Kazazi (aka Gosliga) v Police HC Wellington CRI-2011-435-2 [2011] NZHC 1354 (4 August 2011)

Last Updated: 30 March 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI-2011-435-2}

LISA MARY KAZAZI AKA LISA MARY VAN GOSLIGA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 28 June 2011

Appearances: I Hard for the appellant

M Ferrier for the respondent

Judgment: 4 August 2011

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] The appellant, Ms Lisa Mary Kazazi, faced charges in the District Court at Masterton of resisting a constable (Constable Nolan) and assaulting that constable and another (Sergeant Watson) whilst those constables were acting in the execution of their duties (ss 23(a) and 10 respectively of the Summary Offences Act 1981). After a summary trial on 13 October 2010 Judge Barry found the charges proven. At sentencing on 21 February 2011 he declined to discharge Ms Kazazi without conviction, entered convictions against her and ordered her to come up for sentence

_{if called upon within six months. Ms Kazazi now appeals her convictions.}

KAZAZI V POLICE HC WN CRI-2011-435-2 4 August 2011

Facts

[2] On 27 May 2010 an associate of Ms Kazazi, a Mr Harris, was appearing in the District Court at Masterton. There was, Judge Barry commented, a packed public gallery. Mr Harris disrupted proceedings by verbally abusing his lawyer, and then dismissing him in loud and rude terms. The Court descended into disorder, and the Judge sitting that day directed that Mr Harris be removed. As Mr Harris was being removed, Ms Kazazi – who was seated in the public gallery – attempted to pass him a large white envelope. Constable Nolan intervened to prevent that happening. Judge Barry found that Ms Kazazi’s response to that intervention contributed to the disorder in the Court. At that point Sergeant Watson arrested Ms Kazazi for disorderly behaviour, although she may not have informed Ms Kazazi of the reason for her arrest immediately. Nothing now turns on that. Sergeant Watson then motioned for Ms Kazazi to stand up, no doubt so she could escort Ms Kazazi from the Courtroom. Judge Barry found that Ms Kazazi told the sergeant to “get fucked”, and did not co-operate. The sergeant then lifted Ms Kazazi from her chair and began walking her out of the Court. The Judge accepted that Sergeant Watson did not drag Ms Kazazi out of the Courtroom, as Ms Kazazi had alleged, and that neither was Ms Kazazi pulled by the hair, as Ms Kazazi said when she gave evidence. A struggle ensued in an adjoining hallway which resulted in Ms Kazazi being held on the floor by a number of officers, including Constable Nolan. During that struggle Ms Kazazi assaulted Constable Nolan and Sergeant Watson, scratching them both with her fingernails on their hands and arms. The charges laid relate to Ms Kazazi’s actions during the struggle in the hallway.

District Court decision

[3] Ms Kazazi raised a number of defences, including – as relevant for this appeal – that of self-defence.

[4] Judge Barry found that the constables had acted lawfully in arresting Ms Kazazi, including that they had not used unreasonable force, and that Ms Kazazi had resisted and assaulted them while they were so acting in the execution of their

duties. He then considered the question of self-defence raised by Ms Kazazi. The Judge noted that, as established by the Court of Appeal in R v Thomas,1 even where the Police are acting lawfully, an accused facing a charge under s 23 of the Summary Offences Act may be justified in using reasonable force in self-defence if, as a result of a mistake of fact, he or she honestly believes that the force used by the Police is unlawful. The Judge analysed the three questions that must be asked to determine

whether self-defence is available. Those three questions are whether the accused used force for the purpose of defending him or herself, what were the circumstances as the accused believed them to be and whether the force used was reasonable.

[5] The Judge first asked himself whether Ms Kazazi used force for the purpose of defending herself. He concluded that Ms Kazazi “perceived herself as being the subject of inordinate and violent force”,2 and was therefore satisfied there was a reasonable possibility of that. He then considered what the circumstances were as the defendant believed them to be. He concluded those circumstances were that she was “put upon by superior force, and then she simply lashed out in a sustained way over a couple of minutes, trying to repel that force”.3 The third question was whether the force was reasonable in the circumstances as the defendant believed them to be. This the Judge noted was an objective test. By his assessment, this was “simply a mindless and uncontrolled reaction that was beyond any proportion to the force that was being applied, regardless of the defendant’s frailties”.4 The defence of self-defence thus failed on the issue of proportionality of force and the charges were found to be proven.

Case on appeal

[6] Ms Kazazi appeals against her conviction on the basis that her use of force was not excessive. She says the Judge was wrong in fact and law to conclude that the force used by her was unreasonable in the circumstances. For Ms Kazazi, Mr Hard argued that, having accepted that Ms Kazazi honestly believed that the force

_{being used against her was unlawful, then in view of the force actually used by the}

1 _{R v Thomas [1991] 3 NZLR 141; (1991) 7 CRNZ 123 (CA).}

2 _{Police v Kazazi DC Masterton CRI-2010-035-000999, 21 February 2011 at [35].}

3 _Ibid.

4 At [37].

Police, Ms Kazazi’s response could not be said to be disproportionate. The Police’s response was that the assessment as to whether or not the degree of force used in self-defence was proportionate was an objective one. The Judge had made that objective assessment. That was a finding of fact that this Court should not interfere with.

Analysis

[7] In terms of mens rea, a person charged under s 10 of the Summary Offences Act with assaulting a constable in the execution of their duty must be shown to have intended to apply or attempted to apply force, as for common assault under s 9. Section 10, however, requires proof of an additional mens rea element. The Court of

Appeal held as much in Waaka v Police,5 albeit in what it recognised were obiter

comments. There the Court followed Millar v Ministry of Transport,6 which established the general principle that mens rea was an ingredient of criminal liability and that mens rea must go to all ingredients of the offence. Therefore, in Waaka the Court of Appeal found that for charges under s 10 the prosecution must prove that the defendant knew that the person assaulted was a Police officer and knew that he or she was acting in the execution of his duty, or that the defendant wilfully shut his eyes to these possibilities, or was indifferent to whether or not they were the truth. Such knowledge can be assumed, unless there is a foundation in the evidence for a contrary view. There is no defence of absence of mens rea where an accused is aware that the person is a Police constable, but has an incorrect understanding of the

_{law regarding the extent of a constable’s powers.}7

[8] In R v Thomas, the Court of Appeal acknowledged that the Waaka reasoning also applied to charges under s 23 of the Summary Offences Act. That approach has

_{been applied in a number of High Court decisions.}8

5 _{Waaka v Police [1987] NZCA 69; [1987] 1 NZLR 754; (1987) 2 CRNZ 370 (CA).}

6 _{Millar v Ministry of Transport [1986] 1 NZLR 660 (CA).}

7 _{Waaka v Police, at 375.}

8 Clarke v Police HC Wellington CRI-2003-485-000028, 18 November 2003; Mackley v Police (1994) 11 CRNZ 497 (HC); Albert v Police HC Whangarei AP04/03, 25 March 2003; Frost v Police HC Palmerston North AP55/88, 8 July 1988.

[9] Here Judge Barry did not explicitly consider whether the additional mens rea required for ss 10 and 23 offences had been proved by the prosecution. That would not appear to have been an issue raised by Ms Kazazi. Nevertheless, on the basis of Ms Kazazi’s evidence, as accepted by the Judge in his discussion of self-defence, whether that mens rea had been established by the prosecution was clearly a live issue.

[10] The Judge’s approach can be understood by reference to the Court of Appeal’s decision in R v Thomas on the availability of self-defence to charges under s 23. In Thomas the Court was asked to consider two questions of law. These were:9

(1) Whether the defence given by s 48 Crimes Act 1961 is available to a defendant who obstructs police officers in their arrest of another person, the defendant having no prior association with the arresting person but having an honest belief that the police officers are causing bodily injury to the arrested person by the excessive use of force and honestly believing that the police officers are not acting in the execution of their duty whereas in fact the force being used by the police officers is not excessive in the circumstances and they are in fact acting lawfully in the execution of their duty?

(2) Whether with a charge of obstructing a police officer under s 23

Summary Offences Act 1981 the mens rea requirement that the defendant knows that the police officer is acting in the execution of his duty is met by

only proving knowledge on the part of the defendant that the police officer is exercising a prima facie legitimate type of police power such as arrest?

[11] The Court of Appeal answered the second question first. In doing so it followed and applied Waaka, notwithstanding concern that had been expressed in a number of cases about the implications of that decision. That concern is, as William Young J observed in Clarke, that allowing such a defence may promote violence against the Police.10 The Court of Appeal’s response to that concern was to comment that “considerations of reasonableness as a test of honesty should provide an adequate safeguard against resort to glib assertions of belief”.11 I note Tipping J

_{expressed some reservation as regards that response in Mackley v Police.}12

9 _{R v Thomas, at 144-145.}

10 _{Clarke v Police HC Wellington CRI-2003-485-000028, 18 November 2003, at [57].}

11 _{R v Thomas, at 144.}

12 Mackley v Police (1994) 11 CRNZ 497 (HC), at 14–15.

[12] The Court of Appeal then considered the availability of self-defence to s 23 offences, as raised by the first question of law. In answering that question in the affirmative, the Court commented:13

...In the light of this Court’s view in Waaka that the Crown must prove the accused knew that the police officer was acting in the execution of his or her duty before there can be a conviction for assault, it is difficult to see any cogent reason why self-defence or defence of another should not justify the use of force if the accused did not know the officer was so acting, or honestly believed in the existence of facts indicating he or she could not have been.

[13] It may be observed that in Waaka the Court was not considering a conviction for assault simpliciter, but rather a conviction for assault on a constable in the execution of duty. Moreover, and with reference to the first question of law put to the Court of Appeal, if a defendant has an honest belief that Police officers are using excessive force, and are not acting in the execution of their duty, it is difficult to see how the question of self-defence to charges of resisting or assault under ss 10 and 23 will arise, as the necessary mens rea will – by definition – not exist.

[14] Be that as it may, in R v Christiansen the Court of Appeal held very clearly, in the context of a charge under s 192(2) of the Crimes Act (assault on a constable with intent to obstruct in the execution of duty), that absence of mens rea and self-defence are separate defences.14 There, a Judge’s failure to clearly instruct the jury to that effect, by unsatisfactorily rolling together the two separate defences, was the basis for a successful appeal against conviction. For the Court, Richardson P observed:15

The summing up needed to spell out that lack of intent and defence of another were separate defences which the jury had to consider separately and weigh in turn. It will be apparent from what we have said that the summing up in this case failed to bring that home to the jury. Even where it appears on close analysis that the Judge referred to matters relevant to s 192, the summing up tended to roll on to s 48 considerations as if there were only one defence involved. Certainly there is a degree of common ground and factual overlap between the two but, as Thomas brings out, they are separate and each has a different focus – s 192 on honest belief that the constable was using excessive force in effecting an arrest (paragraph [7] above) and s 48 on reasonable force in the defence of another. The former is subjective, the latter objective.

13 _{R v Thomas, at 144.}

14 _{R v Christiansen CA196/01, 24 October 2001.}

15 At [17].

[15] Again, however, if such an honest belief exists, no offence will have been committed. If it does not then, at least in terms of the first question of law as put to the Court of Appeal in Thomas and answered in the affirmative, that answer does not say that self-defence is available as that answer was premised on the existence of such a belief. These matters are not without difficulty.

[16] In all this what is clear, by reference to Thomas, is that Ms Kazazi having relied on self-defence, the Judge considered the question of her honest belief not as an element of the mens rea of the offences with which she was charged, but in terms of the significance of the existence of that belief for the availability to her of self- defence. On the authority of Christiansen, that by itself would be a reason to allow Ms Kazazi’s appeal. Moreover, in accepting that self-defence was available, the Judge in effect found that Ms Kazazi had an honest but mistaken belief that the Police were acting unlawfully. It follows, in my view, that Ms Kazazi could not, therefore, be guilty of the charges she faced. On that basis, I would allow Ms Kazazi’s appeal against her convictions on those charges, although in doing so I observe, as indeed the Court of Appeal did as regards the appellant in Thomas, that she may have been lucky to get such a finding in her favour.

[17] Having reached that conclusion, I then considered whether, like the Court of Appeal in Waaka, I should allow the appeal, but to the limited extent of amending the two assault convictions to ones of common assault. Given the way the Judge had reached his decision in the District Court and Ms Kazazi’s appeal had been argued before me, that conclusion, and the further question it raised, were not matters on which I had heard submissions from either of Ms Kazazi or the Police. I therefore asked for further submissions from the Police and Ms Kazazi, and I thank counsel for those submissions.

[18] Very much in summary, for the Police Mr Ferrier acknowledged the reasoning which had brought me to the conclusion that I should allow Ms Kazazi’s appeal against her convictions on the charges she faced. However, Mr Ferrier invited me to reach the conclusion that Ms Kazazi did not honestly believe the Police were using excessive force. If I declined to differ from the Judge on that matter, I

should nevertheless - as the Judge in effect had done – find that as regards self defence the force she had used was disproportionate.

[19] For Ms Kazazi, Mr Hard invited me to conclude that I could not be satisfied beyond reasonable doubt that the Police had used reasonable force or that, even if they had, Ms Kazazi’s use of force in self-defence was unreasonable.

[20] In considering this matter I note that in Waaka, no question of self-defence would appear to have been raised. Thus, although the defendant was found not to have the necessary mens rea to be guilty of assaulting a constable in the execution of his duty, he nevertheless had the necessary mens rea for common assault and there was no doubt that the actus reus existed. By distinction, here self-defence was raised, albeit in response to charges of resisting and assault of constables in the course of the execution of their duty. The question therefore becomes the availability of that defence to a charge of common assault on a constable acting lawfully but where the accused has an honest and reasonable belief the constable was acting unlawfully.

[21] On the basis that, as per Christiansen, that defence in principle is available and on the further basis that there was no challenge to the Judge’s answers to the first two questions involved in determining the availability of self-defence and applying Thomas, the question is whether the Judge’s finding of disproportionality should, as argued on this appeal, be upheld.

[22] Having read the transcript of evidence, I have – on reflection – little doubt that it should be. Viewing the incident as a whole, and accepting that Ms Kazazi had an honest belief that the Police were acting unlawfully, by my assessment it was her increasingly violent responses to the Police’s lawful actions that resulted in the incident in the adjoining hallway where – of necessity it would appear – a number of Police were required to restrain her in the course of a lawful arrest. The reasonable person, in her circumstances and even if they had had such a belief, would not, in my view, have escalated their response in the way she did. In reaching that conclusion and in assessing the likely response of a reasonable person I have – with reference to the questions I put to counsel during the hearing of this appeal – regarded as

significant that this incident arose in the context of a crowded Courtroom that was rapidly descending into disorder, where clearly identified members of the Police were endeavour to maintain or restore that order. Those are matters which, in my view, would have influenced a reasonable person in their response to the situation.

[23] I therefore allow Ms Kazazi’s appeal against her convictions on the basis that her conviction on resisting is quashed, and that her two convictions for assault on a constable in the course of execution of duties are replaced by convictions for common assault, leaving the order to come up for sentence on those convictions if called upon standing.

“Clifford J”

Solicitors:

I Hard, P O Box 71, Greytown 5742 for the appellant ([e-mail])

The Crown Solicitor, P O Box 10-357, Wellington for the respondent ([e-mail])