A v Police HC Christchurch CRI 2008-409-3

[2008] NZHC 774

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-000003
CRI 2008-409-000004

CRI 2008-409-000005

A

L

M

Appellants

v

POLICE

Respondent

Hearing:         2 April and 9 May 2008

Appearances: K J Knowles and M M Cole for Appellants

Z R Johnston for Respondent

Judgment:      27 May 2008

JUDGMENT OF FOGARTY J

Introduction

[1]      The   appellants   appeal   against   convictions   that   they  trespassed   on   a construction site, located on a road, being a city mall, in the city of Christchurch. They were a group of protesters assembled to protest the demolition of a fountain. The fountain was in the process of being demolished.   The Council had erected

safety  fencing  around  the  area  of  the  fountain.    Inside  the  safety  fencing  was

A AND ORS V POLICE  HC CHCH CRI 2008-409-000003  27 May 2008

demolition equipment.    During the  workers’  lunch  hour  the  appellants  gathered inside the fence.

[2]      Section 3(1) of the Trespass Act 1980 provides:

3     Trespass after warning to leave

(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.

(Emphasis added)

[3]      The Judge reasoned:

[6]       The police  called  Mr  Mara  who  is  the  general  manager  for  the capital programme of the Christchurch City Council.  By virtue of s316 of the Local Government Act 1974 property in roads within the City Council’s area is vested in the local authority.   The particular area occupied by this protest comes within that definition.   The Local Government Act 2002 provides that that type of place vests in the Christchurch City Council as an estate in fee simple. Therefore, as owner the Christchurch City Council is an occupier within the definition of that term in the Trespass Act.

(Emphasis added)

Section 316  of the Local Government Act 1974 provides:

316    Property in roads

(1)    Subject to section 318 of this Act, all roads and the soil thereof, and all materials of which they are composed, shall by force of this section vest in fee simple in the council of the district in which they are situated. There shall also vest in the council all materials placed or laid on any road in order to be used for the purposes thereof.

(2)     At the request of Transit New Zealand, a council may accept or relinquish its property, or any part of its property, in a State highway.

(3)    If a council acts under subsection (2),—

(a)     the property in the State highway vests in the council or in the

Crown (as the case may be) without any instrument of transfer; and

(b)   on presentation of an authenticated copy of the relevant resolution, the Registrar-General of Land must alter the register accordingly.

(4)In this section the term road does not include— (a)   Any Government road:

(b)     Any State highway or part of a State highway situated in a county or in that part of the district of a district council which before the constitution of the district was or formed part of a county:

(c)       Any  road  in  respect  of  which  the  Minister  of  Local

Government is the council:

(d)     Any regional road or part thereof (as defined in Part 22 of this

Act) which is vested in the regional or united council.

[4]      The Judge found that the appellants were warned by the police as agent for the  Christchurch  City  Council  to  leave.    More  detail  is  found  in  the  notes  of evidence, and is consistent with the finding.   Mr Mara arrived at the site at about

1.30 pm. He said numerous requests were made to the protesters asking them to leave and they were ignored.  He asked the project manager to call the police.  The police arrived and repeated the requests to no avail.  Mr Mara made the decision to have the protesters removed and asked the attending officers to do so.

[5]      The problem raised by this appeal is that the Judge found the use of the Trespass Act 1980 to be justifiable on the simple ground that the trespassers were on land owned by the Council.  He made no findings that they were causing a nuisance or any breach of the peace.   He did not find expressly they were obstructing the workmen.   He justified the invocation of the Trespass Act upon the reasoning in paragraph [6] that I have already set out.

[6]      It was common ground between counsel at the hearing that the Christchurch City Council cannot invoke the Trespass Act simply because it is the owner of the mall, which is a road under s 316.  On appeal Ms Johnston for the police did not support the Judge’s reasoning that, because the Council owned the land, it was an occupier of it.  She recognised that this, and similar statutory provisions, have never been interpreted as conferring on the Council the right of occupation of a road, in the sense of having the ability to exclude anyone else from using the road.  In Moore v MacMillan [1977] 2 NZLR 81, 91 Chilwell J stated:

… The right of each and every member of the public to pass and repass [a road] without hindrance is an incident of the peculiar nature of the title of the Crown or local authority.  That right cannot be denied to any person by the Crown of the local authority.

[7]      The leading case is now the decision of the House of Lords in Jones v DPP [1999] 2 AC 240. This was a case where a group of protesters had taken part in a peaceful assembly on the road which runs alongside the monument at Stonehenge. They were convicted of being a trespassory assembly under ss 14A and 14B(2) of the Public Order Act 1986 (UK). To decide the case their Lordships had to set out the common law as to the rights of the public over roads.

[8]      Lord Irvine of Lairg LC said at 257:

I conclude therefore the [common] law to be that the public highway is a public  place  which  the  public  may  enjoy  for  any  reasonable  purpose, provided the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary right of the public to pass and repass:   within these qualifications there is the public right of peaceful assembly on the highway.

Since the law confers this public right I deprecate any attempt artificially to restrict its scope.   It must be for the magistrates in every case to decide whether the user of the highway under consideration is both reasonable in the sense defined and not inconsistent with the primary right of the public to pass and repass.  In particular, there can be no principled basis for limiting the scope of the right by reference to the subjective intentions of the people assembling.  Once the right to assemble within the limitations I have defined is accepted, it is self-evident that it cannot be excluded by an intention to exercise it.  Provided an assembly is reasonable and non-obstructive, taking into account its size, duration and the nature of the highway on which it takes place, it is irrelevant whether it is premeditated or spontaneous … [t]hese judgments are ever ones of fact and degree for the court of trial.

[9]      There are dicta of Lord Clyde and Lord Hutton who joined Lord Irvine in the majority to similar effect.  Lord Slynn and Lord Hope dissented, querying whether the common law right extended to assembly as described in this manner.  Fisher J in New Zealand had a similar reservation, see Paprzik v Tauranga District Council [1992] 3 NZLR 176 at 183.

[10]     I am not bound by the decision of the House of Lords.  But I choose to follow the decision. One of the reasons I have adopted the majority decision in Jones is it seems to be reinforced by ss 14, 16 and 18 New Zealand Bill of Rights Act 1990.  I might note that the dissents in Jones are subtle.  As I read the dissenting speeches, they were not saying that there was no right of assembly on roads but rather they were not prepared to lift it to the level of the same importance as the ancient right of passage.  In that respect I agree that the ancient right of passing and repassing on the

highway is the most critical right and always has been.  It is the right which is central to our constitutional history.  It is no exaggeration to say that the British are freedom loving people and the love of that freedom was brought to New Zealand when it was settled as a British colony.  The right of the meanest citizen to travel on the highway has always been regarded by the law as a key protection for every individual to live the life he or she wants, to move to whichever property he or she wants to go, and meet with whomever he or she wants to meet with.  It also follows, however widely one defines the right, that a common law Court will always look for very clear language indeed from Parliament before finding that right is qualified in any way.

[11]     In this regard it is material to note that the trial Judge did not find that the protesters were creating a nuisance.  It may well be that the case could have been prosecuted with that objective in mind and the finding easily reached.   I was told from the bar that there had been a history of protests in respect of this fountain. There had been a protest the previous week that ended peaceably.  Obviously this time round the City Council officers were getting sick of it and decided to bring the protest to an end.  That was likely to be because the protest which had apparently started in the lunch hour had  gone past the lunch hour  and  was  disrupting the activities of the workers.   Had such findings been made there would have been a basis for invoking the law of trespass, for the protesters would have been on that part of a highway without any right to be there.

[12]     It is apparent from the citations of authority in the various speeches of the Law Lords in Jones v DPP that it has long been part of the common law that if a member of the public uses the highway for any other purpose than that which the common law allows he will be a trespasser.  However, in the absence of findings or evidence being led that the protestors were creating a nuisance or an obstruction, it would not be possible at common law to find the protestors were trespassing.

[13]     I turn then to see whether or not their convictions can be justified under the Trespass Act 1980 without there being any findings of fact as to nuisance or obstruction.  In this regard Ms Johnston has advanced two arguments.

[14]     The first argument relies on s 2(2) of the Trespass Act which provides:

Interpretation

…

(2)    Where, except by virtue of this subsection, no person is the occupier of any place or land, the owner of that place or land shall, for the purposes of this Act, be deemed to be its occupier.

I am quite sure that the purpose of s 2(2) has nothing to do with giving owners of roads the power to use the Trespass Act.   The reason for s 2(2) is to deal with the problem of vacant land.  At common law an action for trespass is primarily intended to protect possessory rights.  See the discussion in Todd, The Law of Torts in New Zealand (4th  ed) at ch. 9.2.04.   The common law, however, does not need much action from an owner to infer the owner is in possession.  This common law policy is secured and extended by s 2(2).

[15]     Professor Smillie is the learned author of Chapter 9 of Todd on Torts.   In paragraph 9.2.04 he says:

In the case of the highway, the local authority is the person in possession, as it owns the land and has control of it.

As authority for this proposition he cites ss 316, and 317 of the Local Government Act 1974.  Professor Smillie did not intend to say that possessory control of the local authority includes a general power of exclusion without more.   Professor Smillie goes on in paragraph 9.2.06(6) to recognise reasonable use of the highway provided the activity in question does not obstruct.   He does not cite Jones v DPP, but his reasoning is to the same effect.

[16]     Ms Johnston relies on ss 316, 317 and 353 of the Local Government Act

1974 to argue that when s 353 applied, then the local authority could invoke the

Trespass Act.  Section 316 is set out above.  Sections 317 and 353 provide:

317     Control of roads

(1)      Subject to section 318 of this Act, all roads in the district shall be under the control of the council:

Provided that—

(a)      A State highway or part thereof shall be under the control of the council only where Transit New Zealand has, under section 62 of the Transit New Zealand Act 1989, delegated that control to the council:

(b)     A Government road shall be under the control of the Minister of Transport:

(c)     Repealed

(2)      Any powers conferred on the council by this Part of this Act may be exercised—

(a)      In relation to any State highway or part thereof, only if that State highway or part is under the control of the council or the exercise of that power by the council has been  consented to  by Transit New Zealand:

(b)     Repealed

353     General safety provisions as to roads

The council shall take all sufficient precautions for the general safety of the public and traffic and workmen employed on or near any road and, in particular, shall—

(a)     Take all reasonable precautions to prevent accidents during the construction or repair by the council of any road, or when any opening is made therein by the council for the repair of drains or gas pipes or for any other purpose, and require other persons doing such work to take such precautions, by erecting barriers, devices to cause traffic to slow down, or fences across any such road or around any dangerous place therein, or otherwise, and shall cause, and require other persons doing such work to cause, any such dangerous place to be sufficiently lighted by night; and any person removing any such protective work, or removing or extinguishing any such light without the authority of the council, commits an offence:

(b)     Require the owner or occupier of any land upon which there is any hole, well, excavation, or other place dangerous to persons passing along any road forthwith to fill in, cover, or enclose the same:

(c)   Whenever the public safety or convenience renders it expedient, require the owner or occupier of any land not separated from a road by  a  sufficient  fence  to  enclose  the  same  by  a  fence  to  the satisfaction of the council.

[17]     She argued that the Council has a right to occupy the construction site by virtue of the rights given by the Council to Parliament to control roads contained in s 317  exercised  in  combination  with  s  353,  giving  it  the  power  to  fence  off  a construction site.   By exercising the right to fence off the construction site the Council placed itself in a position of having the right to exclude anyone from that construction site and so became an occupier under the Trespass Act.   This argument does not depend on the protestors obstructing the workers or otherwise causing a nuisance.

[18]     There are three deficiencies with this argument.  First, there is a distinction between having a statutory power to move people from a place and having the status of being an occupier of that place.  Second, the purpose of s 353 is to empower the Council to erect safety precautions over sites to prevent people unwittingly and so unwillingly entering over part of the road under construction, rather than from excluding people who want to go into a construction site.  Third, the common law leans against a statutory interpretation which may undermine the common law rights of free passage and assembly.  So does s 6 of the New Zealand Bill of rights Act, vis-à-vis ss 14, 16 and 18.   I elaborate the first two of these deficiencies in the following paragraphs.

[19]     As to the first, little elaboration is required.  There are many situations where the police are given powers to move people.  Indeed it was common ground in this case that had the police officers on the spot feared that violence might erupt between the protesters and the workers (who were also there) the police could have moved the trespassers along and if they did not move could have arrested them for disorderly behaviour.  The context of this protest was that it had taken place in the lunch hour. It was peaceful.  The lunch hour had come to an end.  The notice of trespass was given at the end of the lunch hour.

[20]     There are two telling characteristics as to the purpose of s 353.   One is its heading and opening paragraph, and the other is the penalty.   The penalty contemplates that the breach of the section will be by way of removal of the signs. Parliament presumes that users of a road will not want to go into a construction site. The purpose of the section is to enable the Council to warn users of the highway of a

danger.  To use s 353 to create an exclusive right of occupation in order to warrant an order excluding persons from the site is to use s 353 for a purpose never intended by Parliament.

[21]     Roads can only be stopped or obstructed according to special powers and procedures.    There  are  special  measures  in  the  Local  Government  Act  for  the stopping of roads.   These include the stopping of roads for construction purposes. Clause 11(a) of Schedule 10 of the Local Government Act 1974, giving effect to s 342,  allows  a  Council  to  resolve  to  close  a  road  on  a  temporary  basis,  after consultation with the police while something on it is being repaired.  Clause 16 of the same Schedule prohibits any person without the consent of the Council to enter or be on any part of a road which has been closed to pedestrian traffic pursuant to Clause 11.  To do so becomes an offence punishable by fine.

[22]     It is not necessary to decide in this case whether or not a person who enters onto  a  road  which  has  been  closed  is  thereby liable  to  a  conviction  under  the Trespass Act.  The reason I am citing these provisions of the Local Government Act is that they reinforce the common law perspective that any curtailment of the right of any person to be on any part of a public road needs to be specifically addressed by Parliament.

[23]     Ms Johnston also argued that s 353 should be interpreted pursuant to the requirements of s 6 of the New Zealand Bill of Rights Act 1990.  She relied on the Supreme Court decision R v Hansen [2007] 3 NZLR 1, and in particular the steps summarised by Tipping J at [92]. She argued that inasmuch as s 353 was inconsistent with ss 14, 16, 18 New Zealand Bill of Rights Act 1990 right to use highway it was nonetheless a justified limit in terms of s 5. She argued that given the clear safety and public works purposes of the section it is a clear, reasonable and justified limitation on those freedoms.

[24]     I have no difficulty with the proposition that it is a reasonable and justified limitation  on  free  use  of  roads  for  Parliament  to  impose  statutory  powers constraining such use from construction sites on roads. Parliament has done this, for example,  in  providing  for  the  stopping  of  parts  of  the  highway  in  those

circumstances, as set out above.  But, one cannot argue from the legitimacy of such a limitation back to the proposition that s 353 is such a limitation.  In my view it is not. Rather, the text and purpose of s 353 show that its purpose is not one of limiting use of  the  highway  but  rather  of  enabling  protection  devices  to  warn  users  of  the highway of danger.

[25]     Ms Johnston had some subsidiary arguments which I can deal with briefly. She  argued  that  because  the  Trespass  Act  can  be  applied  to  the  grounds  of Parliament so it can be applied to roads.  See  Police v Beggs [1999] 3 NZLR 615. In Beggs the Court recognised that the House of Representatives can authorise the speaker to warn a person unwelcome on the grounds of Parliament to leave.  In that context, the Trespass Act is invoked.   There is no easy, let alone simple, analogy between the powers of Members of Parliament to control the occupancy of the grounds of Parliament with the right of the meanest citizen to use the highway.  The analogy does not advance the argument.

[26]     Further, Ms Johnston argued that it was wrong for the appellants to argue that the Local Government Act provides a code for the exclusion of persons from public roads so that the Trespass Act can have no application.  In Police v Kanuta [1987]

1 NZLR 629 the Court held that Parliament had created a code in respect of giving rights to public to enter upon licensed premises and for the control and ejection of those persons on the same premises. I agree that the Local Government Act is not a code. I also note that Parliament did not intend that every repair of the road could only take place after a stopping. Many common place repairs of roads can be done without impeding passage in circumstances where there would simply be no wish of users of the highway to climb down into pot holes or construction pits. The Council simply puts up protective fencing and gets on with the job, completes the repair and takes the fencing down.

[27]     I find that in the circumstances of this offence the Council was not by reason of statute an occupier with exclusive right of possession of the construction site, enabling it to invoke the Trespass Act, without proof of obstruction or nuisance by the protesters.  An essential element of the offence was not proved.  This is a strict application of the law.   As I have observed earlier, the protestors probably were

making a nuisance, interrupting the workers.   But it is important that the law be applied strictly before any person is found to be trespassing on a road.   This is because of common law freedom to use roads for passage and freedom of assembly, reinforced  by ss  14,  16  and  18  of  the  New  Zealand  Bill  of  Rights  Act.    The convictions are set aside.

[28]     I have considered whether or not the case should be sent back and reheard.  I do not think that this step is needed.  The appellants have undergone a trial at first instance and then on appeal their counsel have argued the issue twice.   That was because of the importance of the matter.  In my judgment the fate of the appellants should be resolved in this Court.  The convictions and fines are set aside.

Solicitors:

M J Knowles & M M Cole, Christchurch, for Appellants

Raymond Donnelly & Co, Christchurch, for Respondent