R v Police HC Auckland CRI 2008-404-259

[2008] NZHC 2134

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-0259

BETWEEN  R

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         26 November 2008

Appearances: Q Duff for the Appellant

M R Harborow for the Respondent

Judgment:      22 December 2008

RESERVED JUDGMENT OF PRIESTLEY J (Appeal against conviction)

This judgment was delivered by me on 22 December 2008 at 3.00 p.m. pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date: …………………………

Counsel/Solicitors

Q Duff, Unit F1, 75 Corinthian Drive, Albany, North Shore City 0632. (Fax: [phone]) M Harborow, Meredith Connell & Co, P O Box 2213, Auckland 1140 (Fax: [phone])

R V  POLICE HC AK CRI 2008-404-0259  22 December 2008

The Issue

[1]      Central to this appeal is whether s 53(1) of the Crimes Act 1961, which permits a person to use reasonable force to defend moveable property without criminal responsibility, is available as a defence to a party in a domestic fracas who is attempting to retrieve property.

Background

[2]      In August 2008 the appellant faced two counts in the North Shore District Court.   One was threatening to do grievous bodily harm and the other was male assaulting female laid under s 194(b) of the Crimes Act 1961.  Before the hearing the appellant had pleaded guilty to a related charge of wilful damage.

[3]      At the end of the defended hearing Judge J H Walker acquitted the appellant on the more serious charge but convicted him on the male assaults female charge. He was sentenced to 60 hours community work on the assault charge and 40 hours community work on the wilful damage charge, both sentences to be served concurrently.

[4]      There is no appeal against the sentences.  The appeal solely challenges the conviction.

[5]      The complainant, who gave evidence at the hearing, and the appellant knew each other.  In the week before the offending the appellant had been staying in her home.  Earlier in the day the complainant had gone to the appellant whilst he was at work and picked up his wallet.   The wallet contained cash which was needed for household expenses and the complainant’s cashflow card.  The wallet was left in the complainant’s car.   Apparently the appellant’s wages were being paid into the complainant’s bank account.

[6]      Later that evening, whilst the complainant was at home with her daughter and the appellant was at a pub, there was an exchange of texts between the couple.  The

complainant believed the appellant was socialising with another woman and texted him that he need not return to the home.

[7]      This message displeased the appellant.   He returned to the complainant’s house and began banging on doors and windows.   This continued for 10 or 15 minutes.   During this period he apparently retrieved some washing from the clothesline and put it on the steps.   The appellant’s attempts to enter the house through the ranch-slider were frustrated because it was locked.  He became angry, punching and kicking the ranch-slider, which smashed a pane of glass.  Hence the wilful damage charge to which the appellant had pleaded guilty.

[8]      The complainant then left the house (she had been talking to a neighbour on her cellphone) taking with her her handbag.  Inside the handbag were the appellant’s wallet, the complainant’s cash-flow card, and other articles of hers.   The bag was over the complainant’s shoulder.

[9]      The appellant followed the complainant into the street.  He grabbed hold of her bag in an attempt to pull it off her shoulder trying to get his wallet.  Whilst the appellant was doing this he called the complainant a crazy bitch.  The complainant felt nothing at the time but later noticed that there was bruising (the subject of photograph evidence) on her upper right arm just below the shoulder.

[10]     In cross-examination the complainant accepted that the appellant had asked her for his wallet.  She accepted that she did not return the wallet to the appellant when he made this request because she did not want to go anywhere near him.

[11]     In addition to the complainant’s evidence the Judge also heard evidence from a police officer.  The appellant had made a statement to the police, the admissibility of  which  was  challenged  unsuccessfully  in  the  District  Court.    That  statement covered mainly the acrimonious texting earlier in the evening and the damage to the ranch-slider.  Consistent with the complainant’s evidence and with counsel’s s 53(1) submissions the appellant stated that when the complainant ran across the road with her daughter he grabbed her on the arm to ask for his wallet.   He grabbed her

because she kept backing away.  He grabbed her solely because he wanted to keep her there both to talk to her and to retrieve his wallet.

Discussion

[12]     Initially the appellant advanced two points of appeal.  The first related to the admissibility of the statement made to the police.  The second point was the Judge’s failure to allow the s 53(1) defence.  The third appeal point was not pursued (and it could only have related to the second point), being a challenge to the finding of an assault.  Counsel limited his submissions to the defence of property point.

[13]     Section 53(1) of the Crimes Act 1961 provides:

53       Defence of movable property with claim of right

(1)       Every one in peaceable possession of any movable thing under a claim of right, and every one acting under his authority, 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.

[14]     There can be no criticism of the Judge for not dealing with this issue since it was not raised by counsel at the defended hearing.

[15]     There is little authority on the statutory defence.  Van Gaalen v Police [1979]

2 NZLR 204 rightly held the provision had no application in the case of a traffic officer exercising his statutory power to take motor vehicle keys to immobilise it. In Hastings v Police (HC WHA, AP 24/01, 19 July 2001, Priestley J) I allowed the defence  in  a  situation  where  the  owner  of  a  motorcycle  wheel  pushed  the complainant in the chest with his elbow whilst resisting the complainant’s attempt to retrieve the wheel during a dispute over the quantum of the repair costs.   That successful  appeal  revolved  in  the  main  around  whether  the  force  used  by  the appellant constituted a “strike” in terms of the legislation.

[16]     The third authority to which I was referred was  Baragwanath J’s appeal judgment, Manase v Police (HC AK CRI 2006-404-39, 21 July 2006).  The Judge allowed an appeal when the appellant grabbed the arms of a complainant who was

holding video tapes of the appellant’s wedding which she intended to destroy.  His Honour considered the Crown had not established beyond reasonable doubt that the force used by the appellant in his unsuccessful defence of his possession of the tapes exceeded what was reasonable (at [10] and [11]).

[17]     The  facts  here  do  not  involve  the  infliction  of  a  blow.    Mr  Harborow submitted, however, that the bruise which was later discerned on the complainant’s upper arm constituted “bodily harm” for the purposes of the section.  In that regard, although accepting that “bodily harm” was nowhere defined in the statute, he relied on the s 2 definition of “to injure” which means “to cause actual bodily harm”.  It is clear law that actual bodily harm does not have to be permanent but must constitute something which is more than transitory or trifling.

[18]     Whether or not a bruise of the type sustained here constitutes “bodily harm” is not a matter I need to decide.  I doubt, however, whether the policy lying behind this section (it being contained in Part 3 of the Act under the heading “Matters of justification or excuse” and under a subpart labelled “Defence of property”) would envisage the defence being removed merely because of the infliction of a minor bruise if the defence was otherwise available and the force deployed in the defence of property was reasonable.

[19]     Assaults to which the s 53(1) defence is potentially applicable will inevitably occur in what can be termed a “possessory tussle”.  In Manase the complainant was sitting on a couch with the appellant’s video tapes and he was trying to reclaim them. In Hastings  the cycle tyre had been taken by the appellant from a counter and the complainant was trying to reclaim it.

[20]     The facts here are somewhat different and, in my judgment, significantly so. In any assessment of whether s 53(1) has properly been raised and whether the force deployed in defence of property is reasonable, the context of the defence must be examined.

[21]     Here the appellant and his wallet (being the property in question) had been separated much earlier in the day.   It was in the complainant’s possession.   The

appellant had come to the complainant’s property in response to her indicating by text she did not want him there.  He had banged on doors and windows and broken the glass on a ranch-slider panel.   When the complainant left the house he had pursued her and called her a “crazy bitch”.

[22]     There can be no dispute, as the Judge found, that in his attempts to hold the appellant and to retrieve his wallet which was in the bag over the complainant’s shoulder the appellant assaulted (albeit in a minor way) the complainant.

[23]     Mr Duff submitted that although the appellant was trying to retrieve his wallet rather than defending it from an attempt on the complainant’s part to take it from him, the s 53(1) defence should still be available.   If the defence was not available when attempting to retrieve one’s property the position would arise that the person wrongly retaining the property would be getting away with a crime.

[24]     The complainant had admitted in cross-examination that the wallet was the appellant’s property and that she had not immediately returned it to her when he had demanded it.   Counsel submitted the Court should infer that, because a neighbour who witnessed events in the middle of the road did not intervene to restrain the appellant, there was no real cause for concern.   The force being applied was reasonable.   Furthermore the appellant took no further steps to retrieve his wallet once  it  was  apparent  that  he  had  been  unsuccessful  in  trying  to  grab  the complainant’s handbag.

[25]     In counsel’s submission, although accepting that there had been a technical assault of the assailant, that assault had taken place in a domestic context very similar to that confronting the Court in Manase and in defence of property.

Recaption and Blades v Higgs

[26]     Despite the analysis in the previous section, I retained some doubts as to whether the reasonable force might be available in a situation where the person was endeavouring to recover a chattel.  Reasonable force used during recover does not easily sit inside s 53(1), given the heading of the provision, “defence of movable

property with claim of right”, the requirement to be “in peaceable possession” of any movable thing and the explicit protection from criminal responsibility when reasonable force is used for “defending his possession”.

[27]     My research brought to light the Court of Common Pleas judgment in Blades v Higgs (1861) 142 ER 634; 10 CB (NS) 713; the article by Cynthia Hawes, “Recaption of Chattels: the use of force against the person” (2006) 12 Canterbury Law Review 253; and the split decision of the New South Wales Court of Appeal, Toyota Finance Australia Limited v Dennis (2003) 58 NSWLR 101. I thus invited further submissions from counsel, which I have considered.

[28]     Blades v Higgs was recently considered by Keane J in Slater v Attorney- General HC AK CIV 2005-404-003728 30 March 2006 where, in the context of an appeal which he allowed from the District Court dismissing a damages claim against the police for battery, His Honour questioned whether Blades v Higgs and the one New Zealand case which followed it, De Lambert and Ongley [1924] NZLR 430 might “deserve to be revisited” (at [26]). Keane J, with reference to Toyota Finance, noted that the recaption principle stated in Blades v Higgs, were “expressions of a different age” which had been infrequently followed (at [26]). However, His Honour did not consider, in the context of the appeal before him, that he should “reorder the terrain” (at [31]).

[29]     Blades v Higgs, at first instance involved (as in Slater) a civil claim by the plaintiff in assault and battery.  The plaintiff was a game dealer who had obtained dead rabbits, which had been poached from their lawful owner, the Marquis of Exeter.  The plaintiff was about to carry the rabbits away and convert them.   The servants of the Marquis used force to remove the rabbits from the plaintiff.

[30]     Erle CJ set out (at 713) the common law position:

If the defendants had actual possession of the chattels, and the plaintiff took them from them against their will, it is not disputed that the defendants might justify using the force sufficient to defend their right and re-take the chattels; and we think there is no substantial distinction between that case and the present; for if the defendants were the owners of the chattels, and entitled to the possession of them and the plaintiff wrongfully detained them from them after request, the defendants in law would have the possession,

and the plaintiffs wrongful detention against the request of the defendants would be the same violation of the right of property as the taking of the chattels out of the actual possession of the owner.

[31]     In De Lambert and Ongley the Blades v Higgs principle was sufficient to justify force in a situation where damages for assault were claimed.   The plaintiff had taken and wrongly retained a receipt given to him in respect of a cheque he had incorrectly drawn.

[32]     The majority of the New South Wales Court of Appeal in Toyota Finance held that the owner of a chattel entitled to its immediate possession might exercise a right of forcible recaption from anyone who possessed and wrongfully retained the chattel, but only if such possession was wrongful at its inception.  Thus, the right of recaption was not available to a motor vehicle’s lessor where the lessee wrongfully refused to return the vehicle.  The lessee’s possession clearly (there being a lease) was not wrongful at its inception.

[33]     I consider Mr Harborow is on strong ground when he observes that both Blades v Higgs and the authorities which have applied it, are all civil claims.  Central to those cases was whether the common law right (or, possibly, privilege) of forcible recaption barred a damages claim for assault and battery.

[34]     This is not a comparable case.   Instead, the issue is whether the statutory defence provided by s 53(1) is available.

[35]     The Crimes Act 1961 is tantamount to a criminal code.  Section 20 provides:

General rule as to justifications

(1)All  rules  and  principles  of  the   common  law  which  render  any circumstances a justification or excuse for any act or omission, or a defence to any charge, shall remain in force and apply in respect of a charge of any offence, whether under this Act or under any other enactment, except so far as they are altered by or are inconsistent with this Act or any other enactment.

(2)The matters provided for in this Part of this Act are hereby declared to be justifications or excuses in the case of all charges to which they are applicable.

[36]     That provision leaves little scope for common law defences to operate as a supplement or gloss to specific statutory defence.  The editors of Adams on Criminal Law are probably correct when they state at CA20:02:

… if the code provides for and defines a defence available at common law the common law principles will be superseded, either because they are redundant as a result of the legislative equivalent, or because they are altered by it ….

[37]     The statutory words of s 53(1) are tolerably clear.  They set out the ambit of the defence.  The circumstances and range of the common law defence of forcible recaption do not really assist with the interpretation of s 53(1).   The provision provides a defence to a crime, within certain limits, for people defending the possession of a movable.  The provision does not, in my view, extend to recapturing or retaking something not in one’s possession.  Such an interpretation is strengthened by the observation that the preceding section, s 52(1), specifically refers to a defence allowing a person to “retake” a chattel from a premises.   The absence of the verb “retake” in s 53(1) is significant.

[38]     I thus conclude that the s 53(1) defence does not provide  a defence  for criminal responsibility which might arise from the use of reasonable force when a person is attempting to retake a chattel.  But I had a caveat, which arises out of my coinage of the phrase “possessory tussle”.  In Manase the complainant was holding the video tapes which she intended to destroy.   In Hastings the tyre owner had initially grabbed it from the complainant.   If the person entitled to peaceable possession of a chattel in fact loses possession of it for a second or two, is that loss of possession fatal to a s 53(1) defence being raised?

[39]     Context is critical.   So too is common-sense.   A scuffle might ensue as a person tries to take the possessor’s chattel.   The possessor of a handbag or wallet snatched from a shoulder or table might pursue the taker and inflict a technical assault whilst reclaiming the property.  Assaults might similarly occur after an item has been picked from a pocket or an attempt has been made to drive away the possessor’s car.  The fact that, as a matter of prosecutorial discretion, the taker will probably be prosecuted but not the possessor does not answer the temporal dilemma.

[40]     That  dilemma,  in  my  judgment,  can  only  be  resolved  by  context  and common-sense.  Provided the force used is reasonable and provided such force does not include a strike or the infliction of bodily harm, then I consider there is no violence to the parliamentary intention to allow the defence in situations of a possessory tussle or reclaiming a chattel in the immediate aftermath of its being taken.

[41]     But the appellant here cannot avail himself of this slight elasticity.  His wallet had been out of his possession for some hours.  His assault of the complainant was preceded by abuse and damage to her house.  He was not, at the time of that assault, defending his possession of the wallet.

[42]     Finally, I note an aspect arising out of Mr Duff’s further submission.   My request for assistance has brought about a change in counsel’s stance.   Mr Duff concedes that the s 53 defence, which he raised on appeal, does not allow recaption of a chattel.  Counsel now relies on s 52 and suggests that this appeal and the appeal in Manase were incorrectly argued.  I deal with counsel’s s 52 point in short order. That provision is headed “defence of movable property against trespasser”.   It provides a defence to a person who, in peaceable possession of  a  chattel,  uses reasonable force to resist its taking by a trespasser.  This provision, relevant in the type of situation before the court Singh v Police [2003] NZAR 596, cannot possibly apply here. The appellant was not endeavouring to defend his wallet from a trespasser. Nor was he attempting to retake it from a trespasser. The complainant was not a trespasser in the sense that term is used in s 52.

Decision

[43]     The fact that the s 53(1) defence was not run by the appellant in the District

Court is no bar on it being run on an appeal.

[44]     The policy behind s 53(1) is clear.  So too, as I have stated (supra [37]), are the statutory words.  The defence is available when a person uses reasonable force (short of striking or inflicting bodily harm) to defend one’s possession of movable property.  Such a defence might well occur in what I have called a possessory tussle,

when assaults are inflicted in the context of a struggle over one’s property or trying immediately to reclaim property which is taken from one.

[45]     But the facts in this situation are clear.  The appellant was, on the night in question, attempting to retrieve his wallet which had been out of his possession for some time.   He was making the attempt to retrieve his wallet in the context of a domestic altercation which had included breaking glass on the ranch-slider when he had been denied entry into the complainant’s home.   He pursued the complainant into the road in a vain attempt to retrieve his wallet which had been out of his possession for some hours.

[46]     In my judgment the type of retrieval on which the appellant was embarked falls well outside the ambit of s 53(1).   The appellant was not on that night using reasonable force to defend his possession of the wallet.  He was using force to try to retrieve his wallet in a situation where he had already committed one criminal act and where the complainant was trying to get away from him, not for the purpose of wrongly retaining his wallet, but for her own safety.

[47]     I am thus satisfied for these reasons the s 53(1) defence is not available to the appellant.  He was properly convicted.

Result

[48]     The appeal is dismissed.

..........................................… Priestley J