitled to use such force to escape as was reasonable and proportionate in the circumstances. However, it is important to remember that they bore no onus. It was for the prosecution to establish beyond reasonable doubt that Mr Paice’s actions in ramming the gate and causing his vehicle to collide with Mr Whalan were not reasonable and proportionate responses given the circumstances as he believed them to be.

Were Mr Paice’s actions unreasonable and disproportionate?

[19]      Mr Paice rammed the gate with his vehicle very soon after the receptionist told him he would need to pay the bond before he would be allowed to leave. The evidence established, however, that Mr Paice knew he could open the gate by another means that was much less likely to cause damage to the gate.

[20]      Mr Paice said he was familiar with the installation of gates of this type because he had worked in that field for some years. He said he knew the gate could be opened manually by removing it from its rail and pushing it to one side. This is the method Mr Paice and his partner used later to successfully pry the gate open. I consider it is also the option Mr Paice ought to have chosen from the outset. Instead he deliberately rammed the gate on several occasions with his vehicle. This ran the obvious risk of causing serious damage to the gate when that was not necessary. As a result, the level of force that Mr Paice used when ramming the gate was neither reasonable nor proportionate in the circumstances as he believed them to be. It follows that the challenge to the conviction on the charge of intentionally damaging the gate must fail.

[21]      Once Mr Paice and his partner had opened the gate Mr Whalan obviously knew they would attempt to drive through the gate and away from the premises. The film footage shows that this is what they immediately tried to do. Mr Whalan endeavoured to stop the vehicle leaving by deliberately standing in directly in its path.

[22]      The Judge considered Mr Paice should not have continued driving towards Mr Whalan after he placed himself in the path of the oncoming vehicle. Instead, Mr Paice should have got out of his vehicle and physically moved Mr Whalan out of the way as his partner ultimately did. I agree that this was an option, but it was not without considerable risk. The risk was that a physical altercation would quickly develop.

[23]      The film footage makes it clear that Mr Paice had no means of avoiding Mr Whalan as he drove through the gateway. He therefore edged his vehicle slowly towards Mr Whalan in the reasonable expectation that he would move out of the way. I do not consider Mr Paice could reasonably have anticipated that Mr Whalan would stand his ground as the vehicle drove slowly towards him. Mr Paice did not increase the speed of the vehicle as it came towards Mr Whalan and he did not alter its course to ensure it struck Mr Whalan before he could get out of the way. Mr Whalan had ample opportunity to remove himself from the path of the vehicle before it touched him. The vehicle came into contact with Mr Whalan solely because Mr Whalan remained standing directly in front of it so as to prevent Mr Paice from leaving.

[24]      These factors persuade me that the prosecution was unable to establish beyond reasonable doubt that Mr Paice’s actions in continuing to drive slowly towards Mr Whalan were unreasonable and disproportionate to the circumstances as Mr Paice believed them to be.

Result

[25]      The appeal against conviction on the charge of intentional damage is dismissed. The appeal against conviction on the charge of assault with a weapon is allowed and the conviction on that charge is quashed.

Lang J