v v Police HC Christchurch CRI 2005 409 156

[2005] NZHC 245

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2005 409 156

V

Appellant

v

POLICE

Respondent

Hearing:         17 November 2005

Appearances: P J Johnson for Appellant

K T Dalziel for Respondent

Judgment:      17 November 2005

ORAL JUDGMENT OF CHISHOLM J

[1]      Following a defended hearing the appellant was convicted of assaulting and resisting a police officer.  In relation to the charge of resisting a fine of $500 was imposed and he was convicted and discharged on the assault charge.   He appeals against conviction and sentence.

Background

[2]      During the evening of 11 February 2005 the police received a 111 call from the appellant’s wife.   No-one spoke but it can be inferred that the call was traced

V  V POLICE HC CHCH CRI 2005 409 156  17 November 2005

back to the address of the appellant and his wife.  Two police officers attended, a sergeant and a constable.  When they arrived at the door they were allowed entry by the appellant.  The Judge found that there was in all the circumstances a licence to enter and that finding is not in dispute.  The police observed that a Chinese woman, the appellant’s wife, was crying.  It was found by the Judge that she was “obviously upset”.

[3]      Events from that time are best expressed by quoting the findings of the Judge:

“[6]     Sergeant King spoke to the defendant about what had gone on and did not get a satisfactory reply.   The defendant got more agitated and then told the Sergeant to leave. Whilst this was going on, Constable Scarhill had spoken to the Chinese lady and she had not made any reply.  The defendant had during this indicated that the Chinese woman did not speak English.  Sergeant King indicated to the Court that by this time he had felt even more suspicious about what was going on and advised the defendant that he was not going to leave, invoking the provisions of s317.  He continued to question the defendant, who became more aggressive and was pacing around the room, saying things like they were not the real Police.

[7]       The Sergeant became concerned that the defendant may arm himself with anything there, particularly kitchen utensils and he blocked the defendant’s progress.  Sergeant King placed his hand on the defendant’s chest to tell him in effect to stay where he was, at which point the defendant slapped the Sergeant’s hand away and approached the Sergeant with his hands in front of him.  The Sergeant believed he was about to be assaulted and arrested him and attempted to get some sort of arm lock to restrain him.  He somewhat failed in that, at which Constable Scarhill, who had become aware of the interaction between the defendant and the Sergeant, took a hold on the defendant and took him to the ground, whereupon he resisted violently.   This resulted in  him being handcuffed and  thereafter the  defendant behaved in what can only be described as an unusual and bizarre way with periods of acquiescence and periods of yelling and struggling, albeit under handcuffs.”

Subsequently the appellant was taken back to the police station, initially by way of an ambulance because the police had become aware that he had a problem with his back.

[4]      One key issue to be resolved by the Judge was whether the police were acting in the execution of their duty.  As already noted, the Judge accepted that they had initially entered pursuant to a licence granted by the owner and that s317 of the Crimes Act 1961 did not apply, at least at that stage.  He also found that after the appellant had told them to leave they were duty bound to remain, either by virtue of s317(2) or by virtue of the doctrine of necessity.  In the end result the Judge seems to have relied on the doctrine of necessity arising from the following factors:   a 111

call, the upset state of the appellant’s wife, fear by the sergeant that the appellant might arm himself, and concern that the appellant’s wife might be in danger.

[5]      Having reached the conclusion that the police officers were acting in the execution of their duty, the Judge then turned to the question of whether or not an assault had occurred.  He concluded that this was the case by virtue of the appellant approaching the sergeant with his hands out in front of him.  The Judge commented that the slapping away of the hands might also have constituted an assault.  He found that the appellant had resisted and the appellant was found guilty on both charges.

This Appeal

[6]      It is alleged that once the police officers were told to leave their licence was revoked and they should have left within a reasonable time.  Mr Johnson emphasised that when the police arrived there was no sign of any assault to the appellant’s wife or damage to the property and it emerged that the reason for the 111 call was the appellant’s wife’s concern about the appellant’s gambling problems.   All in all, submitted Mr Johnson, there was an over reaction on the part of the police.  If they were concerned about the safety of the appellant’s wife they should have taken her with them.  Mr Johnson emphasised that the appellant’s home was his castle and that the Judge had misdirected himself in the course of reaching the conclusions that he did.

[7]      It was also argued that even if the doctrine of necessity applied, the sergeant stepped beyond legitimate bounds once he unlawfully detained the  appellant by restricting his movement around the house.  Although there is also an appeal against sentence,  it  would  be  true  to  say  that  Mr  Johnson  recognised  that  there  were problems with that component of the appeal and it was not pushed with any vigour.

Determination

[8]      It is common ground that the police offices had a licence to enter the house. It is also common ground that the appellant asked them to leave and that at that point they were obliged to leave unless their continued presence was justified by s317 or the doctrine of necessity.  Section 317(2) provides:

“(2)      Any constable, and all persons whom he calls to his assistance, may enter on any premises, by force if necessary, to prevent the commission of any offence that would be likely to  cause  immediate  and  serious  injury  to  any  person  or  property,  if  he  believes,  on reasonable and probable grounds, that any such offence is about to be committed”.

In R v Fraser 21 CRNZ 158 the Court of Appeal commented that s317 is not a code that completely defines the police rights of entry on to private property and that it is more appropriately seen as authorising police entry on to private property in circumstances where such entry would otherwise be unlawful.   Given those observations and the fact that the entry in this case was pursuant to a licence I think that the Judge was right to focus on the doctrine of necessity rather than s317.

[9]      The doctrine of necessity was described by Tipping J in Dehn v Attorney- General [1988] 2 NZLR 564 at 580:

“A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm.

That description was endorsed in R v Fraser which arose from the police responding to a 111 call.

[10]     Given that this case also involved a 111 call it is relevant to record the comments of the Court in R v Fraser with reference to 111 calls:

“The purpose of a 111 emergency system is to enable citizens to be put quickly in touch with the emergency service they need and for that service to respond urgently if required. Its integrity is based on an acceptance by citizens that in exercising their duty arising from the emergency call, police, fire service and emergency medical services may impinge upon private property rights. The  trade-off for  citizens is  the  potential for  saving  lives  and property, facilitated by the 111 emergency system.”

The Court also considered what police officers were entitled to do once they were inside premises pursuant to the doctrine of necessity.   Adopting the approach indicated by R v Godoy [1991] 1 SCR 311 the Court of Appeal concluded that the doctrine of necessity did not justify a more extensive search than was necessary to ensure that no danger to life or to the safety of persons was involved. The lifting of a dressing gown was found to be within the doctrine.

[11]     In this case the 111 call sets the stage for events that followed and for a belief on the part of the police that someone or something was facing immediate risk of harm.  On arrival they saw a distressed woman.  The Judge’s findings indicate that the sergeant became even more suspicious when no explanation was forthcoming and he was told that the woman could not speak English.   It is true that on the evidence the constable became aware from the woman at a reasonably early stage that the underlying problem was her husband’s gambling.  However, the sergeant’s evidence was that he was not aware of that until he had arrested the appellant.  Given that the constable was speaking to the woman and the sergeant was speaking to the appellant separately, that evidence is entirely plausible.

[12]     On the Judge’s findings the appellant then became aggressive and began to pace.  He said things along the lines that they were not real police (although I should add here that Mr Johnson has quite rightly pointed out that that might simply reflect that the appellant thought that they were not behaving like real police).  In any event, the sergeant became concerned that the appellant might arm himself, the Judge having found that this concern was legitimate.   Although the Judge did not specifically make reference to this factor, the evidence discloses that the sergeant had experienced a similar situation around two weeks before where a weapon was actually involved.  All these events happened within a relatively short space of time. Given those circumstances it was obviously open to the Judge to conclude that the doctrine of necessity applied.

[13]     The next issue is whether the appellant was “detained” when the sergeant blocked and touched him.  Ms Dalziel cited Mepstead v DPP  [1996] Crim.L.R. 111 which involved a situation where a police officer took a person’s arm both to draw his attention the content of what was being said to him and to calm the situation

down.  It was contended that the officer was not acting in the execution of his duty. Contrary to that submission a conviction was entered.  An appeal was dismissed with the Court indicating at p111 :

“It is for the tribunal of fact to decide whether the physical contact goes beyond what is acceptable by the ordinary standards of everyday life and if the period of contact had gone on for any length of time, it might well be said that no reasonable court would say that there was not an intention to detain”.

A similar situation arises in this case.  The Judge accepted that there was no intent to detain or any detention and I am satisfied that those conclusions were open to him.

[14]     That leaves the question of sentence.  I am afraid that there is no merit in the appeal against sentence.  The appeals against conviction and sentence are dismissed.

Solicitors:           P F Johnson, Christchurch for Appellant                   ‘ Crown Solicitor, Christchurch