SLATER V ATTORNEY-GENERAL CIV 2005-404-003728

SLATER V ATTORNEY-GENERAL CIV 2005-404-003728 30 March 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-003728BETWEEN RENO JOHN SLATER Appellant AND ATTORNEY-GENERAL ON BEHALF OF THE POLICE OF NEW ZEALAND Respondent Hearing: 2 February 2006 Appearances: J F Mather for Appellant G A D Neil for Respondent Judgment: 30 March 2006JUDGMENT OF KEANE JSolicitors: Upper Harbour Law Centre, Auckland for Appellant Crown Solicitor, Auckland for Respondent[1] On 16 May 2002 police officers assisted a car rental company, Matthew Rentals Limited, the owner of a Nissan Bluebird car, to repossess it after it was found immobile, partly over a driveway, in Dawson Road, Otara. The car was damaged and under the hire agreement MRL was entitled to immediate possession. [2] The car was then occupied by Mr Slater, asleep in the front passenger's seat, and by Mr Wirehana, asleep in the back, as it had been in excess of an hour earlier when the police first inspected it. When wakened and asked to leave the car so that MRL could resume possession they did not respond. They were passively, if not actively, resistant. When Mr Slater's leg was pulled he kicked out. To abstract them without having to enter the car one of the officers sprayed between them, as he said, a short burst of OC spray. [3] Mr Slater, in contrast to Mr Wirehana, responded, as the police contend, aggressively. Outside the car Mr Slater was subdued, handcuffed, and arrested for disorderly behaviour, but held for a breach of the peace. At the Papakura Police Station he was first detained in a detoxification cell, his arms and legs tied together with plastic ties. He was then moved to a cell with a bed for the night. In the early morning he was released without charge. [4] In June 2005 Mr Slater's claim in the District Court for damages for battery, false imprisonment and related breaches of ss 21 and 22 of the Bill of Rights, relying either on his own version of events or that conceded by the police, was dismissed outright. The Judge concluded that the police, as agents for MRL, and possessing all its rights as owner, were entitled at common law to use reasonable force to repossess the car, and in the exercise of their usual powers to respond to Mr Slater's response; and that the force they used was no more than was reasonable. Mr Slater was afforded his rights and he was not unlawfully detained. [5] On this appeal there is no challenge to the Judge's acceptance of the police account. But even on that account, it is contended, Mr Slater ought to have succeeded in his action. The police, acting as MRL's agent, and not in the ordinary exercise of their duty, had no right to use force, let alone pepper spray. Nor, once Mr Slater reacted, even overreacted, were they entitled to invoke their usual powers.In subduing him they subjected him to battery and he was arrested and detained unlawfully.Context[6] On 16 May 2002 at 9.10pm Sergeant Meale and Constables Gibson and Wynyard, it was uncontested in the District Court, were directed to Dawson Road, Otara, to what was thought to be a crash scene. They found there MRL's Nissan car on the side of the road, partly over a driveway. It had suffered frontal damage and was immobile, but there was no debris suggesting that it had crashed there. There had been no complaint that it had been stolen. [7] Inside the car were Mr Slater in the front passenger seat and Mr Wirehana in the back seat, both asleep. The officers woke them and Sergeant Meale asked them to identify who the owner was and where it was that the car had suffered the damage. Both, he said, became abusive. Neither claimed to know who the owner was or how they had got to Otara. Both were extremely intoxicated. There were open spirit bottles inside the car. [8] After taking the car keys the officers left Mr Slater and Mr Wirehana where they were and went to the Otara Police Station. There Sergeant Meale confirmed that MRL was the owner of the car and contacted MRL's managing director, Mr Matthew. At 10.40 pm the two met in Dawson Road, Mr Matthew accompanied by his wife Ms King, and Sergeant Meale by Constables Gibson, Wynyard and Smith. [9] Mr Smith confirmed to Sergeant Meale that MRL wanted to invoke its right to repossess the car on account of the damage and to ensure that it suffered no further damage. Complicating that was that Mr Slater and Mr Wirehana were still in the car and again asleep. Sergeant Meale saw it as the duty of the police to assist. [10] Sergeant Meale wakened Mr Slater and Mr Wirehana and told them that MRL was to repossess the car. It is not clear how well either heard or understood this or Sergeant Meale's offer of transport. They were still affected by alcohol and may still have been partly asleep. They did become resentful and abusive. Sergeant Mealeattempted to rouse Mr Slater by pulling his leg. Mr Slater reacted by kicking out. Neither he nor Mr Wirehana left the car. [11] Sergeant Meale instructed Constable Wynyard to spray a short burst of pepper spray into the car. He hoped, by that means, to take possession without any struggle within its confines. Constable Wynyard first warned Mr Slater and Mr Wirehana that unless they got out he would use the spray as instructed. They remained where they were. He sprayed between them, he said, a short burst of OC spray, touching neither directly. Each reacted immediately. [12] Mr Slater, all witnesses for the police said, stormed out of the car towards Sergeant Meale, swinging his arms. To subdue him Sergeant Meale backed away and he and Constable Wynyard each took one of Mr Slater's arms, turned him, pinned him against the car and attempted to handcuff him. When Sergeant Meale stepped away to speak to Mr Wirehana, Constable Smith stepped in. Constables Smith and Wynyard took Mr Slater to the ground and after a struggle, partly on the grass verge and partly on the road, pinned and handcuffed him and placed him in the patrol car. [13] During the struggle as it ensued, or towards the end, Sergeant Meale advised Mr Slater that he was under arrest for disorderly behaviour but confirmed, before Mr Slater was taken to the patrol car, that he was to be held for a breach of the peace. Sergeant Meale had by then accepted, as he confirmed in evidence, that Mr Slater might still have been so intoxicated, when in the car, that he might not have understood why he had been asked to vacate it. [14] In concluding that the police were entitled to use reasonable force to abstract Mr Slater from the car by use of OC spray, and to respond to his response, the Judge rejected Mr Slater's complaints that, once out of the car, he was punched and, when pinned on the ground, sprayed in the face with OC spray. Ms King confirmed such a use of the spray outside the car but her evidence was in contrast to that of the other witnesses. Had Mr Slater been sprayed as he said, the Judge held, he and the constables pinning him would have suffered tangibly. There was no evidence of that happening.[15] The Judge rejected all of Mr Slater's later complaints: that on the way to the Papakura Police Station the police withheld telling him what he had done wrong or what their badge numbers were; that at the police station, in the detoxification cell, he was left on the floor for 10 to 15 minutes with his wrists and ankles tied intolerably tightly in the urine of a previous occupant; that he was thrown twice against the wall of the cell. Mr Slater was lawfully arrested and detained, the Judge held, and subjected to no more force than was reasonable.Justification for force[16] In the District Court the Attorney General did not deny that the police did use force to remove Mr Slater from the car, but invoked the common law defence, which justifies the use of reasonable force to retake goods unlawfully withheld or interfered with: Blades v Higgs (1861) 142 ER 634; 10 CB (NS) 713; De Lambert v Ongley(1924) NZLR 430, Sim J; see also O'Sullivan v Leonard (1911) 6 MCR 107. [17] In this the Attorney General relied on Mr Matthews' decision, on behalf of MRL, at the roadside, to terminate the hire agreement with Forsythe Paint and Panel invoking MRL's right to 'immediate possession in the event of damage to the vehicle.' In repossessing the car as MRL's agents, the Attorney General contended, the police were armed with that right. [18] By contrast, the Attorney General contended, Mrs Wirehana, Mr Wirehana's mother, who had the car as a bailee courtesy of Forsythe, had no better right to possession than Forsythe enjoyed as hirer. Mr Wirehana, as Mrs Wirehana's sub-bailee, assuming that is what he was, the Attorney-General contended, was no better placed. Mr Slater, as Mr Wirehana's invitee, was placed even more tenuously. By remaining in the car and refusing to get out, the Attorney General contended, Mr Slater withheld possession or interfered with MRL's right to it; he was in a state of trespass: Wilson v New Brighton Panelbeaters [1989] 1 NZLR 74, at 77. [19] The Judge accepted this submission in its entirety without saying more. He saw no need to refer to s 52(1) of the Crimes Act 1961, also invoked by the Attorney General, which excuses reasonable force, not involving any assault or bodily harm,to resist a trespasser taking goods, or to retake goods held by a trespasser. The Judge said:I accept the contention and submission for the defendant that it is a common law defence available to the defendant in using reasonable force to recover chattels being wrongfully withheld from the defendant. Mr Matthew, on behalf of the owner of the vehicle, in the circumstances of the vehicle's disposition in a street in an undriveable condition, and in terms of the document of hire disclosed in the agreed bundle of documents, was properly entitled to ask the police to obtain possession of the vehicle. I accept that the plaintiff was lawfully removed from the vehicle and subsequently lawfully arrested and detained.[20] As to the causes of action in arbitrary arrest and unlawful imprisonment at common law or deriving from the New Zealand Bill of Rights Act 1990, the Attorney General relied on the various statutory powers of arrest without warrant that there are, particularly where there is a breach of the peace or disorderly behaviour: ss 31, 42, 315 Crimes Act 1961; s 39 of the Summary Offences Act 1981. The Judge, accepting this argument, said:The evidence is that the plaintiff was lawfully arrested and detained and that the defendant is therefore protected from liability by virtue of the fundamental position of the Crimes Act which is more particularly set out in submissions by Mr Burns. There was reasonable force in respect of the arrest and subsequent detention of the plaintiff in the Papakura Police Station. Using the civil standard of proof, on the balance of probability, and applying that to the evidence before me, there is no evidence that the detox cell was in a condition and that Mr Slater was subjected to any unhygienic or unfair or intolerable conditions insofar as urine etc is concerned.Appellant's position[21] On this appeal, it is contended, the Judge held, without saying why, that the police were entitled under the common law to use reasonable force to recover the car for MRL, but, even on the police account, which the Judge accepted, there was no basis in the evidence for that conclusion. [22] The evidence was that the car had been rented to Forsythe, between 8 and 27 May 2002, that it was to be used by Forsythe as a courtesy car and that Forsythe had lent the car to Mr Wirehana's mother, from whom Mr Wirehana had it. Mr Slater was in the car at his invitation, and therefore lawfully. Under s 52 of the Crimes Act1961, it is contended, Mr Wirehana and Mr Slater then enjoyed 'peaceable possession under a claim of right'. It may even be, as I understand the argument for Mr Slater, that if anybody had the right to use force it was he and Mr Wirehana:Dharam Singh v Police [2003] NZAR 596, Williams J. [23] Moreover, it is contended for Mr Slater, the common law defence on which the Attorney General relied, and which the Judge affirmed, deriving from Blades v Higgs, which applies in New Zealand as a result of De Lambert v Ongley, is too widely expressed and ought not to be taken any longer to state the law. It can justify possession being resumed by force, where the one who retains possession disputes relinquishing it and came by it innocently. The principle in Toyota Finance Australia Ltd v Dennis ; Tekitu Pty Ltd v Dennis (2003) 58 NSWLR 101 (CA), a case to which I referred counsel after the appeal was argued, it is contended, ought to be preferred. There the right of forcible recaption was confined to the case where the one in wrongful possession had been a trespasser from the first. That is not this case.[24] Consequently, it is contended, the officers lacked authority to use force in any degree, whether reasonable or not. In abstracting Mr Slater from the car and restraining, indeed subduing him, and in taking him to the police station and holding him overnight, they are culpable, it is contended, of battery, arbitrary arrest and imprisonment; all in breach of ss 21 and 22 of the New Zealand Bill of Rights Act 1990. [25] Alternatively, it is contended, if as MRL's agent the police did have the right to use reasonable force to retake the car, how could that have entitled them to use OC spray if MRL, their principal, did not have that right? They acted beyond the scope of their agency and everything that they did afterwards was equally lacking in legitimacy.Scope of common law defence[26] The right of recaption, as Blades v Higgs expresses it, may well deserve to be revisited in New Zealand. In De Lambert v Ongley Sim J applied the principle it pronounces but, as he said, it was controversial even when first pronounced. He sawit as clear authority, because he thought it tacitly approved on appeal by the House of Lords. It may have been adhered to since, but the cases have been infrequent and are all, Toyota apart, expressions of a different age. [27] In Toyota a strong majority of the New South Wales Court of Appeal, Sheller JA with whom Meagher JA agreed, preferred instead to restrict Blades v Higgs to the case of outright trespass. It may be, as Handley JA said in minority, in his exhaustive review, and as the Attorney General says on this appeal, that this restriction rests only uncertainly on such authorities as there are. But the more pertinent question is, I think, whether the explicit policy underpinning Blades v Higgs enjoys, or ought to enjoy, currency any longer. [28] In Blades v Higgs the Court of Common Pleas held that the right of forcible recaption, even where the one in possession had come by it without trespass, was a sensible and commensurate resort to self help. It held, at 637:If the owner was compellable by law to seek redress by action for a violation of his right of property, the remedy would be often worse than the mischief, and the law would aggravate the injury instead of redressing it.[29] In Toyota, by contrast, Sheller JA, with whom Meagher JA agreed, preferred instead, at 131-133, relying on Professor Fleming's analysis, to categorise forcible recaption as a privilege and not a right. He described Blades v Higgs as unconvincing, as unsupported by precedent, and at 133 as encouraging resort to force in any dispute as to possession:It for no satisfactory reason encourages forcible, perhaps violent redress where none is required It is quite different in kind from the case where a person takes from its owner by a trespass a chattel that that person knows he or she is not entitled to.[30] Sheller JA and Meagher JA considered that in such a case there should be resort to law; and in that echoed what Nolan LJ had to say in Lloyd v DPP [1992] 1 All ER 984, a car clamping case in which the English Court of Appeal concluded that, even if the clamping were unlawful, that did not entitle the car's owner to remove the clamp. Nolan LJ said at 922:In my judgment the suggestion that there was a lawful excuse for (the defendant's) action is wholly untenable. At worst what he had suffered was asmall wrong. The remedy for such wrong is available in the civil courts. That is what they are there for. Self help involving the use of force can only be contemplated where there is no reasonable alternative.[31] If this issue had arisen in an action begun in this Court that is the policy I would apply: I would prefer the Toyota principle to that in Blades v Higgs. But this is an appeal and the issue is whether the Judge in this respect made any error. He did not. His decision was founded on De Lambert v Ongley, which will continue to state the law in New Zealand until revisited by a Court exercising equal or higher jurisdiction. On this appeal it is not for me to reorder the terrain.Unjustifiable force[32] The Judge's conclusion that the police acted reasonably throughout rests mostly on inferences from his findings of credibility. But on the first and critical issue, whether the police used reasonable force to abstract Mr Slater from the car, even on the Judge's own finding, there is a severable issue of law as well as fact, raised squarely by the agreed documentary evidence, which is capable of being resolved on this appeal. [33] That issue is whether, when the police used OC spray, they were within the scope of their MRL agency or their usual authority. For, as Donaldson LJ said inLindley v Rutter [1981] QB 128 at 132:Police constables of all ranks derive their authority from the law and only from the law. If they exceed that authority, however slightly, technically they cease to be acting in the execution of their duty and have no more rights than any other citizen.[34] OC spray, as the Police General Instructions (para A269(1)), produced in the District Court confirm, is a restricted weapon: para 8, Arms (Restricted Weapons and Specially Dangerous Airguns) Order 1984. Possession of it can be illegal: s 202A of the Crimes Act 1961. And these strictures are scarcely surprising. OC spray, according to the Instruction, para A268(1):is a tactical tool for use by frontline officers for the resolution of violent incidents with minimum risk of harm to police, the public and the person involved.The effect on the person sprayed is palpable and can last for 10 to 45 minutes. OC spray, as para A268(3) says, causes:blood vessels to dilate rapidly, bronchial passages to constrict, mucus membranes to secrete freely and eyes to burn and close tightly.[35] Under s 3 of the Arms Act 1983, the Instructions continue to say, para A269(1), the police have authority to carry, and implicitly to use, OC spray. But that can only be in the usual execution of their duty. If, as was the case for the Attorney- General in the District Court, and on this appeal, they were acting solely as MRL's agent they had no right to use OC spray at all. MRL had no right to use OC spray and, as is said for Mr Slater on this appeal, the police, as MRL's surrogates, were no better placed. [36] If, however, as Sergeant Meale evidently thought, the police did not act just as MRL's agent, but assisted MRL to ensure that there was no breach of the peace, and were in the usual execution of their duty, any use of OC spray had still to be within Police General Instructions. Use of OC spray, according to para A269(3) is a 'use of force' and the Instructions prescribe closely who may use it and when and why. Officers are accountable: para A269(4). 'Improper discharge' is a 'serious disciplinary matter': para A275. [37] Typically, it is envisaged in para A269(3), OC spray will be used in the exercise of statutory powers, ranging from arrest (ss 31, 32, 39 and 40), to preventing escape or rescue (s 41), or in self defence. Nor is the fact that the power exercised is statutory of itself enough. OC spray may only be deployed, under para A270(1), most typically when those powers are being exercised, to enable officers to:defend themselves or others if they fear physical injury to themselves or others, and they cannot reasonably protect themselves, or others less forcefully, orarrest an offender if they believe on reasonable grounds that the offender poses a threat of physical injury and the arrest cannot be effected less forcefully,[38] When the police were intent on taking possession of the car for MRL neither applied. Mr Slater and Mr Wirehana, in the car, presented no immediate threat. Thespray was used pre-emptively, because the officers wished to enter the car. Nor at that point were they intent on arresting Mr Slater. He was arrested only after he reacted to the use of the spray. Instead, at the time the spray was deployed, it was in a context expressly prohibited by para A272(2): 'against people offering passive resistance'. [39] The result must be, even on the facts the Attorney-General concedes and the Judge found, that the police in abstracting Mr Slater from the car by use of spray, acted beyond their authority, however it is understood, and beyond the scope of the common law defence even on its widest reading.Conclusions[40] The police may well have been right, when Mr Matthew confirmed at the roadside that MRL wished to exercise its right to repossess the car, to ensure that this happened without a breach of the peace. What right Mr Slater and Mr Wirehana had to be in the car, or to remain there, was unclear and both were intoxicated and unco-operative. The police were also right to be concerned about their own safety. [41] In repossessing the car for MRL the police had still to act within the confines of their authority, whether as MRL's agent or in the execution of their duty, and by using the spray they used force beyond the scope of both. They failed to adhere to their own General Instructions. That use of force was battery. And, in reacting, Mr Slater cannot then be understood to have been disorderly or to have caused a breach of the peace. His arrest must then have been unlawful and any subsequent restraint equally so. [42] The judgment in the District Court must therefore be set aside. Counsel are to confer as to damages, and I am to be advised by joint memorandum within ten days of the issue of this decision whether they can be agreed. If they cannot I will fix them. I have the submissions for the police. Any submissions for Mr Slater are to be filed and served within the succeeding ten days and within the next seven days any reply. _____________ P.J. Keane J