The Queen v Hills [1999] NZCA 169; (1999) 16 CRNZ 673 (1 September 1999)

Last Updated: 1 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA238/99

THE QUEEN

V

KATHLEEN WINIFRED HILLS

Hearing:	25 August 1999 (at Auckland)
Coram:	Elias CJ Blanchard J Anderson J
Appearances:	P F Wicks for Appellant M J Thomas for Crown
Judgment:	1 September 1999

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1] This appeal is against a conviction for assault using a weapon (s202C Crimes Act 1961). The weapon was a Rottweiler dog. The appellant accepts that a dog can be a weapon within the section. We therefore have not heard argument on this point, nor been asked to consider it.
[2] The trial upon indictment in the District Court at Auckland was before a Judge sitting alone.
[3] A woman named Veronica Jacom had been granted bail subject to a curfew and a requirement that she reside at the appellant’s address in Sandringham, Auckland. On two nights running police officers had come to the house to check on whether Ms Jacom was present and had been told she was not. At about 2.15am on the next night, Monday 19 October 1998, two uniformed officers, a man, Constable Meyer and a woman, Constable McLeod, knocked on the door arousing Ms Hills from her sleep. She opened the door and they asked her if Ms Jacom was there. Obviously annoyed by being disturbed at that hour, Ms Hills refused to say. The constables were standing in the front door positioned so that it could not be closed without their moving away. Both said that Ms Hill at that point used words which indicated that she wanted them to leave. Constable Meyer said that they were told to “fuck off”. Constable McLeod agreed that Ms Hills told them to leave the property.
[4] At this point the accounts given by the two constables diverged. Both had heard a dog barking. Constable Meyer said that Ms Hills opened her bedroom door and caused an adult Rottweiler dog to come out into the hallway. She then motioned it towards them by pointing and hissing.
[5] The dog advanced from the stationary position some 2 or 3 metres until it was touching his leg, but it did not bite him. Nor, he said, was it barking at that time and he could not see if it was baring its teeth. He said that Constable McLeod encouraged the dog to go back into the bedroom. He then arrested Ms Hills. He had thought he was going to be bitten.
[6] Constable McLeod gave much the same description of Ms Hills motioning the dog towards them in the doorway. She said the dog was growling and barking at the time and that it trotted up to them. She too feared she was going to be bitten. But she accepted that between the time when Ms Hills had told them to leave and the time when the dog was fetched from the bedroom, Ms Hills had gone off to make a telephone call to find out what her rights were. Phone records confirmed a call at 2.14a.m. After Ms Hills had used the telephone she had come back again and wanted them to leave. It was at this point, according to Constable McLeod, that she told them to “fuck off”.
[7] Ms Hills gave evidence. She had asked the police officers why they had come to the house at 2.00 in the morning “because I’d got such a fright.” She had not been at home the previous nights and was unaware police had come before. She had asked Constable Meyer to remove his foot from the door and asked the police officers to leave her property. When they would not go she made two phone calls seeking advice. She then returned to the door and again asked the police officers to leave. She denied swearing at the police. It was only at that stage that she got the dog out of the bedroom. She claimed that the hissing noise was her method of getting the dog’s attention prior to giving a command. The dog is 12 years old and needs to go outside to the toilet several times a night. She had pointed to the doorway telling the dog to go out. She also claimed that after doing so she had gone to the toilet for several minutes and had been arrested when she had come back to the door.
[8] Ms Hills’ daughter also gave evidence. From her bed she had heard her mother ask the policeman to get his foot out of the door and tell the officers she was going to ring a lawyer.
[9] The District Court Judge had given a ruling at the conclusion of the Crown case. Mr Wicks had argued at that time that Ms Hills was entitled to use such force as was reasonable in all the circumstances to require the police officers to leave the premises. He had argued that all Ms Hills had done was in a very reasonable manner to utilise the services of the dog to persuade the police officers to leave the property. The Judge had rejected that submission and confirmed this in his decision “because in my view clearly the Police officers were initially on the property pursuant to a lawful purpose and they were accordingly quite within their rights to explore every possibility to ascertain if the person they were endeavouring to locate was in the house.” The Judge also said that, accepting the evidence of the two police officers, as he did, he was of the opinion that “there was completely insufficient time available to them to leave the doorway entrance prior to the Accused acting in the manner that she did, a manner which in my opinion comes within the definition of ‘assault’”. The Judge said that there was no justification whatsoever for Ms Hills to commit the assault in the manner which she did. He was

firmly of the opinion that the Accused did in fact by bringing the dog Karma out of the bedroom and making a pointing gesture towards Constable Meyer and at the same time making a hissing sound induced [sic] the dog Karma to move towards Constable Meyer. Constable Meyer as a result of that action by the accused and his resultant anxiety and apprehension caused by the approach of the dog led him to believe that he was likely to be bitten. That same anxiety or apprehension was shared by his colleague Constable McLeod.

[10] Accordingly the Judge found the charge proved and convicted Ms Hills. However, when he came to sentence her, and after pointing out that if she had answered the questions put by the police, then the whole incident would have been averted, the Judge said that the assault was “of a technical nature.” In the circumstances, placing great weight on the fact that Ms Hills was of previously unblemished character (she had made “a very, very substantial contribution to society”), he convicted and discharged her.
[11] In his submissions for the appellant Mr Wicks summarised what he described as well settled principles applicable to entry on to private property:

• [a] a police officer has an implied licence to enter property to make enquiries;
• [b] the occupier of the property may expressly revoke that implied licence; and
• [c] on the revocation of the implied licence the police officer is obliged to withdraw immediately, and has a reasonable time to do so.

(Davis v Lisle [1936] 2 KB 434; Robson v Hallett [1967] 2 QB 939 and Coster v Police (1992) 10 CRNZ 54.)

[12] Counsel noted also the observation of Thomas J, for the Court of Appeal, in R v Bradley (1997) 15 CRNZ 363, 367-369 that the scope of the implied permission for a police officer to pursue legitimate business will not necessarily be the same as that for members of the public. The scope of the authority to enter may vary so as to permit that which, having regard to the householder’s reasonable expectation of privacy, is reasonable in the circumstances. The Court had gone on to observe that the implied licence to enter must be defined in terms of what is reasonable to enable the police officer to communicate with the occupier of the dwelling house.
[13] Against this legal background, which we did not understand Crown counsel to dispute, Mr Wicks submitted that it was not open to the Judge on the whole of the evidence before him to conclude that when Ms Hills motioned the dog towards the police officers they were lawfully present on the premises because, although their licence to be there had been withdrawn, they had not yet had a reasonable period in which to vacate the premises. Mr Wicks pointed to the evidence of Constable McLeod that before Ms Hills went off to use the telephone she had already indicated that the police officers should leave. They had had plenty of time to do so before she returned. Constable Meyer had not mentioned the making of any telephone call but all other witnesses did so and there was a record of a phone call at 2.14am.
[14] We are reluctant to disturb a trial Judge’s finding of fact but, having been carefully taken through the evidence by Mr Wicks and reflected upon it, we are drawn to the conclusion that on this occasion the Judge has erred in his assessment of the facts and this has led him to err in his conclusion that the police officers were lawfully on the premises when the dog advanced upon them. They had been asked to leave before the telephone calls and had ample time to do so while the appellant was on the telephone. We think, however, that the Judge is not shown to have been wrong to reject, as he must have done, Ms Hills’ explanation that she was merely urging the dog to go outside to answer a call of nature. The Judge was entitled to conclude that she was directing the dog towards the police officers.
[15] However, if the Judge had taken the view that the police officers were technically trespassers at the time when it became a weapon of assault, he would then have had to put his mind to the defence which is provided to an occupier of property by s56 of the Crimes Act 1961:

56. Defence of land or building-

(1) Every one in peaceable possession of any land or building, and every one lawfully assisting him or acting by his authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him therefrom, if he does not strike or do bodily harm to that person.

In this context “force” must, we think, include the threat of force, consistently with the definition of “assault”.

[16] There was of course no striking or doing of bodily harm in this case. The issue is whether Ms Hills, as one in peaceable possession of a building was justified in her actions relating to the dog because she was merely using reasonable force to prevent the police officers from trespassing or to remove them from the building.
[17] It is true that the Judge made a finding that there was no justification for Ms Hills’ action with the dog but it is to be remembered that he did so on the basis that the police officers were still on the property lawfully. In passing we refer again to his remark that they were within their rights to explore every possibility to ascertain if the person they were endeavouring to locate was in the house. It is enough to say that this proposition is doubtful. It can be accepted that, notwithstanding the hour, the police had an implied licence to go to the door of the house in the execution of their duty, namely checking on whether Ms Jacom was observing the condition of her bail. But we have not been referred to anything which would authorise them to conduct a search without the consent of the occupier. Nor did it appear that Ms Hills had any obligation to answer the enquiry made by the police officers, although, as the District Court Judge observed, if she had given a direct answer to an explicit question, the whole incident would never have occurred.
[18] The position is therefore that the Judge’s assessment of the reasonableness of Ms Hills’ use of force for the apparent purpose of removing the police officers from her doorway was made on the basis of an incorrect assessment of the respective legal positions of the appellant and the police officers. From his remarks on sentencing the Judge does not appear to have regarded the matter as particularly serious, even upon the basis on which he was approaching it. Examining what occurred on the proper basis, namely that, technically, a trespass was occurring, we take the view that it has not being shown that what Ms Hills did exceeded the bounds of reasonable force. It can well be appreciated that the incident may have been momentarily frightening for the police officers when a large dog of a breed with a reputation as fierce guard dogs came towards them in the hallway but, judging by its actions, the elderly dog itself did not understand its mistress to be urging it to attack. It was merely a means of warning the police officers off the premises where they were no longer supposed to be.
[19] We should in no way be taken to be condoning the idea that someone who sets a potentially dangerous dog on a police officer will escape criminal liability. Nor do we overlook that an assault includes a threat of the application of force to the person of another if the person making the threat has or causes the other to believe on reasonable grounds that he or she has the present ability to effect the purpose. But in this case the dog’s touching of the constable’s leg scarcely constitutes an application of actual force and in the circumstances what Ms Hills did has not been shown to be an unreasonable threat of force for the purpose of removing trespassers.
[20] Accordingly we allow the appeal and quash the conviction.

Solicitors
Haigh Lyon, Auckland for the Appellant
Crown Law Office, Wellington for the Respondent