T v Police HC Palmerston North CRI 2006 454 43

[2006] NZHC 1583

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2006 454 43

BETWEEN   T

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 December 2006

Counsel:         P S Coles for Appellant

B D Vanderkolk and E J McCaughan for Respondent

Judgment:      14 December 2006

JUDGMENT OF WILD J

Introduction

[1]      This  is  an  appeal  against  a  conviction  entered  in  the  District  Court  at Palmerston North by Judge Ross on 18 August, following a split hearing on 6 April and 1 August.

[2]      The  appellant  was  convicted  of  resisting  Constable  Field  acting  in  the execution of his duty.   That is an offence against s23(a) Summary Offences Act

1981.

Factual background

[3]      The charge arose out of a series of events on the night of 5-6 August 2005 in

Palmerston North.

T V NEW ZEALAND POLICE HC PMN CRI 2006 454 43  14 December 2006

[4]      Shortly before midnight Constables Field and Lawton, who were patrolling the central city in a patrol car, noticed the appellant.   He appeared to them to be moderately intoxicated and abused them.  They let him be.

[5]      About three hours later, at around 3 a.m., the Constables saw the appellant again.  He was walking into the path of oncoming traffic at a major intersection.  By this time the Constables assessed him to be heavily intoxicated.  He was abusive and confrontational towards them.  After they suggested that the appellant go home he calmed down and walked off.  Again, they let him be.

[6]      At about 3.30 a.m. the Constables again encountered the appellant.   Their evidence as to what preceded this third and critical encounter diverged.  Constable Lawton gave evidence that the Constables had followed (I assume, driving along beside her in their patrol car) a woman walking along Broadway Avenue and had attempted to speak to her, because she appeared to be badly intoxicated.

[7]      Constable Field, in his evidence, had no recollection of speaking with or trying to speak with the woman who, he said, they suspected had been assaulted by the appellant.  On Constable Field’s account, his first view of the woman was when she and the appellant were confronting each other, down an alleyway beside the Regent Theatre.

[8]      Constable Field’s evidence about what occurred is critical and I therefore set it out in full.  This is what he said:

A.        …  Then at about 3.30 a.m. acting on information Constable Lawton and I went to the Regent Theatre on Broadway and next to the Regent is a small alleyway and there I saw the defendant and a female and as I approached I could see that the female appeared to be distressed and upset and the defendant was standing in front of her in an aggressive and threatening manner.  By that I mean that his fists were clenched, his arms were quite rigid and bent slightly at the elbows.  So based on the information I had been told I got out of the patrol vehicle and I approached the pair.   They were probably standing maybe one or two metres apart and I just stood to the side and I called out for the defendant to step away from the female.  He ignored this and continued to stand in that threatening manner and I actually believe he was laughing at the female.  I called upon him again to move away and he ignored me.

Q.       How far from the defendant were you when you called to him? A.  I was roughly three or four metres away.

Q.       Did he acknowledge you in any way, did he hear you?

A.        He ignored me.  His attention was focused on the female.  I can only assume that he heard me because I called loudly and clearly and while I stood to the side of them I was clearly in his line of sight.  So I believe he was aware of my presence.

Q.       What did you do then?

A.        So  based  on  the  information  that  I  had  received  I  arrested  the defendant for assault and following that arrest I called for him to step away from the female.   I had concerns that the situation was escalating and I wanted to take him into custody quickly and safely. The defendant again refused to comply with any instruction I gave him and I gave him several instructions.

Q.       What were the instructions that you gave him?

A.        To step away from the female and I repeated to him that he was under arrest.  I considered the tactical option available to me at that point.  He was refusing to comply with any instruction I gave him. The situation had potential to escalate.  So at that point I used my pepper spray and I sprayed him with a burst of that.  As a result of me spraying him he stepped back and moved to a nearby railing for support.

Q.       Was anybody else present when you sprayed the defendant?

A.        The female was present and to my recollection Constable Lawton was still in the patrol car.

[9]      Constable  Field  gave  evidence  that  he  then  moved  across  behind  the appellant and attempted to remove one of his arms from the railing to restrain him with the aim of taking him into custody.   The appellant struggled against the Constable’s efforts.  The Constable said the appellant was pushing back in a rough manner against him.

[10]     Constable Field was concerned because the appellant was a strong man and bigger than he was.  So, he began hitting the appellant with his torch on his right leg or knee area.  He described his torch as having three size D cell batteries and being a little longer than an A4 sheet of paper.   He said he hit the appellant several times with the torch but it seemed to have no effect on the appellant, who continued to push back against him.

[11]     At about that stage Constable Lawton came to Constable Field’s assistance and Constable Field then began punching the appellant with his left fist, striking him in the face several times.  He said he was trying to stun the appellant.  Again, this was ineffective.

[12]     Constable Field then withdrew his baton and began hitting the appellant’s right knee area again, this time with the baton.   As a result of that the appellant loosened the grip of his right hand and Constable Lawson was able to put a handcuff on his wrist and restrain him.  The two Constables were then able to get the appellant on the ground, handcuff him and, with the assistance of other Police, get him into the patrol car and take him to the Police Station.

[13]     There was medical evidence both from the Police doctor who treated the appellant at the Police Station and from Dr S J McHardy, who saw the appellant the following day at her surgery.  Dr McHardy described the appellant’s injuries in the following way:

6.Although  I  do  not  have  any  independent  recollection  of  this consultation, from my notes that I recorded at the time, Mr T   presented with multiple contusions.

7.His left eye was swollen shut; he had a large contusion on the left side of his scalp, and many small lacerations and contusions around these areas plus the back of his left leg.

8.I immediately arranged for him to have X-Rays of his skull and face, which did not reveal any fractures.

9.        Mr T   said to me that he had been assaulted the night before.

His injuries were consistent with this explanation.

[14]     Although the exhibited copies were no longer on the Court file, Mr Coles showed me his set of photographs taken by the Police of the appellant.   They are consistent with Dr McHardy’s description, in particular they show the appellant’s left eye swollen shut and “black”, and numerous contusions.

The District Court Judge’s decision

[15]     In paragraph [2] of his decision Judge Ross stated the issues in the following way:

[2]       The issues involved here relate  to whether or  not the  charge  of resisting is established, whether the defendant had been properly arrested on this charge, whether he resisted the arrest or the lawful directions of a police officer, and, whether the admitted use of force by a police officer was of such a degree, kind and nature as to negate the officer acting in the execution of his duty from the commencement of the use of force onwards.

[16]     In [14] the Judge summarised the defence case:

[14]      …  The submission was to the effect that from the time of the use of the pepper spray onwards, until Constable Lawton arrived and managed to release one hand from the pipe rail and attach a handcuff to it, the defendant had been subjected to an unreasonable and unwarranted degree of force, which took the actions of Constable Field out of the category of being in the proper execution of his duty.  In particular, by the use of the torch, by the punching to the face area of the defendant, and by the use of the baton, it is claimed that Constable Field was acting outside his lawful duties because of the nature and extent of the force used, and in the circumstances.

[17]     Then, in [20], Judge Ross encapsulated the decision he was required to make:

[20]      …    However,  the  resisting  charge  appears  to  me  to  fall  to  be determined upon the timing of the purported arrest, and in conjunction with the initial use of force by the constable in the manner described (pepper spray).  …

[18]    Later in the same paragraph the Judge correctly summarised the factual chronology:

…  As the situation in the constable’s view had the potential to escalate, he engaged his pepper spray, and sprayed him with that to the face.   That is when the defendant stepped back and moved to the rail and held on to it with both hands. …

[19]     Both counsel accepted that Judge Ross then, in [21], correctly stated that an offender who clings onto an object to prevent an arresting officer removing him is resisting that officer.

[20]     It is at this point in his decision that Judge Ross went astray.   The error appears in these paragraphs, particularly in those parts I have emphasised:

[24]     The use of the pepper spray came after the defendant had, I find, accepting the evidence of the constable, reacted to the constable trying to dislodge  his  hands  from  the  pipe  rail  by  pushing  backwards  on  the constable with his body, from his arms and hands, using the pipe rail as a fixed object. …   Up to the point I have described, and the use of the constable of the pepper spray, by which stage I find the resisting  had certainly commenced in the ways which I have outlined, there could not be, and I do not understand there to have been, any serious challenge to the propriety of the application of the pepper spray in the defendant’s face by the constable.  …

[25]      …   Though clearly the resisting has continued during this use of force by the constable, and up until the arrival on the scene of Constable Lawton, it is not this continued resisting which in my view constitutes the charge here – the offence was complete and perfected by the time that it was necessary for the constable in his opinion to engage his pepper spray. That resistance of the same kind continued for some little time afterwards, might in ordinary circumstances be regarded as an aggravating feature.   I find that the resisting charge is proven at a time when the constable was properly acting in the execution of his duty and within his powers, and that the application of the pepper spray was in the circumstances a reasonable step for  him to  have  taken  from his  verbal admonitions, and  his initial physical attempts, had failed. …

[21]     In those passages the Judge states that what constituted the resisting charge he is considering is the appellant hanging on to the handrail, resisting Constable Field’s attempts to take him into custody.  The Judge clearly states that that offence “was complete and perfected” before Constable Field used his pepper spray on the appellant.  That is simply wrong, and Mr Vanderkolk readily accepted that the Judge was in error.

Opposing submissions

[22]     I intend summarising these, point by point, in my own words.  I will deal first with Mr Coles’ submissions for the appellant, then those of Mr Vanderkolk responding for the Police.

[23]     Appellant’s submissions

a)       The Judge got his facts wrong in [24] and [25] of his decision.  He was wrong to find Constable Field pepper sprayed the appellant after the appellant had grabbed the handrail and held on to it, resisting the Constable trying to take him into custody.

b)That error impacts on the Judge holding that the use of the pepper spray was justified because the appellant was resisting arrest by holding on to the handrail.

c)       Because the Judge found the offence of resisting complete before the pepper spray was used, he did not need to – and did not – go on to consider whether the substantial force used by the Constables was justified, or was excessive and outside execution of the Constables’ lawful duties.  The defence submission to the Judge was that, starting with the use of the pepper spray, the force used by the Constables was excessive and increasingly so.   It was inappropriate to pepper spray the appellant for resisting, when a fair inference on Constable Field’s own evidence was that the appellant was simply unaware that the Constable was even there.

d)Because of his erroneous fact findings, the Judge did not consider whether he was entitled on the evidence to infer the appellant was resisting arrest when he was sprayed.   Had the Judge done so, he should  have  concluded  that  no  such  inference  was  open.     On Constable Field’s own evidence, equally open was an inference that the appellant was not aware of the Constable’s presence, let alone of his ‘pronouncement’ that the appellant was under arrest for assault. That inference is also entirely consistent with and supported by the Constables’   evidence   of   the   appellant’s   conduct   when   they encountered him earlier in the evening, in particular the  appellant walking into oncoming traffic at a busy city intersection on the second encounter.

e)       Even more fundamentally, Constable Field had no proper basis to arrest the appellant for assault.  The Constable had not even taken the step of speaking directly to the woman.  He was apparently relying on unknown information received by the Constables from unknown persons.   Further, the Constable himself described the appellant as

appearing to be laughing at the woman.  That is hardly consistent with the appellant assaulting the woman.

[24]     Submissions for Police

a)       Appellant’s  submissions  a)  to  d)  are  accepted,  except  as  to  the alternative inference referred to in c) and d).

b)Constable Field was entitled to arrest the appellant for assault:   the Constable was acting on information received; the appellant had refused the Constable’s direction to move away from the woman; instead, the appellant maintained his threatening stance toward her; he was laughing at her.

c)      Constable Field had no obligation to check the accuracy of the information he had received before arresting the appellant.  Proof of good cause to arrest in the first place is not an element of the offence of resisting with which the appellant was charged.

d)       Holding on to the handrail was resisting and from that point on the

Constable’s use of force, while considerable, was justified.

e)        In the course of his remarks when sentencing the appellant on 19

September, Judge Ross said:

[3]       What Counsel asks me to accept today is that the consequences for you should already be sufficient in relation to this charge and that a conviction ought not be entered or otherwise the matter could be treated in the same way as the admittedly technical assault where there was a conviction entered and you were ordered to come up for sentence if called upon.

(Mr Vanderkolk’s emphasis)

Decision

[25]     Having listened to and considered the opposing arguments I am in no doubt that the conviction cannot stand.

[26]     Because the Judge got his facts wrong, he concluded that the offence was complete before Constable Field used his pepper spray on the appellant.  The Judge treated the offence as comprising the appellant hanging on to the handrail while Constable Field tried to grab his arm in order to take him into custody.

[27]     The  Constable  pepper  sprayed  the  appellant  because  the  appellant  had resisted arrest, in not responding to the Constable pronouncing that he was arresting him for assault and directing him to step away from the woman.  This was while the appellant and the woman were confronting each other in the alleyway.  It was as a result of being sprayed that the appellant stepped back, turned away from the Constable and grabbed hold of the handrail for support.

[28]     The Judge needed to consider whether the appellant was guilty of resisting before Constable Field sprayed him, because the defence case was that he was not, and that the use of the pepper spray for a pre-emptive strike plus all the ensuing Constable’s actions constituted excessive use of force outside the execution of the Constable’s lawful duties.

[29]     The Judge also needed to consider whether the arrest for assault was lawful and proper, because the appellant challenged its propriety.   At the very least, the appellant’s submission to the Judge was that Constable Field should have asked the woman what the position was.  Significant, in relation to this, was what Mr Coles told me from the bar in reply to Mr Vanderkolk’s last submission, para [24]e) above. Mr Coles said that the agreed facts of the assault charge were that the appellant had found the woman sitting on the footpath, in the doorway or entrance of a building. He had taken hold of her arm or shoulder, in an effort to help her to her feet.  The woman, equally if not more intoxicated than the appellant himself, had taken exception to this.  She had got up and pursued the appellant along the footpath and down the alleyway abusing him verbally, if not physically as they went.  It was at the

point that the appellant and the woman were confronting each other in the alleyway, that Constable Field intervened.

[30]     In short:

a)       The Judge made no finding as to whether Constable Field’s arrest of the appellant for assault was lawful and proper.   Given the defence case, a finding was needed.

b)The Judge made no finding that the appellant was aware that he had been arrested for assault before he was sprayed for resisting the Constable – essentially, for resisting arrest.  Given the defence case, a finding was needed.

c)       The Judge made no finding as to whether Constable Field’s pepper spraying of the appellant and the Constable’s ensuing actions constituted excessive force, such as to take those actions outside bona fide execution of the Constable’s powers and duties.   Given the defence case, a finding was needed.

[31]     I quash the conviction entered by the Judge at the end of his decision of 18

August 2006.

[32]     Given that outcome, it is unnecessary to consider the appellant’s alternative submission  that  the  circumstances  warranted  a  discharge  without  conviction, pursuant to ss 106 and 107 Sentencing Act 2002.

Solicitors:

P S Coles, Palmerston North for the Appellant

Crown Solicitor, Palmerston North for Respondent