H v Police HC Wellington CRI 2010-485-72 [2010] NZHC 2011 (2 November 2010)

Last Updated: 26 January 2017

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI 2010-485-72}

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 2 November 2010

Counsel: Appellant in Person

K S Grau for Respondent

Judgment: 2 November 2010

JUDGMENT OF RONALD YOUNG J (Appeal against conviction)

[1] Mr H ’s conviction for trespass arose from his inappropriate attention toward a young woman who worked at a cafe in Cuba Street. The young woman had made it clear to the appellant his attentions were not welcome. Mr H was not dissuaded however. He continued to write to her and visit her at work. Eventually the proprietor of the cafe at which she worked authorised the police to give Mr H a trespass notice with respect to the cafe. The week after they did so Mr H entered the cafe. He was subsequently arrested and charged and after a

_{defended hearing in the District Court convicted and fined $500, court costs $130.}

H V NEW ZEALAND POLICE HC WN CRI 2010-485-72 2 November 2010

[2] Mr H did not file any written submissions in support of his appeal. However he relied upon his notice of appeal which identified six grounds of appeal. I consider those in turn.

[3] Grounds one, two and three can be considered together. They are:

1. arrest without warrant of 22/08/2009 contravened s 23(1)(c) NZBOR Act 1990;

b) arrest without warrant of 22/08/2009 contravened s 315(1)(a) of the

Crimes Act 1961;

100. police bail bond of 22/08/2009 contravened s 24(a) NZBOR Act 1990.

[4] The circumstances of Mr H ’s arrest has nothing to do with his conviction for trespass. If Mr H considered that he was wrongly arrested or wrongly bailed and/or the police’s actions were somehow in breach of the New Zealand Bill of Rights Act 1990 then he is free to take whatever action he thinks appropriate with respect to the actions of the police officers. I repeat, however, whatever the rights and wrongs of the police arrest they do not affect Mr H ’s conviction. This was simply a means by which he happened to be brought before the Court.

[5] Secondly, the factual material upon which Mr H proposed to base these three appeal grounds was not given in evidence at the District Court hearing. There was no application before this Court to call further evidence. Mr H said that he deliberately decided not to call any evidence regarding these matters in the District Court believing that he could simply tell an appellate Court about the facts. I repeat my advice to Mr H in Court. Without evidence to support his submissions relating to grounds (a), (b) and (c) they simply cannot be advanced.

[6] I note finally that s 315(2)(b) of the Crimes Act 1961 in any event entitles a constable to arrest any person suspected of having committed an offence punishable

by imprisonment. Trespass is punishable by imprisonment (s 11(2)(a) Trespass Act). Clearly the officer had good cause to suspect, given he had been told of the trespass notice being served on the appellant and the fact that the appellant had subsequently entered a cafe. It is difficult to understand the challenge to the bail bond assertion and the reference to New Zealand Bill of Rights Act 1990, s 24(a), concerned as it is with the prompt advice of the nature of the charge.

[7] The fourth ground of appeal alleges – “trespass notice of 28 July 2009 contravenes – in three separate respects – the statutorily authorised conditions for legality specified by Trespass Act 1990”.

[8] Mr H ’s initial submission to me was that this ground of appeal also relied upon factual material which was not before the District Court at the hearing but which he hoped to be able to present to me on appeal. However, after some discussion I understand that the three respects that Mr H says the trespass notice contravenes the Trespass Act are firstly that the trespass notice in this case was defective because if it did not identify whether the warning was given under s 4(1) or 4(2) of the Trespass Act 1980.

[9] Section 4 of the Trespass Act 1980 provides as follows:

4 Trespass after warning to stay off

(1) Where any person is trespassing or has trespassed on any place, an occupier of that place may, at the time of the trespass or within a reasonable time thereafter, warn him to stay off that place.

(2) Where an occupier of any place has reasonable cause to suspect that any person is likely to trespass on that place, he may warn that person to stay off that place.

(3) Where any person is convicted of an offence against this Act committed on or in respect of any place, the Court may warn that person to stay off that place.

(4) Subject to subsection (5) of this section, every person commits an offence against this Act who, being a person who has been warned under this section to stay off any place, wilfully trespasses on that place within 2 years after the giving of the warning.

(5) It shall be a defence to a charge under subsection (4) of this section if the defendant proves that—

(a) The person by whom or on whose behalf the warning concerned was given is no longer an occupier of the place concerned; or

(b) It was necessary for the defendant to commit the trespass for his own protection or for the protection of some other person, or because of some emergency involving his property or the property of some other person.

[10] This was a matter the Judge considered in the District Court:

[14] I have to consider whether this gives rise to some issue of ambiguity about the notice. I have decided that it does not, because ss (4) in s 4 of the section which actually creates the offence reads in a way which is equally applicable to s 4(1) and s 4(2). Say that in my view the notice simply applies in relation to whichever of those two subsections applies to the particular case. However, I expressed the view that it would be preferable if such notices were combined to the subsection applicable to any particular case.

[11] The Judge in the District Court accurately summarised the law as far as the trespass notice was concerned. The real issue is whether anyone could be misled by the Notice. I am satisfied that they could not have been.

[12] The trespass notice was clear. It told Mr H that he was warned to stay off the relevant cafe in Cuba Street. He was told that if he did enter the address within two years then he was liable for criminal punishment. The occupier of the address was identified and the fact that the Notice was given by Constable Hall to Mr H . There is nothing in this complaint.

[13] The second ground of appeal relating to the trespass notice relates to who gave the authorisation to the police to issue and serve the trespass notice. Mr Roger Young the occupier of the premises gave evidence that he had instructed the police to issue the trespass notice.

[14] Mr H asserted he was not. But he accepted there was simply no evidence to back up his claim. In those circumstances, therefore, given there is no factual basis to support this ground of appeal, I reject it.

[15] The final ground of appeal related to the question of whether Mr Roger Young had reasonable grounds to suspect that Mr H was likely to trespass on the premises.

[16] As to this the Judge in the District Court said:

As to whether Mr Young had reasonable cause to suspect that Mr H was likely to trespass on the place, I need to consider first the significance of the word “likely”. In that respect I refer to the decision of The Commissioner of Police v The Ombudsman [1985] 1 NZLR 578 (HC) in which it was held that it meant no more than the distinct or significant possibility; and that it was enough that there was a serious, real, substantial risk to a protected interest, a risk that may well eventuate.

[17] The Judge then went on to consider the facts. He concluded that the circumstances “reflected the distinct possibility of a real risk to Ms Gulliver that might well eventuate”. He considered therefore “in those circumstances it is my view that Mr Young had reasonable cause to suspect that Mr H was likely to trespass at Fidels”.

[18] The evidence overwhelmingly supported that conclusion. The complainant had previously confronted Mr H and made it clear that his interest in her was most unwelcome and that she wanted nothing to do with him. Mr H continued to write unwelcome letters which, as the Judge said, had “sinister overtones”. Mr H did not accept that Ms Gulliver had rejected his interest and that he was persisted in it. It was clear, therefore, that he did intend to continue or persist with his interest in her. In those circumstances there was reasonable cause to suspect that Mr H might return to the cafe where he had been told he was not welcome. There is, therefore, nothing to this ground of appeal.

[19] Ground five alleges the arrest with warrant of 09/11/2009 was ultra vires” either sections 9(1) and 19(1)(c) Summary Proceedings Act 1957 or section 36(1)(b)(ii) Bail Act 2000.

[20] It seems that when the appellant failed to appear at a Court hearing in the District Court a warrant was issued for his arrest. Any challenge to the validity of that warrant is irrelevant to this case.

[21] Finally, the appellant alleges the presiding Judge committed an unlawful act during the 02/03/2010 hearing and “in ignoring my oral request for an order under

s 13(1)(a)(i) Criminal Disclosure Act 2008 in respect of ss 13(1)(a), 13(2)(a) and s 13(3)(a) of that Act”.

[22] On 2 March 2010 the trespass charge against Mr H was due to be heard. However because of unavailability of some witnesses the case was adjourned for further hearing. During the course of discussion about the case Mr H raised with the Judge the issue of disclosure under the Criminal Disclosure Act. The Judge recorded a minute of 2 March. The Judge noted Mr H had said “that he had not got full disclosure following his plea of not guilty in September even asking for further disclosure himself during that month”.

[23] The Judge then said:

[5] The issue for him revolved around the information given to him last week when he was sent briefs of evidence in the mail. These briefs of evidence were not signed, but were purportedly the evidence that the witnesses would give at the hearing today.

[6] In some circumstances briefs of evidence are merely repetition of information already supplied to the defendant through disclosure and are simply a record, for convenience, of what will be said, or expected to be said by the witness at the hearing. Some of the briefs fall into that particular category.

[7] However, the brief of Mr Calabar, a proposed witness and someone central to this prosecution, in my view, did not fall into that particular category and that information was not necessarily previously disclosed. It was contained in the brief which was reasonably wide ranging, given the issues that are likely to be raised in this prosecution.

[8] I adjourned for the briefs of the witnesses that were available to be signed, to ensure that Mr H had a signed copy of the evidence proposed and I understand that has been done, but there may have been some amendments to one of the briefs.

[9] This minute is to record that the prosecution can rely only on such information that has been disclosed as at today, in the hearing when it takes place. In that respect, I have also indicated to Mr Nicholls that an issue that may arise in this case is whether the warning, which in this case was a written warning, was given to the defendant where the occupier had reasonable cause to suspect that the defendant was likely to trespass on the premises.

[24] In this appeal Mr H seemed particularly concerned about the fact that the briefs of evidence of the witnesses that he had received had not been signed in disobedience of District Court Judge’s direction that they be signed. Mr H

said that when the case came for hearing on 20 April 2010 before another District Court Judge he still had not received signed briefs. However he did not raise this issue before the District Court Judge on 20 April saying he preferred to keep that issue for the appellate Court.

[25] I note that there was no evidence as to whether or not Mr H did or did not receive signed copies of the briefs of the witnesses. He now claims he did not receive them. Counsel for the respondent says that there is a note on the police file indicating that Mr H was handed signed copies of the various briefs.

[26] It is impossible for me to resolve whether Mr H was or was not provided with signed briefs now. The time for him to complain about the perceived inadequacies of disclosure was at the hearing of 20 April. That could have been dealt with immediately by Judge Broadmore by having each of the witnesses sign their brief and hand a copy to Mr H . Assuming for the moment that the briefs were not signed it is difficult to see how Mr H ’s case preparation has been prejudiced by this failure or how he has been unfairly treated at trial. He did have full disclosure of all of the briefs of evidence. He was well able to participate in the hearing but he chose not to do so.

[27] In summary, therefore, with respect to this ground of appeal, Mr H has not established that he was not provided with signed copies of the briefs but even if he was not that would not be a basis to allow this appeal.

_{[28] For the reasons given, therefore, the appeal will be dismissed.}

Ronald Young J

Solicitors:

I W H , 50B Hawker Street, Mt Victoria, Wellington, email: [e-mail]

K S Grau, Luke Cunningham & Clere, PO Box 10 357, Wellington, email: [e-mail]