CURTAIN v NEW ZEALAND POLICE [2021] NZHC 907

CURTAIN v NEW ZEALAND POLICE [2021] NZHC 907 [27 April 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-157[2021] NZHC 907BETWEEN STEPHEN ANDREW CURTAINAppellantAND NEW ZEALAND POLICERespondentHearing: 23 April 2021Appearances: C G Nolan for AppellantJ E Lancaster for RespondentJudgment: 27 April 2021Reissued: 28 June 2021JUDGMENT OF MANDER JThis judgment was delivered by me on 27 April 2021 at 4 pm pursuant to Rule 11.5of the High Court Rules 2016Registrar/Deputy RegistrarDate: .[1] The appellant, Mr Stephen Curtain, was convicted by Judge Saunders after ajudge-alone trial of assaulting a person with whom he was in a family relationship,namely, his then partner.1 Mr Curtain now appeals his conviction on the basis theJudge erred in his assessment of the evidence to such an extent that a miscarriage ofjustice has occurred.Background[2] The narrative that gave rise to the charge was not largely in dispute. Mr Curtainand the complainant got into a verbal argument about the complainant wantingMr Curtain to lend her money to purchase cannabis and cigarettes. The complainantacknowledged that she was at the time addicted to cannabis. Mr Curtain hadinsufficient money and refused to lend her anything. This led to an argument thatraged between them for approximately an hour.[3] The complainant was holding a cell phone which she believed was hers. It iscommon ground that Mr Curtain had gifted her the phone and that she had assumedresponsibility for paying for it. However, Mr Curtain believed that because he hadpurchased the phone and signed the contract it remained his financial responsibility.The complainant had been irregular in keeping up payments.[4] During the verbal altercation, it was alleged that the complainant raised thephone in her hand. Mr Curtain maintained that he believed she was about to throw it.He moved forward to take the phone from her. He shoved her backwards and, bygrabbing her wrists and applying pressure, took the phone from her and threw it ontoa couch before leaving.District Court decision[5] At trial, Mr Curtain advanced two defences: defence of movable propertyand/or self-defence. Both defences were rejected by Judge Saunders.[6] Judge Saunders found the defence of movable property was not establishedbecause Mr Curtain did not have a claim of right to the phone. The Judge accepted1 Police v Curtain [2020] NZDC 25758; Crimes Act 1961, s 194A.Mr Curtain had signed a contract to make payments for the phone but determined thatbecause he had gifted the phone to the complainant on the basis she could keep it forher own use, and expected her to do so as long as she kept up with the payments, hehad no entitlement to the phone. Judge Saunders further noted that if Mr Curtain wasgenuinely concerned about his liability for the phone if it were damaged, it was strangefor him to have left the phone on the couch while the complainant was in a rage.[7] In relation to the issue of self-defence, the Judge, acknowledged that it was forthe prosecution to disprove that Mr Curtain had an honest belief in the circumstancesas he believed them to be that he was justified to take the cell phone from thecomplainant in order to defend himself. However, he found himself unable to believeMr Curtain's claim that he thought the complainant was going to damage the phone,presumably by throwing it. The Judge noted that Mr Curtain's evidence was that hewas not sure of her intentions at the time.[8] Judge Saunders also held that Mr Curtain's use of force in the circumstanceswas unreasonable. Mr Curtain was aware that the complainant had previously sufferedinjuries to her wrist and was vulnerable to further injury. There was evidence that thecomplainant suffered a swollen wrist, decreased movement in her hand and loss ofsensation in two of her fingers, as a result of the force Mr Curtain used.[9] The Judge found an intentional application of force had been proved and thatthe prosecution had negatived both limbs of the test for self-defence. The Judgetherefore held that the elements of the charge had been proven beyond reasonabledoubt.Approach to appeal[10] Mr Curtain brings his appeal on the grounds that the Judge erred in hisassessment of the evidence in finding that he was not protecting moveable property inwhich he had an interest or that he was acting in self-defence.2 In the case of a judge-alone trial, Mr Curtain is entitled to succeed on his appeal if the appeal Court issatisfied that the trial Judge "erred in his or her assessment of the evidence to such an2 Crimes Act 1961, ss 48 and 53.extent that a miscarriage of justice has occurred", or that "a miscarriage of justice hasoccurred for any reason".3 Any error, irregularity, or occurrence in relation to the trialthat has created a real risk that the outcome of the trial was affected, or has resulted inan unfair trial constitutes a miscarriage of justice.4[11] The appeal proceeds by way of rehearing. This Court is entitled to form itsown view as to the facts and may reach a different view of the evidence from the trialCourt.5 In that event, it will follow that the trial Judge will have erred and the appealmust be allowed.6 However, there remains an onus on the appellant to demonstratethat such an error has occurred.The appeal[12] Mr Curtain maintains the District Court erred in two material respects infinding the charge proved. First, he says it erred by finding that he did not have aclaim of right in relation to the phone. Second, he claims the Court erred in findingthat the force used was not reasonable either in relation to the defence of the item ofproperty, namely the cell phone, or himself. Mr Nolan, on behalf of Mr Curtain,submitted that his client had a right to possession of the cell phone because he hadpurchased it. Despite having gifted it to the complainant, he gave unchallengedevidence that he was responsible for the payment of charges in respect of the phoneand the cost of any repairs. Mr Nolan submitted that those circumstances providedproper grounds for Mr Curtain's claim of right in relation to the cell phone.[13] Mr Nolan submitted that the force used by Mr Curtain was reasonable in orderto protect both the cell phone and himself. It was argued in the circumstances that noless force could have been used by Mr Nolan to protect the phone or himself and thatthe complainant's action of lifting the phone as if to throw it whilst in an angry andaggressive state required him to take the phone off her. Had Mr Curtain not acted inthe way that he did, Mr Nolan submitted he could have been hit by the phone or thephone could have been damaged. Mr Nolan also argued that the Judge erred in placing3 Criminal Procedure Act 2011, s 232(2)(b).4 Section 232(4).5 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].6 At [38].weight on Mr Curtain having taken no further steps to protect the phone after taking itfrom the complainant because Mr Curtain's concern related to the immediate risk ofdamage to the phone or harm to himself. It was submitted that there was no evidenceto suggest the phone required any further protection once taken from the complainantand placed on the couch.Analysis[14] It is not disputed that Mr Curtain's grabbing of the complainant's handconstituted an intentional application of force to the person of another, nor is there anyissue that Mr Curtain and the complainant were in a family relationship at the time ofthe incident. The ingredients of the charge were therefore established, subject to thedefences of movable property and self-defence being disproved beyond reasonabledoubt.[15] The defence of movable property is provided by s 53 of the Crimes Act 1961:53 Defence of movable property with claim of right(1) Every one in peaceable possession of any movable thingunder a claim of right, and every one acting under his or herauthority, is protected from criminal responsibility fordefending his or her possession by the use of reasonable force,even against a person entitled by law to possession, if he orshe does not strike or do bodily harm to the other person.[16] The elements of this defence were set out in Singh v Police:7(a) whether the accused is in peaceable possession of a movable thing;(b) whether that peaceable possession is pursuant to a claim of right;(c) whether the defendant is defending their possession even against theperson legally entitled to possession; and(d) whether the force used by the defendant was reasonable and stoppedshort of striking or doing bodily harm.7 Singh v Police [2003] NZAR 596 (HC) at [15].[17] Each of these ingredients needs to be considered in turn.Was Mr Curtain in peaceable possession of the phone at the time of the offending?[18] The meaning of the term "peaceable possession" was considered by theSupreme Court in Taueki v R, where it was held that it must be given a wide meaning.8In that case, the Court was concerned with the meaning of "peaceable possession" ins 56 of the Crimes Act, which concerns the defence of land or buildings. However,the Court noted that "peaceable possession" is an element in each of the relatedprovisions relating to the defence of property, including s 53.9 Whether there ispossession and whether that possession is peaceable are questions of fact to bedetermined in the circumstances of the individual case.10 After noting that factualpossession signifies an appropriate degree of physical control,11 the Court concluded:[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.(footnotes omitted)[19] In the present case, the evidence is indisputable that at the time of the allegedassault the complainant had actual possession and control of the phone. Regardless ofthe exact circumstances that led to her having possession of that item (whether bygifting or otherwise), the phone was for the complainant's use at the time. Mr Curtainhad purchased the phone because the complainant's old phone had become unreliableand he wanted to be able to keep in contact with her. Mr Curtain's evidence was that"we'd made an agreement, right, it's her phone".8 Taueki v R [2013] NZSC 146, [2014] 1 NZLR 235.9 Taueki v R, above n 8, at [42]; Crimes Act 1961, ss 52–55.10 Taueki v R, above n 8, at [48].11 At [57], quoting Lord Browne-Wilkinson in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30,[2003] 1 AC 419 at [41].[20] Mr Curtain's belief that he had a legal claim over the phone does not assist himin terms of his claimed defence of a "movable thing" because he was not in peaceablepossession of the item at the time. It is necessary that the force used was in defenceof an item in his possession. The evidence disclosed that the complainant had bothcustody and control of the phone, not Mr Curtain. Regardless of whether he believedhe had a legal claim or interest to it, it was the complainant who was in peaceablepossession of the phone, not Mr Curtain. In the absence of this element being able tobe established, the defence under s 53 was not available to Mr Curtain.Did Mr Curtain honestly believe he had a claim of right to the phone?[21] Because Mr Curtain was not in peaceable possession of the phone at the timehe used force to gain possession, whether he had a "claim of right" at the time isirrelevant. However, for completeness and in deference to the arguments made bycounsel, I also consider this element of the defence which was of some focus inMr Nolan's written submissions.[22] A "claim of right" is defined in s 2 of the Crimes Act as: a belief at the time of the act in a proprietary or possessory right in propertyin relation to which the offence is alleged to have been committed, althoughthat belief may be based on ignorance or mistake of fact or of any matter oflaw other than the enactment against which the offence is alleged to have beencommitted.[23] In Singh v Police, it was held that a claim of right can arise when a personhonestly or genuinely asserts and believes they have a right to possession of movableproperty, whether or not the belief has any foundation in law or fact and whether ornot it is a reasonable belief, although the latter consideration will be relevant to theassessment of the genuineness of the defendant's belief. However, despite thesubjective nature of a "claim of right", an honest belief in a mere moral rather thanlegal right will not be sufficient.12[24] The Crown acknowledges that the existence of an actual claim of right in lawis not necessary for the defence to be legitimately relied upon and that a defendant12 Singh v Police, above n 7, at [28] and [30].need only have had an honest belief in such a claim. However, Ms Lancaster submittedthat the Judge had not erred in finding that Mr Curtain did not honestly hold a beliefin a claim of right. It was noted the Judge had properly taken into account the fact thatthe phone was a gift and that Mr Curtain expected the complainant to keep up withpayments. However, it did not make sense for him to have left the phone with her ifhe genuinely believed that he needed to physically take it from her to protect it frombeing damaged. This apparent inconsistency in Mr Curtain's actions at the time wasemphasised by the Judge in his decision.[25] Mr Curtain's failure to protect the phone from further damage after he threw itonto the couch before leaving the property, when he was purportedly concerned aboutthe complainant's volatile rage, was an aspect of the evidence that detracted fromMr Curtain having honestly believed he had a possessory right in relation to the phone.I acknowledge Mr Nolan's submission that Mr Curtain's actions related to his concernof the risk of damage from the complainant's immediate action, which he interpretedas her being about to throw the phone, rather than to any concern that she may laterdamage that item. However, Mr Curtain's evidence was that the complainant hadbecome "very aggressive and quite abusive" so it appears the risk of damage to theitem of property still remained.[26] For myself, I can understand how Mr Curtain may have believed the immediatethreat to the phone had passed, but the fact he then just threw it on the couch tends toundermine his claim that he acted in the way he did simply to protect the item ofproperty. After almost immediately surrendering possession of the phone back to thecomplainant, Mr Curtain had no way of knowing what she could have done in the heatof the argument that he described. Ultimately, however, it is not necessary for me tocome to any concluded view.Was Mr Curtain defending his possession even against the person legally entitled topossession?[27] In relation to this third element of s 53, the same difficulty arises forMr Curtain, that he was not in possession of the phone at the time he used physicalforce. He was not defending his possession of the item, which, as the parties agree,was legitimately in the complainant's peaceable possession, and not his.Did Mr Curtain use reasonable force in defending his possession of the phone?[28] The issue of the use of reasonable force is also a key question regarding thealternative defence put forward by Mr Curtain of self-defence of himself. For thepurposes of s 53, the force used by the defendant must be reasonable and it must stopshort of striking or doing bodily harm to the other person. In Hastings v Police, it wasnoted that striking a person differed from actions which involve pushing, holding orphysically obstructing a person, although it was recognised that a push or shove couldreach a level of force that might constitute striking.13 In that case, the Courtdetermined that "[p]roportionate pushing and shoving, fending off and obstructionresulting in bodily contact would be permissible".14[29] Mr Nolan argued that Mr Curtain could not have used less force in thecircumstances and there was nothing else he could have done to either protect thephone from damage or protect himself. The difficulties with that submission aretwofold. First, Mr Curtain was aware that the complainant had suffered from aprevious injury to her wrist and that her hand was susceptible to damage. On theearlier occasion, the complainant sustained a broken thumb in circumstances notdissimilar to the present, where there had been an argument and a fight between thecomplainant and Mr Curtain. Mr Curtain was aware of the vulnerability of that hand.[30] Second, while the complainant acknowledged that there "wasn't much forceused" when Mr Curtain grabbed her hand and pulled it back, it was sufficient to causesoft tissue damage that required the complainant to see her surgeon and to receivephysiotherapy. As earlier related, the complainant was reported to have suffered aswollen wrist and loss of movement and sensation in her hand. She described it asbeing painful and the hand was required to be placed in a support brace at the hospital.Such injury goes beyond mere bodily contact or a "minor bruise".15[31] The trial Judge had the benefit of viewing photographs of the victim's wristfollowing the assault. But even notwithstanding that advantage, it is apparent thatwhen regard is had to the nature and degree of the claimed perceived risk, either to the13 Hastings v Police HC Whangarei AP24/01, 19 July 2001.14 At [30].15 Ruwhiu v Police HC Auckland CRI-2008-404-259, 22 December 2008 at [18].phone or to Mr Curtain himself, that the force used was disproportionate. It constitutedbodily harm which is a level of force that is impermissible when relying on the defenceprovided by s 53.Self-defence[32] For the same reasons, Mr Curtain's claim to having acted in self-defence mustalso fail. There was a degree of artificiality in running both defences which is apparentfrom Mr Curtain's evidence that he "was more worried about damage to the phonethan damage to myself". I accept Mr Curtain may have had more than one reason foracting the way he did but it appears his perception of the immediate risk in thecircumstances was to the phone rather than himself. Whatever his motivation,however, he was at the time aware of the complainant's vulnerability and he was notentitled to use the type of force that resulted in bodily harm to the complainant.Conclusion[33] It follows that both defences upon which Mr Curtain sought to rely must fail.Result[34] The appeal is dismissed.Solicitors:Crown Solicitor, Christchurch