The Queen v Van Bao Nguyen [2002] NTSC 38

R v Howell [1981] 3 All ER 383, questioned.

Crown: Office of the Director of Public Prosecutions

The Queen v Van Bao Nguyen [2002] NTSC 38

[1] These are my reasons for a ruling on 6 June 2002 during the trial of the accused on a number of charges, when at the conclusion of evidence I declined to permit counsel for the accused to put certain matters of defence before the jury with respect to a charge of aggravated assault.

[2] The relevant provisions of the Criminal Code NT are those in the now repealed s 27, which provides:

"27. Circumstances in which force not being such force as is likely to cause death or grievous harm is justified.

In the circumstances following, the application of force is justified provided it is not unnecessary force and it is not intended and is not such as is likely to cause death or grievous harm:

(h) in the case of a person who is in peaceable possession of any moveable property, or a person acting by his authority, to resist the taking of such property by a trespasser or to retake it from him, provided he does not intentionally do him bodily harm;"

[3] That section was repealed and replaced by a new section 29 (see Criminal Code Amendment Act 2001 No. 1, which commenced on 26 September 2001). However, as the alleged offence occurred on 11 November 2000 and as the repealing legislation is substantive rather than procedural and not expressed to be retrospective, the presumption against retrospectivity operates to make s 27 the applicable law in this case.

[4] The undisputed facts surrounding the alleged offence of assault are that in the early afternoon of 11 November 2000 the accused was driving his blue VL Commodore sedan inward bound to Darwin along the Stuart Highway. Approaching the intersection of Temple Terrace and the Stuart Highway the driver of another vehicle, the witness Corkery, observed the accused driving erratically, swerving across the lanes of the highway at a very slow speed. When passing the accused's vehicle, Corkery observed the accused as having a glazed look in his eyes. It was undisputed that the accused was under the influence of an intoxicating substance at the time, namely morphine. At the intersection of Temple Terrace and the Stuart Highway both vehicles stopped at the red traffic lights. Corkery alighted from his vehicle and approached the accused's Commodore. In an attempt to remove the accused's car keys, Corkery reached into the accused's vehicle, at which point the alleged assault occurred. It is alleged that the accused grabbed a steel bar, which was resting beside him on the passenger's seat, and thrust it at Corkery a number of times subsequently causing some injury to Corkery's hand. Corkery's unchallenged evidence was that he had attempted to remove the keys because he believed that the accused was severely intoxicated and was a danger on the road. The accused was later charged with assault and other offences.

[5] I ruled that as a matter of law s 27(d) "self defence" should not be put to the jury. On the undisputed facts this was not a case where the accused was defending himself or another against an imminent danger of attack on reasonable grounds. Nor did the undisputed evidence provide any room for an honest and reasonable but mistaken belief on the part of the accused that he was being attacked by Corkery. This aspect was not pressed further by defence counsel.

[6] I also ruled that as a matter of law s 27(h) "defence of property" should not be put to the jury. Defence counsel submitted that the accused's actions might be seen to be justified as resisting a trespasser from taking possession of the accused's moveable property, namely the car keys or the car itself.

[7] One question under s 27(h) was whether the accused was in "peaceable possession" of the moveable property at the relevant time. The question I posed to defence counsel was whether at law the accused was in peaceable possession of the car (or car keys) at the time he allegedly assaulted Corkery.

[8] Peaceable possession is not defined by Criminal Code NT.

[9] The meaning of "peaceable possession" has not been the subject of voluminous judicial consideration. The Western Australian case of Kennedy v Kuzma (unreported Supreme Court of Western Australia, 1149 of 1993, per Scott J) provides a most helpful examination. In a discussion of a similar provision in the Western Australian Criminal Code, Scott J traced the origin of the term "peaceable possession". He said at pages 6-9:

"In the absence of any direct authority on the subject and because this appears to be the first time that the point has been raised on appeal, at least in this State, it may be instructive to trace the origin of the term `peaceable possession'.

...the expression `peaceable possession' was included in the original Griffith Code, in relation to the defence of dwelling house provided for in s274. The marginal note in the draft refers to s62 and s63 of the Criminal Code Indictable Offences Bill 1880 (UK)...

...The original scheme of defences provided for in the 1880 Bill, together with the ordinary meaning of the word "peaceable", which is `free from disturbance', (Concise Oxford Dictionary, 8th Ed.) leads, in my view, to the conclusion that in this context, peaceable means entitled to possession without challenge (so long as that possession is not intended to or likely to cause a breach of the peace). So for example, the householder entitled to be in possession of his or her dwelling house and the property therein, without challenge, who has done nothing intended or likely to breach the peace, may lawfully defend the property therein in accordance with s251. In contrast, a person in receipt of stolen goods or goods otherwise unlawfully obtained is not entitled to possession without challenge and could not seek to rely on the section to justify action taken to protect that property."

"It is undisputed that Mr Kuzma took they keys from the vehicle owned and driven by Mr Gibbon. In my view, even although Mr Gibbon was clearly under the influence of alcohol, Mr Kuzma had no more right to take the keys from the vehicle than he had to take any other item property from the vehicle. Whilst in his eyes, Mr Kuzma saw his position as doing a community service by ensuring that Mr Gibbon drove no further, he had no authority to either take the keys from the vehicle or to thrown them away in the manner in which he did."

I am, with respect, unable to agree with His Honour on this latter point, for as Brennan J said (obiter) in Gollan v Nugent [1988] HCA 59; (1988) 166 CLR 18 at pages 32-33:

"There are some situations where possession is unlawful because of the possessor's intention and where force may be justified to deprive him temporarily of the thing possessed. A knife may be taken by force from the grasp of an intending murderer, though it is the knife he uses lawfully to carve the family dinner. But he must have it back once the murderous intention passes or is impossible to effect. Force may be used in such a case because there is a common law authority in any person to take reasonable steps to restrain a breach of the peace which he reasonably apprehends is about to be committed in his presence (Albert v Lavin [1982] AC 546 at 565), and the person who exercises that authority is not exposed to a civil liability in trespass or detinue because he takes possession of the weapon being used in breaching the peace. There are other instances where an intention to use a thing in the commission of a crime may affect the extent of the liability of one who takes or keeps the thing. Thus, if one person who is drunk goes to drive his car and a second person takes the key out of the ignition, the second person incurs no liability in trespass for damages for depriving the driver temporarily of the key. Nor is he liable in detinue for damages for refusing the driver's immediate demand to return the key, but he would be liable in detinue if he did not return the key when the driver had sobered up or directed delivery of the key to a third person. These are cases where the act on which the plaintiff founds his claim for relief is an offence or an intended offence and the general principle precludes the grant of relief in respect of the criminal use or proposed use of the thing possessed."

The other members of the Court (Dean, Dawson, Toohey and Gaudron JJ) said (at 45):

"This is not to deny those powers which a citizen has, be he a policeman or not, to prevent the commission of a crime or breach of the peace. Rights arising from ownership would not prevail against those powers but they only come into being when there is an immediate threat of a physical kind which is lacking in this case."

[10] In the light of Kennedy v Kuzma, supra, defence counsel submitted that the accused was in peaceable possession of his vehicle. It was submitted that the accused's possession of his vehicle, although potentially creating a disturbance, was not a violent act and thus was not intended or likely to cause a breach of the peace. Counsel referred the Court to the case of R v Howell [1981] 3 All ER 383 at 389 in support of this proposition. In that case Watkins LJ said:

"A comprehensive definition of the term `breach of the peace' has very rarely been formulated so far as we have been able, with considerable help from counsel, to discover from cases which go as far back as the eighteenth century....

...The statement in Halsbury's Laws of England is in parts, we think, inaccurate because of its failure to relate all the kinds of behaviour there mentioned to violence. Furthermore, we think, the word `disturbance' when used in isolation cannot constitute a breach of the peace. We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant."

[11] Whether a breach of the peace must necessarily involve some form of violence, real or apprehended, it is unnecessary for me to decide. Here, the undisputed evidence is Corkery and the witness Hunt reasonably considered the accused posed an immediate physical danger to other road users, as was the case. It was submitted there must be some type of behaviour of the class which includes assault, affray, riot, unlawful assembly or other like disturbance. This argument must be rejected. As the Court of Appeal held in McConnell v Chief Constable of the Greater Manchester Police [1990] 1 All ER 423 a police constable can arrest a person for conduct which in his opinion is "likely to cause a breach of the peace" even if it occurs on private premises with no other member of the public present. Furthermore in R v Chief Constable of Devon and Cornwall [1981] 3 All ER 826 (cited in McConnell, supra) peaceful and passive anti nuclear protesters were held to have breached the peace by their very obstruction of workers. In that case Lord Denning said (at 832):

"I go further. I think that the conduct of these people, their criminal obstruction, is itself a breach of the peace. There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker, by lying down or chaining himself to a rig or the like, he is guilty of a breach of the peace. Even if this were not enough, I think that their unlawful conduct gives rise to a reasonable apprehension of a breach of the peace. It is at once likely that the lawful worker will resort to self help by removing the obstructor by force from the vicinity of the work so that he obstructs no longer".

[12] In the circumstances of the present case, the accused's driving whilst under the influence of morphine posed an immediate threat to the safety of other road users, including Corkery. This unlawful conduct gave rise to a reasonable apprehension of, or a likely breach of the peace, and as such the accused was not entitled to possession of his vehicle, or car keys without challenge. Accordingly, on the undisputed facts, I ruled that as a matter of law the accused was not in peaceable possession of his vehicle, or car keys and was not entitled to raise s 27(h) Criminal Code NT in relation to the charge of assault.