Blackett v Police HC Auckland CRI 2010-404-319 [2011] NZHC 352 (7 February 2011)

Last Updated: 2 June 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2010-404-319}

ANTHONY CHARLES BLACKETT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 7 February 2011

Appearances: Appellant in person

P Singh for Respondent

Judgment: 7 February 2011

_{JUDGMENT OF KEANE J}

Solicitors:

Crown Solicitor, Auckland

Copy to:

A C Blackett, Flat 2/343 Elleslie-Panmure Highway, Mt Wellington, Auckland 1060

ANTHONY CHARLES BLACKETT V NEW ZEALAND POLICE HC AK CRI 2010-404-319 7 February 2011

[1] On 22 June 2010, after a defended hearing in the District Court, Auckland, Judge Wade convicted the appellant, Anthony Blackett, of trespass at the Ellerslie Hospice Shop on 18 September 2009. He fined Mr Blackett $750 and issued him with a warning that if he offended in this way again he could anticipate a prison sentence.

[2] On 31 August 2010 Mr Blackett appealed his conviction and sentence some two months out of time on the basis that the evidence on which the Judge relied was incredible and lacked probative worth, that inadmissible evidence was given and that the sentence imposed was excessive.

[3] The respondent opposes Mr Blackett being granted leave to pursue his appeal. His grounds of appeal, the respondent contends, both as to conviction and sentence, are without merit.

Legal principles

[4] An appeal against conviction and sentence must be brought within 28 days.[1]

The last day for filing an appeal was 20 July 2010. Mr Blackett filed his appeal on

27 September 2010, slightly in excess of two months late. He therefore requires leave.

[5] To obtain leave under s 123 of the Summary Proceedings Act 1957 Mr Blackett must demonstrate special circumstances why his conviction and sentence should not stand. Inherent in that is that he must demonstrate there is a real likelihood that his appeal would succeed if leave were granted.[2]

[6] Given that Mr Blackett was two months out of time and not any greater period, and given also that he is representing himself, it is right, I consider, to approach Mr Blackett's grounds of appeal in the broad way that is now mandatory on a general appeal which is by way of rehearing. I must make my own assessment of

_{the merits of the case but subject to this limiting principle.}

[7] Mr Blackett must demonstrate that the decision under appeal is in a material sense wrong.[3] His grounds of appeal, needless to say, must be pertinent to the offence the subject of conviction and sentence and s 4(4) of the Trespass Act requires proof of two elements only; a warning under the section to stay off and a wilful trespass within two years of the warning.

Evidence

[8] On 13 February 2008, according to the manager of the Ellerslie Hospice Shop, Ms Killock, the first witness for the informant, she authorised the issue of a trespass notice to Mr Blackett prohibiting him from entering the shop within the ensuing two years. She described why the notice had been issued.

[9] Gavin Bisman, a volunteer at the shop, gave evidence that he helped to prepare the notice and that he served it on Mr Blackett, who was by then in his car. He passed the notice, he said, in through the car window. He emphasised that it meant what it said. Mr Blackett, he said, screwed it up and threw it on the passenger seat and drove away.

[10] Mr Bisman also identified Mr Blackett as re-entering the shop on 18

December 2008. He described him as having, as indeed he has still, a short cropped white beard and as wearing clothing consistent with what he is wearing on this appeal. Mr Bisman said also that he had seen Mr Blackett in the Ellerslie area many times.

[11] Constable Burns gave evidence that he responded to Ms Killock's call on 18

September. He and another constable found Mr Blackett in a changing cubicle and arrested him for trespass. Mr Blackett said that he was unaware that he was trespassing. He thought that the trespass notice had come to an end. He said he suffered from short term memory loss and he would hardly have trespassed to try on

_{a pair of pants.}

[12] The constable tested Mr Blackett's memory by asking him a variety of common knowledge questions. He was unconvinced that Mr Blackett did suffer short term memory loss in any material way.

[13] Mr Blackett elected to give evidence. He did not dispute that he had been served with a trespass notice or that he had been in the shop within two years. He said he did not believe that he was still subject to the trespass notice.

[14] Mr Blackett nevertheless still put in issue Ms Killock's credibility, contrasting her evidence with what she had said in victim impact statements, witness statements and the like. He called a witness to confirm that Ms Killoch had been party to prosecuting him maliciously.

Decision

[15] The Judge intimated that this wider evidence was irrelevant to the two issues he had to resolve and in his decision, given immediately, the Judge concluded that Mr Blackett's offence was established on his own evidence.

[16] The Judge did not advert to the need to be satisfied that the return was

'wilful', that is to say deliberate and in the knowledge of the trespass notice issued;

and that gives rise to Mr Blackett's principal ground of appeal.

[17] In sentencing Mr Blackett, the Judge remarked that he had 22 previous convictions for shoplifting and a substantial record of failing to comply with Court orders. Also, he said, Mr Blackett had two previous convictions for breach of trespass notices. That in fact was an understatement.

[18] On the history produced for sentence, which concluded in 2009, Mr Blackett had three convictions for trespass. He also had a fourth that would have been evident if a more up to date history had been produced.

[19] Be that as it may, the Judge pointed out to Mr Blackett that he had the power to imprison him for three months and that he stood in jeopardy of a sentence of

imprisonment if he continued to trespass. This was his last chance. The Judge fined him but gave him that warning.

Conclusions

[20] Mr Blackett pursues two themes on this appeal. The first is that the informant's witnesses were unworthy of belief and the second is that in any event it was not established on the evidence that he trespassed wilfully.

[21] It is only that second point that is worthy of consideration. The first is irrelevant, as the Judge rightly held, given Mr Blackett's concession that he was served with the trespass notice and that he did return to the shop within two years.

[22] The Judge did not advert in his decision, as he was obliged to do, to the need for the informant to prove that the trespass was 'wilful' and so I must consider whether, on the evidence, he could have concluded that it was.

[23] Mr Blackett did raise short term memory loss when he spoke to the constable. But the constable countered that by testing Mr Blackett's memory with common knowledge questions and was unconvinced.

[24] That was the state of the evidence when Mr Blackett elected to give evidence himself. Yet his focus was on his challenge to the credibility of Ms Killock and Mr Bisman. He gave no evidence as to short term memory loss. Nor did he call any such evidence.

[25] On this appeal Mr Blackett says that he happened to know the answers to the questions the constable asked and that, though he was once an actor, he is on an invalid's benefit because his memory loss is permanent.

[26] Indeed, Mr Blackett says, he did not give or call evidence about his memory loss precisely because he suffers from it. He has produced a letter dated 3 August

2010 from Dr Graham Sewell at the Tamaki Family Health Centre stating 'Tony suffers from short-term memory loss and is on the invalid's benefit for this.'

[27] Had Mr Blackett given that evidence and produced that letter, the Judge would obviously have had to weigh it. But the Judge would also have noted, as I have, that Mr Blackett is highly articulate and logical and it would have been open to him to conclude that Mr Blackett's evidence did not go so far as to raise a reasonable doubt about the wilfulness of his trespass.

[28] I see no basis, therefore, despite the absence of any reference to this issue in the Judge's decision, to differ from his final conclusion. Nor do I see any reason to question as manifestly excessive the fine the Judge imposed, $750, a fine a little short of the $1,000 maximum.

[29] That fine, I consider, would have been within his discretion, even if Mr Blackett had only had two previous convictions for wilful trespass. In fact he had four. Mr Blackett, himself, has also pointed out that in October 2010, after the Judge fined and warned him, for a sixth offence he was ordered to come up for sentence if called upon.

[30] At the very least, it has to be said on this appeal, Mr Blackett is at some risk, should he offend in this way again, of a more severe penalty. That, however, is for another day. I decline leave to appeal and would, had I granted it, have dismissed the

_{appeal itself.}

P.J. Keane J

---

[1] _{Summary Proceedings Act 1957, s 116.}
[2] Cleggs Ltd v Department of Internal Affairs HC Auckland M 1032/84, 5 September 1984.

[3] Austin Nichols & Co Ltd v Stitchting Lodestar [2008] 2 NZLR 141, SC.