Control: peaceable possession of land

Pronouns and political correctness: "his", or "his or her"?

Section 56(1) of the Crimes Act 1961 [NZ] has been politically corrected (or, more properly, gender neutralised, or - even more properly - gender balanced). The original version printed in the leading criminal text robustly reads:

"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."

But online you will find this (to become the "official" version from 6 January 2014):

"Every one in peaceable possession of any land or building, and every one lawfully assisting him or her or acting by his or her authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him or her therefrom, if he or she does not strike or do bodily harm to that person."

I can tolerate a bit of this sort of thing, and my objections spring from experience: if you try to think of a way of saying something by avoiding "he or she", and sexist language generally, you may well come up with better prose.

But s 56(1) is a hard nut to crack from that point of view, so the two versions confront us with the aesthetic question of which is the better prose, and if the former is better, the moral question whether gender balance is more important than cadence. However one would also have to take into account the need to avoid redundancy and tautology, arising from the operation of s 31 of the Interpretation Act 1999.

Strictly speaking, wrestling with this sort of problem is a matter for the Chief Parliamentary Counsel in the preparation of a revision Bill pursuant to s 31(2)(e) of the Legislation Act 2012. It can also be done when there is a reprint under s 25(1)(a) of that Act, to conform to "current drafting practice".

This gender balance business did not concern the Supreme Court this week in Taueki v R [2013] NZSC 146 (17 December 2013), where at [26] and [42] the original version of s 56(1) is quoted. The central point decided here is that possession requires a power of control over the land or building [57]-[58].

Additional points are: "peaceable" possession means "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" [64]; and mistake is irrelevant: "[t]here is no scope for applying s 56 on the basis of beliefs (reasonable or otherwise) on the part of the defendant as to whether he or she enjoyed peaceable possession of the land, nor as to whether the other party was a trespasser."

Control in context

The Court in Taueki did not look around and borrow inspiration from the law relating to drug offences. Control is a central element of offences of, or including, possession of a drug, and of permitting the use of premises for the commission of a drug offence. Control here has been interpreted judicially to mean having the power to invite or arrange for the presence of a drug, having the power to say what will be done with a drug, or having the power to invite or exclude others from premises or to prevent the commission of a drug offence on the premises.

In Taueki the appellant did not have powers of those kinds: [22]-[25]. There is thus a consistency in the meaning of control in these diverse contexts. That is hardly surprising, as the word will be given its ordinary and natural meaning unless the legislation requires otherwise.

The Court adopted Lord Browne-Wilkinson's description of possession of land in this context as that of a person who is "dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so" JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419 at [41], quoting from the judgment of Slade J in Powell v McFarlane (1977) 38 P & CR 452 (ChD) at 470–47; Taueki at [57].

This circumstance-dependent issue – is the defendant dealing with the land in question as an occupying owner might have been expected to deal with it? – links control to the powers of an owner, but as the Court in Taueki noted [56]: "while possession is often an incident of ownership (or other legal right), in this context, ownership of the property is not necessarily required, nor even is a claim of right, before a person will have a defence".

So there's room here for assistance from the usage of "control" in the context of drug offences. If that is correct, the material questions on the issue of possession here will be whether in the circumstances the defendant had the power to invite or exclude others from the land, or the power to say whether they could do a relevant thing while on the property.