The Queen v Christiansen
[2001] NZCA 246
•24 October 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 196/01 |
THE QUEEN
V
SCOTT ANTHONY CHRISTIANSEN
| Hearing: | 24 October 2001 |
| Coram: | Richardson P John Hansen J Goddard J |
| Appearances: | T Sutcliffe for Appellant M A O'Donoghue for Crown |
| Judgment: | 24 October 2001 |
| JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P |
Scott Anthony Christiansen was found guilty by a jury in the District Court at New Plymouth under s192(2) of the Crimes Act 1961 of assault on a constable with intent to obstruct the constable in the execution of his duty.
Around 3.30 am on 5 February 2000 Mr Christiansen was outside a bar in New Plymouth where he had been socialising with two friends, Mr Cameron and Mr Laird. Mr Cameron urinated in the gutter. A Police Officer saw him from the patrol car. Mr Cameron ran away. The Police Officer made chase, grabbed him and brought him to the ground. Mr Christiansen ran after him and grabbed the Police Officer. He admitted having used force. His claim at the charge room at the Police Station and at trial was that he intervened because he believed the Police Officer was using excessive force to arrest Mr Cameron and he was particularly concerned for his friend who had a fracture in his back.
Mr Christiansen had two defences: under s192 that he believed that because of that use of force the constable was not acting in the execution of his duty; and, under s48 of the Crimes Act, that he, Mr Christiansen, was acting in the defence of Mr Cameron. The ground of the appeal is that the Judge's summing up inadequately directed the jury as to the requirement of intent under s192 and unsatisfactorily rolled together the two separate defences.
Section 192(2) provides:
Every one is liable to imprisonment for a term not exceeding 3 years who assaults any constable or any person acting in aid of any constable, or any person in the lawful execution of any process, with intent to obstruct the person so assaulted in the execution of his duty.
Section 48 provides:
Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.
R v Thomas [1991] 3 NZLR 141 is relevant to both defences in the present case. There, too, the appellant had intervened, claiming to believe that the Police were using undue force. As to s192, the court said at p143:
It is now settled law in New Zealand that in the ordinary class of case where the prosecution must prove mens rea "an honest belief in a state of affairs or as to the existence of a fact, which if true would make the act innocent, will provide a defence itself. It is not then incumbent on an accused to establish reasonable grounds for such belief although such may be relevant in testing the honesty of the belief in the first place" - per McMullin J in Millar v Ministry of Transport [1986] 1 NZLR 660, 673. It is for the prosecution to prove that the accused had no such belief once an evidentiary basis for it had been established, and the finding of the District Court Judge to which we have adverted - that in the eyes of the accused's party what was happening seemed to amount to a police beating up - clearly left the case in a state of reasonable doubt, if it did not entirely exonerate her.
The court continued:
Crown counsel echoed the concern apparent in a number of cases cited to us about the acceptance of a defence of honest belief in prosecutions of this nature. We agree that there could be problems, but to adopt any other approach would mean fettering the ability of genuinely concerned citizens to step in and prevent what they believe to be a real and unjustified risk of serious danger to a victim as a result of excessive police conduct. In cases involving assault on and obstruction of police officers and others in the course of their duty, considerations of reasonableness as a test of honesty should provide an adequate safeguard against resort to glib assertions of belief.
It follows that the use of excessive force takes a constable outside the scope of his or her duty and an accused would lack the intent required by s192(2) if he or she had an honest belief that the constable was using excessive force in effecting an arrest.
In the present case the Crown accepts the appellant raised a sufficient evidential foundation to run the defence he honestly believed the constable was no longer acting in the execution of his duty, due to the use of excessive force against Mr Cameron.
Next, the court in Thomas at p144 upheld the availability of a defence under s48:
In the present situation we are concerned with the use by the accused of reasonable force in the defence of another in circumstances which she believed involved the use of excessive force by the police in making an arrest, so that in her eyes they were no longer acting in the execution of their duty. Subjective honest belief of the type apparently found to exist by the District Court Judge is sufficient. It seems from the evidence that the accused was only briefly involved in the use of force when she attempted to pull a policeman away. The rest of her conduct was physical and verbal interference amounting only to obstruction.
...
In the light of this Court's view in Waaka [Waaka v Police [1987] 1 NZLR 754] that the Crown must prove the accused knew that the police officer was acting in the execution of his or her duty before there can be a conviction for assault, it is difficult to see any cogent reason why self‑defence or defence of another should not justify the use of force if the accused did not know the officer was so acting, or honestly believed in the existence of facts indicating he or she could not have been.
In other words, absence of the necessary mens rea under s192 and the positive defence of another under s48 are quite separate defences.
It is convenient at this point to set out the relevant passages from the summing up. First, and after a standard direction that the Crown had to prove each essential element of the charge beyond reasonable doubt, the Judge directed the jury as to the first and second elements of the charge under s192, namely that there was an assault and the person assaulted was a constable. The summing up continued:
The third element that has to be proved in relation to each count is that it must be proved beyond reasonable doubt that the accused intended to obstruct the constable in the execution of his duty, not just to interfere in what he was doing. If to illustrate that, at the time of a proved assault on a Police Constable the Constable was out getting his lunch, and an accused person knew he was out getting his lunch, then there may be an intention to assault the constable and to prevent him from getting his lunch, but that would not be to prevent him from the execution of his duty, because getting his lunch is not part of his duty as a Police Constable.
It must be proved that the accused assumed the person assaulted was a police officer and assumed that he was acting in the execution of his duty or at least the accused wilfully shut his eyes to that possibility or was indifferent about it and intended to obstruct the person assaulted in the execution of his duty.
It used to be that there was no right to interfere with an arrest, even if that was an unlawful arrest. That is no longer the position. In this case Mr Christiansen says he honestly believes the officer was acting in excess of his powers and unlawfully. He says he is entitled to act in those circumstances and in defence of Mr Cameron. Mr Laird takes a similar position. So on the evidence, I need to direct you about self defence in this context.
Although self defence is referred to as a defence, it is not for an accused to prove that he was acting in self‑defence. If the issue of self defence is raised by any of the evidence, and I rule that as a matter of law, it is in this trial, it is for the Crown to prove beyond reasonable doubt that the accused was not acting in self defence. If the Crown does not exclude that as a reasonable possibility, then the accused should be acquitted. The provision in our Crimes Act about self defence reads as follows [and the Judge set it out and continued].
What is meant by the word "justified". If you are justified in doing something, then doing it is not a crime, even though you meant to do it.
The Judge went on to discuss what he described as the three factors to consider: first, what the accused believed the circumstances were at the time; second, was the accused acting to defend another or himself from the harm that was threatening the other person; and third, was the force he used reasonable, given what he believed was happening at the time? The summing up continued:
The defence of self defence is not confined to unlawful assault. Even if Police action is lawful, a person may be justified in using reasonable force in defence of himself or another if, as a result of a mistake in fact, the accused honestly believes the force used by the Police in this instance is excessive to the point of being unlawful. In those circumstances, that belief must be honestly held but it doesn't need to be reasonable.
Put another way, an honest belief that the force used by the Police is unlawful and excessive, even if unreasonably held, and even if mistaken in fact, can justify the use of reasonable force in defence of another.
If the other elements of self defence are established, the defence of self defence is available whether or not the police officer is acting in the course of his duty, and whether or not the force being used is in fact excessive or unlawful. But a mistake about the extent of the Constable's legal powers will not provide a defence.
Next, as to the respective cases of the Crown and Mr Christiansen, the Judge said in relation to the charge under s192 against both Mr Christiansen and Mr Laird:
The Crown says, and Mr Christiansen and Mr Laird both acknowledge, they assaulted Constable Wright. The Crown says that that assault was not justified. Mr Christiansen and Mr Laird, the Crown say, thought Constable Wright was over the top and simply decided to get at him because they were angry. The Crown points you to Mr Christiansen's initial reaction to "f..." that or stuff that, before he took off up the road after the policeman and Mr Cameron. The Crown says well, when Mr Christiansen got there, he said "let him go". He didn't say anything about "look he has got a sore back or a crook back" which was the thing that Mr Cameron and Mr Laird were concerned about, and that it was a perfectly reasonable response for Constable Wright to say, "well I will let him go when I have got him handcuffed". The Crown says that you can accept that it was Mr Christiansen who said "well I will handcuff you" or something similar to that. That was what Constable Wright heard and it is also what Mr Laird said in evidence on Friday. The Crown says on this count Mr Laird went to help out. This was not a case of self defence. This was two drunk young men taking exception to what a policeman was going and it was not justified. ... The Crown says Mr Christiansen was difficult to subdue when he was caught. That is consistent with somebody being aggressive and attacking rather than simply defensive. The Crown says well you should think that Mr Christiansen really instigated the assault. He took exception to the policeman attacking his friends, but it is clear that both Mr Cameron and Mr Christiansen got hold of Constable Wright and the words "let's deal to him" or something like that, are not defensive and indicative of an aggressive approach rather than a defensive one. The Crown says Mr Laird never said a word about Mr Cameron's back during the assault or in his interview. There has not been any suggestion of self defence from Mr Laird until now. No previous suggestion of justification at all.
Then as to the case for Mr Christiansen:
Mr Christiansen admits an assault on Constable Wright, but says that is not an end of the matter. He says that he had no intent at all to obstruct a constable in the execution of his duty. There was no suggestion from Mr Christiansen that he didn't know Constable Wright was a police officer. But he says I didn't think that the policeman was being sufficiently gentle, I thought he was using excessive force and was outside his authority. He says his intention was to protect his friend from what he thought was excessive force as he honestly believed the position to be, and that he was justified in his defence of Mr Cameron.
...
Mr Christiansen, he [counsel] says, had an honest belief that the police officer was over the top and the over the top tackle was the reason for Mr Christiansen running up the hill after his friend. He thought it was excessive and when he got there, he saw the police officer with his arm around Mr Cameron's neck and his knee in his back. That is where he says the police officer was using the swear words. Constable Wright agrees that he was there, that he had Mr Cameron around the neck and holding him down, but didn't acknowledge the swear words.
Mr Sutcliffe says the Crown is simply nowhere near proving Mr Christiansen didn't have the honest belief that Constable Wright was over the top. You certainly can't discount that as a reasonable possibility.
He also says, well, the force that was used by him was clearly to defend Mr Cameron. He believed the Police action was over the top. He knew Mr Cameron had broken his back recently and the way he acted was reasonable force. He took the constable by the shoulders and pulled him off. He didn't kick him, punch him, headbutt him or anything like that. Mr Christiansen denies making any threats or comments to the policeman. Mr Sutcliffe points out that even if he did, the question is whether the force used was reasonable, not what he said.
The difficulty with the summing up is that the Judge never clearly stated that Mr Christiansen had two distinct defences which the jury had to consider separately. Rather, he tended from the outset to merge lack of intent under s192(2) and defence of another under s48. The general directions in para [10] above began by focussing on the elements of s192(2) but then, in the third paragraph cited there from the summing up, ran to self‑defence as if the only defence arising. And the next two paragraphs focus exclusively on the s48 defence. The further passage from the summing up set out in para [11] continues to focus exclusively on the s48 defence.
Next, when stating the case for the Crown the long passage set out first in para [12] above in using the language of "justified" "self‑defence" and "defence" clearly relates back and would be understood by the jury as relating back to the directions given earlier as to the s48 defence.
Turning to the case for Mr Christiansen, the first part of the passage from the summing up set out in para [13] above appears directed to s192, but in the same last sentence of that paragraph ends, "and that he was justified in his defence of Mr Cameron". The next two paragraphs set out there also appear directed to s192 but the further sub‑paragraph following straight on begins, in the first sentence, with a s48 focus, followed by a sentence which may be referable to s192, and continues on raising s48 considerations.
The summing up needed to spell out that lack of intent and defence of another were separate defences which the jury had to consider separately and weigh in turn. It will be apparent from what we have said that the summing up in this case failed to bring that home to the jury. Even where it appears on close analysis that the Judge referred to matters relevant to s192, the summing up tended to roll on to s48 considerations as if there were only one defence involved. Certainly there is a degree of common ground and factual overlap between the two but, as Thomas brings out, they are separate and each has a different focus - s192 on honest belief that the constable was using excessive force in effecting an arrest (para [7] above) and s48 on reasonable force in the defence of another. The former is subjective, the latter objective.
We are satisfied that the Judge's summing up failed to direct the jury as to the need to assess the two defences separately and in the result inadequately directed the jury as to the requirement of intent under s192 in this case.
Mr O'Donoghue for the Crown accepted that if we reached that conclusion and quashed the conviction it would be appropriate not to order a re‑trial. The appellant has had no previous convictions. He has had the burden of facing one trial and an appeal in respect of an incident for which he apologised to the Police for his part in it at an early point and which the sentencing Judge, on the basis of the guilty verdict, considered could be dealt with by a short period of periodic detention.
We agree. The appeal is allowed. The conviction and sentence are quashed. There will be no order for a re‑trial.
Solicitors
Till Henderson King, Hamilton, for appellant
Crown Solicitor, Wellington
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