Langford v Police [2015] NZHC 2424 (8 October 2015)

Last Updated: 30 October 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000081 [2015] NZHC 2424

BETWEEN	SHARON JANICE LANGFORD Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	22 June 2015
Appearances:	Appellant on own behalf NMH Whittington for the Respondent
Judgment:	8 October 2015

_{JUDGMENT OF HINTON J}

This judgment is delivered by me on 8 October 2015 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

LANGFORD v NEW ZEALAND POLICE [2015] NZHC 2424 [8 October 2015]

Introduction

[1] Mrs Langford was convicted of obstructing a public way under s 22 of the

Summary Offences Act 1981. She appeals against that conviction.

[2] Mrs Langford has previously been convicted on the same charge. She appealed successfully against that conviction and there was a re-trial in the District Court when she was convicted again. This is therefore a second appeal.

[3] This is an unusual “obstruction of a public way” case in that the public way at issue is very out of the way and apparently used by very few people. This is really a neighbours-at-war situation. The matter is further compounded by the fact that Mrs Langford is self-represented.

Background

[4] The case concerns a paper road, Browns Road. Some of the paper road is metalled and some is or was unformed. It runs between Mrs Langford’s land and that of her neighbour, the Lees. A Mr Hunkin who also owns land nearby has been involved in carrying out work on or in connection with the Lees’ property, including metalling of the paper road, cutting trees abutting the paper road for purposes of the Lees’ metalling job and fencing. Mrs Langford’s father originally owned a block of land abutting the paper road. He subdivided it into three lots. Mrs Langford lives on Lot 1. She also owns Lot 2 and Lot 3 is now the Lees’ property. Mrs Langford says she has always paid for the upkeep of the paper road or part of it, it seems not out of any obligation to do so.

[5] Mrs Langford has lived on the paper road for many years. Mr Hunkin bought his property in about 1986.

[6] There is a dispute between Mrs Langford and Mr Hunkin which seems to have started in about January 2012 when Mr Hunkin planted willow trees which Mrs Langford considered were on her property.

[7] Without going further into the pros and cons of what has happened historically, which is not of great relevance, the relevant “obstruction” events occurred on 30 May 2013 and 8 June 2013. On the morning of 30 May 2013, Mrs Langford was said to have obstructed Mr Hunkin’s way on the paper road for a considerable period of time. The police were called and Mrs Langford was allegedly given three warnings – one by the officer in charge, Constable Richards and two by a Sergeant Wilkinson-Smith who was with Constable Richards at the time. These warnings were all oral.

[8] In the afternoon of 30 May 2013, Mrs Langford was said to have obstructed a truck driven by Mr Hunkin’s employee. She left before the police arrived.

[9] On 8 June 2013, Mrs Langford again allegedly obstructed Mr Hunkin on the road by driving her vehicle up to a gate and blocking him from using the road. Mr Hunkin called the police and Mrs Langford drove away.

[10] The relevant information was laid on 25 June 2013.

[11] On 9 July 2013 Constable Richards served Mrs Langford with a summons outside Tuakau Public Library. The summons was for one charge of obstruction “between 30 May 2013 and 15 June 2013.”

[12] On 12 December 2013, there was a defended hearing before Judge Ryan. Judge Ryan found the charge proved beyond reasonable doubt. Mrs Langford was convicted and ordered to come up for sentence if called upon within 12 months.

[13] Mrs Langford appealed against the conviction. The key issue on appeal was whether the road was a public way, a point which did not appear to have been argued in the District Court before Judge Ryan. Brown J who heard the appeal, quashed Mrs Langford’s conviction and remitted the matter back to the District Court for a rehearing, so that the issue as to whether the road was a public way could be

canvassed.¹

The District Court judgment under appeal

[14] The rehearing took place in the Pukekohe District Court before Judge Rogers in February 2015.

[15] Judge Rogers concluded that she was satisfied that Browns Road was a paper road and therefore a public way. She was also satisfied that Mrs Langford was warned three times on the occasion of the first incident on 30 May 2013 and that Mrs Langford subsequently obstructed the paper road later on 30 May and again on

8 June 2013. (Judge Rogers refers to this further incident being on 18 June 2013, but it seems clear from Mr Hunkin’s evidence it was 8 June 2013. Nothing turns on this.) Judge Rogers was satisfied the warnings given earlier on 30 May 2013 still applied when the subsequent obstructions took place, given it was the same public way and the same kind of obstruction on Mrs Langford’s part. Judge Rogers found that the prosecution had prima facie established the charge beyond reasonable doubt and so it then became a question of whether Mrs Langford could establish on the

balance of probabilities that she had a reasonable excuse for her obstruction.² Judge

Rogers was satisfied that Mrs Langford did not have a reasonable excuse.

[16] Mrs Langford applied for a discharge without conviction under s 106 of the Sentencing Act 2002. Judge Rogers found this was one of the more serious and protracted examples of obstruction. As to the consequences of a conviction, Mrs Langford submitted that she was a registered race horse trainer and when applying for registration, would need to disclose any convictions. She provided no evidence as to the consequences of that, but said it would be a discretionary matter for the relevant race horse authority to take into account. Mrs Langford said that her ability to travel would be impeded and that the loss of income from losing her job would mean she would lose her home. Judge Rogers noted that Mrs Langford had not obtained any evidence (presumably meaning documentary or independent evidence) to support a discharge without conviction. The Judge considered that the concerns were consequently speculative. She said that the fact that Mrs Langford had two other convictions (arising out of the dispute with Mr Hunkin), weighed against her application for a discharge. Judge Rogers therefore convicted

Mrs Langford and ordered her to come up for sentence if called upon in the next

12 months.

Approach on appeal

[17] In the case of an information laid before 1 July 2013 there was a general right of appeal against conviction pursuant to s 115 of the Summary Proceedings Act

1957. Section 119 of the Summary Proceedings Act provided that the appeal is by way of rehearing. The High Court is required to follow the approach outlined in Austin Nicholls which means I must form my own view of the evidence but I must still be cautious about overturning credibility findings of the Court below.³

The law

[18] Section 22 of the Summary Offences Act 1981 provides:

22 Obstructing public way

(1) Every person is liable to a fine not exceeding $1,000 who, without

reasonable excuse, obstructs any public way and, having been warned by a constable to desist,—

(a) continues with that obstruction; or

(b) does desist from that obstruction but subsequently obstructs that public way again, or some other public way in the same vicinity, in circumstances in which it is reasonable to deem the warning to have applied to the new obstruction as well as the original one.

(2) In this section—

obstructs, in relation to a public way, means unreasonably impedes normal passage along that way

public way means every road, street, path, mall, arcade, or other way over which the public has the right to pass and repass.

[19] To be found guilty of a charge under s 22, the following are therefore required:

(a) A warning by a constable to desist from obstructing a public way; (b) Subsequent obstruction of a public way; and

(c) No reasonable excuse for doing so.

[20] When the Summary Offences Act repealed and replaced the Police Offences Act 1927, numerous detailed but often archaic provisions concerning petty nuisances and obstructions were repealed and not replaced.⁴ Obstruction of a public way (which fell into a similar category), became an offence only if it followed a police warning to desist.

[21] Convictions under the Summary Offences Act are criminal convictions. A person convicted of an offence under s 22 has a criminal record.

[22] There have been very few cases brought before the courts that engage s 22 of the Summary Offences Act 1981. These cases have largely involved very public obstructions, such as protest marches.

[23] In Stanton v Police, Mr Stanton lived an unconventional lifestyle in Nelson. He was charged under s 22 on the basis of having maintained a vigil outside the Farmers shop, sitting there with placards and signs. The police took the view that he was obstructing the footpath.⁵ MacKenzie J held that Mr Stanton’s occupation of the footpath did not constitute an unreasonable impediment to normal passage along the footpath. The conviction entered in the District Court was set aside.

[24] In R v Oosterman, Mr Oosterman was attending a march in Auckland City in a protest against the United States-led invasion of Iraq.⁶ At one point during the march, the protesters occupied the middle of an intersection, preventing traffic and pedestrians from using the intersection. Eventually the police intervened. Mr Oosterman and others then started marching down Queen Street, blocking both northbound lanes. Mr Oosterman was warned that he could be arrested but he

refused to move to the footpath. The Court of Appeal declined special leave to

_{appeal against the conviction.}

⁴ _{Adams on Criminal Law (looseleaf ed. Brookers) at [SO Intro.01].}

⁵ _{Stanton v Police [2012] NZHC 3223, [2013] NZAR 24.}

⁶ R v Oosterman [2007] NZCA 118.

[25] Bradford v Police also involved a charge being laid under s 22 in connection with protest activities that took place on Queen Street.⁷ The exact facts are not canvassed in the published decision that only deals with bail.

[26] Gordon v Police involved protesters that stood outside a liquor store and blocked the footpath and the entrances into the store.⁸

Discussion

[27] In their submissions, the respondent considered that Mrs Langford was raising as grounds for appeal (1) that this was a civil dispute, not a criminal matter; (2) that she did not have enough time to prepare her defence; (3) that the evidence did not meet the elements under s 22; and (4) that the “boundary evidence” was inadmissible.

[28] Of these matters, the ground that seemed to be advanced before me in oral argument, (though not necessarily put in this way) was that the evidence did not meet the elements under s 22, being ground (3) of the grounds listed by Mr Whittington.

[29] I therefore treat the points on appeal as being the following, all relating to the requisite elements of s 22:

(a) There was no warning to desist and the only desist notice (or “desist”) as Mrs Langford referred to it, was given to her outside the library. (This was actually when she received the summons, so this would not of course be a warning.)

(b) The police did not see Mrs Langford obstructing the paper road; and

_{(c) There was no obstruction.}

⁷ _{Bradford v Police (1995) 2 HRNZ 405 (HC).}

⁸ Gordon v Police HC Christchurch M322/95, 26 August 1985.

[30] As to the second and third points raised by Mrs Langford, clearly it does not matter that the police did not see her obstructing the paper road, particularly in circumstances where there was DVD footage. As to there being no “obstruction”, I have not seen the DVD footage of the alleged obstructions (which I should have as it forms a substantial part of the evidence). However Judge Rogers found that there clearly was obstruction on both occasions on 30 May 2013. Her finding on that is so firm I have little doubt that the DVD evidence was clear. Judge Rogers noted that the obstruction did not have to be for any particular length of time. I accept that must be correct, but whether there is obstruction in any particular case, will surely depend on all of the circumstances, including length of time of the obstruction. In any event, I do not consider anything turns on that point here because, whatever length of time might be required in these circumstances to constitute an obstruction, that length of time appears to have been passed.

[31] As to the matter of a “warning”, Mr Whittington points out that Judge Rogers preferred the evidence of Constable Richards that a warning had been given.⁹ He submits that there were three oral warnings given, which is sufficient. Mrs Langford admitted speaking to the police but denied that she had been warned.

[32] Mr Whittington submits that a warning under s 22 does not need to be given in writing.

[33] I accept that in general, a warning under s 22 does not need to be in writing. The section does not require that. It requires simply a warning by a constable to desist from obstructing a public way.

[34] In the typical case under the section, an oral warning is likely to be sufficient.

[35] Nonetheless the warning, whether oral or in writing, should be clear. It should be a warning that what has happened is an obstruction of a public way and that on any repeat obstruction the person being warned is liable to be charged

_{forthwith with a criminal offence, or words to that effect. It must be relevant that the}

⁹ Police v Langford, above n 2, at [43].

section has been specifically amended to stipulate the need for a warning, while similar provisions were repealed.

[36] In my view, in circumstances such as this, which evolves out of a long- standing dispute between neighbours or near neighbours, and where the dispute is really essentially private rather than public in nature (as contrasted with the caselaw I have recorded), the warning needs to be particularly clear.

[37] Judge Rogers and Mr Whittington both refer to three oral warnings, one from Constable Richards and two from Sergeant Wilkinson-Smith on 30 May 2013. However, the Sergeant did not give evidence. I consider the evidence of Constable Richards as to two warnings having allegedly been given by the Sergeant, should have been excluded as hearsay.

[38] The evidence of Constable Richards was that “he issued Mrs Langford with a warning and the consequences if she persisted in blocking the public road, or the paper road.”

[39] Constable Richards did not say what the consequences were. Without that I do not consider there was a warning, i.e. a warning of what? The only admissible evidence is therefore as to one oral warning and the actual content of that warning is not evidenced or not sufficiently evidenced.

[40] In circumstances such as this, it would not have been unreasonable for the police to have brought with them a written warning, or to have handwritten a warning to hand to Mrs Langford. I am not saying that a written warning was required, but I repeat I do consider the warning needs to be clear and the evidence is not sufficient to demonstrate that here.

[41] Mrs Langford was obviously shocked and quite genuinely so, at being handed the summons in July 2013 and finding herself facing criminal proceedings, when she thought what she was being given at that point was a “desist notice”. Had she been warned appropriately, she would have been in no doubt as to what was coming.

[42] I therefore allow the appeal and set aside the conviction.

[43] This result may seem generous to Mrs Langford but this is a criminal charge and I think it is important that otherwise law-abiding citizens such as Mrs Langford are on clear notice when what might have all the hallmarks of a private dispute heads for a criminal conviction. As Judge Rogers put it, Mr Hunkin was “the effective complainant”.

[44] Had I not reached this conclusion I would alternatively have discharged Mrs Langford without conviction. The two convictions to which Judge Rogers referred were both subsequently quashed on appeal, which makes a material difference to that application. I do not consider a first offence of this nature should, as Mrs Langford put it, brand a person in her 60’s as a “criminal for life”.

[45] Having said that, I place on record that Mrs Langford has not behaved appropriately here. Mrs Langford must ensure that no action of hers constitutes an obstruction of a public way, which clearly there was in the present case.

[46] Finally, I wish to record, as I note Brown J did on the last appeal, my appreciation of the manner in which Mr Whittington handled the case for the prosecution. His submissions were very well crafted. He put forward a strong case

_{for the prosecution but at the same time was scrupulously fair to Mrs Langford.}

Hinton J