BIRCHALL v NEW ZEALAND POLICE [2020] NZHC 2378

BIRCHALL v NEW ZEALAND POLICE [2020] NZHC 2378 [11 September 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-000062[2020] NZHC 2378PHILLIP BRIAN BIRCHALLvNEW ZEALAND POLICEHearing: 8 September 2020Appearances: T Luders for the AppellantR H De Silva for the RespondentJudgment: 11 September 2020JUDGMENT OF COOKE JTable of ContentsRelevant facts [3]Events at the trial [15]Approach to appeal [17]Error in the conduct of the trial [23]Opportunity to provide submissions [24]Self-represented defendants [31]Reconsideration of conviction [36]Was there a miscarriage of justice? [39]Section 53 – the defence of movable property [41]Claim of right [44]Peaceable possession [49]Result [60][1] Mr Birchall appeals from the decision of the District Court convicting him ofone charge of common assault following an altercation with his mechanic, thecomplainant.1 He was found guilty after representing himself at a Judge alone trial on13 July 2020.2 He was sentenced to a $750 fine and ordered to pay court costs of $130and an emotional harm repayment of $500.[2] Mr Birchall appeals on the basis that he had a defence to the charge unders 53(1) of the Crimes Act 1961 — the defence of moveable property — and that hewas deprived of the ability to advance that defence because the District Court Judgedid not allow him the opportunity to present any submissions. On appeal he says hisconviction should be overturned.Relevant facts[3] There is no dispute about the Judge's factual findings, and I set the relevantfacts out largely as recorded by the District Court Judge.[4] The complainant operates a mechanics business. Around the middle of March2019 Mr Birchall needed some work done on his car. He had earlier sought to havethat work done by another mechanic who could not do it in a timely fashion, so hecalled in to see the complainant at the complainant's workshop in Upper Hutt. He wasgiven an estimate for the required work of around $410 all up including GST.[5] On the morning of 20 March 2020 he dropped his car into the workshop andleft it there with an ignition key for the work to be done. He called into the workshopin the middle of the morning to see how the work was going. He spoke briefly withthe employee who was working on his vehicle. The employee told him that it wasgoing ok, and probably gave him an estimate of around an hour and a half or so untilthe work was finished.[6] Mr Birchall left the workshop. He said that he was expecting a phone call toadvise him when the work was finished, and also if the work was going to cost morethan the initial estimate.1 Summary Offences Act 1981, s 9, maximum penalty six months' imprisonment or $4,000 fine.2 New Zealand Police v Birchall [2020] NZDC 15990.[7] The complainant said that Mr Birchall had not left a phone number so theywere not able to call him. But in any event at around 2.00 or 2.30 pm Mr Birchallturned up to pick up his car. He bought with him a second set of ignition keys becausehe had left his Eftpos card in the car. He retrieved that card from his car which wasparked in the street, and then went into the workshop and approached the mechanic.The mechanic advised Mr Birchall that there had been some unexpected issues andthe cost would be about $80 more than the estimate of $410.[8] This caused Mr Birchall to lose his temper. Judge Tompkins observed that thiswas inexplicable given that it was a "relatively paltry" increase in cost.3 Thecomplainant gave evidence that Mr Birchall then "stormed out". The complainantdecided he had better retrieve Mr Birchall's car that was parked out on the street. Hecut through a slightly shorter route from the workshop to where the car was, and usingthe key left with him earlier that day went to unlock the door and drive the car backinto the workshop premises.[9] Very shortly after the complainant arrived at the car Mr Birchall also arrivedwith his own key. There was then a tussle between the two. The complainant said thatMr Birchall pushed him out of the way twice preventing him from unlocking the cardoor, and on the third such push the complainant described getting whacked across thechest by Mr Birchall's forearm.[10] Eventually the complainant stepped back from the driver's door. Mr Birchallentered the car, wound down the window, abused the complainant, saying that it washis car but "adding some obscenities for emphasis" and then drove off.[11] When engaging in cross-examination of the prosecution witnesses Mr Birchalldid not dispute that this tussle had happened at the driver's side door, but stressed thathe had been given an estimate and that he was expecting a phone call if the cost of thework was greater than $410 all up including GST. That explanation was providedduring Mr Birchall's cross-examination of the complainant and the mechanic.3 I note that this involved an increase of about 16 per cent, and that for many New Zealanders $80would not be a small amount of money.[12] The Judge recorded that at no stage during that cross-examination didMr Birchall dispute that there had been a tussle at the driver's door of the car duringwhich Mr Birchall had prevented the complainant from entering the car. Both thecomplainant, and the employee gave evidence of the tussle. The employee hadwitnessed it from the adjacent service station.[13] Mr Birchall stressed while cross-examining that he had offered to pay theoriginal estimate, and had also invited the mechanic to retrieve the rest of the costs bygoing to court, or using the Motor Trade Association's dispute resolution process.[14] After setting out those facts Judge Tompkins held:[12] In those circumstances I am quite satisfied that the police have provedthe charge of assault against Mr Birchall irrespective of the contractual disputethat arose prior to the assault. It is clear that the complainant, who had the keythat was left in the mechanics workshop, arrived at the driver's door ofMr Birchall's car very shortly before Mr Birchall did and there was then atussle during which Mr Birchall either twice as witnessed by the mechanic, orthree times as described by the complainant, pushed the complainant awayfrom the car probably on the third such occasion Mr Birchall's forearm beingused to, as the complainant said, "Whack me across the chest," to get him outof the way.[13] In those circumstances the charge is proved beyond reasonable doubtand Mr Birchall is convicted.Events at the trial[15] Mr Birchall represented himself at trial. As is apparent from the above findingshe cross-examined the prosecution witnesses. At the close of the prosecution's casehe elected not to call any evidence. It appears that the Judge did not give him anopportunity to present submissions at that point, and proceeded to deliver the oraldecision convicting him of the offence outlined above.[16] The notes of evidence then record the following exchange:THE COURT:Enter the dock please Mr Birchall.MR BIRCHALL:Is this the dock?THE COURT:That is the dock there, Mr Birchall. I take it from the cross-examination MrBirchall, you have no relevant previous convictions, is that correct MsKensington?MR BIRCHALL:Yes, are you asking me Sir?THE COURT:Yes.MR BIRCHALL:Just one DUI 30 years ago.MS KENSINGTON:Yes, that's correct Your Honour.MR BIRCHALL:So I guess I forgot to mention section 53 of the Crimes Act offence of a – isthat not relevant?THE COURT:Of self or property?MR BIRCHALL:Sorry?THE COURT:Defence of self or property? Self-defence.MR BIRCHALL:No, defence of moveable property.THE COURT:Yes, yes.MR BIRCHALL:I never mentioned that. Is it too late to mention it?THE COURT:It is indeed, that's why you should have retained a lawyer possibly Mr Birchall,but having concluded that the police have proved the assault beyondreasonable doubt, you are convicted and fined $750. Court costs, $130, therewill be an emotional harm reparation payment of $500 to the complainant.Ready to proceed with the next defended hearing?REGISTRAR:Yes. It has a timing Sir of two hours.Approach to appeal[17] An appeal against conviction in a Judge-alone trial is governed by s 232 of theCriminal Procedure Act 2011. The first appeal court must allow a first appeal ifsatisfied that the Judge erred in his or her assessment of the evidence to such an extentthat a miscarriage of justice has occurred, or a miscarriage of justice has occurred forany other reason. Miscarriage of justice is defined under s 232(4) as any error,irregularity or occurrence in relation to the trial that created a real risk of affecting theoutcome or resulted in a miscarriage of justice.[18] The assessment of the fairness of a trial is to be made in relation to the trialoverall. The Supreme Court in Condon v R noted that a verdict will not be set asidemerely because there has been an irregularity in one or even more than one facet ofthe trial. The irregularity must be such a gross, persistent or prejudicial departure fromgood practice that the court will have no choice but to condemn a trial as unfair andquash the conviction as unsafe.4[19] The Supreme Court recently re-examined the approach to assessment ofevidence for conviction appeals in Sena v New Zealand Police.5 The Court held thatappeals in such cases should proceed by way of rehearing in accordance with the well-established principles canvassed in Austin, Nichols & Co Ltd v Stitchting Lodestar.6[20] In the present case, Mr Luders argues that the Judge erred in failing to giveMr Birchall the opportunity to present submissions on the application of a defenceunder s 53(1) of the Crimes Act 1961 which provides:53 Defence of movable property with claim of right(1) Every one in peaceable possession of any movable thing under a claimof right, and every one acting under his or her authority, is protectedfrom criminal responsibility for defending his or her possession by theuse of reasonable force, even against a person entitled by law topossession, if he or she does not strike or do bodily harm to the otherperson.4 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].5 Sena v New Zealand Police [2019] NZSC 55.6 At [32]; and Austin, Nichols & Co Ltd v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR141.[21] As Mr Luders points out that section has been successfully applied by personsin a similar position to Mr Birchall, including by the High Court in Hasting vNew Zealand Police where a conviction for assault was overturned for the Court'sfailure to apply s 53 in circumstances where a defendant had sought to retrieve amotorcycle wheel from a mechanic and there was a resulting struggle.7[22] It seems to me that the appeal involves two questions. The first is whetherthere has been an error or irregularity in the conduct of the trial. The second is whetherthat has resulted in an unfair trial.Error in the conduct of the trial[23] On the first point, I accept Mr Luders submissions that there were materialerrors in the conduct of the trial. Those errors arose because Mr Birchall was notpermitted to advance submissions on a defence that he wished to advance incircumstances where the Court should have allowed him that opportunity. There arethree aspects of the conduct of the trial that are relevant to that assessment which Iexamine in turn below.Opportunity to provide submissions[24] First it seems to me that the Judge erred because he did not ask whether thedefendant wished to apply to advance closing submissions. The Criminal ProcedureAct addresses the question on when submissions can be advanced. Section 105provides:105 Conduct of Judge-alone trial(1) Unless the court directs otherwise, neither the prosecutor nor thedefendant may make an opening statement other than,—(a) in the case of the prosecutor, a short outline of the charge orcharges the defendant faces; and(b) in the case of the defendant, a short outline of the issue or issuesat the trial.(2) Unless the court directs otherwise, the prosecutor and the defendantmust call evidence in the following sequence:7 Hastings v New Zealand Police HC Whangarei AP 24/01, 19 July 2001.(a) the prosecutor may adduce the evidence in support of theprosecution case:(b) the defendant may adduce any evidence that he or she wishesto present:(c) subject to section 98 of the Evidence Act 2006, the prosecutormay adduce evidence in rebuttal of evidence given by or onbehalf of the defendant.(3) Without limiting subsection (2), the court may give the defendantleave to call 1 or more witnesses (for example, an expert witness)immediately after the prosecutor has called a particular witness orwitnesses.(4) Unless the court directs otherwise, neither party may—(a) make submissions on the facts; or(b) address the court on the evidence given by either party.(5) Despite subsection (4), the defendant, whether or not he or she intendsto call evidence, may address the court at the end of the prosecutor'scase to submit that the charge should be dismissed.[25] It is important to appreciate that s 105 does not provide a complete code on thequestion of submissions. First, s 105(4) only addresses the question of submissionson the facts. It does not address submissions as to the law. Secondly, and in any event,this section contemplates the Court making a decision on whether submissions will bepermitted. For both reasons the responsibility for ensuring a fair trial remains with theJudge. A Judge who fails to give a defendant an opportunity to explain why theyshould not be convicted cannot point to the terms of s 105 to justify that outcome.[26] In Sena v New Zealand Police the Supreme Court has recently reviewedappeals from Judge alone trials, and in addition to its findings in relation to therequirement to give reasons also addressed an alleged failure to consider a writtenclosing submission. The Court said:8[64] Given our conclusions on the adequacy of the reasons of the Judgewhich we have already given, we need say no more about this aspect but weadd that in cases of factual complexity, judges would be well advised to seeksubmissions from counsel on the facts. These would be of assistance to judgesin ensuring that the prosecution and defence cases are understood and dealtwith in the reasons.8 Sena v New Zealand Police, above n 5.[27] Similarly in R v Alexander the Court of Appeal dismissed an appeal on thebasis that counsel had not been able to give a closing address in a Judge alone trial butnoted that it "would have been better if the Judge had enquired whether counsel wishedto address".9[28] In Forster v Police the High Court allowed an appeal in circumstances wherethe District Court had not considered the application of s 53(1).10 Nation J held therewas an error because the District Court Judge did not turn his mind to the potential fora s 53(1) defence, and that it needed to be considered even if not expressly raised.11Such potential problems are avoided if the Judge checks with both the prosecution andthe defence whether there are any particular matters that need to be addressed by wayof submission. Here the District Court Judge did not address s 53 in his reasons, andno doubt he would have done so if he had enquired of Mr Birchall whether there wasanything further he wanted to say in his defence.[29] In a busy District Court is it understandable that Judges may not see the needfor submissions with more straightforward cases. But it may be beneficial for a Judgeto ask the prosecution and the defence whether they wish to advance any suchsubmissions, and then make an informed decision. It may also be advisable to give anopportunity for submissions if a party wishes to advance them.[30] In this case the fact that the Judge neither addressed s 53(1), nor asked whetherMr Birchall wished to advance submissions means that there was an error in theconduct of the trial.Self-represented defendants[31] There is a further dimension in the present case. Mr Birchall was self-represented. In R v Condon the Supreme Court addressed the approach the Courtshould take in such cases.12 The Court distinguished between circumstances where a9 R v Alexander CA 444/99, 2 February 2000 at [25]. The Court recorded that the Judge hadadjourned before giving his verdict and that no request to make submissions had been made. Italso said that the Judge's view that he would not have been particularly helped by closingaddresses was a reasonable one.10 Forster v Police [2018] NZHC 2365.11 At [60]–[61].12 Condon v R, above n 4.defendant does, and does not, make an informed choice to go to trial without a lawyer.But even when a defendant has made that choice the Court said:[82] The Court should examine the manner in which the Judge presidedover the trial, especially whether the Judge clearly explained the courtprocedures to the accused and thereby minimised the disadvantage of beingunfamiliar with the trial process and with rules of evidence. It will be relevantalso whether the accused had the benefit of guidance from a lawyer or anamicus at any time prior to or during the trial. The Court must have regard tothe personal characteristics of the appellant, such as level of intelligence andeducation, previous experience in a courtroom and ability to express him orherself clearly and sensibly in that setting. It must look to see whether the caseinvolved any difficult legal issues or had other complexities which might havebenefited from analysis by a trained legal mind. It should also look at thenature of the Crown case and at how effectively the accused in fact managedto convey the nature of the defence in cross-examination of Crown witnesses,examining defence witnesses, giving evidence (if the accused chose to do so)and addressing submissions to the Court. Mason J pointed out in McInnis thatthe calibre of the accused's forensic performance is a relevant but not a criticalfactor in the determination of fairness.13 The appeal Court should not be tooready to conclude from a reading of the transcript that the defence has beenconducted as competently as counsel, with professional skill and detachment,would likely have done. A transcript does not necessarily convey the fullatmosphere of the courtroom and in particular the demeanour of the accusedbefore the jury. A fortiori, if the full transcript, including addresses, is notavailable.[32] Here Mr Birchall made an informed choice not to be represented by counsel.But it is also apparent from the notes of evidence that he was unfamiliar with theprocesses. A person in Mr Birchall's position was exercising three roles: he wasexercising his right to cross-examine the prosecution witnesses; he could giveevidence himself in his defence; and he could exercise a right to present submissionsto the Court if allowed to do so. The separation between those three roles would notbe obvious to someone without familiarity with trial processes. It may be as well goodpractice for Judges to explain at the outset of the trial the different roles that adefendant may have when acting for themselves at a Judge alone trial.[33] The notes of evidence record that at the outset the Judge explained that thePolice had to prove the case beyond reasonable doubt, that Mr Birchall was not obligedto give evidence and could be cross-examined if he did, and that he could call otherevidence. That was appropriate advice. But the Judge did not go on to explain thedifferent roles Mr Birchall might exercise during the trial. It became apparent during13 McInnis v R (1979) 143 CLR 575 at 583.Mr Birchall's cross-examination that he did not properly understand the differencebetween his role in asking questions, and his role in giving evidence. Many of hisquestions appeared to involve him giving evidence. The Judge told him several timesthat he could give evidence if he wanted to. But it was apparent that he was strugglingto understand, or at least apply these different functions. Indeed the Judge himselfappears to have relied on Mr Birchall's questions as providing his version of events inhis factual findings.[34] When Mr Birchall then indicated at the close of the prosecution case that hedid not want to call any evidence the Judge could then have asked him whether hewanted to say anything else in his defence by way of submission. The Judge may havethought that Mr Birchall had, through his questioning, already conveyed most of whathe wanted to say, and there was little advantage of asking for more. But it was apparentthat Mr Birchall was not grasping the different functions well, and the problem is thatit became apparent after the Judge delivered his reasons for the conviction thatMr Birchall did want to raise a defence. Even then the Judge does not appear to havegiven Mr Birchall an opportunity to make submissions on his sentence.[35] It seems to me that, following the approach in Condon, an unfair approach wasadopted to the hearing.Reconsideration of conviction[36] There is then a further aspect. After he had delivered his reasons for theconviction, Mr Birchall advised the Court that he had wanted to advance the defenceof defence to property. He asked if it was too late to mention it. The Judge replied "Itis indeed, that's why you should have retained a lawyer possibly Mr Birchall".[37] With respect that was not an appropriate response. In circumstances where theCourt is advised that a defendant had wanted to raise a defence, but had not been givenan opportunity to do so, it is appropriate for the Court to consider immediatelyrecalling its decision to consider the matter that was not addressed. Mr Luderssubmitted that s 177 of the Criminal Procedure Act could apply in such circumstances.This section allows a Judge to engage in a retrial on "any terms the Court thinks fit".As the authors of Adams on Criminal Law note the Courts "take a pragmatic approachto the ordering of a rehearing guided by an overriding principle of fairness".14Irrespective of the precise jurisdictional basis it would have been a relatively easymatter for the Judge to recall the entry of the conviction, hear submissions on thedefence, and then decide whether the defence was made out. It seems to me that thatis what he should have done in the present case.[38] For those three related reasons I accept that there were irregularities in theconduct of the trial.Was there a miscarriage of justice?[39] The fact that there has been an irregularity in the conduct of the trial does notmean that the appeal should be allowed, however. As the Supreme Court outlined inMisa v R to meet the requirements of s 232(4)(a) there must be a miscarriage ofjustice.15 In Wiley v R the Court of Appeal described the position in the followingway:16[26] Dealing first with subs (4)(a), the terms "error, irregularity oroccurrence" reflect the breadth of matters that might be regarded as giving riseto a miscarriage of justice. Any such error, irregularity or occurrence may havearisen in the trial itself or in relation to the trial or affecting the trial. We donot attempt to define the range of matters which could fall within the scope ofthis part of the definition. Suffice to say, it covers all the matters that havehitherto have been regarded as affording grounds for appeal including errorsof law (no longer specifically stated to be a ground of appeal). As noted inSungsuwan, the courts will always reserve the flexibility to identify andintervene to prevent a miscarriage of justice however caused.17 A broadapproach is supported by s 25(h) of the NZBORA and the need to ensure theright of appeal is effective. For ease of reference only, we will use the term"error" to include error, irregularity or occurrence.[27] Under subs (4)(a) the court must be satisfied that an error has createda real risk that the outcome of the trial was affected. We accept the Crown'ssubmission that it is appropriate to adopt Tipping J's formulation of theapproach to the assessment of what amounts to a real risk. In Sungsuwan, hesaid a real risk arises if there is a reasonable possibility that a not guilty (or a14 Simon France (ed) Adams on Criminal Law – Procedure (looseleaf ed, Thomson Reuters) at [CPA177.02].15 Misa v R [2019] NZSC 134.16 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.17 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.more favourable verdict)18 might have been delivered if nothing had gonewrong.19[28] The use of the term "real" means that the inquiry is concerned withrealistic rather than theoretical possibilities. Errors that could not have had anyeffect on the outcome of the trial cannot found a successful appeal againstconviction on the basis of a miscarriage of justice, as was noted by theSupreme Court in Matenga.20[40] In the present case it seems to me that the ultimate question is whether adefence under s 53 was made out on the evidence. Mr Birchall elected not to call anyevidence at the trial. This is not a situation where any procedural irregularity at trialdeprived a defendant of advancing evidential material. The only thing that Mr Birchallwas deprived of was the ability to advance a submission. Moreover any theoreticaladvantages that the Judge may have heard in seeing and hearing the evidence are notmeaningful in terms of the issues to be addressed in relation to the defence. This Courton appeal is in just as good a position as the trial Judge in assessing the potentialdefence. The ultimate question is whether, on the facts as proved at trial, theprosecution established the charges beyond reasonable doubt notwithstanding thedefence.Section 53 – the defence of movable property[41] The relevant elements of the defence under s 53 are:21(a) The defendant is in peaceable possession of a moveable thing.(b) The defendant is in peaceable possession pursuant to a claim of right.(c) The defendant is defending his or her possession even against a personlegally entitled to possession.(d) The force used by the defendant was reasonable and stopped short ofstriking or doing bodily harm.18 A more favourable verdict could include an acquittal on some or all of the charges or a convictionon a lesser charge.19 Sungsuwan v R, above n 17, at [110].20 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].21 Singh v Police [2003] NZAR 596 at [15].[42] There are two initial features concerning s 53 of note. First it is one of a seriesof provisions in ss 53–56 dealing with defensive action in relation to property. Theycan be seen as a comprehensive set of provisions dealing with this issue. Secondlys 54 clarifies the scope of s 53. It provides:54 Defence of movable property without claim of right(1) Every one in peaceable possession of any movable thing, but neitherclaiming right thereto nor acting under the authority of a personclaiming right thereto, is neither justified in nor protected from criminalresponsibility for defending his or her possession against a personentitled by law to possession.[43] Reading ss 53 and 54 together makes it clear that there are two separaterequirements. First the defendant must be in "peaceable possession" of the property,and secondly the peaceable possession must be in accordance with a "claim of right".I deal with each requirement in turn.Claim of right[44] As Mr Luders submitted "claim of right" is a defined term and means a "beliefof a fact or matter of law, even if it is based on ignorance or mistake of fact".22 Ass 54 makes clear peaceable possession by itself will not found a defence. SoMr Birchall needed to be in peaceable possession, and needed to show he believed hehad a right to have possession of his car.[45] Mr Birchall elected not to give evidence. He accordingly gave no evidencethat he believed he was entitled to possession of his car. I accept that that is not fatalas there could be evidence from the other witnesses that this was Mr Birchall's belief.In advancing an argument that this was so Mr Luders referred me to the followingpassage of cross-examination where Mr Birchall questioned the employee of themechanic:Q. You don't remember me offering to pay 410 –A. I remember you offering to pay less than the bill, yeah.Q. Okay. 'Cos even Tony mentions here I offered to pay 410 –22 Crimes Act 1961, s 2, definition of "claim of right".A. I remember you paying, offering to pay less, I do remember that, yes.Q. Okay. And you know that I sent a cheque to him for 410 and he sent itback?A. Okay.Q. Okay. You didn't. Okay. And so... Okay. All right. And then whathappened was we didn't reach an agreement, right? Do you rememberme talking about an analogy of, that I was a builder and I said, "Look,hey, if I did some work on your house Tony and it cost more that Iquoted you, it wouldn't be fair to nail your front door up." Do youremember me saying that?A. I do remember you having that conversation, yeah.[46] That does not involve the witness accepting that Mr Birchall believed he hadright to possession. It amounts to Mr Birchall saying that he argued that the exerciseof the lien was unfair. The witness's acceptance that he said this does not mean thatMr Birchall had a belief that he was entitled to override the lien and have possession.Indeed the exchange recognises the existence of the mechanics right to havepossession because of a lien. That is confirmed by what Mr Birchall had earlier askedthe complainant:Q. Okay, well in your statement you said that I offered to pay you $410.A. Yeah, and what did I say?Q. Okay, and you said to me, "You're not getting your car back."A. Until you pay the bill.Q. Bill full, right and my issue was, you felt that you could hold me toransom and you didn't –A. It's not actually a ransom, but we can actually have a worker's lean onthe –Q. I under – it's true.A. Yeah.Q. As a mechanic, if you put your car into the garage and quote the job,what is the repairer – a repairer's leg – is the legal right for a repairer tohold goods, is that correct?A. No.Q. That's what the consumer says?A. Because those goods belong to me until you've paid for it.Q. I accept that and I understood that, right, but there was this issue ofdisrespect and you weren't there when Richard said this to me, okay,I'm just saying to you –A. Disrespect, I don't understand that –[47] The Judge then intervened in the questioning to say that he could not putquestions of law to the witness.[48] As I have said Mr Birchall's questions are not evidence. But in any event theprosecution witnesses did not give evidence that Mr Birchall believed he had a rightof possession even without paying for the goods. So there was no evidence before theCourt that Mr Birchall had that belief.Peaceable possession[49] In terms of peaceable possession, this requirement was addressedcomprehensively by the Supreme Court in Taueki v R.23 The Court held:[64] "Peaceable possession" must be given a meaning that gives due scopeto both the ss 52–56 defences and the s 91 forcible entry offence. Thecharacter of the possession in s 56 which justifies limited use of defensiveforce is not concerned with the quality of the possessor's title to the property,nor, generally, the basis on which possession was acquired. Overall, themeaning of "peaceable possession" which best fits the context of the CrimesAct is simply possession that has been achieved other than in the context ofan immediate or ongoing dispute. In brief, it is possession obtained andmaintained before the employment of the physical force the use of which theperson seeks to justify.24[50] In the present case I am satisfied that Mr Birchall was not in peaceablepossession of his vehicle when he pushed the complainant. The vehicle had beendelivered by Mr Birchall to the mechanics to be repaired earlier in the day. Possessionhad passed to the mechanics for that purpose. They had been given the keys to thevehicle and had a lien in relation to the vehicle entitling them to possession until thebill for the repairs was paid.2523 Taueki v R [2013] NZSC 146, [2014] 1 NZLR 235.24 See Lows v Telford (1876) 1 App Cas 414 (HL)25 See Casey Laws of New Zealand Lien (LexisNexis, Wellington) at [11]; referred to in Bay Flight2012 Ltd v Flight Care Ltd [2012] NZHC 484, [2012] NZAR 436 at [22]-[23].[51] It does not matter that the vehicle was parked in the street, rather than in theworkshop. The mechanic still had possession of it. The mechanic had parked the carin the street, locked it, and retained the keys. The mechanic retained control of thevehicle, and retained the mechanic's lien. Neither does it matter that Mr Birchall saidwhen he questioned the witnesses that he accessed the vehicle using a second set ofkeys and retrieved his Eftpos card prior to going into the workshop. Those actionswere not inconsistent with the continuation of the mechanic's lien over the vehicle.[52] There was then a dispute about the price that Mr Birchall needed to pay.During that dispute the mechanic specifically said he was exercising the lien.Mr Birchall then left the workshop and attempted to take the vehicle notwithstandingthe lien. He was only able to attempt to do so because he had brought along a secondset of keys. The first set of keys remained with the mechanic, reflecting the mechanic'sright of possession under the lien.[53] There was then a contest between the mechanic and Mr Birchall to get to thevehicle, unlock it and drive it away to win the contest for possession. Each had a setof keys. As it happens the mechanic got there first. But that does not matter. Prior tothe dispute initially breaking out in the workshop, and Mr Birchall making the attemptto take the car without paying for the repairs, it was the mechanic that had peaceablepossession of the vehicle.[54] Indeed what the case comes down to is the suggestion Mr Birchall should beable to take the vehicle without paying for the repairs and thereby defeat themechanic's lien. He was not entitled to do that. He was accordingly not entitled touse force to have possession of the vehicle under s 53. The defence is a shield not asword. It is not a section that gives justification for a person to seek to take possessionof property when another person has a right of possession. The section is more limited.[55] It may be that some of the earlier cases will now need to be considered in lightof the clarification provided by the Supreme Court in Taueki. But none of them isdirectly on point in any event. In Hastings v Police the general situation was similar,although the property in question was a wheel rather than a vehicle, and the defendanthad taken physical possession of the wheel inside the mechanics workshop before thetussle took place.26 So the defendant can be said to have been in peaceable possessionprior to any dispute. The Court also found that there had been no assertion of a lien.27Those two features means that it is different from the present case.[56] I also note the other authorities which contemplate that s 53 may be availablewhere a defendant has lost immediate possession.28 But they seem to me to involvethe defendant still taking action to defend the taking of the property when a contest forpossession is realistically still alive, and the defendant is still defending the peaceablepossession he or she previously had. Each of those cases will turn on their own facts.As the Supreme Court outlined in Taueki, what is important is whether a defendant hasbeen in peaceable possession, and is acting defensively on the facts.29[57] I also reject Mr Luders argument that the case turns on very fine distinctionson precisely who had possession of the vehicle, and in those circumstances this Courton appeal should not determine those matters as they required express findings of thetrial court. I do not agree. The facts as found were clear. Based on those factsMr Birchall did not have peaceable possession before the tussle occurred.[58] For these reasons I conclude that Mr Birchall was not in peaceable possessionof his vehicle before pushing the complainant away from it. I have earlier held thathe did not call any evidence that he believed he had a right to possession. It is apparent,therefore, that s 53 was not made out on the facts established at trial. It follows therehas been no miscarriage of justice notwithstanding the irregularities at trial.[59] For completeness I note that, had it been necessary to assess whether the forceused by Mr Birchall was reasonable, I may well have accepted Mr Luders submissionthat it would not be appropriate on appeal for the Court to find against Mr Birchall onthis issue. It is true that the Judge held that on the third occasion of pushing away thatMr Birchall "probably" whacked the complainant across the chest. But probabilitydoes not meet the required standard of proof, and in any event the Judge's findings26 Hastings v Police, above n 7, at [4].27 At [20].28 Ruwhiu v Police HC Auckland CRI-2008-404-0259, 22 December 2008; Manase v Police HCAuckland CRI-2006-404-39, 21 July 2006; Forster v Police, above n 10.29 Taueki v R, above n 23.were not directed to the elements of s 53. So I would not have held against Mr Birchallon this point alone.Result[60] For the above reasons I accept that there were material irregularities in themanner that the trial was conducted, and in particular material failures by the Judge toallow Mr Birchall to properly present his defence to the charges. But I conclude thatthere has been no miscarriage of justice as a consequence as I am able to fully assessthe defence that is raised, and have concluded that it is not available. In particularMr Birchall was not in peaceable possession of his vehicle, and neither did he believehe was entitled to possession when he pushed the complainant three times in order totake that vehicle.[61] For these reasons the appeal is dismissed.Cooke JSolicitors:Public Defence Service, Wellington for the AppellantCrown Solicitor, Wellington for the Respondent