E v Police HC Napier CRI 2009-441-20 [2009] NZHC 1111 (24 August 2009)

Last Updated: 14 January 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

_{CRI 2009-441-000020}

E

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 24 August 2009

Appearances: R Fairbrother for the Appellant

D Kerr for the Respondent

Judgment: 24 August 2009

[ORAL] JUDGMENT OF WYLIE J [Appeal against conviction and sentence]

Solicitors:

R Fairbrother, P O Box 339, Napier 4140

Crown Solicitor, P O Box 609, Napier 4140

E V NEW ZEALAND POLICE HC NAP CRI 2009-441-000020 24 August 2009

[1] On 4 May 2009, the appellant, Mr E , was found guilty of trespass under s 3(1) of the Trespass Act 1980 following a defended hearing before His Honour Judge A J Adeane. Mr E was sentenced to 150 hours of community work and ordered to pay witness expenses of $50.

[2] Mr E has appealed against both his conviction and sentence. The notice of appeal and the written submissions filed in support by Mr Fairbrother raise four issues.

a) First, Mr E complained that there was a seven month delay between the date of the offence and the date when he was first made aware of the charge. It was asserted that the prosecution should have been stayed as a result.

b) Secondly, it was argued that there was insufficient evidence to support the finding that the person who told Mr E to leave the premises was the occupier of the property.

c) Thirdly, it was submitted that the Judge’s decision, and in particular his sentencing notes, indicated a prejudicial bias which led him to make adverse findings as to Mr E ’s credibility.

d) Fourthly, it was argued that the sentence was manifestly excessive.

District Court decision

[3] In his oral judgment, Judge Adeane noted that the case turned on what he made of the witnesses.

[4] After hearing the prosecution evidence, the Judge recorded that he was satisfied from what he had heard, that a Mr Baird – a security guard – was present when the trespass occurred, that Mr Baird was an agent of the occupier of the premises for the purposes of the Trespass Act, and that any person who was not

entitled to be there was obliged to comply with any directions given by Mr Baird under the Act.

[5] The Judge went on to say that he accepted Mr Baird’s evidence, namely that when the group of protesters achieved entry to the property, he told them on several occasions that they must leave. The Judge rejected Mr E ’s evidence to the contrary, saying that he found it difficult to reconcile Mr E ’s evidence with statements that he knew that he was unwelcome at the property and that he would immediately be “trespassed” by the security guard. It was Mr E ’s assertion that he forewarned the group of protestors that they must comply with any direction by the security guard to leave the premises.

[6] The Judge accepted that Mr E was sincere in seeking to advance his cause but concluded that he had compromised the truth in furtherance of his own good intentions. The Judge found that the security guard, Mr Baird, had directed Mr E to leave the property once he had entered it, and that Mr E had ignored that direction.

Submissions

[7] I have received helpful submissions this morning from Mr Fairbrother on behalf of Mr E and from Mr Kerr on behalf of the Police.

[8] Mr Fairbrother withdrew two of the grounds of appeal – namely the complaint about the alleged delay and the appeal against sentence. It follows that there are only two issues outstanding –whether there was sufficient evidence to support the finding that Mr Baird was either the occupier of the property, or the owner’s agent and secondly, whether or not Judge Adeane indicated a degree of bias. I consider each in turn.

Occupier or occupier’s agent?

[9] In submissions filed in support of the appeal, Mr Fairbrother referred me to s

3 of the Trespass Act. That section provides as follows:

(1) Every person commits an offence against this Act who trespasses on any place and, after being warned to leave that place by an occupier of that place, neglects or refuses to do so.

(2) It shall be a defence to a charge under subsection (1) of this section if the defendant proves that it was necessary for him to remain in or on the place concerned for his own protection or the protection of some other person, or because of some emergency involving his property or the property of some other person.

[10] He also referred me to the definition of the word “occupier” contained in s 2 of the Act. That definition reads as follows:

Occupier, in relation to any place or land, means any person in lawful occupation of that place or land; and includes any employee or other person acting under the authority of any person in lawful occupation of that place or land;

[11] It was Mr Fairbrother’s submission that Mr Baird did not have authority from the occupier of the property where the trespass took place. He submitted that the evidence disclosed that the property belonged to the wife of a Dr Goldenthal. She did not give evidence, but Dr Goldenthal did do so. It was his evidence that his interest was as lessee of part of the property. Mr Fairbrother asserted that the Trespass Act is prescriptive and that it was not open to the Judge to assume that Dr Goldenthal, who only had exclusive occupation of part of the property, had his wife’s authority to instruct security agents in relation to the whole of the property. He submitted that s 3 of the Act is quite clear and that for a prosecution to succeed, there has to be a warning by the “occupier” of the property requiring that any person trespassing on the property leave.

[12] Mr Kerr, appearing for the Police, referred to Johnstone v Police (1990) 5

CRNZ 399. In that case an appellant appealed his conviction for trespass. The issue on appeal was whether it had been proved that the appellant had been warned to leave by the occupier. The Police had been called to a fight at a hotel restaurant where the appellant was causing an upset. The Police asked the trainee manager of

the hotel to ask the appellant to leave and the trainee manager did so. The appellant declined to leave. The evidence did not include any specific statement that the trainee manager was acting under the authority of any person in lawful occupation of the hotel restaurant. The trainee manager simply said that he was the acting manager at the time the incident occurred. Holland J was satisfied that there was nevertheless a warning to leave given by the Police officer acting in concert with the trainee manager, and that that warning was given on behalf of and under the authority of the person in lawful occupation of the hotel restaurant. His Honour recorded that the issue was one of fact, and the Court had to be satisfied beyond reasonable doubt that the person giving the notice was acting under the authority of the person lawfully in occupation of the premises.

[13] I have considered the evidence presented in this case. Dr Goldenthal explained that the overall property belonged to his wife. She ran a business on the property as did he. He leased part of the property from his wife for that purpose. He was asked to describe the property. He noted that there was a perimeter fence around the outside of the property and that the kennels operated by his wife were inside that fence. He also noted that there was a house within the fence where a kennel manager resided and that there was the separate building which he leased and where he conducted research studies on rabbits. He explained that he employed an entity known as Triko Security to look after the property, and to ensure that there were no untoward activities particularly after hours. In his evidence-in-chief, he gave the following evidence:

Q. So the security company Triko, what is their role in those off hours? A. Oversee the property, ensure that, as I say, there is no untoward

activity. Alert us or the police if there are problems on site.

Q. So they alert you or the police when there are problems on site?

A. They alert both. That’s their responsibility. Also when you know there are claims that there’s going to be let’s say a raid on the facility they are empowered to come during the day and be on site as well to prevent people from trespassing.

Q. So they’ve got the authority prevent people from trespassing? A. Yes they do.

[14] Evidence was also given by a Mr Baird. He confirmed that he was at the time working for Triko Security as a patrolman. He received a telephone call to the effect that there were some protestors on their way to the property, that he immediately went there and that he closed the gates on arrival. He then explained that the protestors arrived at the property, that they were quiet for a while and that they then proceeded to “burst in”. It seems that they went into a common yard, either by going over the side perimeter fences, or through the front gate. Mr Baird explained that he asked the protestors to leave on several occasions. He said that he spoke specifically to Mr E on more than one occasion and asked him to leave. He also said that he talked to the other people present, told them that they were not supposed to be there and that they had to leave or that he would “trespass the lot of them”. He said that the protestors, including Mr E , only left some 10 to 15 minutes later. He explained that he was wearing his Triko Security uniform at the time. He explained that Mr E was the ring leader, and that Mr E was telling other people what to do insofar as he could see.

[15] Mr E also gave evidence at the hearing. He explained that he was interested in animal rights causes and that he attended a meeting in Hastings at which it was decided that a group would go to the property to protest. He explained that when the group arrived at the property they formed a consensus to go into the property and have a look. He said that once inside the property, they saw Mr Baird, and that Mr Baird told them to leave. He confirmed that he was one of the organisers of the group, although he claimed that Mr Baird did not tell him personally to leave the premises. He said that he and some of the group went over to one of the buildings on the property, at which time a man popped his head over a fence from a neighbouring house and shouted at them to get out or that he would “smash them”.

[16] I agree with the observations made by Holland J in Johnstone. Whether or not Mr Baird was in lawful occupation of the property or had the authority of the occupier of the property to require persons trespassing there to leave is an issue of fact.

[17] Having considered Dr Goldenthal’s evidence, I am satisfied that he had instructed Triko Security to keep an eye on the property as a whole. The clear inference is that he had his wife’s authority to do so. I note that in his evidence he referred to the property as being the area surrounded by the perimeter fence. It is clear that Mr E entered that area. I also note that Dr Goldenthal in his evidence refers to “we” when he discussed the instructions which had been given to Triko Security. It is clear that Triko Security was engaged to go to the property, and to keep an eye on it. They were instructed to prevent people from trespassing on the property. There was no challenge to this evidence in cross-examination. The evidence from Mr Baird was that he worked for Triko Security and that he went into the property on instructions from company management to prevent people from trespassing, having been alerted to the pending trespass. In my view there was sufficient evidence to establish beyond reasonable doubt that Mr Baird was employed by Triko Security who were acting under the authority of the lawful occupiers, Dr Goldenthal and his wife. In my view the Judge did not err when he found that Mr Baird was the agent of the occupiers and that he had authority from the occupiers to require Mr E to leave the premises. This aspect of the appeal therefore fails.

Judicial bias

[18] I now turn to the second ground of appeal – namely that Judge Adeane indicated a degree of judicial bias.

[19] Mr Fairbrother based his submission on comments made by the Judge relating to the protest. He referred me specifically to [11] of the Judge’s oral judgment where he made the comment that no possible justification for Mr E ’s trespass could be established. He also referred me to [9] in the judgment where the Judge was critical of Mr E ’s evidence and his motives. Finally he referred me to what he referred to as colourful language used by the Judge in his sentencing notes which he submitted revealed “a repulsion of the cause rather than judgment of the action”.

[20] Mr Kerr referred me to the decision of R v Rikys CA 428/01, 3 July 2002 and in particular to a passage in [7] of that decision where the Court of Appeal emphasised that the trial Judge has the crucial advantage of hearing witnesses give evidence. He submitted that Judge Adeane had a very real advantage of seeing and hearing the witnesses himself, and that he reached a considered view as to the witnesses and their credibility. He argued that it was not for me to second guess matters of impression or weight. He submitted that there was nothing improper in Judge Adeane expressing the views that were expressed and that the fact that he did so, did not indicate a bias against Mr E , or any bias against recognition of his right to protest peacefully.

[21] Having considered the comments made by Judge Adeane, I cannot see that there was any bias exhibited by the Judge. Rather his comments suggest that he was not unsympathetic to Mr E ’s cause even if he was concerned at the way in which it had been advanced. I cannot see that the Judge displayed a repulsion in relation to it. The Judge had no doubt that Mr E was sincere in his views and he described him as a person of principle. He did not however accept all that Mr E had to say. That was clearly the Judge’s right and I accept Mr Kerr’s submission that the Judge was best placed to make findings of credibility. In my view, it cannot be said that Mr E ’s views in relation to animal rights or protests about the same unduly concerned the Judge. Rather the Judge was concerned with Mr E ’s offending and his apparent attitude to that offending. The Judge’s sentencing notes were expressed in strong terms, but they do not indicate bias.

[22] In the circumstances, this ground of appeal is not made out either.

[23] The appeal is dismissed and the Judge’s conviction and the imposed sentence are upheld.

Wylie J