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Griffin v R [2022] NZHC 2325 (12 September 2022)

Last Updated: 11 October 2022

JUDGMENT OF MALLON J

Table of contents

Introduction [1]

District Court [3]

The evidence [3]

The defence [16]

The Judge’s decision [17]

First appeal ground: strangulation [30]

The law [30]

This case [35]

Second appeal ground: defence of property [50]

The law [50]

This case [73]

Result [79]

GRIFFIN v R [2022] NZHC 2325 [12 September 2022]

Introduction

• [1] The appellant was convicted on a charge of strangulation¹ and a charge of assault of a person in a family relationship² following a judge alone trial in the District Court.³ He appeals his convictions.

• [2] He contends that a miscarriage of justice occurred because:

(a) the Judge failed to give adequate reasons for convicting the appellant and erred in his assessment that the evidence established the strangulation charge;⁴ and

(b) the Judge wrongly excluded the defence of property in relation to the assault on which he was convicted.⁵

District Court

The evidence

• [3] The Crown called evidence from the victim and two police officers. The appellant elected to give evidence in his defence. The narrative of events that emerged from the evidence was as follows.

• [4] The appellant, then aged 39, was in a relationship of around four or five months with the victim at the time of the events that gave rise to the charges. The victim had travelled to Wellington to stay with the appellant. The couple were staying in a central city hotel paid for by the appellant’s sister. The arrangement was that appellant would repay his sister when he received his pay later in the week. It was not in dispute, however, that the victim also intended to contribute to the cost of the room.

¹ Crimes Act 1961, s 189A(b).

² Section 194A.

3. R v Griffin [2021] NZDC 3533 (Judge I G Mill). He was discharged on another charge of assault of a person in a family relationship. He was subsequently sentenced to one year’s supervision and 80 hours of community work.

⁴ Criminal Procedure Act 2011, s 232(2)(b).

⁵ Crimes Act, s 53.

• [5] On 16 May 2021 the appellant and the victim had been drinking with some friends of the appellant. The victim said something that annoyed and upset the appellant. They left the gathering via a lift. The exact events in the lift are in dispute but, in essence, the appellant expressed his upset with the victim, the victim tried to hug the appellant to calm him, and the appellant told the victim to get off him and broke the embrace. On the appellant’s account, that was all he did. On the victim’s account, the appellant pushed her twice after breaking the embrace. These events gave rise to a charge of assault in a family relationship. The Judge discharged the appellant on this charge.

• [6] Again, there was a dispute over some of the detail about what happened next. The victim said that the appellant continued to yell at her down the street, slurring insults at her and saying that he was going to lock her out of the hotel room. She said she went to McDonald’s because there would be people around and eventually the appellant followed her in to ask for the key. The appellant said that they were arguing with each other and the victim was following him and started punching him in the back of the head and strangling him, grabbing him by the hoodie “and was like choking hard out”. He said she went into McDonald’s and he went to sit outside near the hotel. He then went to McDonald’s to get the key for the room and told her that if she did not give him the key to the hotel room, he would call the police.

• [7] It is not in dispute that the appellant called the police. They spoke to the appellant and then the victim. This resulted in the police serving a Police Safety Order (PSO) on the appellant at 11.41 pm for a period of two and a half days (expiring at

11.25 am on 19 May 2021). The appellant thought this was unfair. He had nowhere to go and no money to pay for another room. The police took him up to the room so he could grab his bag with his work gear, which he needed for work in the morning. He then loitered around town for a few hours.

• [8] It is not in dispute that somewhere around 1 to 2 am on 17 May 2021 the appellant came back to the hotel. The appellant had been contacting the victim by text messages, which were produced, about being homeless and needing to sleep for work. The victim agreed to let him back in. He lay on the bed and she lay on top of him. The appellant said that the victim pinned his arms down with her legs and punched,

elbowed and kneed him. The victim denied this but acknowledged trying “to be a little bit rough, trying to get his affection”. It is not in dispute that the appellant then left the room again and spent the next few hours walking around the streets.

• [9] At around 6 am the appellant received a phone call that his work was cancelled for the day. He wanted to get back into the hotel room to get some sleep. At around 8 or 8.30 am he went back to the hotel and the victim let him into the room. They talked for a bit, tried to make up and had sex. Not long after, the appellant left the room. According to the appellant, it was because he knew he could not stay there with the PSO. According to the victim, he began verbally abusing her and she threatened him with calling the police. They both say that the appellant wanted her to go back home so he could use the hotel room to sleep.

• [10] The appellant ended up drinking at a bar with a friend in the afternoon. By about 5 pm the victim had booked a bus leaving Wellington at 7 pm that night. There were text messages between the victim and the appellant. The appellant wanted to walk the victim to the bus stop and to get the key for the hotel room. The victim said she agreed to the appellant coming to the hotel to get the key because he said he would be fine. As for him walking with her to the bus, she said she was just agreeing to anything at that point to get the whole situation over with.

• [11] When the appellant was back at the hotel, the victim described him as being visibly angry. The appellant said they were both arguing and the victim was not happy. They are agreed that victim let the appellant back into the room where the victim had her things packed and ready to go. What happened next is the subject of the strangulation and assault charges on which the appellant was convicted.

• [12] The victim accepted that she went to leave the room without having given the appellant the key. She intended to give it to him when she got to the door. He grabbed the hood on her top and pulled so that it choked her. She “guesstimated” that this lasted for about 10 to 15 seconds. He grabbed her by the arms. She denied that the appellant was trying to open her hand to get the key. She kept hold of the key “as an anxiety response” and it ended up being passed to the manager.
• [13] The appellant said the victim had grabbed her stuff and rushed to the door. He grabbed her by the back of the jersey to stop her leaving because he thought she had the key in her hand. It lasted about a second or two and then he let go of her because he could see she did not have the key in her hand. He said:

A. I grabbed it just to stop her exiting the door, then I let go and grabbed her by the arm, to get the keys out of her hand, then I let go of the arm, that was it.

Q. And her hoodie was across her throat when you pulled it?

A. I don’t know, I guess so, it was around, she got it on her, she’s wearing it, so yeah.

Q. And you pulled it tight for about 15 to 20 seconds?

A. Nah, nah, I wasn’t in the room for 20 seconds. I probably had a hold of

her jersey for, like literally like one or two seconds ‘cos I managed to stop her and then I grabbed her by the arm, ‘cos I thought she had the keys in her hand. I’ve seen immediately she didn’t have the keys in her hand, I’ve let go, and then she’s gone out the door.

Q. When you grabbed her arm, you grabbed it with quite a bit of force?

A. I didn’t mean to do any harm to her at all. All I wanted to do was just get the keys out of her hand.

Q. Everything was happening quite quickly wasn’t it?

A. Well that happened in the space of like three or four seconds so yeah it did.

Q. You wanted to hold [the victim] in that room so that she would give you the keys?

A. No, I just wanted to get her to give me the keys.

Q. But if she left the room she would have taken the keys with her.

A. That’s what she was doing.

Q. So you wanted to stop her and that’s why she grabbed her?

A. Yeah, I wanted the keys. If she was gonna take off with the keys then I wouldn’t be able to access the hotel room.

...

Q. Mr Griffin, it really frustrated you that you couldn’t access your hotel room for parts of the 17^th of May didn’t it?

A. ... yeah, yeah, ‘cos I hadn’t slept all night ‘cos I’d been out in the streets. All I wanted to do was go to sleep. I had, you know, I got work, I had work responsibilities.

• [14] The appellant eventually obtained the key for the hotel room via the police. The victim had called the police soon after leaving the hotel. The police attended to the victim in response to her call. The victim described having been assaulted by the appellant and confirmed she wished to make a complaint. She gave her statement via a video interview at the police station that evening. Photographs were taken of her injuries and she was then dropped off at the bus station just in time to catch her bus. These photographs, which were produced to the Court, showed redness to the complainant’s neck and a bruise on her forearm and palm.

• [15] The police called the appellant at around 8 pm and asked him to meet them in a central Wellington location. He did so and was arrested and driven to the police station. He appeared to the attending officer to have been drinking alcohol. The appellant denied any physical confrontation. He fell asleep in the cells and could not be woken for an interview before the officer completed his shift that evening. He was not asked to give an interview in the morning when he was awake and released.

The defence

• [16] The defence was that the force used in the first alleged assault was applied in self-defence; on the strangulation charge, the complainant’s clothing was grabbed for a short duration and any pressure on the neck was unintended; and the second assault charge was committed in defence of property, namely the key to the hotel room.

The Judge’s decision

• [17] The Judge gave an oral decision following the completion of the respective cases. Having set out the onus and burden of proof, the charges, the evidence and the defence contentions, the Judge turned to make his findings of fact.

• [18] He prefaced them by saying that in making those findings he had “been mindful of the criticism made of the complainant and her evidence and [he had] taken that into account”, noting the defence submission that the complainant’s account was untruthful, unreliable and selective, particularly in what she told the police.⁶

⁶ R v Griffin, above n 3, at [20].

• [19] One of the grounds of alleged unreliability and untruthfulness was that the victim gave evidence in court about events that were not included in her Evidential Video Interview (EVI). The Judge said he did not regard this, in itself, as an indication of unreliability or untruthfulness, noting that she had given her explanations.

• [20] The Judge considered that “the bulk of her evidence” was “reliable and truthful”, with one exception.⁷ This related to the assault the appellant described when he was lying on the bed and the victim was on top of him. The Judge said he found her evidence that the assault did not happen “unconvincing”. She had not denied it having happened in the text messages, and those messages were consistent with her having accepted at the time that it had happened. He also accepted it was “reasonably possible” that the victim had assaulted the appellant in the street as he had described on 16 May.⁸ As to other inconsistencies between them, the Judge said “I have considered those when deciding the facts and of course keeping in mind that it is for the Crown to prove the essential elements of the charge”.⁹

• [21] On the first assault charge the Judge considered there was some evidence of self-defence that had to be disproved beyond reasonable doubt. The Judge found that the appellant believed that the victim wanted to give the appellant a hug and that he did not want her to at the time.¹⁰ He considered that it would have been reasonable for the appellant to “remonstrate” with the victim and remove her arms or hold her arms, but any further force would be unreasonable in the circumstances as the appellant believed them to be.¹¹ The Judge concluded:
  • [33] So what happened next is hotly disputed between the parties and I cannot resolve the differences ...

• [34] I cannot say that it is proved beyond reasonable doubt that he acted in the way that she described, in a particularly violent shove or shoves and but I am satisfied, even on his evidence, he used excessive force to repel what was neither a threatening nor violent hug. In the circumstances I find the assault proved beyond reasonable doubt and self-defence disproved on the same standard. It was excessive force in the way that he even described in defending himself from minimal violence and he is guilty of an assault.

⁷ At [22].

⁸ At [25].

⁹ At [24].

¹⁰ At [30].

¹¹ At [32].

• [22] Although finding the elements proved, the Judge discharged the appellant. This was because he doubted whether a prosecution would have been pursued for this assault had the circumstances been known by the police at the beginning of the case.¹²

• [23] In finding the appellant guilty on the strangulation charge, the Judge started with finding it established that the appellant had grabbed the victim’s hoodie from the back. He went on to say that he accepted the victim’s evidence that the appellant grabbed the hoodie and violently pulled on it, tightening the neckline around her throat and impeding her breathing.¹³ In addition to his earlier findings that the victim was truthful and reliable, he accepted her evidence on this point because:

(a) she was unshaken in cross-examination;

(b) her immediate complaint to the police of what had happened, which was admissible under s 35 of the Evidence Act 2006, supported her account; and

(c) there was clear evidence of injury to her throat as observed by the police officer who attended to her complaint¹⁴ and as shown in the photograph that the officer took.

• [24] In rejecting the appellant’s evidence, the Judge said:

[39] In relation to that I note ... that what he did was remarkably similar to what he complained had happened to him the previous night, of the complainant grabbing his hoodie, or clothing, from behind and strangling him in a similar movement. He also seemed to accept, in cross-examination, that ‘he guessed’ her hoodie was around her throat when he pulled it ... and I find that the pulling was forcible, particularly given the injuries to the throat. I find also that Mr Griffin was reckless and that he must have recognised the real possibility that he would have impeded normal breathing by grabbing her hoodie, whether it was grabbing the hood itself or close to it, and his actions, having regard to that possibility, were unreasonable. Unreasonable actions in a sense that a reasonable and prudent person would not have done so. But I cannot be sure how long he pulled the hoodie and it would not have been for

¹² At [35].

¹³ At [37].

¹⁴ As discussed later, the officer did not give evidence of observing the injury to her neck. This is of no real moment given that he took a photograph of her neck and the injury is apparent in the photograph.

long. It was sufficient to cause injury and impede breath and then give the opportunity to then grab her arm so he could wrestle the key from her. ...

• [25] On the third charge the Judge noted that the fact of an assault was not disputed. The force used resulted in a bruise. The Judge then discussed the defence of property relied on by the appellant, starting with the point that on the face of s 53(1) of the Crimes Act the defence does not apply where property is retaken. The Judge acknowledged that there were cases that provided “some apparent exceptions to that interpretation on the face of the section”.¹⁵ The Judge discussed Ruwhiu v Police and Klyn v Police where, in neither case, was the defence made out.¹⁶

• [26] Of particular relevance to the case here was that in Ruwhiu v Police it was said:¹⁷

If the person entitled to peaceable possession of a chattel in fact loses possession of it for a second or two, is that loss of possession fatal to the defence ... Provided the force used is reasonable and provided such force does not include a strike or the infliction of bodily harm, then I consider there is no violence to the parliamentary intention to allow the defence in situations of a possessory tussle or reclaiming a chattel in the immediate aftermath of its being taken.

• [27] The Judge in the present case cited this. He also referred to the example given in Ruwhiu v Police of a person whose handbag or wallet is snatched from their shoulder or a table and who might justifiably pursue the taker and inflict a technical assault while reclaiming the property.¹⁸ As the Judge discussed, the defendant in Klyn v Police did not retake her own property and she had used unreasonable force.¹⁹

• [28] Having considered these cases the Judge said:

• [49] ... Well the question is does the defence arise on the evidence available? Well, I accept the complainant had not given Mr Griffin the key. I accept that he reasonably expected it to be returned at some point and he was concerned that she would not do it. There was of course a barrier to his right to occupy the room in the meantime, because of the police safety order, but the evidence was that the occupation of the room by the complainant was coming to an end. She had had the key however since around about 10pm the

¹⁵ At [40].

16. Ruwhiu v Police HC Auckland CRI 2008-404-0259, 22 December 2008; and Klyn v Police [2015] NZHC 1128.

¹⁷ Ruwhiu v Police, above n 16, at [46].

¹⁸ At [39], discussed in R v Griffin, above n 3, at [46].

¹⁹ Discussed in R v Griffin, above n 3, at [48].

previous night and it was now 5pm the next day. She was entitled to possess it however I view the payment for the room was to be made, she was entitled to possess that as a lawful occupant of the room.

• [50] The defendant on the other hand had a claim of right to it but he was not attempting to regain possession of something that had been immediately lost, in the way described by Priestly J [in Ruwhiu v Police]. ... The assault, by grabbing her arm, was preliminary to him taking the keys, as he imagined he would, but of course he realised that she did not have the keys in her hand after all. So the force he used in seizing her arm did not result in retrieving the keys. ...

• [51] I find the defence does not arise on the evidence in this case and is not available, relying on the passages I have just read from Ruwhiu v Police, Priestly J’s decision. It was not an incident arising immediately, as described in that case, and the section itself does not allow the offence to arise in this way.

• [52] Even if the defence did arise however, I find it artificial to restrict the consideration of the defence to the act of grabbing her arm only. In order to retrieve the key he first stopped her by strangling her, in the way I have described, to then be able to grab her arm and then grab the key. That action of strangulation must be relevant to the possible defence ... and that force of course was beyond reasonable in the circumstances ...

• [29] The Judge therefore concluded that the defence was not available and the assault was proven.

First appeal ground: strangulation

The law

• [30] The offence of strangulation is set out in s 189A of the Crimes Act as follows:

189A Strangulation or suffocation

Everyone is liable to imprisonment for a term not exceeding 7 years who intentionally or recklessly impedes another person’s normal breathing, blood circulation, or both, by doing (manually, or using any aid) all or any of the following:

(a) blocking that other person’s nose, mouth, or both:

(b) applying pressure on, or to, that other person’s throat, neck, or both.

• [31] The actus reus involves one or more of the actions in (a) or (b). The mens rea is intentionally or recklessly impeding another person’s breathing or blood circulation by taking one or more of those actions.
• [32] As the appellant’s submissions note, this differed from the Law Commission’s recommendation for an offence of “imped[ing] normal breathing or circulation of the blood by intentionally applying force on the neck or by intentionally using other means”.²⁰ If that recommendation had been adopted, the mens rea would have applied to the application of force rather than impeding breathing. Police and doctors had informed the Law Commission that “when pressure is applied to the neck, it is almost always an intentional act. It is only in extremely unusual circumstances that force is accidentally applied to the neck”.²¹

• [33] As the appellant submits, the provision as enacted made two changes to the recommended mens rea: it added recklessness; and intention or recklessness applied to impeding someone’s breathing rather than simply the application of force that had the consequence.²² In other words it allows for the unusual situation where force is applied to the neck but without intention or recklessness to impede breathing.

• [34] Recklessness, which was the basis on which the Judge found the appellant guilty of the charge, requires that the appellant recognised that there was a real possibility that his actions (grabbing the hoodie) would impede the victim’s breathing, and continued with those actions regardless of that risk.²³

This case

• [35] The appellant submits the Judge failed to make factual findings on where the appellant grabbed the hoodie and for how long. In relation to the pulling of the hoodie, the Judge said:

(a) “clearly ... he grabbed the clothing at the back”;²⁴

²⁰ Law Commission | Te Aka Matua o te Ture Strangulation: The Case for a New Offence (NZLC R 138, 2016) at [5.16].

²¹ At [5.21].

²² Simon France (ed) Adams on Criminal Law – Offences and Defences (online ed, Thomson Reuters) at [CA189A.02] discusses that the change from the intentional application of force to intentional or reckless “impeding may not have been intended”.

²³ R v Harney [1987] NZCA 86; [1987] 2 NZLR 576 (CA) at 579; Cameron v R [2017] NZSC 89, [2018] 28 CRNZ 166 at 166; and Adams on Criminal Law, above n 22, at [CA167.06].

²⁴ R v Griffin, above n 3, at [36].

(b) “I accept her evidence of him grabbing her clothing ... and violently pulling on it, tightening the neckline around her throat and impeding her breathing”;²⁵

(c) “the pulling was forcible”;²⁶

(d) “whether it was grabbing the hood itself or close to it”;²⁷

(e) “but I cannot be sure how long he pulled the hoodie and it would not have been for long”.²⁸

• [36] Putting these findings together, the Judge found that the appellant grabbed either the hood of the hoodie or somewhere close to it. In my view it does not matter which of these it was and the Judge did not need to make a finding about this. What was relevant was the Judge’s finding that it was a forcible pull around her neckline that impeded her breathing. It was also relevant that the pull was not for long. Although the Judge had accepted the “bulk of her evidence”, he did not find that the pulling was for 15 to 20 seconds as the victim described. Rather, he was left unsure about how long the pulling was for, but it was not for long.

• [37] That the pulling was for a short time, less than the 15 to 20 seconds the victim described, fits with the evidence that the victim was heading to the door without having given the appellant the key and the appellant was wanting to stop her going out the door so that he could get the key. As the Judge said, the pulling was sufficient to cause her injury and impede her breath “and then give him the opportunity to then grab her arm so he could wrestle the key from her” and “he immediately realised that she was not holding the keys and having grabbed her arm he released her.” The victim also gave evidence that her sense of time was affected by her ADHD and that she makes adjustments for this. Although the Judge did not specifically refer to the evidence, it too supports a reasonable doubt that the pulling was for 15 to 20 seconds as the victim alleged.

²⁵ At [37].

²⁶ At [39].

²⁷ At [39].

²⁸ At [39].

• [38] The appellant submits this has implications for the Judge’s findings that the victim’s breathing was impeded. He submits that if the pulling was for as little as one or two seconds, then this does not stand out as a realistic means of asphyxia.²⁹ The appellant says the victim was an unimpressive witness who the Judge had found had effectively lied on oath. The appellant also says that the victim’s account of her breath being impeded was relatively equivocal and was first given only at the end of her EVI when she was directly questioned about it. The appellant says these factors should have given the Judge a reasonable doubt about the actus reus.

• [39] However, the Judge did not say he accepted it was reasonably possible that the pulling was for the few seconds the appellant described. His finding was that it was reasonably possible that the pulling was for less than 15 to 20 seconds and was not for long, but it was long enough to impede the victim’s breathing. I consider the Judge was entitled to find that the victim’s breathing was impeded even on the reasonable possibility that the pulling was for a few seconds and less than 15 to 20 seconds. I do not agree that the victim was relatively equivocal about her breath being impaired or that she gave this evidence only at the end of her interview. The officer who attended to the victim recorded in his notebook “grabbed collar and choked”. Fairly early in the EVI, the victim described the appellant as pulling on her jacket “extremely tightly

... it was moderately hard to breathe at the very least, like, it shouldn’t have taken that must effort to breathe, and it is still a slight bit sore now ...”. Later in the EVI she said the appellant had “decided to ... try and choke me to stop me leaving” and “the choking was the hoodie”. The officer asked her to describe her breathing when this was happening and the victim said “it was a fair bit hard to breathe”. In cross-examination she said “there’s no mistaking being choked”.

• [40] I also do not accept that the victim’s evidence on this point should have been rejected by the Judge. He had the opportunity to see and hear the victim and the appellant give their evidence. He regarded the bulk of the victim’s evidence as reliable and truthful. The one thing he did not accept was her account of what happened when she had her legs on the appellant’s arms in the bed. On this point, the Judge found the victim’s evidence unconvincing and that she was wrong about the text messages.

29. Asphyxia is a lack of oxygen supply to the blood. The test adopted in the section is impeding a person’s normal breathing, blood circulation or both.

• [41] The relevant exchange of text messages was as follows:

A: “You were abusive as soon as i stepped through that door ... You need to wake up and look at yourself and your actions. You should have let me stay and stopped carrying on and you shouldn’t have beat me up.

V: “The person that’s supposed to love me treats me like he hates me constantly and no I wasn’t being abusive I was wound up and defensive because I knew you’d start being abusive again.”

A: “You punched and elbowed me and kneed me in the face ... You’ve assaulted me so many times.”

V: I couldn’t just sit there and listen to it and let you punish me for something I never did. I’m sorry it drives me crazy when you treat me like that. Something snaps and breaks and I can’t stand it.

...

A: “I was trying to just lie down and sleep it off with you babe...”.

V: “No you weren’t you were insulting me ... It breaks me and makes me act horribly and I hate that.

• [42] The victim firmly and strongly denied that she had punched and elbowed the appellant and said that the appellant had a history of using text messages to say what he thought had happened and to use it as evidence. When she was shown the text messages she said she was being “a little bit rough, trying to get his affection” and she had not admitted in those messages punching and elbowing him. So she gave her explanation but the Judge rejected it. In addition, he considered it reasonably possible that she had assaulted the appellant earlier (as he described) so must have also had doubt about the victim’s denial of that assault.

• [43] It is open to a trier of fact to accept part of what a witness says is truthful and reliable and other parts as untruthful or unreliable. It was open to the Judge to find the victim’s account of a forceful pulling of her hoodie that made it hard to breathe as truthful and reliable, even though he had found other parts of her evidence unreliable. The victim’s account of the forceful pulling was supported by other evidence. The Judge was inaccurate in saying that the officer saw the injury to the neck in that he did not give evidence of that. However, he did take a photograph of her neck that showed the injury. That injury supported her account of a forceful pulling on her neck. The fact that she reported the incident as soon as she left the hotel supported her account. In that initial report she referred to being choked. Although the Judge did not expressly

remind himself that the same lie can be repeated, he would have been well aware of this as an experienced Judge accustomed to making credibility findings (in contrast with a jury where it is sometimes necessary to remind juries of this point).

• [44] In short, I consider that the Judge’s findings on the actus reus covered the essential features of what had happened and those findings were open to him. There is, however, more in the appellant’s submission that the Judge’s finding of recklessness was not open to him. The prosecutor did not put to the appellant that he knew by pulling on the hoodie that there was a risk that he would restrict the victim’s breathing.

The relevant parts of the cross-examination on this point are set out above.³⁰

• [45] When the cross-examination was completed, the Judge asked some questions that obtained evidence on which he relied to find recklessness. The relevant exchange was as follows:

Q. When you were talking about being in the street, this is prior to [the victim] going into McDonald’s I believe, I think you told me that she strangled you?

A. Yeah.

Q. Did you describe that to us or not? How did that happen?

A. So, yeah, I’m wearing a hoodie, she’s punching me in the back of the head and then she’s grabbed my hoodie and pulling back on it like that, while I’m walking along the street. There were a whole lot of people walking past at the same time.

Q. I see, and you’d describe that as strangling?

A. That would have been strangling, yeah.

• [46] If the Judge was satisfied that this event had occurred as described, it might have provided an evidential basis on which to infer the appellant must have known that, by pulling on the victim’s hoodie, he would strangle her, and more specifically that he would impede her breathing. However, the Judge had earlier found only that this alleged assault on the street was “reasonably possible”. He did not say that he was satisfied that this alleged assault had occurred and that the pulling on the appellant’s hoodie had constricted his breathing. Even if he were satisfied about that earlier incident, it was still necessary to consider whether, in the different occasion and

³⁰ At [13] above.

different circumstances in the hotel room the following evening, the appellant must have appreciated the risk of strangling the victim when he pulled on her hoodie to stop her from leaving with the key.

• [47] Apart from the reasonably possible earlier incident, the Judge relied on the evidence that the appellant “guessed” the hoodie was around her throat when he pulled it and the pull was forceable. The fact that the pull did impede the victim’s breathing is not evidence that the appellant must have recognised the risk that his actions would have this consequence. The short period of the pull (one or two seconds or more but less than 15 to 20 seconds) was relevant to whether the appellant had a conscious appreciation of this risk. It is not enough to say that a reasonable person, had they stopped to think about it, would have foreseen the risk. The appellant must have actually appreciated the risk.³¹

• [48] The context was also relevant. The appellant reacted to the victim attempting to leave without giving him the key. He had been drinking – the victim described him as “drunk” and “sozzled”. He was very tired from not having had anywhere to sleep the previous night and was focussed on getting the key to the room so that he could stay there and get some sleep. The victim was attempting to leave without giving him the key. The appellant’s actions are consistent with an instinctive action to stop the victim from leaving – reaching out to stop her as she was leaving so that he could get the key. It was reasonably possible that the resulting, brief but forceful, constriction on her neck was an unintended consequence of his actions. His evidence was that he did not mean to do any harm to her. It was therefore necessary for it to be put to the appellant that he knew he risked impeding her breathing by grabbing on the hood or near to it but he proceeded to pull the hood or near to it anyway.³²

• [49] I conclude that the Judge’s reasons were insufficient for finding the mens rea of strangulation was established. On the evidence it was reasonably possible that, although the appellant pulled forcefully on the victim’s hoodie when it was around her neck, he did not foresee the risk that it would impede her breathing and proceeded to pull anyway. I consider that the conviction on this charge must be quashed.

³¹ R v Piri [1987] NZCA 6; [1987] 1 NZLR 66 (CA) at 79.

³² Evidence Act 2006, s 92.

Second appeal ground: defence of property

The law

• [50] Section 53 of the Crimes Act provides:

53 Defence of movable property with claim of right

(1) Everyone in peaceable possession of any movable thing under a claim of right, and every one acting under his or her authority, is protected from criminal responsibility for defending his or her possession by the use of reasonable force, even against a person entitled by law to possession, if he or she does not strike or do bodily harm to the other person.

• [51] For the appellant to avail himself of this defence, he must establish: that he was in peaceable possession of a movable thing; that the peaceable possession was pursuant to a claim of right; that the appellant was defending his possession even against the person legally entitled to possession; and that the force used was reasonable and stopped short of striking or doing bodily harm.³³ The defence is one of several (ss 52–56) that concern defence of property. It is a narrower defence than the others because it applies only to a criminal charge and not to civil claims.

• [52] The contested issue is whether the appellant was in peaceable possession of the hotel key. More particularly, the issue is whether someone who has temporarily lost possession can rely on this defence to retake possession. The appellant submits that the defence derives from Blades v Higgs which recognised the right to recapture a chattel.³⁴ He says that a “possessory tussle”, as recognised in Ruwhiu, permitting a retaking after a few seconds is arbitrary and should be revisited in light of the Supreme Court’s decision in Taueki v R.³⁵ The respondent disagrees and says that Blades v Higgs has been doubted as good authority and, in any event, it is the words of s 53 that now govern the defence. The respondent says that the defence is about a person in peaceable possession defending his or her possession and not about a recapture of property already out of a person’s possession.

³³ Singh v Police [2003] NZAR 596 (HC) at [15].

³⁴ Blades v Higgs [1861] EngR 693; (1861) 142 ER 634.

³⁵ Taueki v R [2013] NZSC 146.

• [53] Blades v Higgs was a common law case for assault and battery decided in 1861.³⁶ The Court accepted that the owner of goods that are wrongfully in the possession of another may justify an assault to repossess himself of the goods if no unnecessary violence is used. It explained the principle as follows:³⁷

If the defendants had actual possession of the chattels, and the plaintiff took them from them against their will, it is not disputed that the defendants might justify using the force sufficient to defend their right and re-take the chattels; and we think there is no substantial distinction between that case and the present; for if the defendants were the owners of the chattels, and entitled to possession of them, and the plaintiff wrongfully detained them from them after request, the defendants in law would have the possession, and the plaintiff’s wrongful detention against the request of the defendants would be the same violation of the right of property as the taking of chattels out of the actual possession of the owner.

• [54] It explained the policy for this principle as being that:³⁸

If the owner was compellable by law to seek redress by action for a violation of his right of property, the remedy would be often worse than the mischief, and the law would aggravate the injury of instead of addressing it.

• [55] The principle was applied in New Zealand in De Lambert v Ongley, a case involving a civil claim for damages for assault.³⁹ The case concerned a cheque for rates that the plaintiff had made out to the wrong person and for which a receipt was issued to the plaintiff. The plaintiff refused to give up possession of the receipt and the defendant used force to take it from him. The Court accepted that Blades v Higgs was authority for the right to recapture property.⁴⁰ The defence, however, failed on the facts because the defendant had used more force and violence than was necessary to obtain the receipt – having struck the plaintiff with a blow to his jaw causing swelling, and kneeling on top of the plaintiff when he was on the floor causing tenderness to his bladder.

³⁶ It proceeded as a “demurrer to plea” (meaning whether the facts alleged would, as a matter of law, answer the cause of action). The case subsequently went to trial on the facts and made its way to the House of Lords. The right of recapture was assumed without discussion and the sole issue was the right of a landowner to the ownership of wild game (the property retaken in that case) on his property without authority: Blades v Higgs [1865] EngR 593; (1865) 11 HL Cas 621, 11 ER 1474 (HL).

³⁷ At 637.

³⁸ At 637.

³⁹ De Lambert v Ongley [1923] NZGazLawRp 278; [1924] NZLR 430 (SC).

⁴⁰ Noting its tacit approval by the House of Lords (above n 36); and that Lord Halisham of St Marylebone (ed) Halsbury’s Laws of England (4th ed, vol 27, Butterworths, London, 1973) at 868 and John W Salmond Salmond on Torts (5th ed, Sweet & Maxwell, London, 1920) at 179 treated it as definite authority.

• [56] More recently, in Slater v Attorney-General, a tort case alleging (amongst other things) battery, the High Court Judge considered the Blades v Higgs right of recapture, applied in De Lambert v Ongley, to be of a different age.⁴¹ He nevertheless applied these authorities, taking the view that it was for another court to revisit them.⁴² The case involved police officers, acting on the instructions of a rental car company, attempting to repossess a rented car when it was found parked in a damaged condition with two intoxicated occupants asleep inside it. The police used pepper spray to remove the occupants from the car. The Blades v Higgs right of recapture did not provide a defence to the occupants’ battery claim because the use of the pepper spray pre-emptively (rather than defensively to protect against physical injury) was beyond the scope of their authority.⁴³

• [57] In expressing doubt about the Blades v Higgs right of recapture, the Judge in Slater v Attorney-General agreed with the view of the majority in the Australian decision of Toyota Finance Australia Ltd v Dennis.⁴⁴ That case concerned an attempt to repossess a vehicle pursuant to a right under a hire purchase agreement for default on the monies owing. The agent of the defendant approached the driver (the wife of the person in default under the agreement) while was she seated in the car. The agent told the driver he was there to repossess the car and asked her to get out of it so that he could do so. When she refused, the agent forcibly grabbed her upper arm causing bruising to it.⁴⁵

• [58] The majority in Toyota Finance Australia Ltd v Dennis distinguished between force used to recapture a chattel from a person whose possession was wrongful from its inception from where a person had been in lawful possession (such as a bailee whose bailment has come to an end). The majority preferred the views of commentators who considered that the force was justified in the former but not the latter situation, and that Blades v Higgs had been wrongly decided in finding that force

⁴¹ Slater v Attorney-General [2006] NZHC 308; [2006] NZAR 664 (HC).

⁴² At [31].

⁴³ Although not put this way by the Judge, it was unreasonable force in the circumstances.

⁴⁴ Toyota Finance Australia Ltd v Dennis [2002] NSWCA 369.

⁴⁵ There was medical evidence that she also suffered tenosynovitis and carpal tunnel syndrome. The trial judge accepted this evidence and awarded damages for it although on appeal the majority found this uncompelling.

could be used to recover a chattel from a person other than the trespasser. As the majority put it:⁴⁶

... But it is undesirable that the law should contemplate that where the hirer of a motor vehicle wrongly refuses to hand it back, a person seeking to repossess it may inflict such injuries on a woman, in this case over 53 years of age, and justify it by saying in the words of [Blades v Higgs] that the force was no more than sufficient to defend their right to retake the chattels.

• [59] The minority Judge considered that both judicial and non-judicial authority supported Blades v Higgs.⁴⁷ On whether reasonable force had been used, the minority Judge considered it was no more force than was reasonably necessary and proportionate. The agent had not struck the wife or used force calculated to cause grievous bodily harm. He said the wife could and should have acquiesced to the agent peaceably taking the keys.⁴⁸

• [60] Against this common law background, it is necessary to examine the statutory provisions. The starting point is s 20 of the Crimes Act. It provides that all the rules and principles of the common law that render any circumstances a justification or excuse for any act or omission remain in force and apply in respect of a charge of any offence “except so far as they are altered by or are inconsistent with this Act or enactment”. The respondent submits that the effect of s 20 is to leave little scope for the common law defences to operate as a gloss on the specific statutory defences. The appellant submits that s 53 reflected and was seeking to codify the common law position as held in Blade v Higgs.

• [61] Returning to the words of s 53, the elements of the defence that protect the defendant “from criminal responsibility” are that:

(a) the defendant is in “peaceable possession” of a movable thing;

(b) the defendant’s peaceable possession is under “a claim of right”;

⁴⁶ At [143].

⁴⁷ At [59].

⁴⁸ At [82].

(c) the defendant is “defending” his or her possession “even against a person entitled by law to possession”;

(d) the defendant’s defence of his or her possession uses “reasonable force” and does not involve a “strike” or “bodily harm to the other person”.

• [62] Of the quoted words, the Crimes Act defines only “claim of right”. It means:⁴⁹

... a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed

• [63] In Taueki v R, a case involving s 56, the Supreme Court discussed the policy for limits on the use of force:⁵⁰

• [36] Under our system of government it is principally the role of the executive and the courts to protect the rights of citizens, including their property rights. Public authorities are not, however, in a position to resolve every dispute between citizens over their rights. The statutory law of defence of property recognises that there are limits on official capacity, and the need, in some circumstances, for immediate and direct private responsive action to be permitted if property rights and interests are effectively to be protected. ...

• [37] Private action in defence of property often involves physical confrontation and is accordingly in tension with values of social order and stability. Limitations on the right to use defensive force reflects a balance between competing public policies. ...

So while the law has recognised the limits on the capacity of the State to resolve every dispute by allowing individuals in some circumstances to exercise defensive force to protect their interests, it also recognises the danger of permitting self-enforcement by those who may prove to be poor judges of their right to exercise force and of how much force they may legitimately exercise in a potentially volatile situation. The law accordingly does not permit every right to be defended by the use of force that is necessary for its effective protection.

• [64] The limits on the force under s 56 are as to who is authorised to use the force,⁵¹ whom the defensive force can be used against,⁵² and the nature and force that can be

⁴⁹ Crimes Act, s 2 (definition of “claim of right”).

⁵⁰ Taueki v R, above n 35 (footnotes omitted).

51. Everyone in peaceable possession of any land or building and everyone lawfully assisting him or acting with his authority.

⁵² Actual or anticipated trespassers.

used.⁵³ If these limits are met, the force is “justified” meaning that the person using the force is not guilty of an offence and not liable to any civil proceeding.⁵⁴

• [65] As to the first of these limits, the Court discussed the meaning of “peaceable possession” of land or a building. As to “possession” the Supreme Court said:

[56] ... In the absence of any evidence to the contrary, a legal owner of property will be in possession of it. But while possession is often an incident of ownership (or other legal right), in this context, ownership of property is not necessarily required, nor even a claim of right, before a person will have a defence under s 56.

• [66] The Court went on to quote the characteristics of possession of land identified by Lord Browne-Wilkinson in JA Pye (Oxford) Ltd v Graham.⁵⁵ This discussed “factual possession” that signified exclusive physical control. Possession of this kind would give rise to a claim in trespass for interference with the land in question. The Court considered that, as s 56 enabled force against a trespass, it was appropriate to give possession a meaning that aligned with the law of trespass. The Court concluded:

[58] Possession, as required by s 56, accordingly turns on whether the person raising the defence has actual control over the property in question. Whether a person has sufficient control to be in possession is a factual question turning on all the circumstances including, for example, the nature of the land in question and the manner in which it is usually enjoyed.

• [67] As to “peaceable possession”, the Supreme Court discussed overseas authority that for possession to be “peaceable” there must be no serious rival claim to possession being maintained in challenge to the possession of the person relying on the defence, and that this had led to the view that the possession must not have been seriously questioned by demonstrated opposition at the time the defensive force is exercised.⁵⁶ The Court considered this definition would create difficulties when the term was applied in the other Crimes Act provisions. It explained:

[61] For example, under s 53, a person in peaceable possession of moveable property under a claim of right can use reasonable force to defend his or her possession even against the true owner who disputes it. The meaning drawn from, in particular, the Canadian cases would allow little scope for that

53. Reasonable force to prevent or remove a trespasser that does not involve striking or doing bodily harm.

⁵⁴ Crimes Act, s 2 (definition of “justified”).

⁵⁵ JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419.

⁵⁶ At [59].

provision to operate because it could be expected that opposition from the true owner would almost invariably amount to a serious rival claim such that possession would not be peaceable and the defence would be unavailable.

...

[63] Finally, the view that peaceable possession is possession that is not seriously challenged by others would have the unsatisfactory result of making the earlier actions of a trespasser determinative of the scope of the defences under ss 52–56 of the Crimes Act and the offence of forcible entry in s 91. By previously demonstrating his or her opposition to possession in a sufficiently serious manner, whether by lawful or unlawful means, a trespasser could defeat the necessary “peaceable” quality of possession. The result would be to deny the person in possession the right to use defensive force, and to permit the trespasser to enter forcibly on land without committing an offence. In that way, the earlier conduct would have essentially secured for the trespasser a licence to enter forcibly upon the land.

• [68] The Court concluded:

[64] ‘Peaceable possession’ must be given a meaning that gives due scope to both the ss 52–56 defences and the s 91 forcible 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 possession 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 possession obtained and maintained before the employment of the physical force the use of which the person seeks to justify.

• [69] There are High Court cases that have considered s 53 following Taueki v R. In Birchall v Police, there was a dispute over a mechanic’s charge for servicing a car.⁵⁷ The owner of the car was not in peaceable possession of the car when he attempted to drive it away without paying and a physical tussle between the owner of the car and the mechanic ensued. The car had been delivered to the mechanic earlier in the day for the work to be carried out, the keys had been given to him for that purpose, and the mechanic had a lien entitling him to possession until the bill for the work was paid.⁵⁸

• [70] In Curtain v Police there was a fight over a phone held by the complainant.⁵⁹ The defendant had the financial responsibility to pay for the phone under the contract for that phone, but it was not in dispute that the phone was for the complainant’s use

⁵⁷ Birchall v Police [2020] NZHC 2378.

⁵⁸ At [50].

⁵⁹ Curtain v Police [2021] NZHC 907.

at the time of the argument that led to the tussle over the phone. The complainant therefore had actual possession and control over the phone. This meant that the defendant could not rely on s 53 as a defence for the assault on the complainant in the tussle for the phone because he was not in peaceable possession of it.

• [71] Both of these cases involve more clear examples of what is meant by “possession obtained and maintained before the employment of the physical force that the use of which the person seeks to justify”.⁶⁰ Possibly of more similarity to the present case is Manase v Police, a case that pre-dates Taueki but is consistent with it.⁶¹ That case involved a domestic dispute between a husband and wife. The husband had destroyed the wife’s family pictures. She then took into her possession the video tapes of the weddings of the appellant’s sister and brother that she was intending to destroy (and subsequently did). The husband caused a bruise to the wife in trying to grab them off her. The husband’s conviction for assault was quashed on appeal on the basis that s 53 was available to him. As it was put by the Judge, “notwithstanding his own contribution to the rise in temperature it was his right under s 53 to exercise reasonable force to defend his possession of the wedding tapes”.⁶²

• [72] I consider the fact that a person (A) can lose possession by the wrongful act of another person (B), when before that act the possession was obtained and maintained by A, indicates the meaning of “defending” his or her possession in s 53. Defending in this context must mean protecting the possessory right, held immediately before the wrongful act, from that wrongful act. Consistent with this, the husband in Manase could seek to retake the video tapes from the wife providing he used reasonable force and did not strike her or cause her bodily harm.

This case

• [73] It is not straightforward to apply this guidance to s 53 on the facts of the case. At the point that the victim was leaving the hotel room to catch a bus home, her evidence was that she knew the appellant wanted the key and she was intending to give it to him at the doorway. However, she ended up holding on to it as an anxiety

⁶⁰ Taueki v R, above n 35.

⁶¹ Manase v Police HC Auckland CRI-2006-404-39, 21 July 2006.

⁶² At [9].

response. She said the “keys ended up being passed to the manager at the end” although that possibly conflicts with the fact that the police who attended the victim after she left the hotel room ended up with the key.

• [74] Once the victim was not going to stay in the hotel room any longer, the appellant had the immediate right to possession. He had arranged the booking for the room and for its payment through his sister. But he had not had the key in his physical possession at least since the argument that led to the PSO being served on him.⁶³ After the PSO was served, effectively with the permission of the police, the victim was able to continue to use the room until the time she was to leave. The appellant wanted the victim to let him into the room so that he could get some sleep and she did let him into the room on three occasions. He wanted her to leave on a bus so that he could use the room without breaching the PSO.

• [75] The appellant seeks to go back in time to before their argument that led to the PSO. He says he was in peaceable possession of the key then. The appellant argues that from this time until the victim was leaving they were in ongoing dispute over the key. He says the victim’s attempt to leave with the key sought to deprive him of that possession. The position is arguable. He had been in peaceable possession of the key until their fight, which extended over the Sunday evening and until the victim went to leave. Once the victim left with the key he was not to know what she intended to do with it. It was a Monday evening and the evidence is not clear whether there was an onsite manager from whom he could obtain a replacement key that night or the next day. He had already been without sleep for one night and needed use of the room to get that sleep.

• [76] On the other hand, and the view I favour given the need to confine s 53 to its proper scope as a self-help remedy, is that it is the possession prior to the immediate dispute that provoked the force that is relevant. The appellant did not have possession of the key when he returned to the hotel room to see the victim off to the bus. He had lost that possession when the PSO was issued and the victim was using the hotel room. The situation is somewhat similar to Toyota Finance Australia Ltd. The victim’s right

63. The evidence is that he went to McDonald’s to try to get the key from the victim and he then called the police.

to possess the key had come to an end and her wrongful action was in failing to return it rather than her possession being wrongful from inception. Put another way, she was the one in peaceable possession immediately prior to the assault on her when she went to leave.

• [77] Had I found otherwise, the question would arise whether reasonable force not involving bodily harm was used. I consider that grabbing the victim’s arm to attempt to obtain the key (if it was in her hand) was reasonable even if somewhat forceful. Other cases have held that a minor bruise does not qualify as bodily harm.⁶⁴ However, I agree with the Judge that the pulling on the hoodie was part of the assault in the attempt to defend the appellant’s possession of the key. That was a forceful pull that caused the victim’s breathing to be impeded and left a mark on her throat. It was a potentially dangerous action even though impeding the victim’s breathing was not done recklessly or with intent. There were less forceful options available to the appellant, including grabbing her lower down on her hoodie and with less force. I consider pulling the hoodie and grabbing the victim’s arm are best seen as one continuing assault in this context.

• [78] Therefore, although s 53 might have provided a defence to the assault of grabbing the victim’s arm, it would not have provided a defence to the assault that was the subject of the strangulation charge. That would have raised the question of whether the strangulation charge should be substituted for an assault charge for the pulling of the hoodie that caused the neck injury. I consider this no further because of the view I have come to that s 53 was not available to the appellant at the time of the assault.

Result

• [79] The appeal against conviction on the strangulation charge is allowed and the conviction on that charge is quashed. The appeal against the assault charge is dismissed.

⁶⁴ See Ruwhiu v Police, above n 16, at [18]; Hastings v Police HC Whangarei AP24/01, 19 July 2001; and Manase v Police, above n 61. Compare Kapene v Police [2014] NZHC 41 where it was held that a cut to the complainant’s lip, which was still bleeding sometime later, could not be described as “merely transitory and trifling” and accordingly fell within the ordinary meaning of “bodily harm” rendering the defence unavailable.

• [80] I did not receive submissions about the sentence in this event. It may be that the proceeding should be remitted back to the District Court to resentence the appellant in light of the strangulation conviction having been quashed.⁶⁵ However, if the parties are agreed on an appropriate adjustment to the sentence, and I am satisfied it is appropriate, I may be able to substitute the appropriate sentence.

• [81] I therefore request submissions from the parties within two weeks of the date of this judgment on the appropriate course (remitting back or substituting an appropriate sentence).

Mallon J

⁶⁵ Criminal Procedure Act, s 236.