Solanki v The Queen

[2005] NZCA 228

IN THE COURT OF APPEAL OF NEW ZEALAND

CA106/05

THE QUEEN

v

DEVANAND SOLANKI

Hearing:30 August 2005

Court:Anderson  P, Randerson and Williams JJ

Counsel:T Sutcliffe for Appellant

M D Downs for Crown

Judgment:6 September 2005 

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS

(Given by Anderson P)

[1]       This is an appeal against a conviction on one count of assault on a child under 14, contrary to s 194(a) of the Crimes Act 1961.  The child is the appellant’s daughter.  At the time of the incident which gave rise to the prosecution the girl was 12 years old and living with her mother and Ms Maria Webb in a house adjacent to that of the appellant.  The child and her mother had been living with the appellant but estrangement led them to shift next door into Ms Webb’s home.

[2]       On the days leading up to the incident the girl had seemed unwilling to speak to the appellant and he became upset by this.  He saw her arrive with Ms Webb, in the latter’s car, after a trip to the local dairy and decided he would talk to the girl.  As she got out of the passenger’s door to go into Ms Webb’s house the appellant restrained her with an arm around her shoulders so that he could talk to her.  Her evidence and that of Ms Webb shows that the girl was unwilling to speak to her father but was prevented by the way he was holding her from going into the house.  Ms Webb attempted to intervene and some physical contact occurred between the appellant and the neighbour resulting in her going into her house and dialling 111 for police assistance.  When she came out of the house she found the appellant still restraining his daughter. She said “…he was trying to put his arms around her shoulders but it ended up with her in a headlock and she was still trying to extricate herself.”  The girl herself explained that she did not want to speak with her father, and that he had held her under his arm while Ms Webb was in the house and when she returned to the scene.  There was more physical intervention until the appellant released his hold of the girl and went back to his own home.

[3]       He was subsequently charged with assaulting Ms Webb, contrary to Crimes Act 1961 s 194(b) as well as being charged with assault on a child.  He elected trial by jury and that took place in the District Court presided over by Judge Spear.

[4]       At the end of the Crown case the Judge had discussions in chambers, in the absence of the jury but in the presence of the accused.  Initially, the Judge indicated that the physical touching of the girl by the appellant was not of a seriousness which warranted the intervention of the criminal law.  He expressed a provisional view that he intended to take that particular count away from the jury.  However, after hearing from counsel for the Crown who outlined evidence that the appellant had the girl in some kind of headlock, the Judge changed his mind. 

[5]       Counsel then appearing for the appellant, Ms Tustin, indicated that she would call the appellant to explain why he approached his daughter and to give his version of events.  He would say he put his arm gently around the girl’s shoulder, that she didn’t look scared or anything like that and that she was free to go at any time.  The Judge’s response was to the effect that given the girl’s age, the fact that she and her mother had moved out of the appellant’s home and that the daughter had made it clear she did not want to talk to her father, the application of force in terms of the appellant’s own intended evidence would amount, technically, to an assault, and that he would be obliged to direct the jury accordingly.

[6]       Further discussion took place between the bench and counsel.  The Judge made plain his view that physically restraining a child of the complainant’s age, not for any disciplinary reason, but in order to prevent her moving away to avoid speaking to the appellant was, technically, an assault and that the jury would have to be so informed.  His view was plainly based on an apprehension of restraint, concluding with advice to counsel as to what he would say in summing up:

I’m going to be telling the jury that well intentioned it may be, but a parent at law, is not permitted to restrain their 12 year old daughter against their will for the purposes of talking to her.  That would normally not result in a  prosecution and, even if it was prosecuted it would probably be looked upon as looking at some restorative approach to try to repair the damage to the relationship, but technically at law, is an assault.

[7]       Ms Tustin then discussed the matter with the appellant, in private, and the appellant decided he would plead guilty, which he did.  The jury was therefore required to consider the single count in respect of Ms Webb.  They acquitted the appellant.  Now the appellant repents his plea, saying that in all the circumstances there has been a miscarriage of justice.

[8]       In preparation for trial Ms Tustin prepared a brief of the appellant’s evidence.  Leave is sought on this appeal to receive further evidence from the appellant in the form of an affidavit explaining his perception or interpretation of the events which occurred at the chambers hearing and annexing his brief.  That contained the following indication of his intended evidence:

At about midday on Thursday, 22 April 2004, I saw [her] and Maria arrive home by car.   Simply wanted to say hi and find out why she hadn’t come to see me in the last two days.  Maria parked her car out on the road, outside the front gate, parallel to her fence.  As [she] got out of Maria’s car I went over to talk to her.  When I reached her, I gently put my arms around her.  My arm around her shoulders was a contact of love and concern.  I then asked her two questions.

‘What are you doing to me?’.

‘Why aren’t you talking to me?’.

I said this as I was very troubled and anxious as [she] hadn’t spoken to me in three days.  I did not yell.  My volume and pitch was trying to provide a sense of warmth towards [her].  As I was trying to talk to my daughter, Maria approached me from behind.  To me [she] appeared receptive to talking to me.

While trying to talk to [her], out of the corner of my eye I saw Maria exit her drivers door towards the back of the car, she was acting aggressively.  All of a sudden Maria started pushing her weight all over me.  She was flinging her arms around and started punching me on my back.  I said ‘leave me alone Maria, I’m trying to talk to [her]’.  I kept my back faced towards Maria the whole time.  I did not face her. While Maria was doing this I straightened my arms pushing against [her] shoulders.  I did this to keep [her] away from Maria as I was worried that Maria might accidentally hit [her].  [She] showed no signs that she was frightened.  She was not pulling away from me.

[9]       The appellant deposed that in the course of discussions with his lawyer she confirmed his understanding of what the Judge had said.  This was that it did not matter what the appellant said in evidence, the Judge was of the view that the appellant was guilty of an assault on the daughter and would direct the jury to bring back a guilty verdict because he believed the appellant had no defence.  Also, he believed that if he pleaded guilty he would get a lighter sentence. 

[10]     We find this somewhat surprising because the Judge at no stage said he would direct a guilty verdict.  Ms Tustin has deposed that although the appellant has a foreign name he is fluent in English.  She has no doubt that he understood her advice that a mere touching of the complainant might constitute an assault, particularly if he knew, prior to the touching, that the complainant would not consent to it.

[11]     It is not difficult to appreciate, however, that having heard the exchange with counsel and taken her advice the appellant would have understood that the Judge intended to direct the jury that to deliberately restrain the girl from leaving his company when she wished to do so, so that he could talk to her when she did not want to listen was, technically, an assault.

[12]     The Crown sought leave to file an affidavit from Ms Tustin in which she says that she does not dispute the contents of the appellant’s affidavit and that, also, she had spoken to the appellant the day before he was due to give evidence and had explained to him that his mere touching of the complainant might constitute an assault, particularly if he knew, prior to the touching, that the complainant would not consent to it.  In a further affidavit she informed the Court that the defence would be that no criminal act had occurred because the touching was acceptable father/daughter interaction and not an assault; that the appellant’s approach was gentle and well intentioned so that the mens rea for an assault was not present; and that he believed throughout that his daughter was consenting.

Submissions for appellant

[13]     In his written submissions Mr Sutcliffe, for the appellant, accepted that by virtue of s 2 of the Crimes Act 1961 an assault is the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly.  He also accepted that as a matter of law the touching must be deliberate and that the amount of force used is immaterial so that the slightest touching can amount to assault.  Nevertheless, Mr Sutcliffe argued that some touchings are not regarded as assaults because they are an everyday part of life, and others are not assaults because the law implies consent.

[14]     There are circumstances in which consent may be implied.  As Robert Goff LJ (as he then was) observed in delivering a judgment of a Division of the Queen’s Bench in Collins v Wilcock [1984] 3 All ER 374, 378.

And most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. 

[15]     Examples might be jostling which is inevitable from one’s presence in a supermarket or busy street, or having one’s hand grabbed in friendship at a party.  With respect, however, whilst the latter would be explicable on the basis of implied consent the former example might be more readily explicable on the basis of absence of intent to apply force.

[16]     Robert Goff LJ gave further examples as follows:

Among such forms of conduct, long held to be acceptable, is touching of a person for the purpose of engaging his attention, though of course using no greater degree of physical contact than is reasonably necessary in the circumstances for that purpose.  So, for example, it was held by the Court of Common Pleas in 1807 that a touch by a constable’s staff on the shoulder of a man who had climbed on a gentleman’s railing to gain a better view of a mad ox, the touch being only to engage the man’s attention, did not amount to battery.  (See Wiffin v Kincard (1807) 2 BOS & Pul (NR) 471, 127 ER 713).

[17]     We note, however, that Robert Goff LJ immediately went on to state

But a distinction is drawn between the touch to draw a man’s attention, which is generally acceptable, and a physical restraint, which is not. 

[18]     So we find Parke B observing in Rawlings v Till (1837) 3 M & W 28 at 29, 150 ER 1042, with reference to Wiffin v Kincard that:

There the touch was merely to engage a man’s attention, not to put a restraint on his person.

[19]     Furthermore, persistent touching to gain attention in the face of obvious disregard may transcend the norms of acceptable behaviour, and so be outside the exception.

[20]     Robert Goff LJ then posited a test in these terms: 

In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct, and the answer to that question will depend on the facts of the particular case.

[21]     Mr Sutcliffe submitted that if the jury might reasonably have accepted the appellant’s intended evidence, in accordance with his brief, he would have been entitled to an acquittal.  However, he was advised that the Judge intended to give a direction that the appellant had no defence as a matter of law and the Judge was wrong in that respect.  Alternatively, the appellant was wrongly advised that the Judge intended, in effect, to take away his defence.  In either case, submitted, Mr Sutcliffe the entry of the guilty plea has occasioned a miscarriage of justice.  In making that submission counsel acknowledged the observations of this Court in R v Stretch [1982] 1 NZLR 225, 229, that where the accused has the advice of experienced counsel, cases of miscarriage of justice by reason of the entry of a guilty plea will be rare. But, he submitted this is such a case.

Submissions for the Crown

[22]     For the Crown, Mr Downs prefaced his written submissions with references to the testimony of the girl and Ms Webb about how the appellant was holding his daughter.  These were sufficient, if accepted, to prove a physical restraint to which the girl was far from consenting.  The conduct so described was a long way from the type of sensitive, paternal caress, indicated in the appellant’s brief.  In light of the evidence of the girl and Ms Webb, no credible narrative supporting the reasonable possibility of consent arose.  Nor, in the Crown’s view, would evidence by the appellant in terms of his brief have provided a credible narrative.

[23]     Nowhere in the appellant’s affidavit or brief of evidence does he state that he honestly believed that the girl consented to bodily contact.  Nor does he assert that consent or belief in consent was the defence at trial.  Mr Downs submitted that the real defence seemed to be a minimal touching.  Nor, in the Crown’s submission, was it inappropriate for the Judge to intervene and discuss the matter with counsel at the end of the Crown case.  Such discussions often occur and it can be in the public interest that they do, provided, as here, it is done in the presence of counsel and the accused.  If the Judge’s intended direction was correct then the appellant can have no cause to complain through being disabused of an untenable defence. 

Discussion

[24]     It is the case, as the Crown points out, that neither in his brief of intended evidence nor his affidavit does the appellant state that he believed the girl consented to his putting an arm around her shoulders.  The most he says is that to him it appeared she was receptive to talking to him.  There was no evidence that she said anything to him.  There is evidence that she was unwilling to talk to him.  That is the very reason why the appellant approached her.  According to his brief he said “What are you doing to me?  Why aren’t you talking to me?”

[25]     It is indisputable that there was some aspect of the encounter which greatly upset Ms Webb and caused her to intervene.  Even then, the appellant kept holding on to his daughter, as he continued to do throughout the period that Ms Webb was telephoning 111 to get hold of the Police.

[26]     The appellant was present throughout the exchange between bench and counsel and it must have been obvious to him as it is to us on reading the transcript that the Judge’s intended direction would have been posited on proof of a restraint and not touching in the nature of a paternal caress to attract attention for conversational purposes.

[27]     The appellant’s description of events as indicated in his brief must have seemed, objectively, mere wishful thinking in the light of the evidence of the girl and Ms Webb, particularly against the objective fact of the girl’s unwillingness for some days to have anything to do with her father and the duration of the restraint assessed by reference to the incident with Ms Webb near the car and the time taken for her to go inside, telephone the 111 service and return to the scene of the incident.

[28]     On the assumption of restraint, the Judge’s intended directions were correct in law.  How the appellant, with the advice of counsel, evaluated his prospects of persuading the jury to accept the reasonable possibility of another, not unlawful factual situation, was not attributable to the Judge.  With respect, the appellant’s decision then reflects a more realistic appreciation than he may presently have.

[29]     The appellant’s brief of evidence shows that after he put his arm around the girl’s shoulders he asked her questions.  There is no room for any suggestion that he had touched her momentarily to attract her attention.  At another point in his brief he states that with his back to Ms Webb, he straightened his arms, pushing against his daughter’s shoulders.  He says he did this to keep his daughter away from Ms Webb because he was worried Ms Webb might accidentally hit the girl.  Why he did not take the simple step of releasing the girl, he does not explain.

[30]     It is plain that the appellant is counting on a certain view of the law of assault to support an argument that his touching of the girl was not an assault.  That view relies on selective extracts from the judgment of Robert Goff LJ  previously referred to.  Notwithstanding the views expressed in the Queens Bench Division, the law in New Zealand would categorise as an assault a touching of the type explained by the appellant in his brief, to which there was no express or implied consent and when the toucher did not believe the girl was consenting.  Slight though the touching may have been, in terms of the appellant’s version of events, nevertheless the context shows that the touching was technically an assault.  If there had been evidence that the appellant believed that the girl was consenting, he would not have been liable to conviction unless any reasonable possibility of such belief was excluded; R v Nazif [1987] 2 NZLR 122, 128.

[31]     A helpful discussion of the effect of evidence of belief in consent on the onus of proof appears in the judgment of Fisher J in Police v Bannin [1991] 2 NZLR 237, 245. An onus of disproving belief in consent does not lie on the Crown unless there is an evidential basis for a possible inference that there was such belief. No such evidential basis exists here, even in light of the appellant’s brief of intended evidence.

[32]     For these reasons we are not satisfied that his conviction following a guilty plea reflects any miscarriage of justice and the appeal is dismissed.

Solicitors:
Till Henderson King, Hamilton for Appellant
Crown Law Office, Wellington