Nichols v Police HC Nelson CRI-2010-442-000027 [2011] NZHC 805 (5 July 2011)

Last Updated: 4 August 2011

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

_{CRI-2010-442-000027}

BETWEEN CLIVE ROBIN NICHOLLS Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 22 June 2011

Counsel: A J D Bamford and A S B Acland for Appellant

S K O'Donoghue for Respondent

Judgment: 5 July 2011

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.30pm on the 5th day of July 2011.

_{RESERVED JUDGMENT OF GENDALL J}

[1] The appellant was convicted after a defended hearing in the District Court at Nelson on 10 December 2010 on a charge of assault under s 9 of the Summary Offences Act 1981. He was ordered to pay reparation of $250 to the complainant, Mr H D C Baas.

[2] The appellant had also been charged with possession of an offensive weapon in circumstances that showed an intention to use it to commit an offence involving a threat of violence. That charge was amended by District Court Judge E O Blaikie, to a charge of disorderly behaviour on which the appellant was convicted and discharged.

[3] The sole ground advanced in the notice of appeal is that Judge Blaikie “made

_{a mistake in fact and law in respect of his finding that the force used was not}

NICHOLLS V NEW ZEALAND POLICE HC NEL CRI-2010-442-000027 5 July 2011

„reasonable force‟ and should not have rejected the defence of justification pursuant

to s 56 of the Crimes Act 1961”.

[4] Section 56 provides that in certain circumstances a person may use reasonable force and:

(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.

Background

[5] The appellant is a self-employed motor mechanic who operates his business from his property in Riwaka. He was engaged to service a work vehicle of Ms G M Harliwich. He had worked on a number of her vehicles over the past two years. The servicing did not involve extensive work and it was completed within a short time. On 19 August 2010 he left a message for Ms Harliwich that the vehicle was ready to be collected. Some telephone communications were made or attempted later that day. At about 9.00pm there was a conversation in which Ms Harliwich said she wished to pick up the car that night. The appellant‟s evidence was that he said that she could do so within half an hour, that is no later than 9.30pm. He brought the vehicle from his workshop and parked it outside his dwelling with the car keys in it, and the invoice on the seat. Ms Harliwich had offered to leave payment under his door but the appellant said that that was not necessary and she need not worry about the cheque that night.

[6] There was some dispute over the precise time that Ms Harliwich arrived at the property but on all accounts she, together with her son Mr Baas, did not arrive at the time expected by the appellant. It was somewhat late in the evening being around 11.30pm but she needed that work vehicle overnight as it had to have items charged so as to be able to be used in the morning. In the meantime, however, at about 9.30pm Mr Nicholls had taken the keys from the car, locked it, and placed the keys back in his workshop. He then went to bed. The Judge made an observation that he had consumed alcohol.

[7] When Ms Harliwich and Mr Baas arrived at the property (in another vehicle) to collect the serviced vehicle, it was obviously later than had been expected both by her and the appellant. She could not find the keys to the vehicle, which she had expected to have been left in or beside the car. After unsuccessfully searching for a few minutes she knocked on the door of the appellant‟s dwelling. Upon being awoken the appellant was irritated and angry.

[8] What then followed was the subject of some conflict in the evidence, although it is apparent from the appellant‟s evidence that what he said and did frightened her and her son. Judge Blaikie considered that the evidence of Ms Harliwich and her son about the extent of violence, or force, was somewhat exaggerated. Although he said “probably” the most reliable of all the evidence was that of a neighbour, the reality is the neighbour was some distance away and not able to see or hear everything that went on. The Judge‟s factual findings appear to be based in large measure upon the appellant‟s acknowledged actions in the evidence he gave. In material respects it was that he was awoken by the noise of a car and a knock on the door, but thought that if he did not get up and answer the door “they” would go away. He thought it may have been Ms Harliwich but did not know at that

stage. He said he opened the door and:1

A. ... I tell „em to fuck off.

Q. And what did they do when you then told them to fuck off?

A. She, Ms Harliwich just kept employing, [sic] she wanted her keys for her car. I said, “You‟re not getting your keys for your car this late at night”. I says, “If you don‟t go I‟ll call the cops. You are trespassing”. ... “Fucking leave”.

Q. And did they? A. No.

Q. So what did you do?

A. She still insisted all she wanted was her keys.

[9] His evidence was that Ms Harliwich and her son were standing beside the side of the vehicle in which they had arrived, the engine of which was running and

1 New Zealand Police v Nicholls DC Nelson CRI 2009-042-3251, 10 December 2010, Notes of

Evidence at 13.

its lights shining. His evidence was that he walked to a work bench in the carport area and picked up a builder‟s level, which formed the basis of the other charge of possession of an offensive weapon. His evidence was:2

I picked up off the bench a level. It was a broken piece of level. It was a plastic one. Um, it wasn‟t a solid steel or wood. It was a small plastic one, no more than 500 mm long. I pointed it at the headlights and said, “If you don‟t get this fucking car out of my shed, I will smash the lights”.

...

I had no intentions of harming or hurting them at any stage. The vehicle at that stage was my concern, because it was running, the lights are on, in my face. So I threatened the vehicle.

[10] And further:3

After I threatened to smash the lights in the car and Mrs Harliwich started screaming at me about all she wanted was her keys, the son then started,

“Leave my mother alone”. I can‟t remember exactly word-for-word, but he

said, “Leave my mother alone” and I said, “You can get in your fucking car

too”. So I walked round to the other side of the car - ... Passenger side, and in doing so, ... I placed [the] level on [a stool] before I walked up to the boy.

[11] He said he didn‟t have any use for the level and put it down:4

A. Because I was going to the boy to push him in the car. I‟d already decided, like, he‟s got to go.

Q. So what did you do?

A. I pushed the son back so I could open the car door, um, grabbed him by the shirt scruff and pushed him into the car. When he started screaming “Okay, okay, okay” I let him go so he could get into the car.

[12] The appellant‟s evidence was:5

I pushed him quite hard ... In the chest. I pushed him quite hard so he put – would move back behind the car door. I opened the car door with my left hand, grabbed him by the right hand by the scruff of the neck and pushed him into the car.

2 _{At 18.}

3 _{At 18 – 19.}

4 _{At 19.}

5 At 19 – 20.

[13] The complainant and his mother then left in the vehicle in which they had arrived, telephoned Ms Harliwich‟s partner who met them, in what he said was a “pretty distressed” state, at the police station. In cross-examination it was put to the appellant that Ms Harliwich simply wanted her keys to get her car back and the appellant‟s answer was:6

Well, that‟s exactly what she said. She just wanted her keys back. I said to her “You‟re not getting your keys” and to go. I said you are on my property, go.

He denied swinging the level at any stage, simply that “I threatened to smash the headlights”.7 When asked whether grabbing the complainant by the shirt or neck he said he grabbed him by:8

A. The shirt.

Q. So would you concede that you used a reasonable amount of force? A. Depends what you call a reasonable amount of force.

[14] The defence witness who lived next-door to the appellant gave evidence to the effect that he was awoken by the sound of a vehicle idling, looked outside, saw a light from headlights but did not have a clear view of anyone inside the appellant‟s carport but saw the appellant beside the vehicle and that he put a “young fellow” in the car and “in no uncertain terms told him to stay there”. He could hear voices raised and swearing but got the impression the appellant did not want the persons to be there.

[15] The judgment of Judge Blaikie is somewhat economical. Yet it is apparent that he made his factual findings largely on the basis of the appellant‟s own evidence. The Judge said:9

I turn to the defendant. I suspect that his alcohol consumption was a great deal more than he was prepared to acknowledge in the witness box today. I keep reminding myself that the prosecution have a responsibility. They have to prove each and every element beyond reasonable doubt. I can say that the

6 _{At 28.}

7 _{At 29.}

8 _{At 32.}

9. New Zealand Police v Nicholls DC Nelson CRI 2009-042-3251, 10 December 2010 at [2] – [3], [5] – [6].

evidence of Mr Cederman was, in my view, probably the most reliable of all evidence from the civilians.

I make a further general observation as regards the defendant‟s actions. In my view he has, overreacted. Whether that is because of concerns or because of alcohol consumption I am not sure.

...

As regards the summary offences s 9 assault allegation involving the complainant Baas, I have had some difficulty in accepting his evidence, but it would seem to me, given the evidence of the defendant himself as to what he did regarding the complainant Baas and Mr Cederman‟s evidence, that an assault did occur which involved the defendant pushing the complainant to the car.

I then turn to the question of whether the force he acknowledges, or I find was used was reasonable, and I have an indication that here we have an angry person – he may have been upset because of the time of the night and his perception of what the arrangements were – but I do not believe, on what I have heard, where there has been a level brandished, arguments and then the grabbing of the witness by the scruff of the neck, as the defendant has acknowledged, and manhandling him to the car is, in my view, reasonable. I do not accept that it is reasonable in the circumstances. What the defendant could have done, and probably should have done, is said, “I am now leaving and returning to my bed. Get off the property” and could have, and should have, left. I think he has taken matters a step too far.

[16] So although the Judge did not accept Mr Baas‟ version of all the events he clearly accepted that an assault occurred in the form that the appellant described. He was entitled to reach that view on the evidence. The issue came solely down to whether that comprised reasonable force or whether the prosecution negated the defence of reasonable force in terms of s 56.

Appellant’s contentions

[17] Mr Bamford submitted that Judge Blaikie “reversed the onus of proof” because he said that it had been the appellant‟s responsibility to walk away. Counsel submitted that that meant the onus was on the appellant to prove that what he did was reasonable. Further, counsel submitted that the Judge erred in finding as a matter of fact, in any event, that the force applied was not reasonable in terms of s 56. Mr Bamford referred to a number of High Court decisions dealing with cases where force had been applied, in various and different situations, to which s 56 may have had some application or relevance.

[18] An allied submission by counsel was that because Judge Blaikie expressed a preference for the evidence of the appellant‟s neighbour, Mr Cederman, then the Judge was bound to find that the particulars or circumstances of the offence should have been those accepted to be the most favourable to the appellant and which should have formed the basis of the Judge‟s decision.

[19] Counsel submitted that the Judge‟s conclusion that what the appellant should have done was to simply state that he was returning to his bed and the complainants were to leave was an insufficient factual finding to lead to conviction. Counsel submitted that such a conclusion ignored the fact that s 56 permitted force to be used in certain circumstances on certain conditions. So he said it was impermissible for Judge Blaikie to conclude that the force used was unreasonable because all that was required was to “walk away”. The essence of Mr Bamford‟s submission on this point was that Judge Blaikie avoided or deflected consideration of whether or not the actual force was reasonable. That is he did not frame this assessment bearing in mind the onus of proof of absence of reasonable force rested on the prosecution.

[20] Essential to the submission of counsel was the proposition that the force was reasonable and because the appellant told Ms Harliwich and her son to leave the property, and they did not leave, the pushing and manhandling of the son into the vehicle and taking him by the shirt or an elbow in order to do so (whilst not striking or doing bodily harm), was not unreasonable force. Therefore, counsel submitted that the prosecution was not able to establish that those actions went beyond the scope of reasonable force permitted by s 56 and Judge Blaikie erred in concluding that was the case.

Discussion

[21] It is apparent that Judge Blaikie dealt with the factual elements in so far as they related to an assault or application of force, on the basis of the appellant‟s own evidence. He did not accept that the degree of violence went to the extent as the complainants said. Whilst he was inclined to the view that the evidence of Mr Cederman was the most reliable (as far as it went), it was not counter to the

admitted actions of the appellant. It was clear from all the evidence that Mr

Cederman did not, because of where he was, see or hear precisely all that took place.

[22] Judge Blaikie was entitled to deal with the case on the basis of the appellant‟s own evidence and acknowledgement as to what had happened. Fact-finders can accept or reject all or part of a witness‟s evidence and this case, despite concluding that some of the appellant‟s evidence was “suspect”, it was open to the Judge to proceed on the basis of his own admissions or acknowledgements of what occurred.

[23] Viewed in that light, it is clear that the Judge accepted as established, when events reached their heightened impetus, that the appellant took a builder‟s level, waved it about and said that he would use it to smash the headlights of the vehicle which, was then idling in front of the appellant‟s carport. He was entitled to find, as the appellant said, that he “threatened the vehicle”. He accepted the appellant‟s evidence that he grabbed the complainant by the scruff of the neck and pushed him into the car, having pushing him “quite hard” in the chest.

[24] Where a defendant gives evidence outlining his version of what occurred, and such explanation may, in part, be against his interests, a Judge is entitled to accept or reject all or part of such evidence, admissions or assertions. Here, the Judge proceeded on the basis on the appellant‟s own assertions that certain events took place which involved the infliction of force.

[25] What is reasonable force in terms of s 56 is to be objectively determined. What may amount to reasonable force has to be assessed as against the qualification that it is to prevent a person from trespassing or to remove him from land. The test is referred to in the Court of Appeal in R v Brightwell.10 There it had been an assault by threatening to use a firearm against an invitee whose right to remain had been terminated. The Court said:11

The only issue which now arises is whether the jury were entitled to conclude beyond reasonable doubt that those actions were not reasonable for the purpose of removing [the complainant] from the property. Clearly to have carried out the threat and to have discharged the firearm into [the

10 _{R v Brightwell (1995) 12 CRNZ 642 (CA).}

11 At 644.

complainant] would be outside the protective words of s 56. Was it then open to the jury to hold on an objective consideration that to threaten to do so was unreasonable? The answer to that question in our view can only be in the affirmative. Whether the standard of reasonableness in such circumstances had been breached was a matter eminently suitable for determination by a jury whose members had the opportunity of seeing and hearing those present at the time.

[26] This is an issue not capable of fine analysis and must come down to the making of an objective value judgment. Judge Blaikie was well able to make that judgement as a fact-finder of some experience. On the appellant‟s own evidence the

_{circumstances were that:}

he was angry;

he was abusive and swearing;

he threatened the idling motor vehicle;

he refused to give his customer her car keys;

he pushed Mr Baas quite hard;

he grabbed him by the shirt, and “scruff of the neck”; and

_{he manhandled him into the vehicle.}

[27] I do not accept Mr Bamford‟s argument that Judge Blaikie reversed the onus of proof or avoided considering whether the force used was reasonable, because the Judge remarked that the appellant should have withdrawn and left. His reference to what the appellant could and probably should have done is no more than a common sense observation as to how he considered a reasonable person would act. The Judge had already found that the assault and manhandling had occurred and that it was not reasonable. Simply by giving his finding on what should have been an alternative action does not mean that the Judge avoided the finding that what occurred was not reasonable force. In fact, the Judge may have had in mind that no force at all was reasonable and (as I will come to later discuss), that might well have been a

permissible finding. He did not, however, make that finding and in order for there to be a conviction it was not necessary.

[28] I have been referred by counsel to a number of other cases such as Galvin v Police,12 Deans v Police,13 Pile v Police,14 R v Hills,15 and R v Brightwell. All of these cases relate to varying factual situations and naturally depend on their own facts. That must inevitably be the case where a factual conclusion or judgement as to what is reasonable force has to be made objectively based upon the evidence of the particular circumstances under consideration. In some of those cases judicial

comments are made as to what may or may not be reasonable force in particular situations but there can be no “one size fits all” when assessing what is or is not reasonable.

[29] Whether or not force was reasonable in all the circumstances of this case so as to afford the defence of justification under s 56 had to be determined objectively by the Judge based upon his assessment of all the evidence he heard. Economical as the Judge‟s reasons may be, it is apparent that he considered that the force applied was unreasonable and even, perhaps, no force at all was justified. That was a judgement decision which Judge Blaikie was entitled to make having had the advantage of weighing up and assessing what he found to have occurred. To put it simply, a customer came to collect a vehicle that she needed that night and although outside the time agreed to or expected by the appellant he, having consumed alcohol and being awoken, overreacted in an extreme way.

[30] There was sufficient evidence of all the circumstances for Judge Blaikie to conclude that the “manhandling” was not reasonable and an appellate court ought not substitute its own opinion on such a factual assessment or conclusion unless of the clear view the Judge was wrong.

[31] The Judge specifically referred to the burden and standard of proof in [2] of his judgment and did not place any burden or onus upon the appellant. It has not

12 _{Galvin v Police HC Rotorua M44/85, 22 April 1986.}

13 _{Deans v Police HC Christchurch AP7/87, 5 March 1987.}

14 _{Pile v Police HC Timaru AP56/93, 28 July 1993.}

15 R v Hills [1999] NZCA 169; (1999) 16 CRNZ 673 (CA).

been shown that the decision of Judge Blaikie was perverse or one that could not have been reasonably reached by him. For those reasons the appeal cannot succeed and must be dismissed.

Was there a trespass that justified force?

[32] I will go on to add, obiter, some comments on other features which were not raised or argued before Judge Blaikie. They might well have supported a conclusion that any force applied in these circumstances was unreasonable. In a broad way that is because it might well be the case that Ms Harliwich and Mr Baas were not trespassers, so as to even bring into play the justification defence under s 56.

[33] A person is not a trespasser if he/she is on the land of another with the permission, express or implied, of the person in possession of the land. A licence may be implied from conduct and the most common form of implied licence is that given by the occupier of a dwellinghouse to a member of the public coming on lawful business.16 Naturally, an implied licence is subject to limits. It may be exercised only at times of the day or night when it is reasonable for the entrance of a particular business, or reasons for being there, to be conducted. In determining the precise scope of the implied licence regard is to be had to the purpose and nature of

the business for which the person entering wishes to transact. So the scope of authority, express or implied, to enter may vary.17 On the facts of this case there was at least an implied licence on Ms Harliwich and her son to enter the property for the purpose of uplifting her vehicle, which was ready and waiting to be removed. Naturally, such a licence could only be exercised at a time that is reasonable and if around 11.30pm was unreasonable then the implied licence could be revoked. I

doubt if in the circumstances of this case (Ms Harliwich simply wished to collect her vehicle) the time was unreasonable – even if admittedly outside what the appellant had expected. But assuming Mr Nicholls had the ability to revoke the implied or express licence that existed for the two persons to enter the property, which he regarded as limited to the half hour between 9.00pm and 9.30pm, when did their

_{right to be on the property actually cease?}

16 _{Robson v Hallett [1967] 2 QB 939 (CA) at 951.}

17 R v Bradley (1997) 15 CRNZ 363 (CA) at 368.

[34] Revocation of that licence has to be communicated by words or conduct, unequivocally, and is a question of fact. Use of abuse by a licensor may not be sufficient to terminate the implied licence. For example, use of the words “fuck off” by themselves do not amount to an unmistakable revocation of the licence.18

[35] Assuming in this case there was a revocation of the implied licence, that nevertheless, without more, does not make the two persons trespassers. It is not sufficient for an occupier of property to simply proclaim that someone is a trespasser so that through such exclamation they acquire that status. Once clear communication of the revocation of a licence has taken place the person who is on the property is entitled to a reasonable period in the circumstances to enable him or her to leave the premises. Obviously, if the licence to go on the premises is suddenly revoked a visitor cannot disappear in the instance and there must be a reasonable

time to withdraw.19 Until a reasonable period of grace has elapsed, the licensee does

not become a trespasser.20 Provided the entrant has a reasonable time to leave the premises and does so with reasonable expedition they will not be a trespasser,21 and that reasonable period is what is referred to at times as a “packing-up period”.22

[36] The position is as described by Lord Greene MR in Minister of Health v

Bellotti:23

The true view is that where a licence is revoked, the licensee has, in spite of the revocation, whatever in the circumstances is a reasonable time to enable him to remove himself and his possessions from the scene of the licence.

The Master of the Rolls emphasised that the question of what the licensee is entitled to expect and the matter of determination of his licence is one that is impossible to

_{answer by reference to other cases in different circumstances.}

18 _{Harris v Attorney-General HC Auckland CIV 2004-404-5787, 5 July 2006.}

19 _{Transport Ministry v Payn [1977] 2 NZLR 50 (CA) at 60.}

20 _{Robson v Hallett [1967] 2 QB 939 (CA).}

21 _{Taka v Police [1996] 2 NZLR 449 (HC) at 452.}

22 _{Winter Garden Theatre (London) Ltd v Millenium Products Ltd [1948] AC 173 (HL) at 206.}

23 Minister of Health v Bellotti [1944] KB 298 (CA) at 305 – 306.

[37] And: 24

It seems to me that the answer to that question must be given in relation to the whole of the circumstances in which the licence came into existence.

[38] So how did the right of Ms Harliwich and her son to come onto the property arise? It arose because the appellant was in fact a bailee for reward. He had received possession of Ms Harliwich‟s motor vehicle for the purpose of working on it and being paid for that work. It had been completed and he did not assert any right to a lien. Indeed, he agreed that she could come and collect the vehicle which was parked outside his dwelling, although on his land. Naturally his evidence was that she could collect the vehicle up to 9.30pm and he may have regarded that as the extent of any implied (or express) licence. It is not at all certain, however, that she was a trespasser as she was entitled to come and collect her vehicle at a reasonable hour and if the keys had remained left in it that is what she would have done. The appellant would never have awoken. And it seems as though that is all she wanted as, according to the appellant‟s evidence, after his first response to tell her to “fuck off”, she said she wanted her keys to which he said “you are not getting them this late at night”. But she insisted she wanted her keys so she could remove her vehicle. It might well have been the case that she was entitled to immediate possession of the keys and vehicle in the circumstances of the bailment. The nature of the licence permitted her to enter the property and that remaining there for a short time whilst asking for the keys to her vehicle so that she could then depart in it did not without more make herself and her son trespassers.

[39] Further, or in any event, if Ms Harliwich was not entitled to receive her keys back and if the appellant was justified in refusing to deliver them in those circumstances, it is very doubtful Ms Harliwich and her son remained on the property, or refused to leave it, before any “packing-up period” expired. What really happened was that the appellant told them to go, Ms Harliwich wanted the keys so she could take the vehicle that she believed she needed, the appellant overreacted and picked up the builder‟s level, threatened the vehicle in which the couple had arrived and very quickly proceeded to bundle and manhandle Mr Baas into that

_{vehicle so that they then departed.}

24 At 304.

[40] The case of course was not argued on the basis that the parties were not trespassers. But if it had been it may well have been open to the District Court Judge, based upon his factual findings, to find that in fact and law (because of the circumstances and business relationship between the parties) they had not reached the stage of being trespassers so as to enable the appellant to invoke or take advantage of the defence under s 56.

[41] This discussion is of course obiter and has no bearing on the outcome of the appeal because Judge Blaikie determined that the force used was in any event unreasonable and the Court has upheld that finding.

[42] I do not think that the Judge was justified in entering a conviction on the amended charge of disorderly behaviour. Section 3 of the Summary Offences Act

1981 requires that disorderly behaviour take place, in or within view of any public place. Section 4 which relates to offensive behaviour and language also requires the actions to be in or within view or within hearing of a public place. Section 5 relates to disorderly behaviour on private premises but that requires specifically actions by three or more persons who have previous convictions. The evidence, supported by the aerial photograph of the property, does not show that the events were on or within view of any public place which is defined in s 2 of the Summary Offences Act as a place that “is open to or being used by the public”. The events could only be viewed in part by an adjoining neighbour. And indeed the case was presented on the basis of the customer and her son being on the appellant‟s private land. The actions of picking up the builder‟s level, brandishing and threatening the vehicle with it in fact formed part and parcel of the violent behaviour accompanying the force eventually used. This aspect of the case was not argued but I am satisfied that the conviction for the amended charge ought not stand and it is quashed.

[43] The appeal against the conviction for assault is dismissed.

_{J W Gendall J}

Solicitors:

Bamford Law, Lawyers, Nelson for Appellant

Crown Solicitor, Nelson for Respondent