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 someone who might unlawfully uplift a white card from someone’s letterbox cannot just go and present the white card and be handed a parcel without further enquiry.

I am helped here by  a  short  CCTV  footage  of  the  interaction  between Mr Smith and Ms Anderson. I have seen that a number of times. Mr Nicholls, using a system on his computer, has played it to me in .25 speed.

Ms Anderson said that when she was aware that there was someone on the other side of the door, she opened a flap and Mr Smith, whom she did not know, handed her the white card. Mr Smith’s evidence is that there was no interaction between the flap and the door, but that Mr Anderson opened the door at the very beginning and all interactions took place between the two of them there. The CCTV does not show one way or another. It seems to start after the white card has been handed over to Ms Anderson by Mr Smith.

She then says she goes through her normal process of scanning, that is the white card, picking up the  parcel  and  then  opened  the  door  and  asked Mr Smith for identification, a driver’s licence. Ms Anderson told me that the response of Mr Smith was: “I do not drive, so I don’t have it.” Mr Smith denies he said that.

If the case hinged on this, I would have preferred the evidence and accepted the evidence of Ms Anderson. She struck me as an honest witness, not wishing to make things bad for Mr Smith as she could.

There is no doubt that Mr Smith did not have his driver’s licence. He says he attempted to show her another form of identification which had his photo ID on it and his driver’s licence number, one that he used as a commercial driver. Ms Anderson was not asked about that at all. She should have been. That impacts upon my consideration of Mr Smith’s evidence in that regard.

It is abundantly plain, both on Ms Anderson’s evidence and in the CCTV, that Ms Anderson concludes that she is not going to hand over the parcel without some form of identification, such as a driver’s licence. She all but closes the door.

Mr Smith pushes the door open and steps inside the private area of the     Post Office. He goes to grab what he considered was his absolute right to do, his parcel. There is a slight struggle, he wins and leaves.

Mr Nicholls’ first submission is that there was no assault, that is the intentional application of force to Ms Anderson. Having looked at the CCTV footage a number of times, I considered that there was an intentional application of force to her prior to him grabbing the parcel but most certainly after he has grabbed the parcel. Of course the application of force does not have to be a kick or a punch or anything of that nature, the slightest intentional application of force is sufficient to constitute an assault. An unwanted kiss to the cheek is an assault.

Mr Nicholls then advances a very novel submission. The effect of his submission is to attempt to move into the New Zealand criminal law, civil cases, relying on two English authorities of bailment. Such a concept has no

place whatsoever in the New Zealand Crimes Act 1961 or Summary Offences Act 1981. The statutory defences to crimes of assault are contained in part 3 of the Crimes Act. The closest, and it is not that close at all, Mr Smith could come to such a defence is in s 54, defence of moveable property without claim of right or defence of property with claim of right. However, Mr Smith did not possess the parcel at the time he assaulted Ms Anderson. He is not defending the moveable thing against Ms Anderson. I reject Mr Nicholls’ submission that bailment has any place in this case.

At one point of Mr Nicholls’ submissions, he raised s 48 of the Crimes Act. There is no credible narrative of self-defence.

As a result, I find that Mr Smith did intentionally apply force to Ms Anderson without any defence or justification to do so, I am sure of that. It follows that I find the charge to be proven.

Mr Smith will be convicted.

Mr Smith’s defence

[6]    Mr  Nicholls  does  not  contest  what  occurred  between  Mr  Smith  and   Ms Anderson, presumably because the sequence is captured by (high-quality) closed-circuit television footage.3 Rather, Mr Nicholls contends Mr Smith had a defence (to the charge of assault) under s 52 of the Crimes Act 1961. That section provides:

52     Defence of movable property against trespasser

(1) Every one in peaceable possession of any movable thing, and every one lawfully assisting him or her, is justified in using reasonable force to resist the taking of the thing by any trespasser or to retake it from any trespasser, if in either case he or she does not strike or do bodily harm to the trespasser.

[7]Essentially, the argument is this.

[8]    When Mr Smith paid for the goods from OMC, he became their owner.4       A bailment relationship then arose between OMC and Mr Smith, and the terms of that relationship governed Ms Anderson and everyone else handling the parcel. The courier failed to deliver the parcel in accordance with the terms of the bailment relationship. Ms Anderson and the Post Office had no right to impose any condition contrary to the terms of that relationship, including any requirement Mr Smith produce

3      Footage I have watched, without objection.

4      Contract and Commercial Law Act 2017, ss 144–146.

photo-identification before getting the goods. Mr Smith put his hands on the parcel before Ms Anderson, albeit only a fraction of a second before she did likewise (as, I gather, is apparent if one watches the slowed version of the footage5).  As soon as  Mr Smith put his hands on the parcel, he was in possession of it.   And because     Mr Smith did not apply force to Ms Anderson in putting his hands on the parcel, he was, therefore, in “peaceable possession” of the parcel in terms of s 52. Moreover, as Ms Anderson was trying to get the parcel from Mr Smith, he was justified in using reasonable force to resist its taking. In terms of s 52, Ms Anderson was a “trespasser”. That also follows because Ms Anderson and the Post Office had no right to impose any condition contrary to the terms of the bailment relationship.

[9]    Mr Nicholls cited English case law in support of his analysis. I say more about that case law shortly.

Analysis

[10]Five points are important.

[11]   First, the evidence is wafer-thin as to what conditions, if any, governed a bailment relationship, assuming such a relationship arose. The only evidence in the record that might concern this topic is below:

Q      Have you purchased goods from OMC before?

A      Yes, we get goods all the time from OMC for equipment. Q And how are they delivered, those goods?

A      Normally by courier.

Q      And have you ever required that those goods be signed for? A        No.

Q      Have you ever given authority that those goods are signed for? A     No.

Q      On prior occasions, where were goods from OMC delivered to?

5      I have not watched the slowed version of the footage.

ANormally they’re put down by – at – boxes by the gate or smaller items are left in the letterbox.

...

Q      On this occasion, the goods from OMC, were they left at the gate? A No.

Q      Was, what, if anything, was left at the gate?

A      There was a card left in the letterbox at the start of the driveway.

[12]   The record is silent about whether Mr Smith and OMC agreed upon conditions in relation to the delivery of parcels; whether a practice arose from which conditions could be implied concerning the delivery of parcels from OMC; or whether Mr Smith or OMC stipulated conditions to anyone handling the parcels. All Mr Smith said was that he had not required the parcels to be signed for, and “[n]ormally” they were left in the letterbox at the (street) end of the driveway.

[13]   Second, a requirement to produce photo-identification is not inconsistent with a bailment relationship (again, assuming that relationship arose). The reason is as obvious as it is elementary: photo-identification is required to ensure a parcel reaches its owner, not to frustrate rights of ownership.6

[14]   Third, contrary to s 92 of the Evidence Act 2006, Mr Nicholls did not put to Ms Anderson that she was not entitled to retain the parcel. Indeed, Mr Nicholls asked only two questions of Ms Anderson:

QWhen Mr Smith presented himself at the door that morning, he had the white card with him, did he not?

A      Yes, he did.

QAnd the parcel was addressed to Prickly Investments Limited, wasn’t it?

A      No, it was addressed to Michael Smith.

6      And to protect the Post Office if it did not.

[15]   It follows there is no evidence Ms Anderson was “a trespasser” in terms  of   s 52. It also follows the factual propositions underlying that contention were not put to Ms Anderson, as they should have been.

[16]   Fourth, s 52 required Mr Smith to be in peaceable possession of the parcel before he used any force in relation to it. The section does not permit the use of force to gain possession, a point affirmed by the High Court in Ruwhiu v Police,7 and the Supreme Court in Taueki v Police.8 Consequently, to accept Mr Nicholl’s contention that time should be analysed according to the milliseconds in which Mr Smith placed his hands on the parcel before Ms Anderson would traduce s 52 and its purpose.

[17]   Fifth, none of the English cases cited by Mr Nicholls has any similarity to this one. None involved the ubiquity of modern courier services, nor a requirement for photo-identification in connection with claiming a parcel. None involved a struggle between a custodian of a parcel and its owner, following the failure of the latter to produce photo-identification to the former  (to  establish  they  were  the  owner).  For example, Morris v C W Martin & Sons Ltd concerned a “long white mink” fur stolen from cleaners,9 and Mitchell v Ealing Borough Council concerned furniture stolen after the eviction of a squatter.10 In short, the cited cases do not assist the argument.

[18]   In summary, it is not reasonably possible Mr Smith had a defence to the charge under s 52. The evidence does not disclose what conditions, if any, governed a bailment relationship. A requirement to produce photo-identification is not inconsistent with such a relationship.   There is no evidence the complainant was    “a trespasser” in terms of the section, and that contention was not put. Mr Smith was not in peaceable possession of the parcel before he used force, and the cited cases do not advance a defence under s 52.

[19]The Judge was thus correct to find the charge proved.

7      Ruwhiu v Police HC Auckland CRI-2008-404-0259, 22 December 2008.

8      Taueki v R [2013] NZSC 146, [2014] 1 NZLR 235.

9      Morris v C W Martin & Sons Ltd [1966] 1 QB 716, [1965] 2 All ER 725.

10     Mitchell v Ealing London Borough Council [1979] QB 1, [1978] 2 All ER 779.

Result

[20]The appeal is dismissed.

……………………………..

Downs J