Smith v Police - [2024] NZHC 2264

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2024-488-000047

[2024] NZHC 2264

BETWEEN
MICHAEL JOHN SMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 August 2024

Counsel:

MC Nicholls for Appellant CHB Megala for Respondent

Judgment:

14 August 2024

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 14 August 2024 at 10.30 am.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Whangārei. MC Nicholls, Kerikeri.

SMITH v POLICE [2024] NZHC 2264 [14 August 2024]

The appeal

[1] Michael Smith was convicted of an assault contrary to s 9 of the Summary Offences Act 1981 following a tussle with a female complainant over a parcel. The offending was captured on closed-circuit television. Despite this, Mr Smith contends his conviction should be quashed. On his behalf, Mr Nicholls argues the law of bailment and s 52 of the Crimes Act 1961 elided to provide a defence, and one with which the Judge declined to engage.

[2] The appeal must be allowed if the Court is satisfied a miscarriage of justice occurred because the District Court erred in its assessment of the evidence, or for any other reason.1

Background

[3] Mr Smith’s business requires the delivery of parcels to his home. Because his home has a long common driveway, the parcels are ordinarily left at the gate at the beginning of the driveway, or in the letterbox, just inside the driveway.

[4] Mr Smith ordered a parcel from OMC in Christchurch, as he had done before. On this occasion, however, the parcel was not left at the gate or inside the letterbox. Instead, Mr Smith received a card telling him to go to the Post Office in Kerikeri to collect the parcel. Unsurprisingly, the card said the recipient should bring suitable photo-identification. During his testimony, Mr Smith said he was unable to read the card because its writing was too small, and he has difficulty read small writing.

[5] Mr Smith twice attempted to collect the parcel. On the first occasion, he did not have the card. On the second, the Post Office was shut (early). This brings us to events captured by Judge D J McDonald:2
We now come to the day in question, 5 December 2023. Mr Smith has an appointment in town or a meeting in town so decides to call into the Post Office, no doubt hoping that third time lucky he would leave with his parcel. It is in the morning, 10.27 am. Ms Anderson is the retail officer working out the back of the Post Office which is part of Books and More, dealing with persons who wish to uplift their parcels.

1 Criminal Procedure Act 2011, s 232(2).
2 Police v Smith [2024] NZDC 11198 at [10]–[23].

As Ms Anderson told me, and I accept, there is a particular procedure that needs to be followed before a parcel will be released. The process I find is there to protect the Post Office. It is so that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v Police

Details

AGLC: Smith v Police [2024] NZHC 2264
Case: [2024] NZHC 2264
Decision Date: 14 August 2024

CaseChat Overview and Summary

Michael John Smith appealed his conviction for assaulting a postal officer, Ms Anderson, over a parcel. Smith argued that the District Court should have considered a defence under the law of bailment and section 52 of the Crimes Act 1961. The crux of the appeal was whether the District Court erred in its assessment of the evidence or if there was another reason to allow the appeal.

The court had to decide whether the law of bailment and section 52 of the Crimes Act provided a defence to Smith's actions. The appeal hinged on whether the District Court correctly interpreted the evidence and applied the law. Smith's counsel argued that he had a defence under the bailment law and section 52, which permits the use of reasonable force to resist the taking of movable property by a trespasser. The court needed to determine if the evidence supported Smith's defence and if the law was correctly applied.

The High Court found that the District Court did not err in its assessment of the evidence. The court noted that the evidence was insufficient to establish the conditions of any bailment relationship, and a requirement for photo-identification did not necessarily conflict with such a relationship. Furthermore, the court held that there was no evidence that Ms Anderson was a trespasser as required by section 52. The court also rejected the cited English cases as inapplicable to the facts of this case. The High Court concluded that Smith was not in peaceable possession of the parcel before using force, and therefore, section 52 did not provide a defence.

The appeal was dismissed, and Smith's conviction was upheld.

Orders