R v Gorrie [2007] NZCA 144; [2008] 3 NZLR 620; (2007) 24 CRNZ 39 (20 April 2007)

Last Updated: 2 February 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA299/06
[2007] NZCA 144

THE QUEEN



v



DONALD JAMES GORRIE

Hearing: 15 March 2007

Court: O'Regan, Arnold and Ellen France JJ

Counsel: G M Illingworth QC for Appellant
A M Powell and C A Brown for Crown

Judgment: 20 April 2007 at 3 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

2. The question for which special leave to appeal was given is answered as follows:

Does s 11 of the Summary Offences Act 1981 create an exception, exemption, proviso, excuse or qualification for the purpose of s 67(8) of the Summary of Proceedings Act 1957, such that the onus of proof shifts to the defendant to prove any lawful justification, excuse or claim of right?

Answer: “No”.

C The matter is remitted to the District Court for rehearing.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] This is an appeal against conviction under s 11 of the Summary Offences Act 1981 for wilful damage of property. The question of law for which special leave to appeal was granted by consent is:

Does s 11 of the Summary Offences Act 1981 create an exception, exemption, proviso, excuse or qualification for the purpose of s 67(8) of the Summary of Proceedings Act 1957, such that the onus of proof shifts to the defendant to prove any lawful justification, excuse or claim of right?

[2] The case proceeded in both the District Court and the High Court on the basis that the answer to this question is “yes”, and that answer is consistent with the decision of the High Court in Sheehan v Police [1994] 3 NZLR 592 (HC). But in this Court the Crown conceded that Sheehan was wrongly decided and that the answer should in fact be “no”. In this judgment we set out why we agree that the Crown’s concession was properly made, and also deal with the second issue on appeal, namely whether or not the case should be remitted to the District Court for rehearing.

Interpretation of s 11

[3] Section 11 of the Summary Offences Act relevantly provides:

11 Wilful damage

(1) Every person is liable to imprisonment for a term not exceeding three months or a fine not exceeding $2,000 who intentionally—

(a) Damages any property...

(2) For the purposes of subsection (1) of this section, a person does an act intentionally if he does it intentionally or recklessly, and without lawful justification or excuse or claim of right.

[4] The charge was laid against the appellant, Mr Gorrie, after an incident which took place on land adjacent to Mr Gorrie’s rural property. That property has a chalet on it, which did not have its own potable water supply. Water was piped from a source on the neighbour’s land. Mr Gorrie had a water easement in favour of his property. He also had a consent to sink a well adjacent to the stream next to his neighbour’s boundary, so that he could obtain an alternative water source. There had been difficulties between Mr Gorrie and his neighbour in the past, and the relationship between them was not good.
[5] Mr Gorrie engaged a contractor to sink the well. The contractor brought a digger and a transporter to the site. The employees of the contractor were concerned about their ability to remove this heavy machinery from the site, because this would require the heavy machinery to be driven up a hill in a paddock on the neighbour’s land. Mr Gorrie therefore decided to arrange for a truck to spread shingle on the hillside in the neighbour’s paddock to create a temporary roadway. This resulted in a scar of about 60 metres on the hillside. A tenant on the neighbour’s property alerted him to this damage, and he complained to the police. Mr Gorrie was charged with procuring the commission of an offence created by s 11, in terms of s 66(1)(d) of the Crimes Act 1961. This was because Mr Gorrie engaged the contractor whose employees did the work, giving rise to the damage on the neighbour’s property.

Proceedings in the District Court and High Court

[6] In the District Court, Mr Gorrie acted for himself. His defence was that he considered he was within the rights conferred by his easement when he engaged the workmen to construct the well, which of course entailed them laying the shingle road on the neighbour’s land. It was a claim of right defence. “Claim of right” is defined in s 2 of the Crimes Act in the following terms:

claim of right, in relation to any act, means a belief that the act is lawful, 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.

[7] Mr Gorrie submitted to Judge Ryan that it was for the prosecution to negate Mr Gorrie’s claim of right, rather than for him to prove it positively.
[8] Judge Ryan disagreed and found the charge proved: DC ASH CRI-2004-003-523 23 May 2005. He considered that s 67(8) of the Summary Proceedings Act 1957 applied to s 11. Section 67(8) provides:

Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the offence in the enactment creating the offence, may be proved by the defendant, but, subject to the provisions of section 17 of this Act, need not be negatived in the information, and, whether or not it is so negatived, no proof in relation to the matter shall be required on the part of the informant.

[9] The Judge pointed out that Mr Gorrie had suggested, but not given evidence as to the fact, that he had a claim of right. He said at [33]:

Clearly the question of some entitlement as a matter of law, claim of right, whether it be called that or an exception, exemption, proviso, excuse or qualification, it was for [Mr Gorrie] to advance and he has not done that.

[10] Mr Gorrie appealed to the High Court: HC TIM CRI-2005-476-000009 28 April 2006. In the High Court, Panckhurst J agreed with Judge Ryan that s 67(8) applied in relation to the defence of lawful justification, excuse or claim of right provided for in s 11(2), relying on Sheehan. Panckhurst J found that Judge Ryan had not taken adequate steps to explain to Mr Gorrie, as a litigant in person, the fact that for his defence of claim of right to succeed he had to establish it positively through evidence. Panckhurst J therefore issued an interim judgment and called for further evidence. Since he was seised of the matter, he said he would hear the evidence rather than remit the matter to Judge Ryan. Thus an unusual feature of this case was that the prosecution’s evidence was heard in the District Court, whereas the defence’s evidence was heard in the High Court.
[11] Mr Gorrie’s defence was that he was acting within his implied rights under his water easement. He said that he had sought legal advice as to the applicable regulations and considered he was within the rights that they conferred. The regulations Mr Gorrie considered applicable were the Land Transfer Regulations 2002. Regulation 12 in Schedule 4 to those regulations provides:

12 Rights of entry

(1) For the purpose of performing any duty or in the exercise of any rights conferred under these regulations or implied in any easement, the grantee may—

(a) enter upon the servient land by a reasonable route and with all necessary tools, vehicles, and equipment; and

(b) remain on the servient land for a reasonable time for the sole purpose of completing the necessary work; and

(c) leave any vehicles or equipment on the servient land for a reasonable time if work is proceeding.

(2) The grantee must ensure that as little damage or disturbance as possible is caused to the servient land or to the grantor.

(3) The grantee must ensure that all work is performed in a proper and workmanlike manner.

(4) The grantee must ensure that all work is completed promptly.

(5) The grantee must immediately make good any damage done to the servient land by restoring the surface of the land as nearly as possible to its former condition.

(6) The grantee must compensate the grantor for all damages caused by the work to any crop (whether ready for harvest or not) or to any buildings, erections, or fences on the servient land.

[12] In a final judgment, Panckhurst J found that what Mr Gorrie instructed the workmen to do was incompatible with reg 12: HC TIM CRI-2005-476-000009 11 May 2006. He then considered whether Mr Gorrie could have entertained a genuine, albeit mistaken, belief that his actions were lawful. The Judge found he could not. He referred to evidence that Mr Gorrie had discussed options with the workmen and expressed a preference for the laying of shingle, and that on a previous occasion, the neighbour had removed gravel put on his property by Mr Gorrie ostensibly in pursuance of an easement and recouped his expenses from Mr Gorrie. Panckhurst J considered that in the light of the history of disagreements between the neighbours, there was “an element of bloody mindedness in what Mr Gorrie did” (at [16]). The Judge’s conclusion was said to be bolstered by the openness of Mr Gorrie’s actions and the inevitability that they would come under scrutiny.

Analysis of s 11

[13] The starting point is Sheehan. In that case, the appellant kicked out a glass partition in order to escape from an office where he said he had been falsely imprisoned and assaulted by security guards. He was charged under s 11 of the Summary Offences Act, but claimed that because he was escaping further assaults when he kicked the glass panel, he had a lawful justification in terms of s 11(2).
[14] Smellie J referred to the well-known test for determining the applicability of provisions like s 67(8) propounded by Gibson J in R (Sheahan) v The Justices of County Cork [1907] 2 IR 5 at 11. That test was approved for New Zealand by the Supreme Court in Akehurst v Inspector of Quarries [1964] NZLR 621 at 625. Gibson J said:

The test, or dividing line, appears to be this: – Does the statute make the act described an offence subject to particular exceptions, qualifications, etc., which, where applicable, make the prima facie offence an innocent act? Or does the statute make an act, prima facie innocent, an offence when done under certain conditions? In the former case the exception need not be negatived; in the latter, words of exception may constitute the gist of the offence. [Emphasis in original.]

[15] Smellie J also referred to Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680 (HC). In that case, the accused was charged with collecting undersized paua without reasonable excuse in breach of reg 8(1)(b) of the Fisheries (Amateur Fishing) Regulations 1983, which were made under the Fisheries Act 1983. The accused was found to have taken the undersized paua, but claimed to have done so in pursuance of a Maori fishing right to collect shellfish from the Motunau Coast for personal and family consumption. He relied on s 88(2) of the Fisheries Act, which provided:

Nothing in this Act shall affect any Maori fishing rights.

[16] Williamson J reasoned that s 67(8) applied to s 88(2) because s 88(2) provided that certain activities, if carried out by a particular type of person or in particular circumstances, were not affected by the provisions of the Fisheries Act. Accordingly, s 88(2) came within the test from Sheahan and was an “exception, exemption, proviso, excuse, or qualification” in terms of s 67(8). So the accused in Te Weehi had to demonstrate on the balance of probabilities that he had a Maori fishing right.
[17] In Sheehan, Smellie J applied Te Weehi to s 11 of the Summary Offences Act. But there are some important differences in the statutory context in the two cases which, in our view, make it inappropriate to apply the reasoning in Te Weehi to cases under s 11 of the Summary Proceedings Act.
[18] The question of whether s 11(2) imposes a legal onus on the accused to prove colour of right on the balance of probabilities, or only an evidential onus to make it a live issue, has been commented on only once. In Brown and Edney v Police (1984) 1 CRNZ 576 at 578 (HC), Henry J relied on Murphy v Gregory [1959] NZLR 868 for the proposition that the onus of proof of the absence of colour of right, with respect to s 11 lies on the prosecution. Murphy itself involved a charge under s 32(1) of the Police Offence Act 1927, which provided:

Every person commits an offence who, unlawfully and without colour of right but not so as to be guilty of theft... takes or converts to his use or to the use of any other person... any motor car...

[19] In this provision, as in s 11, the reference to the offender acting “without colour of right” was not an “exception, exemption, proviso, excuse, or qualification” in terms of s 67(8). Rather, it was simply the mental element of the offence. Unless a person took or converted a motor vehicle “without colour of right”, he or she did not commit an offence. Similarly, s 11(2) defines intention for the purpose of the offence created by s 11(1). It says that if a person has a claim of right, he or she does not intend to damage property in terms of s 11(1)(a).
[20] This can be contrasted with the provision at issue in Te Weehi. There, the regulatory provision at issue provided that an act was proscribed unless there was a lawful excuse for doing it. A statutory provision then provided that an overarching lawful excuse existed where an accused availed him or herself of a Maori fishing right. The drafting of the provisions at issue in Te Weehi made it clear that there were two severable issues. That is not the case here: rather, the Crown must prove intention and, in light of s 11(2), that requires that it proves no claim of right, assuming claim of right has been put in issue.
[21] Counsel for the appellant in the present case, Mr Illingworth QC, asked this Court to apply the New Zealand Bill of Rights Act 1990 to s 11. Section 6 of the Bill of Rights requires that, where possible, all enactments must be read in a manner consistent with the Bill of Rights. Since s 25(c) of the Bill of Rights codifies the right to be presumed innocent until proven guilty, Mr Illingworth’s suggestion is that s 11 needs to be “read down” so as to change any possible imposition of a legal onus into only an imposition of an evidential onus.
[22] Mr Illingworth relied on the decision of this Court in R v Rangi [1992] 1 NZLR 385. In that case, the Court observed that the language of the provision in issue, s 202A of the Crimes Act, was “neutral”, ie it was not explicitly clear whether the reference to “without lawful excuse” was an element of the offence or a defence. Given the ambiguous nature of s 202A, the Court looked to s 6 as a factor leading to the conclusion that there was no reverse legal onus on the defendant. In the present case, however, the language of s 11(2) is not “neutral”: it is clear in its definition of intention for the offence created by s 11(1). Accordingly, there is no need to look to the operative provisions of the Bill of Rights in the present case.

Conclusion on s 11

[23] We conclude the Crown’s concession was rightly made. Sheehan should no longer be regarded as good law. We therefore allow the appellant’s appeal against conviction and answer the question set out at [1] above in the negative.

Should there be a rehearing?

[24] We now turn to the consequences of the allowing of the appeal.
[25] Mr Illingworth argued that we should simply quash the conviction and direct that an acquittal be entered. His arguments in support of this proposition were:

(a) On the basis of the law as stated in this decision, the Crown did not prove its case in the District Court, and we should not take into account evidence given in the High Court because that evidence was given only because the High Court Judge also proceeded on the basis that it was not the Crown’s onus to prove lack of justification or claim of right;

(b) If the case had been approached on the basis that the Crown did have that onus, the District Court Judge could not have reached the conclusion that the Crown had satisfied it because:

(i) the easement document was not produced in Court;

(ii) evidence from the neighbour as to what the easement said was inadmissible because he was not an expert on the proper scope of the easement, and there was no evidence that he had read the terms of the easement himself or that he was aware of the possibility of rights being implied into the easement by law;

(iii) there was no evidence to exclude the possibility that the appellant genuinely believed he was acting within his rights under the easement, even if that was not in fact so;

(c) There has now been a lengthy delay in dealing with the matter, raising issues in terms of s 25(b) of the New Zealand Bill of Rights Act 1990, and this delay cannot be attributed to the appellant because his submission as to the onus of proof was rejected in the District Court and the High Court, but has now been upheld in this Court. In addition, the appellant has undergone a trial in the District Court, two hearings in the High Court and the present appeal, and has incurred considerable cost and inconvenience.

[26] In his oral submissions, Mr Illingworth focused on the defence of justification, rather than that of colour of right. He said that in the absence of the production in evidence of the easement document itself, there was no proof that the appellant’s conduct was not, in fact, permitted under the terms of the easement itself and the Crown had not therefore ruled out the justification defence.
[27] For the Crown Mr Powell did not strongly pursue an order that the matter be remitted to the District Court for rehearing, but he commented that, in the Crown’s view, the appellant was not entitled to an acquittal.
[28] Standing back and looking at matters in the round, we have concluded that there ought to be a rehearing of this matter. The proceedings in the District Court and the High Court proceeded down the wrong track because both Judges applied the law as it then stood, namely the law as stated in Sheehan. The appellant, on the other hand, sought a ruling from the District Court Judge which would have been contrary to a decision binding on the District Court Judge (Sheehan) and because he was self-represented, did not realise the necessity to call evidence of either justification or colour of right.
[29] In the circumstances, we believe that in the interests of justice it is necessary for the whole process to be reheard applying the decision which we have now made. We recognise the burden this places on the appellant, but we agree with Mr Powell that it would not be appropriate to direct the entry of an acquittal in circumstances where the merits of the case have never been addressed on a proper footing.

Result

[30] In the result, we allow the appeal and remit the matter to the District Court for rehearing.

Solicitors:
D C S Reid, Auckland for Appellant
Crown Law Office, Wellington