Wiri v Police

[2018] NZHC 1222

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2018-463-30

[2018] NZHC 1222

BETWEEN

ROBERT KINGI JAMES WIRI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	28 May 2018
Counsel:	M B Meyrick for Appellant N Tahana for Respondent
Judgment:	29 May 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 29 May 2018 at 10:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Berman & Burton (Auckland) for Appellant Gordon Pilditch (Rotorua) for Respondent

WIRI v POLICE [2018] NZHC 1222 [29 May 2018]

Introduction

[1]                  Mr Wiri appeals his conviction by Judge Ingram on one charge of resisting a constable acting in the execution of his duty.1

Background

[2]                  The Police were called to Mr Wiri’s  house one night because of the way     Mr Wiri was behaving. When the Police arrived, they found Mr Wiri to be drunk and belligerent. The Police decided to arrest Mr Wiri.2 At this point, the evidence of the witnesses diverged. The evidence of the two police officers was that Mr Wiri was told to put his hands behind his back so he could be handcuffed. Their evidence was that, instead of complying, Mr Wiri put his hands up in the air and moved them away. There was a struggle, and eventually Mr Wiri was put face down on the bed in his bedroom and handcuffed with his hands behind him.

[3]                  Mr Wiri gave evidence that the Police simply assaulted him. He was prepared to be handcuffed with his hands in front of him and indicated that. Instead, he was punched, put in a headlock and the Police tried to force his hands behind his back. Mr Wiri said he was simply trying to keep his hands away from the police officers because, having had surgery, it would be painful to be handcuffed behind his back.

Approach on appeal

[4]                  I must allow Mr Wiri’s appeal if I am satisfied the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or, for whatever other reason, there has been a miscarriage of justice.

[5]                  I will find there has been a miscarriage of justice if I am satisfied something created a real risk that the outcome of the trial was affected, or resulted in an unfair trial or one that was a nullity.

1      Police v Wiri [2018] NZDC 5696.

2      He was charged, additionally, with assault on his sister and threatening to injure the sister’s partner. Judge Ingram dismissed those charges.

Discussion

[6]                  Mr Meyrick advances the appeal on the basis that Mr Wiri was justified in using such force as he did because he was acting in defence of himself, and in the circumstances as he believed them to be it was a reasonable use of force.3

[7]                  It is clear on the evidence that the Police were justified in arresting the drunken and belligerent Mr Wiri in the circumstances they found when they attended at his house. Mr Wiri knew he was being arrested and he knew the Police wished to handcuff him. His case is that he indicated he was prepared to be handcuffed with his hands in front of him but the Police attacked him and the only force he used was to resist being handcuffed behind his back.

[8]                  The Police have the right to use reasonable force when making an arrest. A person who is subject to arrest has the right to defend himself against unreasonable force being applied by the Police. The issue is whether the Judge made an error in not finding that Mr Wiri’s use of force was defensive and, in the circumstances as Mr Wiri believed them to be, reasonable.

[9]                  The evidence of the two police officers was that Mr Wiri never indicated he was prepared to be handcuffed with his hands in front of him. Their evidence was that Mr Wiri was simply trying to keep his hands away from the police officers to avoid being handcuffed. The Judge said this:

[6]  The defendant’s evidence was, as I say, that he was punched and put  into a headlock. Certainly the headlock was put to one of the police officers. Neither of them were cross-examined about the punch. The defendant’s position is he was simply trying to defend himself, and he said that he had been affected by pain killing medication, combined with a single glass of wine. Insofar as there is a dispute of any factual matter between the evidence of the defendant and the evidence of the police officers, I unhesitatingly accept the evidence of the police officers for three main reasons.

…

[9]        There were a number of other matters, in respect of which Mr Wiri said that the constables mistreated him. He said that he complained about pain to the police officers. He may well have complained about pain, once he had been handcuffed, and I can well imagine that because he had struggled, the police officers, for their own safety, had little choice but to put the handcuffs

3      Crimes Act 1961, s 48.

on as best they can, and remove him from the scene. He may well have had sore hands or shoulders, that is perfectly possible. The reality, however, is there is no dispute about the fact that he was not trying to assist the police officers in putting the handcuffs on him behind his back, as they asked him to do.

[10]      In my view, it was open for Judge Ingram to disbelieve Mr Wiri and accept the evidence of the police officers. The evidence picture, therefore, was that Mr Wiri was physically trying to avoid being handcuffed and the Police used reasonable force, in the course of effecting an arrest, to apply handcuffs to Mr Wiri. On the evidence as accepted by Judge Ingram, there was no credible narrative going to self-defence.

Decision

[11]I see no real risk of a miscarriage of justice. The appeal is dismissed.

Brewer J