The Queen v van der Kaap

[2006] NZCA 238

IN THE COURT OF APPEAL OF NEW ZEALAND

CA458/05

THE QUEEN

v

ROBERT VAN DER KAAP

Hearing:10 August 2006

Court:Ellen France, Gendall and Heath JJ

Counsel:D J Allan for Appellant

D G Johnstone for Crown

Judgment:1 September 2006 at 11 am

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       The appellant was convicted after trial in the District Court at Hamilton of intentionally or recklessly and without claim of right damaging fence posts in which he had no interest.  He was acquitted on one charge of assault. 

[2]       The appellant appeals against his conviction.  The focus of the appeal relates to the trial Judge’s directions on claim of right.

Factual background

[3]       The incident giving rise to the charges took place in a paddock leased by the complainant from the Waikato District Council.  The paddock is next door to the appellant’s property.  There was a history of disputes between the appellant and complainant.

[4]       The complainant said in his evidence that on the afternoon of 14 October 2004 he was working on a roadside fence line that was on the border of his property and Parker Road, Huntly.  The fence line was owned by the Council but the complainant had to weed the strip of land and keep it stock proof.  The complainant was ready to finish work and was packing up his fencing gear when the appellant, carrying a chainsaw, approached him.  As he came towards the complainant, the appellant called out “the fence is in the wrong place, I’m going to cut it down.”  The appellant then climbed over the fence from the Parker Road side onto the farm leased by the complainant, started his chainsaw and began to cut into the fence posts.

[5]       Earlier that day the complainant had cut one or possibly two boards off a pallet that the appellant had put around some trees.  The complainant had also cut off some branches from the trees.  He said he did this because the branches and pallet were obstructing the electric fence wires.

[6]       The appellant’s evidence was that he was inside his house (on the other side of Parker Road from the complainant’s property) when he heard a chainsaw and was worried about trees on his property.  The appellant took a chainsaw out of his car and walked to where the complainant was working.  He saw that both his pallets and branches from a plum tree he had planted on Council land had been cut.

[7]       The evidence of the appellant was that:

… [I] didn’t like what I saw had happened and I told him [the complainant] in no uncertain terms ... You put that bloody fence back or I’ll knock down every fence post that’s on Waikato District Council reserve, every encumbrance, every projection … because I have the chainsaw in my hand, I could do it, he had destroyed my stuff …

[8]       According to the appellant, the complainant replied “you wouldn’t dare”.  The appellant’s response was as follows:

[w]hen he said “I wouldn’t dare”, yeah, I would show him that I would do it … when I say something, I mean it.  I try to keep my word … I don’t like being challenged but I did try to start the chainsaw …

I believe in things like that reparation.

[9]       The appellant then climbed over the fence onto the land leased by the complainant and began to look for a post that he could cut.  The appellant then partially cut into several posts stating that he kept an eye on the complainant and started making the first cut. 

[10]     A physical scuffle between the appellant and the complainant ensued.  This  left the complainant with cuts and grazes from the chainsaw.  The latter incident formed the basis of the charge of assault using a chainsaw as a weapon of which the appellant was found not guilty.

Grounds of appeal

[11]     The appellant says that the direction on claim of right was wrong because it did not include express directions that:

(a)The Crown must negate claim of right beyond reasonable doubt.

(b)A genuine belief that the act is lawful is not negated by the act being unlawful.

(c)A belief on the part of the appellant that the goal sought was justified is sufficient for a claim of right defence.

[12]     We deal first with the approach to the standard of proof.  The other two aspects overlap so we consider them together.

Approach to the standard of proof

[13]     The appellant says the trial Judge, Judge Clark, should have told the jury that the Crown must negate the claim of right beyond reasonable doubt.  There is no merit in this point. 

[14]     The Judge emphasised at the outset of her summing up that the burden was on the Crown and gave appropriate directions as to the standard of proof.  The directions then made it plain that the Crown had to prove the three elements of the charge beyond doubt.  The Judge then reiterated that the third element on which the jury had to be “satisfied” was that Mr Van der Kaap did not have a claim of right.  Nothing more was required: R v Wanhalla and Court CA321/05, CA324/05 24 August 2006 at [51].

Direction about the appellant’s belief

[15]     The Judge directed the jury that the essence of a claim of right was a genuine belief the act was lawful.  The relevant part of the summing up was as follows:

The third element is you have to be satisfied that the accused, Mr Van der Kaap, did not have a claim of right for what he did.  That is the focus of your enquiry with respect to this charge.  What does claim of right mean?  The essence of the defence is that there must be a genuine belief that the act is lawful and while the belief does not have to be reasonable, reasonableness will be relevant in determining whether that belief is credible.  That is whether you can believe that belief. 

Now claim of right does not include any crime based on an idiosyncratic moral view that an act is justifiable.  So the essence of the defence is there must be a genuine belief that the act was lawful.  That belief does not have to be reasonable, but reasonableness will be relevant in determining whether that belief was credible.

As I said the focus for that charge is on the claim of right.  The Crown position is that the accused, Mr Van der Kaap, went down to where [the complainant] was to cause some grief in response to the grief that had been caused by [the complainant] and that he damaged the posts.

The Crown position is that there is no basis for a legal right to do that and no basis for a belief that the accused was entitled to do that.

The accused’s case is that Mr Van der Kaap had a belief that he was entitled to do what he did.  He gave evidence as to why he had that belief with respect with what had happened to the pellets and other damage and told you about wanting to stop [the complainant] from doing what he had done.  So those are issues for you.

[16]     The appellant’s primary objection is to the use of the word “idiosyncratic”.  Mr Allan, on behalf of the appellant, said that this part of the summing up signaled that Mr Van der Kaap’s belief did not amount to a claim of right.

[17]     As this Court has said before the summing up has to be read as a whole: R v Mitchell CA 327/05 31 October 2005 at [35].  It is not a matter of isolating one word out of its context. 

[18]     When this part of the summing up is read in context, we are satisfied there is no risk the case has miscarried. 

[19]     As Mr Johnstone for the Crown accepted, it may have been preferable to have used another word than “idiosyncratic”.  (That is the word used in Garrow and Turkington’s “Criminal Law” at CRI2.2 in discussing the change to the definition of claim of right. In the Crimes Amendment Act 2003, the word “lawful” belief was used instead of “justifiable” belief.) However, the Judge emphasises that the key is whether the belief that the act is lawful was genuine. The direction also points out that the belief does not have to be reasonable although reasonableness is relevant to credibility.

[20]     The other relevant factor is that the Judge accurately summarises the Crown and defence cases on this issue.  The relevant part of the summing up is as follows:

With respect to the intentional damage charge, [the Crown’s] submission was that the accused went from his house down to where the [the complainant] was with the intention of causing some grief in response to some grief caused by [the complainant] and that the actions were those of a man on a mission and that there was no basis for Mr Van der Kaap to have a belief that he had a legal right to remove the fence posts or damage them. …

[the defence] said that the accused, Mr Van der Kaap, had a claim of right and he referred you to the evidence that the accused had given about this and said that while you may not like what the accused did, his submission was that he had a belief that he was entitled to do this and some of the evidence on that point related to the accused talking about what had happened to the pallets, other damage that he had observed and to stop [the complainant] doing what he did.

[the defence] submission to you was that when considering all of the circumstances that the Crown hadn’t proved the charges to the required standard and he invited you to find the accused not guilty on each charge.

[21]     The jury would not have been in doubt about what was involved.

[22]     The other aspect of the appellant’s argument relates to the nature of the claim of right in issue.  Mr Allan says the case for Mr Van der Kaap was that he was justified in using the chainsaw to cut the posts because he wanted to stop the complainant undertaking further unlawful damage to Mr Van der Kaap’s property.  Mr Allan submits this is a different claim from the norm, namely, where the defendant believes he or she has a claim of right to the damaged property.  He says that, nonetheless, the appellant’s claim fits into the general category of belief that the end goal (stopping unlawful damage to his property on road reserve) was justified and the Judge should have made that clear to the jury.

[23]     Mr Allan relies on this excerpt from the commentary in Adams “Criminal Law” at CA 2.04.02:

A belief that the goal sought is justified is sufficient for a claim of right defence.  There is no requirement for the defendant to believe that the actions taken are themselves lawful: R v Bhaskaran 19/8/98, CA185/98 …

[24]     In Bhaskaran, a “colour of right” defence was available to a defendant charged with robbery.  The defence could negate the theft element.  The defence could succeed if there was a reasonable possibility Mr Bhaskaran honestly believed his wife was entitled to the money and he was entitled to take the bankcard to get the money.  He did not also have to believe that he was entitled to use a coercive method.

[25]     Mr Allan also refers to the discussion in Glanville Williams Criminal Law – The General Part (2 ed 1961) at 309 on the claim of right in malicious damage to property.  The author suggests there is no “rational” difference between belief in a right to damage because of ownership and belief in a right to damage because of “rules of law independently of ownership”.

[26]     We do not consider there was a need to add to the direction in the way the appellant suggests.  The appellant’s position was properly put to the jury.  The elements of the claim of right were correctly described.  This was not a case where it was necessary to distinguish between the nature of the appellant’s actions and the object those actions were intended to achieve as in R v Bhaskaran.

Result

[27]     For these reasons we are satisfied there has been no error in the approach to summing up.  No question of a miscarriage of justice arises.  The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington