Moore v Police [2018] NZHC 180 (19 February 2018)

Last Updated: 9 March 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-283 [2018] NZHC 180

BETWEEN	SHANE MOORE Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	19 February 2018
Appearances:	P H H Tomlinson for Appellant M Mortimer for Respondent
Judgment:	19 February 2018

JUDGMENT OF LANG J

_{[on application for leave to appeal against conviction]}

This judgment was delivered by me on 19 February 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

MOORE v NEW ZEALAND POLICE [2018] NZHC 180 [19 February 2018]

[1] Mr Moore pleaded guilty in the District Court to a charge of trespass. On

6 August 2016 Judge Paul ordered him to come up for sentence if called upon to do so within 12 months.¹

[2] Mr Moore now seeks leave to appeal against conviction out of time on the basis that a miscarriage of justice has occurred. He says he had defences to the charge and that Mr Richard Keam, counsel who acted for him in the District Court, did not properly advise him in relation to those defences.

Background

[3] The charge was laid following an incident that occurred on 11 May 2015 as part of an apparently long-running dispute between Mr Moore and the manager of a boarding house at 24 Bongard Road, Mission Bay. I infer Mr Moore had earlier been living at the address. These issues had led to the police serving Mr Moore with a trespass notice on behalf of the occupier of the property in or about January 2013.

[4] Counsel for the respondent has provided the Court with formal statements prepared by the manager of the boarding house, Mr David Choi, and Constable Matthew Sillars immediately following the events giving rise to the charge. These set out the basis for the prosecution case had the matter proceeded to trial

[5] Mr Choi says Mr Moore arrived at his address at about 7.45 am on the morning of 11 May 2015. He says Mr Moore was walking around on the end of his driveway holding a placard describing Mr Choi in highly derogatory terms. He was yelling out the word “demonstration” repeatedly, and also yelling out that Mr Choi was an “evil bastard” and an “arsehole”.

[6] Mr Choi says he called the police, but by the time they arrived Mr Moore had left the property. He told Constable Sillars what had happened and about the ongoing

_{issues with Mr Moore. The constable then left the address in search of Mr Moore.}

¹ New Zealand Police v Moore [2015] NZDC 26144.

[7] Constable Sillars located Mr Moore a short time later at a nearby shopping centre. They advised Mr Choi of this fact and he authorised them to serve a new trespass notice on Mr Moore. Constable Sillars then prepared and served a new trespass notice on Mr Moore that prohibited him from going to 24 Bongard Road for a period of two years. The constable advised Mr Moore of the consequences if he went back to the property, and says Mr Moore acknowledged he understood what he was being told. The constable says he also “strongly advised” Mr Moore to return home and not go anywhere near Bongard Road.

[8] An hour or two later, the constable received advice from his communications centre that Mr Moore had gone back to Bongard Road. He then returned to 24 Bongard Road, where he observed Mr Moore arguing with one of the residents of the address. This person had gone to speak to Mr Moore at Mr Choi’s request. He told the constable that Mr Moore had entered the property and inserted a pamphlet under the windscreen wiper of a vehicle parked in the driveway. The resident also told the constable that Mr Moore had been yelling abuse at Mr Choi from out on the street. This led to the constable arresting Mr Moore and charging him with disorderly behaviour and trespass.

The hearing in the District Court

[9] Mr Moore initially entered not guilty pleas to both charges, and Mr Keam, a lawyer with the Public Defence Service, was assigned to act for him in relation to both charges. He has provided an affidavit in which he deposes Mr Moore was adamant that he wished to defend the charges. Mr Keam believed Mr Moore may have had a defence to the charge of disorderly behaviour, but that it would be difficult to defend the charge of trespass.

[10] The defended hearing of both charges was due to proceed on 6 August 2015. On that day the police offered to withdraw the charge of disorderly behaviour provided Mr Moore pleaded guilty to the charge of trespass. The prosecutor advised Mr Keam that if Mr Moore pleaded guilty to this charge, the police would support a submission that Mr Moore be ordered to come up for sentence if required to do so.

[11] Mr Keam advised Mr Moore that he thought the proposal was sensible, and

Mr Moore provided Mr Keam with written instructions to accept the proposal.

Mr Moore also signed the police summary of facts. Mr Keam then deposes:

7 It was clear to me that Mr Moore understood my advice and was aware that a conviction would be entered for the trespass charge. On the day that the resolution was accepted, Mr Moore appeared to accept the resolution and we parted on good terms. I do recall that we shook hands.

8 When I acted for Mr Moore I was aware of his mental health history and was sensitive to the fact that he was a client who would require more than the usual care and attention. The entire time that I dealt with Mr Moore he did not exhibit any signs of mental health issues that would impede me obtaining instructions. In particular, he was lucid, coherent, and when questioned by me appeared to understand the advice I gave him.

[12] At the hearing in the District Court, Mr Keam made the following submission to the Judge:

That’s correct and so what’s happened is on a number of occasions Mr Moore has gone to the property in protest. There’s been, you know, a number of callouts relating to that and a number of very minor charges that have all resolved and bubbled along the way. The most recent development is – there’s been a very positive step. Mr Moore has met with the landlord yesterday in a conference. The landlord has apologised to Mr Moore for the tenancy issue’ Mr Moore has accepted his apology and shaken the complainant’s hand and they’ve got another conference scheduled for tomorrow afternoon. So really both parties have come away satisfied by the outcome. Mr Moore has had an opportunity to air his grievance, he has protested. I mean he does accept the wilful trespass element. He does say that he wasn’t aware necessarily that what he did was a trespass by putting a pamphlet on but he also accepts that ignorance of the law is no excuse. He asked me to advise – in fact he says one the earlier charges he faced in relation to this was a wilful trespass charge that in fact was withdrawn. Mr Moore perhaps didn’t get ideal advice from his lawyer at that time about things like putting pamphlets on cars. Mr Moore asks that I tell the Court that his criminal history is almost entirely due to the treatment that he got that he’s addressed in that letter that I handed up but you’ll see that there hasn’t been any offending now for quite some time and he also asks me to advise the Court that he’s not under any Mental Health orders now, he’s not seeing any specialist or taking any drugs. He does also want to me advise the Court, although it’s not strictly relevant to this hearing, that he will be seeking further compensation in relation to various mental health issues; that’s for another day. All of that combined, Sir, and my friend I’m sure will advise that the victim in this matter is also on board with a sentence of come up for sentence if called for 12 months; a good behaviour bond; Mr Moore’s protest is over.

[13] Judge Paul agreed with the proposal and sentenced Mr Moore in the following terms:²

[1] Shane Thomas Moore now appears today on one charge of wilful trespass to which he is now pleading guilty. I have entered a conviction. The facts, in short, are that Mr Moore was trespassed from the property in Mission Bay back on 11 May 2015 and subsequently that day returned to the property as part of a protest with respect to tenancy issues with the landlord.

[2] It is clear this matter has some history and counsel has endeavoured to give me a potted version of that today. What is of importance, however, is that the parties appear to have resolved their differences; apologies have been extended from the landlord to Mr Moore concerning the outstanding tenancy issue. I understand in another Court it is to be finalised in the next day or so and the advice I have from the police so far as the complainant, the landlord, is concerned no resolution has been reached.

[3] On that basis the submission I have from counsel is, although acknowledging the offending by his guilty plea, simply placing Mr Moore on a good behaviour bond; his indication being that the protests have ceased so far as that property is concerned.

[4] I give Mr Moore credit for his guilty plea and being the matter to an end and on that basis, given submissions I have heard from both police and counsel I enter a conviction; I place Mr Moore on a good behaviour bond. That is, he is order[ed] to come up for sentence if called upon in the next 12 months and if there is no further offending, particularly in relation to this property, nothing happens, Mr Moore. If however there is further offending you can be re-sentenced on this charge.

The proposed appeal

[14] Mr Tomlinson advised me today on Mr Moore’s behalf that the proposed appeal is to be advanced on two bases. First, he will argue that Mr Moore did not enter his guilty plea on an informed basis because Mr Keam did not advise him of a defence based on deficiencies in the circumstances in which the new trespass notice came to be issued. Secondly, he advised me that Mr Moore’s mental state at the time of the offending was such that he had an available defence based on insanity. He sought an adjournment of the application so that a psychiatric report could be obtained dealing

_{with this issue.}

² New Zealand Police v Moore, above n 1.

Decision

[15] Relevant considerations in determining an application for leave to appeal against conviction out of time include the interests of society in the finality of decisions, the period of the delay and reasons for it, the merits of the proposed appeal, whether the liberty of the subject is at risk, the impact on the administration of justice and any prejudice to the respondent.³ These will usually inform the ultimate issue, which is whether the interests of justice require leave to be granted.⁴

The length, reasons for and effect of the delay

[16] Mr Moore has not provided any explanation for the delay which occurred between the date of sentencing on 6 August 2015 and the filing of the appeal on 16

August 2017. The delay has therefore been significant, and the prosecution will be prejudiced by any re-trial to the extent that the memories of witnesses will obviously have dimmed with the passage of time.

[17] Furthermore, Mr Moore’s liberty is not at risk because to the best of my knowledge he was not called upon to come up for sentence within the period stipulated by the Judge.

The merits of the proposed appeal

[18] An appeal against conviction following the entry of a guilty plea will only succeed where a miscarriage of justice is likely to occur if the appeal is not permitted to proceed. Furthermore, where the appellant fully appreciates the merits of his or her position and makes an informed decision to plead guilty, the conviction cannot be impugned.⁵

[19] It is not appropriate in the present context to finally determine the merits of either ground of the proposed appeal. Nevertheless it seems to me that the prospects

_{of success in relation to both are not strong.}

³ O’Sullivan v R [2016] NZCA 204 at [20].

⁴ R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 (CA) at [100].

⁵ O’Sullivan v R, above n 3, at [24] citing R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA) at [16], R v Stretch

[1982] 1 NZLR 225 (CA) and R v Ripia [1985] 1 NZLR 122 (CA).

[20] The proposed ground relating to the validity of the trespass notice needs to be considered in light of s 4 of the Trespass Act 1980, which provides:

4 Trespass after warning to stay off

...

(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.

[21] Mr Tomlinson points out that the first trespass notice had expired in January

2015, some four months before the incidents giving rise to the present charge. He contends that s 4(1) requires an earlier trespass to have occurred before a trespass notice can be issued, and that Mr Choi’s statement does not support the proposition that Mr Moore had trespassed on the property when he visited it on the first occasion on 11 May 2015.

[22] I accept that argument as far as it goes, but s 4(2) requires only that the occupier of an address has reasonable cause to suspect that another person is likely to trespass on his or her address. That has been described as being not a particularly high test.⁶

In the present case Mr Choi had seen Mr Moore on or around his property on the morning of 11 may 2015. He was justified, in my view, in having cause to suspect he might return given the history of the relationship between the two men. For that reason it is at least arguable that Mr Choi had reasonable grounds to suspect Mr Moore was likely to return and trespass on his property in the near future. Mr Choi was therefore arguably entitled to authorise the constable to serve a new trespass notice on Mr Moore

_{on his behalf.}

⁶ Ziegler v Ports of Auckland Ltd [2014] NZHC 2186 at [30].

[23] Mr Keam acknowledges in the passage set out above at [11] that he was aware of Mr Moore’s history of mental ill health. However, the sequence of events leading to the entry of the guilty plea in the District Court strongly suggests Mr Moore knew exactly what he was doing when he entered his guilty plea. Furthermore, although he wished to make the Court aware of previous mental health issues, he did not seek to defend the charge on that basis. Rather, he wished to take advantage of the proposal by the police that he enter a guilty plea on the basis that he be ordered to come up for sentence if called upon to do so in the future.

[24] Mr Moore had the benefit of legal advice on this issue and knew what his options were. He therefore entered his guilty plea on an informed basis and in the knowledge of what the likely consequences would be.

[25] For these reasons the principle that there be finality in litigation prevails. It would be wrong in principle and contrary to the interests of justice for Mr Moore now to be permitted to effectively vacate his guilty plea and seek to defend the charge, particularly when he has also had the advantage of the police withdrawing the charge of disorderly behaviour. The interests of justice require Mr Moore to be held to his plea on the charge of trespass.

Result

_{[26] The application for leave to appeal is dismissed.}

Lang J

Solicitors:

Crown Solicitor, Auckland

P H H Tomlinson, Barrister, Auckland