Police v Gill [2020] NZDC 25503 (3 December 2020)

Last Updated: 27 April 2022

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2020-044-002683 [2020] NZDC 25503

NEW ZEALAND POLICE Prosecutor

v

[CHRISTY GILL] Defendant

Hearing:	3 December 2020
Appearances:	Sergeant M Hagan for the Prosecutor J Mather for the Defendant
Judgment:	3 December 2020

ORAL JUDGMENT OF JUDGE N J SAINSBURY

[1] On the afternoon of 27 August this year, the police were called to the Orewa beach lookout. The concern was that there was a woman there who seemed to be threatening to take her own life. Two police officers were sent to the location, [the first Constable] and [the second Constable]. They arrived at the lookout. They had received information about the person who, as it turns out, is the defendant.

[2] The advice they received was that it would be better if a female officer dealt with the defendant. Accordingly, [the first Constable] went and spoke to Ms [Gill]. She was sitting on a tree branch which overhung the cliff edge. The officer approached the female. The immediate concern the constable had of course was that the female

NEW ZEALAND POLICE v [CHRISTY GILL] [2020] NZDC 25503 [3 December 2020]

may harm herself by falling off the tree and down the cliff. Of course, the difficulty the constable faced was that to get to where the female was, she herself would have to get out onto the tree. That put her at risk.

[3] Nevertheless, she placed herself between two branches and was able to get hold of Ms [Gill]’s left arm and to hold her. While holding onto her, she then tried to talk her to come back off the branch into safety. This negotiation took some time because Ms [Gill] did not immediately agree to this. In fact, she shuffled further away towards the end of the branch. It should be noted that the branches were wet so there was always a concern that Ms [Gill] could slip or the officer could slip. Further, if Ms [Gill] did go off the branch safely, that she would bring the officer with her.

[4] Eventually, the other officer was able to step in and assist in holding onto Ms [Gill]. Of course, in doing that, he put himself at risk. However, eventually, the two officers managed to get Ms [Gill] off the tree branch into safety. They escorted her back over the fence and back to the Orewa Police Station. There she was met by an ambulance and taken to North Shore Hospital.

[5] The next day, [the first Constable] was also on duty. Just shortly before 1 pm, she was advised that again, a female had been seen at the Orewa beach lookout. Various officers attended. However, when [the first Constable] arrived, she saw that it was Ms [Gill] again. What seems to have happened is that the officers who arrived earlier had located her on the cliff edge with her feet hanging over the edge. One of the officers had managed to bring her back across into safety.

[6] It is noted from the police records that there have been many similar occurrences at the same location. There is reference to 59 similar occurrences. The exact circumstances of those are not covered in the evidence. The evidence sets that out in the formal written statements of the three police officers who were involved in these events. They were put before the court by consent. There is no issue over the actions of the police at this time. The formal written statements produced by consent form the evidence in this case.

[7] As a result of these events, Ms [Gill] is charged under s 145 of the Crimes Act 1961. That is a charge that is referred to as criminal nuisance. The charging document describes the offence in this way:

That she committed a criminal nuisance by doing an unlawful act, namely standing on top of the cliff threatening to jump off, knowing that such an act would endanger the lives of the public.

[8] The legislative reference in the charging document is to the Crimes Act, s 145, and to the Public Safety and Nuisance Bylaw 2013 that is promulgated by the Auckland City Council, in particular, bylaw 6(1).

[9] Section 145 requires first there to be an unlawful act. An unlawful act can result from the breach of a bylaw, hence the reference to bylaw 6(1) of the Public Safety and Nuisance Bylaw.

[10] Second, it must be proven that the defendant knew that her action or her unlawful act would endanger the lives, safety or health of the public or of any individual.

[11] The argument on behalf of the prosecution is that I can infer by the combination of events where there were two attempts at self harm over 27 and 28 August that Ms [Gill] knew that the police would be called and would endeavour to assist her. Further, that inference is strengthened by the fact that there was a reported history of frequent attempts at self harm. The argument being that this means that Ms [Gill] could be inferred to know that the police will be called. The police will be required because of their duty to try to both negotiate her down and also to physically prevent her from doing harm. That will necessarily put the police in danger.

[12] On the basis of that, I am invited to infer that she must have actual knowledge that her actions will endanger police. The reason that is important is because in this section of the Crimes Act, knowledge requires proof she intended to endanger police or proof she was reckless. It is not sufficient for it to be simple negligence. What the Court of Appeal in R v Anderson said is that a case involved recklessness in the sense

of actual understanding of the risk and a willingness to take the risk so there needs to be actual knowledge of the risk and a turning of the mind to the risk.1

[13] The second issue relates to the unlawful act. The unlawful act that I have had referred to me reads as follows: Bylaw 6(1):

A person must not use a public place to wilfully obstruct, disturb, interfere with, alarm, distress, intimidate or harm any other person in their use or enjoyment of that public place.

The first observation I make is this. In the absence of submissions to the contrary, I intend to interpret that provision by way of ordinary usage. The first point is that I read wilfully as applying to all the various alternatives. In other words, wilfully obstruct, wilfully disturb, wilfully interfere with, wilfully alarm, wilfully distress, wilfully intimidate or wilfully harm. That means the person has to intend one or each of those alternatives. The other issue in terms of bylaw 6(1) is that the wilful obstruction et cetera that happens in a public place is in relation to the other person’s “use or enjoyment” of that public place. I will come back to that in a moment.

[14] There is a further issue regarding the bylaw. Mr Mather, on behalf of the defendant, puts in issue proper proof of the bylaw. He says I cannot rely on that bylaw unless I have evidence in front of me that proves it exists. Mr Mather refers to the Bylaws Act 1910. At s 22 of that Act, Parliament has set out how it is bylaws can be proven. That provides the following alternatives under s 22(1):

The production of a copy of the Gazette purporting to contain a copy of any bylaw shall be sufficient evidence, until the contrary is proved, of the existence, publication, validity, and provisions of the bylaw, and of the date of its coming into operation.

The point Mr Mather makes is that I do not have a copy of the Gazette before me so I cannot use that provision.

[15] The second alternative is found in s 22 (2):

The production of any document purporting to be or contain a copy of any bylaw and to be authenticated by the seal of the local authority making the same shall, without further evidence of the authenticity of the seal or of any

1 R v Anderson [2004] NZCA 238; [2005] 1 NZLR 774.

other matter, be sufficient evidence, until the contrary is proved, of the existence, publication, validity, and provisions of the bylaw and of the date of its coming into operation.

While I have been given a copy of the bylaw, it does not on the face of it have the seal of the local authority making the same.

[16] The third option is under s 22 (3):

A certificate of the confirmation under this Act of any bylaw may be sufficiently proved by the production of any document which is sufficient evidence of the bylaw itself and which contains or purports to contain the certificate of confirmation or any copy thereof.

[17] The schedule to the Act provides what a certificate of confirmation looks like. It reads as follows:

In pursuance of the Bylaws Act 1910, I hereby confirm the above-written bylaw [or bylaws], and declare that the same shall come into force [or came into force] on the day of 19.

That is then signed by the Minister of Local Government. Again, Mr Mather’s point is that no such confirmation is seen on the document that I have.

[18] However, there is a fourth provision. Section 22 (4) says:

Nothing in this section shall be so construed as to exclude any other sufficient evidence.

That raises the issue as to whether since 1910, things might have moved on and there are other ways of proving an Act.

[19] I have to say, I have had limited time to work my way through this. The Evidence Act 2006 does provide for authenticity of public documents in s 138. A public document, which is defined in s 4 of the Evidence Act includes a document that:

is being kept by, or on behalf of, a branch of any government, person, body, or organisation referred to in subparagraph (i) or (ii), for the purpose of carrying out the official functions of that government, person, body, or organisation.

[20] Further, it:

forms part of the official records of the legislative, executive, or judicial branch of the Government of New Zealand or of a foreign country or of a person or body holding a public office or exercising a function of a public nature under the law of New Zealand or a foreign country.

[21] It may be arguable that such a provision is broad enough to include bylaws. I note that, interestingly, in terms of foreign legislation and other law, it is sufficient in New Zealand that there is a document containing the written law that appears to the judge to be a reliable source of information. It would seem strange to me that the rules are somewhat relaxed for getting the law from foreign jurisdictions and not so much for New Zealand. I cannot give a conclusive answer to that. Mr Mather may be right. It may well be that things are constrained by the Bylaws Act 1910. However, for the moment, I will proceed on the basis that bylaw 6(1) is applicable. For the reasons that have become apparent I do not think I need to resolve Mr Mather’s point on that issue, interesting though it is.

[22] It seems to me that there are two issues of concern here. The first is in terms of the ambit of the bylaw. The bylaw is designed to prohibit someone deliberately acting in particular ways that will affect other persons in their use or enjoyment of the public place. The purpose of that is somewhat obvious. Public places are for the benefit of everyone. They are used by the wider community. We have a social obligation to respect others who are using that place and not allow our use of it to interfere with others’ enjoyment. It is a matter of social courtesy as much as anything else.

[23] In this instance, this bylaw has been used to find an unlawful act for the purposes of s 145. It is clear that at times Ms [Gill] was wilfully obstructing the police, such as by moving further along the branch. That is not a difficulty. But the key question is: why were the police there? Were they there because they were using the public place or enjoying the public place? The police were there for one reason. Their duty as police officers requires them to act to protect of members of the community. They were dispatched there for that purpose. They were not there to use the public place or enjoy it. They were there because they had a duty to protect and were carrying out that duty.

[24] In my view, bylaw 6(1) was not designed for the purpose in which the prosecution is trying to use it in this instance. In other words, Ms [Gill] was not wilfully obstructing, disturbing et cetera the police in their use or enjoyment of the public place. She may well have been obstructing them in their duty, which is an offence, but she was not breaching that particular bylaw.

[25] The next issue relates to the knowledge that her act would endanger the lives of the public. When discussing this matter with prosecutor and defence counsel, it seemed to me that there could well be a situation where a person behaves in a way that is attention seeking. Due to that such a person deliberately sets up situations where they might be rescued, not because they are in danger or seriously want to harm themselves, but because they get some form of gratification by being subject of a rescue. That would fit in the concept of knowingly endangering the lives of others. The concern here is that Ms [Gill] has a history of attempting self-harm with the police being required to intervene. Clearly, it is something of immense frustration to the police that they are continuously finding themselves having to deal with the situation and put themselves in harm’s way to protect Ms [Gill].

[26] However, the other inference from all of this is that Ms [Gill] is suffering from mental illness. She does have times when this shows itself in feelings of wishing to self harm. It seems to me that it is at least open, and at least in equal inference if not more, that a person who is unwell or overwrought is not thinking about the impact their actions will have on others. Rather, it is solely focused on themselves. They are looking inwards.

[27] In that sense, I cannot find it proven beyond reasonable doubt that she must have known she would endanger the lives of others, either in the sense that she intended to do just that or even that she turned her mind to the circumstances of risk and took that risk. It seems to me, at least a reasonable possibility, that she was simply obsessed with her own position and not thinking of the risk that she created for the police in this situation.

[28] What follows from that is that the charge is not proven to the criminal standard. It still leaves the issue of what is essentially a mental health issue. I understand that

Ms [Gill] is getting assistance at present. She is now compliant with medication. I hope that that remains the case. This seems to be that all too common situation where the mental health system rubs up against the criminal justice system. Inevitably, the police are those who are left to try to sort this out, having to put themselves in danger in the process.

[29] It is to be hoped that Ms [Gill] gets and continues with the assistance that is available to her because the danger is that eventually, she will harm herself and may well harm those who are putting themselves in harm’s way to help her. But as matters stand, the charge is dismissed. That is, a verdict of not guilty, charge dismissed.

Judge NJ Sainsbury

District Court Judge

Date of authentication: 22/12/2020

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.