Police v Birchall [2022] NZDC 3191 (8 March 2022)

Last Updated: 8 June 2022

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT HUTT VALLEY I TE KŌTI-Ā-ROHE KI TE AWAKAIRANGI

CRI-2019-096-001173 [2022] NZDC 3191

NEW ZEALAND POLICE Prosecutor

v

PHILLIP BRIAN BIRCHALL Defendant

Hearing:	14 January 2022
Appearances:	E Scown for the Prosecutor Defendant appears in Person
Date of Decision:	8 March 2022

RESERVED DECISION OF JUDGE B A GIBSON

[1] On 20 March 2019 Mr Birchall took his motor vehicle to [business A], a business undertaking mechanical repairs, at Ferguson Drive, Upper Hutt for repairs to the CV joints of his car.

[2] The defendant worked nearby. He had not previously used [business A] and had sought to have the work done by a mechanic in another business, but the work could not be undertaken within a suitable timeframe. Consequently, he called at [business A], was given an estimate of $410 for the work which included GST. Shortly thereafter Mr Birchall phoned [name deleted – the complainant], the proprietor of the business who had given him the estimate, and accepted it. He delivered the car to him at approximately 8.00 am on 20 March 2019.

NEW ZEALAND POLICE v PHILLIP BRIAN BIRCHALL [2022] NZDC 3191 [8 March 2022]

[3] He left a key for the vehicle at the garage. Mr Birchall, in his evidence, said that in his telephone discussion with [the complainant] prior to bringing the car to the garage, he said that if the job was going to cost more than the estimate he wanted to be phoned first and also phoned when the car was ready to be collected. In any event Mr Birchall called in at the workshop mid-morning to see how the work was going. At that time the vehicle was being worked on by a mechanic, [name deleted – employee 1]. Mr Birchall asked him how the work was progressing and was told the vehicle would be ready for collection in about an hour-and-a-half.

[4] The work that was undertaken involved the CV joints which are part of the axle for the steering of the car. [Employee 1] said normally the work takes about an hour each side but sometimes if the joints have seized it takes a bit longer, in this case an- hour-and-a-half on each side rather than an hour.

[5] Consequently, because of the additional time taken to complete the work the final bill was adjusted to account for an additional one hour’s labour. When Mr Birchall returned the car was no longer in the garage but was parked on the street as the work had been completed. Mr Birchall had a second set of keys and gained access to the car before going into the garage. He wanted to collect his Eftpos card which he had left in the car. He said in his evidence he also placed his dog in the back of the car. He then went to the garage expecting to pay the estimate for the repairs of $410. He was advised of the additional charge. The complainant, who gave evidence at the first hearing of the matter on 13 July 2020 and who has since died, said he did not phone Mr Birchall because he did not have his telephone number. Either it had not been given to him or if it had, and having seen Mr Birchall give evidence that seems the more likely scenario, [the complainant] had not made a record of it. When Mr Birchall approached [employee 1] he was told the bill was now $80 more than the estimate given. He became angry and belligerent and refused to pay. He said he offered to pay $410, being the estimate he had been given but was told by both [employee 1] and [the complainant], to pay up or leave.

[6] The defendant left in high dudgeon and [the complainant] decided that he had better retrieve the car. He took a different and shorter route to the car than did the defendant. Consequently he reached the car first. [Employee 1] also left the workshop

and moved to the nearby petrol station where he could see the car and was able to watch the subsequent confrontation between the defendant and the complainant, [the complainant].

[7] As [the complainant] was about to unlock the car Mr Birchall arrived and pushed him out of the way. [Employee 1] said he saw Mr Birchall strike [the complainant] with his arm as well as push him out of the way and then saw him pushed on two further occasions as the men contested access to the car. On the third occasion Mr Birchall, a man described in evidence as being larger and taller than the late [the complainant], elbowed and shoved [the complainant] in the chest effectively causing [the complainant] to stumble backwards towards the middle of the road. Mr Birchall then got into the vehicle and drove off. [Employee 1]’s observations confirmed the similar description of the incident given by the late [complainant] when he gave evidence in July 2020.

[8] The defendant was charged with assault pursuant to s 9 of the Summary Offences Act 1981. As [the complainant] had died the prosecution successfully applied pursuant to ss 18 and 22 of the Evidence Act 2006 for the evidence he gave at the earlier hearing on 13 July 2020 to be adduced as hearsay statements.

[9] The defence to the charge is based on s 53 of the Crimes Act 1961 (the Act) which provides that every one in peaceful possession of any moveable thing, which the car plainly was, under a claim of right, is protected from criminal responsibility for defending his possession by the use of reasonable force, even against a person entitled by law to possession, if he does not strike or do bodily harm to the other person. The prosecutor accepted the defendant used no more than reasonable force but the principal issue was whether he was in peaceable possession of the vehicle given that [the complainant] claimed a possessory lien, sometimes called a workman’s or repairers lien.

Peaceable Possession

[10] Peaceable possession was considered in Taueki v R,1 a case concerning s 56 of the Act which concerns defence of land or building and which is drawn in similar terms to s 53 although it does not provide for claim of right as part of a defence to the charge. McGrath J in giving the judgment of the Court said at para [59]:

The defence under s56 is available only to persons who are in “peaceable possession” of property. In the overseas authorities discussed, for possession to be “peaceable” there must be no serious rival claim to possession being maintained when challenged to the possession of the person claiming justified use of force. This has led to the view that “peaceable possession” must be possession that previously has not been seriously questioned, such as by demonstrated opposition or legal attempts to recover exclusive possession, at the time of the exercise of defensive force.

And at para [64], in summary:

“Peaceable possession” must be given a meaning that gives due scope to both the ss 52-56 defences and the s 91 forceable entry offence. The character of the possession in s 56 which justifies limited use of defensive force is not concerned with the quality of the possessor’s title to the property, nor, generally, the basis on which property was acquired. Overall the meaning of “peaceable possession” which best fits the context of the Crimes Act is simply possession that has been achieved other than in the context of an immediate or ongoing dispute. In brief, it is the possession obtained and maintained before the employment of the physical force the use of which the person seeks to justify.

[11] In this case [the complainant] was unaware the defendant had already gained access to his car but, no doubt seeing the defendant “storm off” was concerned the defendant may have the ability to gain access to the vehicle notwithstanding that a key had been left at the garage, and if so would likely remove the vehicle with the intention of defeating the lien which [the complainant] on behalf of the garage claimed.

[12] At the time of the confrontation [the complainant] was intent on maintaining the repairer’s lien. Mr Birchall cross examined [the complainant] on the topic of the lien at the hearing in July 2020, saying that he accepted a lien was held and that he understood that but what appeared to have angered him was his perception that he had been treated disrespectively by the mechanic [employee 1] when he started to talk

1 [2013] NZSC 146.

about the costs over and above the estimate after he arrived at the garage to pay for the repairs. [The complainant] had not lost the repairer’s lien simply because Mr Birchall, unknown to him, had obtained entry to the vehicle and placed his dog there. A possessory lien is lost if possession is parted with to the owner. As is stated in Garrow and Fenton’s Law of Personal Property in New Zealand Vol. 1:2

“The underlying rule was that such a lien lasts only as long as the person exercising the lien has possession.”

[13] [The complainant] did not willingly give up possession, he was unaware that Mr Birchall had re-entered the vehicle. [The complainant] got to the vehicle first with the intention of asserting his right to the possessory lien. In the circumstances I am not satisfied that [the complainant] had given up possession of the property over which the lien was held. [The complainant] was given an estimate for the work which is not the same as a quotation for which the amount of the debt would be fixed. Mr Birchall understood that and confirmed that he did. He asserted the garage had done additional work but I do not accept that as the work contracted for was to repair the CV joints and nothing more than that had been done. It had simply taken an hour longer than had initially been anticipated.

[14] Had a quotation been given the garage would have had to bear the cost of the additional work and could not have recovered it from Mr Birchall but as only an estimate was given, and there is no suggestion of bad faith, [business A] was entitled to recover the additional amount representing an hour’s work. [The complainant] on the garage’s behalf was entitled to maintain the possessory lien for the whole of the bill until it was paid. Consequently, I am not satisfied that Mr Birchall was in fact in possession of the vehicle at the time of the assault. An assault is the intentional application of force and Mr Birchall accepted that occurred. However, he may well have believed he was in peaceable possession as he had entered the vehicle while it was on a public street away from [business A] premises.

[15] Section 53 of the Act refers to “claim of right” which must mean an honest and genuine belief to a right to possession of property. I am satisfied that Mr Birchall

2 Lexus Nexus 2010 at p 262.

had that belief, but he was wrong as I have already outlined. At paragraph [72] of

Taueki v R it was said:

[72] Some of the Crimes Act’s provisions conferring the right to use force are expressed in subjective terms that require regard to be had to the state of mind of the defendant. For example, ss 53, 54 and 91 refer to “Claim of Right”, which is an honest and genuine belief in a right to possession of property. Under those provisions it is not necessary that the belief be reasonable or that it have any foundation in fact or law.

[16] Accordingly, I accept Mr Birchall had an honest and genuine belief in his right to possession of his property, although wrongly founded as he had not paid the amount of the bill in dispute between the parties.

[17] As for the striking or bodily harm the prosecution accept that no more than reasonable force was used. In Hastings v Police3 the Court held the word strike is not be given an overly restrictive interpretation and that “proportionate pushing and shoving, fending off an obstruction resulting in bodily contact would be permissible.”

[18] The incident was no more than that. Mr Birchall was operating under a genuine but mistaken belief as to his right to possession of the vehicle. The prosecution have not satisfied me to the required standard, that Mr Birchall, even though he was mistaken as to being in peaceable possession of the car, did not hold an honest and genuine belief in his right to possession of the property, which in any event, I am satisfied he did.

[19] Accordingly, the charge has not been proved to the required standard and is dismissed.

....................................

Gibson DCJ

3 High Court Whangarei, AP24/01, 19 July 2001.