Thompson v Police [2012] NZHC 1500; [2012] NZAR 741 (26 June 2012)

Last Updated: 20 August 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000130 [2012] NZHC 1500

KIM ROKA THOMPSON

Appellant

v

NEW ZEALAND POLICE

_Respondent

Hearing: 26 June 2012

Counsel: D George for Appellant

A Boberg for Respondent

Judgment: 26 June 2012

_{JUDGMENT OF ASHER J}

Solicitors/Counsel:

Public Defence Service, PO Box 90 243, Auckland Mail Centre 1142. Email: [e-mail]

Crown Solicitor, DX CP24063, Auckland 1140.

Email: [e-mail]

THOMPSON V NZ POLICE HC AK CRI-2012-404-000130 [26 June 2012]

[1] The appellant, Kim Roka Thompson, appeals against her conviction for common assault. She also has lodged an appeal against the sentence imposed (which was an order to come up for sentencing if called upon within 12 months and for court costs), but her counsel Ms George this morning withdrew that appeal.

[2] The case has something of a history. An earlier conviction on the same charge was quashed on appeal and the conviction the subject of this appeal was the result of a rehearing. The facts can be shortly stated.

[3] Ms Thompson is a well known figure in the Grey Lynn area. Amongst her activities, which have become known to local residents, is her custom of feeding tinned cat food to local cats. On 6 November 2009 Ms Thompson was proceeding along the footpath of Coleridge Street pushing a Foodtown trolley. The trolley contained tins of cat food. Ms Thompson stopped the trolley close to the home of Ms Roberta Pagani, the complainant. She had a tin of cat food open and was in the process of feeding a cat.

[4] Ms Pagani was walking down the street and observed Ms Thompson and the trolley. Clearly she had had enough of Ms Thompson feeding the cats in this way. Ms Pagani approached the trolley and began removing the cat food and roughly placing the tins on the ground. Ms Pagani then took the trolley and started pushing it back to Foodtown.

[5] Ms Thompson, who had been a distance away, came up and took hold of the trolley. At a certain point she let go of the trolley. It is then that the conduct that is the subject of the assault charge took place.

[6] Ms Pagani described Ms Thompson swinging an arm toward her and hitting her on the ear, knocking her beanie hat off in the process. Ms Thompson, on the other hand, stated that she removed Ms Pagani’s beanie hat and threw it down on the ground. It is common ground that Ms Thompson then said to Ms Pagani “I suppose that is a form of assault taking the cap off your head”.

[7] It was the difference of fact as to the nature of this contact which was the subject of the first successful appeal. In this re-hearing the Judge in the end decided to adopt essentially Ms Thompson’s account of what occurred. He stated:[1]

On the evidence I have heard, I cannot be sure that Ms Thompson hit Ms Pagani as claimed by Ms Pagani. Whilst I am suspicious, that is not sufficient. Ms Thompson did not sign Constable Stanton’s notebook and I cannot be sure that [the] recording of her wording was necessarily accurate.

In any event, there is a concession at the least that Ms Thompson removed Ms Pagani’s hat. That hat was on Ms Pagani’s head. That action involved an intentional application [of] force to the head of Ms Pagani. The slightest degree of force will suffice.

[8] So it was on this basis that Ms Thompson was convicted of assault. The

Judge’s findings of fact have not been challenged.

Submissions

[9] Ms George in a clear and helpful submission asserted that Ms Thompson’s action did not constitute assault. She accepted that the action of removing the hat was intentional and that the touching of clothing as distinct from the body of a person can be an assault. The removal of the hat could be seen, she argued, as in the same category as touching to attract attention and the jostling in public places that occurs on an everyday basis, although counsel accepted that Ms Thompson’s actions went further than this. However, Ms George submitted that Ms Pagani’s approach to the trolley, removal of the cat food and moving of the trolley showed her implied consent to Ms Thompson’s acts. Ms Boberg in response submitted that the actions of Ms Thompson were beyond the usual sort of touching where there was implied

_consent.

[10] Assault is defined in the Summary Offences Act 1981 as intentionally applying or attempting to apply force to the person of another, directly or indirectly.[2]

_{The slightest degree of force will constitute an assault.}[3]

[11] It was commented by Blackstone in his commentaries:[4]

... the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner

[12] Further it is clear that the touching of clothing can constitute an assault.[5] I have no doubt that a hat is an item of clothing. The hat in question here was a beanie. A beanie is tight fitting and moulds to the head. Its removal would be felt by the wearer.

[13] In relation to implied consent, I rely on the statement of Lord Goff in Collins v Wilcock:[6]

... a broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped (see Tuberville v Savage [1669] EWHC J25; (1669) 1 Mod Rep 3, 86 ER 684). Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. We observe that, although in the past it has sometimes been stated that a battery is only committed where the action is 'angry, or revengeful, or rude, or insolent' (see 1 Hawk PC c 62, s 2), we think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception.

.

[14] Amongst the forms of conduct which can be regarded as acceptable and impliedly consented to are the jostling which takes place in public places such as buses or moving queues, and the touching of a person to attract that person’s attention in certain widely understood circumstances. The question is whether Ms Thompson’s action can be seen as coming within these categories.

[15] I do not think it can. The sort of consent that can be inferred from a person in particular types of public places, such as buses or queues, to an accidental jostle cannot apply to the intentional removal of a relatively intimate item of clothing of this type. This was not an attempt to attract Ms Pagani’s attention, which was already engaged. The intrusive act committed went beyond that which can be seen as acceptable in day to day conduct.

[16] The fact that this contact went beyond that which is impliedly consented to is demonstrated by the reaction of both parties following the removal of the hat. Ms Pagani immediately stopped what she was doing and went back to her house to ring the Police. Ms Thompson commented that she supposed that she had committed an assault. Neither of them saw this as an everyday type of contact at the time.

[17] Moreover, the motivation for the touching was of a different type to that which arises in the everyday type of contact referred to by Lord Goff in the quoted passage. This was not a legitimate endeavour to attract attention or a clasping in anticipated friendship. It was an action designed to deter Ms Pagani from proceeding on a course of action that Ms Thompson disliked. It was not the sort of physical contact that in ordinary life is acceptable.

[18] Ms George referred to Ms Pagani’s interference with Ms Thompson’s property (the cat food) and the preemptory nature of her actions. It was wrong for Ms Pagani to effectively take the law into her own hands and intervene in the way she did.

[19] The removal of the cat food was undoubtedly deliberate. However, Ms Pagani’s misconduct leading up to the assault is not relevant, given the way the trial was run. The defence of self-defence was not raised and so questions of a

reasonable response to a threat cannot be considered in the context of this appeal. This appeal only raises the question of whether the act of removing the beanie constituted an assault.

[20] For the reasons I have given I am satisfied that it did. I agree with the

Judge’s decision. It follows that the appeal must be dismissed.

Result

[21] The appeal is dismissed.

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

Asher J

---

[1] Police v Thompson DC Auckland CRI-2009-004-242780, 29 March 2012 at [15]–[16].
[2] _{Summary Offences Act 1981, s 2.}
[3] See Cole v Turner (1705) 6 Mod Rep 147; 90 ER 958 and Kovalev v Police [2010] NZAR 30 (HC).

[4] _{Also quoted in Collins v Wilcock [1984] 3 All ER 374 at 378.}

[5] _{R v Thomas (1985) 81 Cr App Rep 331 at 334.}

[6] At 378