B v Police HC Auckland CRI 2007-404-301

[2008] NZHC 2362

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-000301

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 March 2008

Appearances: P M B   Appellant in person with Mr Seamer as McKenzie Friend

L Marshall for the Respondent

Judgment:      30 May 2008 at 3:00PM

(RESERVED) JUDGMENT OF ANDREWS J

This judgment was delivered by me on  30 May 2008 at 3:00PM

pursuant to r 540(4) of the High Court Rules.

………………………………………..

Registrar/Deputy Registrar

Solicitor:

Meredith Connell, PO Box 2213, Auckland

Party:

P N B  , 86A School Road, Kingsland, Auckland

B V NZ POLICE HC AK CRI 2007-404-000301  30 May 2008

Introduction

[1]      On  11  September  2007  the  appellant,  Ms  B  ,  was  convicted  on  one charge of trespass under the Trespass Act 1980.   In a reserved judgment District Court Judge Hubble found that Ms B   had trespassed on the Auckland Town Hall on 23 November 2006, having been given a warning to leave an Auckland City Council meeting at the Town Hall, and having refused to do so.

[2]      I record that Ms B   has on previous occasions been charged with the offence of trespass following her attendance at Council meetings.  A prosecution was dismissed in May 2006 on the grounds that the Council had not properly followed procedures for excluding members of the public from a meeting, as set out in s 48 of the Local Government Act.  A second prosecution was dismissed in June 2006 on the grounds that the Council’s declining Ms B  ’s request to speak at the meeting had not been established to be lawful.   A third prosecution in August 2006 was dismissed because the Council had not strictly complied with its Standing Orders in declining a deputation request from Ms B  .  A fourth prosecution was dismissed in November 2006, again because the Council had not properly complied with s 48 of the Local Government Act when attempting to conduct business in the absence of the public.

[3]      Ms  B    has  appealed  against  the  conviction  entered  on  11  September

2007.  Although she submitted that this was a “test case for democracy”, to uphold “the   fundamental   right   of   citizens   to   participate   in   the   process   of   Local Government”, the issue is simply whether she was properly convicted on the charge of trespass.

Background

[4]      On 23 November 2006 a meeting of the Auckland City Council was held in the Council Chambers at the Auckland Town Hall.  The agenda for the meeting had been duly published and included the location of the proposed “National Stadium”.

The meeting was chaired by the then Mayor, Mr Hubbard, and attended by 20 council members.

[5]      The “National Stadium” item was, at that time, one of some urgency.  The Council was required to respond within a two-week period to an offer made by Central Government to contribute to the construction of a stadium on the Auckland Waterfront, in time for the Rugby World Cup in 2011.  The possibility of a stadium being constructed on the waterfront had engendered a considerable public response, both for and against.

[6]      Approximately 150 members of the public attended the Council meeting, including Ms B  .

[7]      Order 2.13.1 of the Council’s Standing Orders provides that an individual who wishes to be heard at a Council meeting on an agenda item may apply to make a “deputation”.  Order 2.13.1 provides that an application for admission for deputation is required to be lodged with the Chief Executive Officer of the Council at least seven clear days before the date of the meeting concerned.  The application is also required to be approved by the chairperson of the meeting.  Requests for deputations which are repetitious or offensive may be refused.

[8]      Standing Order  2.13.2  provides  that  notwithstanding Order  2.13.1,  if  the matter is one which in the opinion of the chairperson is one of urgency or major public interest, the chairperson may determine that the deputation be received.

[9]      In relation to the “National Stadium” issue, the Council had opened a website so that submissions to Council could be received through the website.  The website encouraged the making of submissions through the website or by letters to Council. Ms B   did not apply for a deputation within the time specified.  The day before the meeting she sent an email to the Council’s Services Manager, Mr Burden, requesting the right to speak at the meeting.  Her request was refused.  Mr Burden’s reply was as follows:

Subject:  Deputation Request

Dear Penny

I have received your request to appear as a deputation at the 23 November

2006 Council meeting, to speak on due process with regard to a stadium decision, Auckland regional governance and the alleged failure to follow lawful due process by some elected members and Council officers.

Your request has been declined.

The Mayor  has ruled  that there  will  be  no  deputations  received  on  the stadium issue, given the timeframe in which the Council must make a decision on its preference and convey that to Central Government and to other  business  on  the  very  full  agenda  for  tomorrow  night’s  meeting. Persons wishing to make submissions to the Council on the stadium decision are able to do so via the Council’s website, by telephoning the Call Centre, or by writing to the Council.

With respect to the matter of regional governance, you have already had two opportunities to address Council meetings regarding this and any further deputation by you in this regard would be repetitious, and will therefore not be permitted.

The matter of the alleged failure of elected representatives and officers to follow due process has been well canvassed by you in previous deputations, and is also considered to be repetitious.

In addition, your request for a deputation to the meeting was received out of time. As you are aware, the Council’s standing orders require applications for a deputation to be made at least seven clear days before the date of the meeting.

Yours sincerely,

Peter Burden, Council’s Services Manager

[10]     The  “National  Stadium”  issue  was  the  fifth  item  on  the  agenda  for  the meeting.  When the meeting reached this item the Mayor announced that there were no deputations.  At that point Ms B   and others interjected to say that all requests for deputations, in particular her own, had been declined.  Ms B   then stood and unfurled a banner, approximately 1 metre x 1.5 metres on which was the following:

Mayor Hubbard’s DICKtatorship is a CEREAL matter – don’t buy it.

[11]     The Mayor then said he would ask a Councillor to speak, then added:

… before I ask Councillor Northey to speak I do ask that that banner be taken down that, I do regard that as interference and Penny B   can I ask you please to take that banner down.

[12]     There was then the following exchange between Ms B   and the Mayor:

Ms B  :           You denied me speaking rights Mayor. Mayor:     I’m sorry …

Ms B  :           You’ve acted unlawfully.

Mayor:           Penny B   I regard that as interference in the meeting.  I ask you from the Chair that you take that banner down.  If you do not take that banner down I exercise my rights under Standing Orders to have you removed from the meeting.

Ms B   did not leave the premises.  She was approached by Mr Burden.

[13]     The Mayor then said that he was giving Ms B   a second warning, and asked that she take the banner down.  Ms B  ’s response was to the effect that it was “five nil to me Mayor, Auckland City Council versus Penny B  ”.  There was then the following exchange between the Mayor and Ms B  :

Mayor:           Under Standing Orders I ask you for the last time to desist or I will adjourn the meeting and ask Officers to remove you from the floor.

Ms B:       This is railroading and undemocratic and does not follow the provisions of the Local Government Act or the Local Government …

Mayor:           Ms Penny B   I formally request you to desist from these interruptions tonight and allow the Council to continue in a lawful manner.

… [indistinct response from Ms B  ]

Mayor:           Penny B   since you refuse to allow us to continue this meeting or the orderly conduct of this meeting I rule you as disorderly  as  set  out  in  s 50  of  the  Local  Government Official Information and Meetings Act 1987 and Standing Orders  2.24.1 of  which  you  will  be  provided  a  copy  by officers and I now require you to leave the premises immediately.   Councillors I am unfortunately having to adjourn this meeting for 15 minutes.

[14]     Having been asked to “leave the premises” Ms  B   folded the banner and sat down.  She did not leave.  A Police Officer arrived and arrested her.  She was held in custody overnight, as she refused to undertake not to return to the Town Hall.

[15]     As noted earlier, Ms B   was subsequently charged and convicted on the offence of trespass, under ss 3(1) and 11(2)(a) of the Trespass Act 1980.

The District Court judgment

[16]     The Judge first referred to the requirement that there be open and public transaction  of  local  authorities’  business.     He  referred  to  s 4  of  the  Local Government  Official  Information  and  Meetings  Act  and  s 14  of  the  Local Government  Act  2002,  each  of  which  set  out  this  requirement,  and  noted  that implicit in this is the need for Councils to provide mechanisms by which individual community groups could openly present their views.  He commented at [17] that:

Ms B   is a witness to the fact that the Courts will jealously guard a citizen’s right to be heard in accordance with the procedures or standing orders promulgated for [the purpose of enabling citizens to present their views]

[17]     The Judge then referred to Ms B  ’s submission with respect to Art 19 of the Universal Declaration of Human Rights (as to the right of freedom of expression and opinion) and s 14 of the New Zealand Bill of Rights Act 1990 (NZBORA), as to the freedom of expression.  He also referred to Ms B  ’s reliance in submissions

on the Supreme Court’s judgment in Brooker v Police1  but expressed the view that

the right to freedom of expression must be exercised responsibly with concern and consideration for others.  This was, he observed at [21]:

… even more pronounced in the environment of Courts or, indeed, local authorities:  although  these  public  bodies  must  operate  in  an  “open, transparent and democratically accountable manner” [a reference to s 14 of the Local Government Act], they cannot perform their public role and function effectively unless the citizens’ right to “freedom of expression and opinion” is exercised in accordance with the procedural rules openly prescribed.

[18]     The Judge then referred to the previous prosecutions of Ms B   on trespass charges.  These have been set out at [2], above.  None of these decisions, the Judge concluded, provided any weight to Ms B  ’s submission that a citizen has “speaking rights” at meetings, other than in accordance with proper procedures.

1   Brooker v Police [2007] 3 NZLR 91

[19]     The  Judge  then  considered  the  wording  of  Standing  Order  2.13.1  and concluded at [28] that, provided a meeting was open to the public and transparent in its proceedings, Council was entitled to conclude that deputations should not be received at that meeting.   Having considered the evidence before him, the Judge concluded at [30] that the Mayor had not acted illegally in declining to accept Ms B  ’s deputation and that, therefore, she had no “speaking rights” at the meeting.

[20]     The Judge then turned to the alleged trespass, noting first that under s 50 of the Local Government Official Information and Meetings Act, and Standing Order

2.24.1, the chairperson of a meeting may require a member of the public to leave a meeting and, if the person refuses or fails to leave, a constable or officer of Council may remove or exclude the person. Before requiring a member of the public to leave a meeting, the chairperson must believe, on reasonable grounds, that the behaviour of that person is likely to prejudice or to continue to prejudice the orderly conduct of the meeting if the person is permitted to remain.

[21]     The  Judge  was  satisfied  on  the  evidence  that  the  Mayor  believed,  on reasonable grounds, that the meeting on 23 November 2006 was likely to be prejudiced by Ms B  ’s continued presence, and that he was within his rights to ask her to leave.  He further concluded at [33] that Ms B   had refused to leave the meeting and that, accordingly, the assistance of a constable was called upon to remove her.

[22]     The question for the Judge, then, was whether there was a trespass.   The Judge observed  at  [36]  that  there  will  be  a  trespass  if  the  requirements  of  the Trespass Act are breached.   The charge under the Trespass Act arises if s 3(1) is breached, that is, if after being warned to leave a place by an occupant of the place, the person so warned neglects or refuses to leave.

[23]     The Judge did not accept Ms B  ’s submission that as a ratepayer she had a right of access to the Council Chamber.  Rather individuals have rights of access to Council buildings during normal office hours, or when the buildings are open to the public for public meetings or functions.  However, the lawful occupier has the right to demand that an individual leaves.

[24]     The Judge accepted that the Mayor was in lawful occupation of the Town Hall  premises,  and  that  the  Council  officer,  Mr  Burden,  was  acting  under  the Mayor’s authority.  The Judge also accepted that Mr Burden had asked Ms B   to leave the premises, on the basis that she had failed to comply with the Mayor’s request that she leave the meeting pursuant to s 50 of the Local Government Act. Further, the Judge was satisfied that Ms B   had been warned to leave, as required by s 3(1) of the Trespass Act and that, by neglecting or refusing to do so, she had committed the offence of trespass.

Summary of Ms B  ’s arguments on appeal

[25]     In  her  written  submissions  Ms  B    set  out  92  points  in  which  she submitted the Judge was in error – by failing to give consideration or due weight to various matters.   In oral argument she submitted that this was a test case for democracy, that she was appealing the convictions because citizens have a fundamental right to participate in Council discussions rather than be bystanders to the Council process.

[26]    Not all of Ms B  ’s submissions were relevant to her appeal against conviction. Those that were relevant may conveniently be summarised under five key points, from which the majority of her submissions flowed.

[27]     First, Ms B   submitted that the public has a right of access to the Town Hall at a time when it is open for a Council meeting conducted in public.  This is, she  submitted,  a  statutory right  of  access  under  the  Local  Government  Official Information and Meetings Act, and the Local Government Act.   Because of that statutory right of access when the Town Hall was open for a meeting, she submitted, the Trespass Act did not apply.

[28]     Second, Ms B   submitted that her right of access was governed by the Local Government Official Information and Meetings Act.  Section 50 of that Act provided that she could be removed if she were disorderly (she submitted that she was not), but it did not create an offence.

[29]     Third, Ms B   submitted that the denial of her deputation request, and her removal  from  the  Council  meeting  were  a  denial  of  her  right  of  freedom  of expression under the NZBORA.  This was a right which was, she said, confirmed by the judgment of the Supreme Court in Brooker v Police.2

[30]     Fourth, Ms B   submitted that the Judge was wrong to conclude that there was no illegality in Council’s refusal to accept her request to make a deputation.

[31]     Fifth, Ms B   submitted that the Judge had been wrong to find that she had committed the offence of trespass.

Does Ms B   have a statutory right of access?

[32]     Neither the Local Government Official Information and Meetings Act 1987, nor the Local Government Act 2002, supports Ms B  ’s argument that she has an unfettered right of access to the Town Hall when public meetings are being held.

[33]     Section 4 of the Local Government Official Information and Meetings Act provides that the purposes of the Act include promoting the open transaction of business at meetings of local authorities, in order to enable more effective participation by the public in the actions and decisions of local authorities.

[34]     Section 47 (in Part 7: Local Authority Meetings) creates a presumption that local authority meetings will be open to the public unless Part 7 otherwise provides. Section 50 (which is also in Part 7) provides that a member of the public may be required to leave a meeting if the person presiding over  a meeting believes on reasonable grounds that their behaviour is likely to prejudice the orderly conduct of the meeting. Section 50 further provides that if a member of the public who is required to leave a meeting refuses or fails to do so, then a constable or an officer or employee of the local authority may, at the request of the person presiding, remove the member of the public from the meeting.

2   See fn 1

[35]     Thus, the Local Government Official Information and Meetings Act provides a presumption for attendance by the public at meetings, but that is not an unfettered right.  It is subject to the right of the person presiding over the meeting to require a member of the public to be removed.

[36]     The Local Government Act 2002 provides, in s 14, that in performing its role a local authority must act in accordance with certain principles.  These include  that it  should  conduct  its  business  in   an   open,   transparent,   and   democratically accountable manner.  The Local Government Act contains no provision relating to attendance of the public at its meetings.  That Act does not, therefore, support Ms B  ’s argument that she has an unfettered statutory right to be present at a public Council meeting.

[37]     I do  not  accept  Ms  B  ’s  further  argument  that  being  described  as  a “public watchdog” (as she has been in some District Court judgments) accords her any  special  status  that  gives  her  any  speaking  or  attendance  rights  at  Council meetings except as provided under the Local Government Official Information and Meetings Act and the Council’s Standing Orders.

Does the Local Government Official Information and Meetings Act prevail over the Trespass Act?

[38]     Ms B   then argued that the Local Government Official Information and Meetings Act and the Trespass Act 1980 were two pieces of legislation that were “fundamentally opposed”, and that the Trespass Act did not apply where the Local Government Official Information and Meetings Act applied.  She submitted that the Trespass Act could not “trump or over-ride her statutory right of access”.

[39]     That argument is not supported by the provisions of the Local Government Official Information and Meetings Act.  Section 54 provides that any provisions in any enactment in relation to attendance of the public at local authority meetings is to be read subject to the provisions of Part 7 of the Act.  However, that cannot be read as giving the Local Government Official Information and Meetings Act supremacy over any provisions of other enactments.  In particular, it cannot be read as providing

that  the  Trespass  Act  is  to  be  read  subject  to  the  Local  Government  Official

Information and Meetings Act.

[40]     Both the Local Government Official Information and Meetings Act and the Trespass Act exist in the legislation, and both may be applied or resorted to, where appropriate, in any particular situation.   Ms B   correctly pointed out that the Local Government Official Information and Meetings Act provided that she could be removed from a Council meeting, but did not authorise removal from the Town Hall premises.  As the Judge accepted at [35], the two Acts create distinct and separate rights and obligations.   The fact that Ms B   was in a Council meeting and removed pursuant to the Local Government Official Information and Meetings Act does not affect her obligation to leave the premises when warned by the occupier under the Trespass Act.

Freedom of speech under the New Zealand Bill of Rights Act

[41]     Ms B   submitted that Council’s denial of her deputation request, and her removal from the Town Hall premises, were a denial of her right of freedom of expression under the NZBORA.  In respect of this submission the Judge was, in my judgment, correct to find Ms B  ’s reliance on the NZBORA and the Supreme Court’s judgment in Brooker v Police misplaced. She submitted that it “upheld my s.14 [of the NZBORA] right to freedom of expression”. That is not so. The right is not unqualified. As Elias CJ said at [4] of her judgment:

… The right to “impart information and opinions of any kind in any form” affirmed in s 14, is not however unqualified.  By Art 19(3), it is subject to reasonable restrictions prescribed  by law which are necessary to  protect other  important  interests,  including  public  order  and  the  rights  and reputations of others.

[42]     Later in her judgment, at [36], the Chief Justice referred to the Trespass Act as being one of the provisions of our law designed to protect interests and values which qualify the scope of the rights contained in the NZBORA.

[43]     In the present case, therefore, Ms B  ’s right of freedom of speech was qualified in that it was required to be exercised in accordance with the provisions of

the Local Government Official Information and Meetings Act and the Council’s procedural rules.  It was further qualified by the application of the Trespass Act.

Was the Judge wrong to conclude that there was no illegality in the refusal to accept Ms B  ’s deputation request?

[44]     Ms B   submitted that the Council had been wrong to deny her deputation request.

[45]     Ms B  ’s request for a deputation was made out of time.  In his judgment the District Court Judge held that the wording of Standing Order 2.13.1 contains both a general discretion and a specific right to decline deputations.  That is clearly correct, given the wording of the Standing Order: “deputations may be received …” and “the chairperson may refuse requests for deputations…”, and “the chairperson may determine that the deputation be received …”   Nor is there any error in the Judge’s conclusion that it is open to Council not to receive any deputations at a meeting, provided that the meeting is  open  to  the public and  transparent  in  its proceedings.

[46]     I am not persuaded that there was any error in the Judge’s conclusion that that  there  was  no  illegality  in  the  refusal  to  accept  Ms  B  ’s,  or  any other, deputations, at the meeting and that, accordingly, she had no “speaking rights” at the meeting.

[47]     I am satisfied that Ms B  ’s removal from the premises, and subsequent charge of trespass, was pursuant to the provisions of the Trespass Act. I therefore turn to Ms B  ’s fifth argument, that her removal pursuant to the provisions of the Trespass Act was unlawful.

Was Ms B   lawfully removed pursuant to the Trespass Act, and did she commit an offence under that Act?

[48]     Ms B   submitted that the Mayor and the Council Officer Mr Burden were not  entitled  to  have  her  removed  from  the  Town  Hall  premises.    Further,  she

submitted that she had not walked out of the Town Hall, but had had to be carried out.  She submitted that she had lawfully, and passively, resisted her removal.  As a result, she submitted, she was not lawfully removed from the Council premises, and had not committed an offence under the Trespass Act.

Did Ms B   commit an offence under the Trespass Act?

[49]     Determination  of  Ms  B  ’s  appeal  rests,  therefore,  on  whether  she committed an offence under s 3(1) of the Trespass Act, which 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.

(i)        Was the Mayor an “occupier”?

[50]     An “occupier” of a place is defined in s 3(2) as any person, or any employee or agent of that person, in lawful occupation of the place.  Section 5 provides that the warning referred to in s 3 is to be given to the person concerned either orally or by notice in writing.

[51]     Having heard evidence from the Mayor and Mr Burden, the Judge accepted that the Mayor was an “occupier”, that he was in lawful occupation of the Town Hall premises and Council Chamber.  He also accepted that Mr Burden was an employee acting under the authority of the Mayor.  Accordingly, he found that the Mayor was entitled as occupier to ask Ms B   to leave the premises, and that Mr Burden warned her pursuant to the Trespass Act, as did the Police Constable who then attended.

[52]     Although Ms B   challenged these findings, she presented no principled basis for doing so, other than to submit that the Council did not have a right to claim to be the lawful occupier of the Town Hall for the purposes of the Trespass Act.  She submitted that there was no evidence that the Town Hall was the private property of Council staff.  That is irrelevant.  Under s 3(1) of the Trespass Act what is required

is that there is a trespass in “any place”, after a warning to leave has been given by an “occupier”.

[53]     Ms B   also submitted that there was no evidence before the Judge that, as a ratepayer, she was not an “owner” of the Town Hall.   Again, that is irrelevant, because an offence under s 3(1) of the Trespass Act is an offence against occupation, not ownership.

[54]     I am not persuaded that the Judge was wrong to find that the Mayor was in lawful occupation of the Town Hall premises and the Council Chamber, and that he was entitled as occupier to ask Ms B   to leave the premises, and that Mr Burden warned her pursuant to the Trespass Act, as did the Police Constable who then attended.

(ii)      Was Ms B   lawfully removed from the Town Hall premises?

[55]     The Judge also heard evidence as to what occurred when the Mayor asked Ms B   to take her banner down, and what followed subsequently.   In addition, a videotape recording was played at the hearing before him.

[56]     It is clear that Ms B   was asked twice to take the banner down.  She did not do so, but made a reference to the previous District Court judgments.  Referring to Standing Orders, the Mayor then asked Ms B   “for the last time” to take the banner down.  When she did not do so, but made a comment that the Mayor was being “railroading and undemocratic”, the Mayor asked Ms B   to desist from making  interruptions.    Ms  B    continued  to  speak,  upon  which  the  Mayor (referring to s 50 of the Local Government Official Information and Meetings Act and Standing Order 2.24.1) ruled her as being disorderly.  He required Ms B   to leave the meeting.

[57]     Ms B   folded the banner, but refused to leave the meeting. Instead, she sat down.  A Police Constable was called to remove her.  The Judge found, on the basis of evidence before him, that Ms B   was warned to leave the premises both by Mr Burden and by the Police Constable, but refused to do so.   Although Ms

B   challenged that finding, again no principled basis was given for her challenge. In the circumstances, there are no grounds on which the Judge’s finding should be overturned.

[58]     I therefore conclude that Ms B  ’s removal from the Town Hall premises was lawful.

(iii)     Ms B  ’s argument that she “lawfully resisted an unlawful arrest”

[59]     Ms B   submitted that she had a lawful right to be at the Council meeting, and was unlawfully removed from it.  She then submitted that the Judge was wrong to take into consideration her evidence that she “knew that it is lawful to resist an unlawful arrest”, and that she had passively resisted her arrest.

[60]     Although not expressed as such,  I understand this submission to be  that because of an “honest belief that she was entitled to remain on the premises”3  she had a defence to the charge of trespass.  In order to raise such a defence, the person charged  must  raise  a  proper  evidential  foundation  for  the  belief.  Ms  B  ’s argument as to an “honest belief” appears to be based on the earlier District Court judgments where charges of trespass were dismissed.

[61]     However, those judgments did not provide Ms B   with any assurance that she had a right to remain on the Council premises.  Each one of the judgments points to a defect in procedures followed by the Council which led to the charge being dismissed.   The dismissal of the charges in each case was not on the basis of Ms B  ’s  right  to  remain  on  the  Council  premises,  rather  on  whether  proper procedures had been followed for declining her speaking rights or for her removal (depending on the issue in the particular case).  Ms B   could not take it from the judgments that she could never be the subject of a trespass charge.

3   See Albert v Police HC Whangarei AP04/03 25 March 2003, Nicholson J, citing Mackley v Police

(1994) 11 CRNZ 497

(iii)    Ms B  ’s submission that her removal was not necessary

[62]     Ms  B    further submitted  that  the  Mayor’s  request  that  she  leave  the meeting, and her subsequent removal from the Town Hall premises, were unnecessary, because she folded up the banner and sat down.   Her “passive resistance” (as she put it) is irrelevant to the question whether she was a trespasser. Once she had been warned to leave the premises, and refused or neglected to do so, she committed the offence of trespass, whether her refusal to leave was active or passive.

Result

[63]     I am not satisfied that any of Ms B  ’s grounds of appeal have any merit.  I

am not satisfied that the Judge erred in convicting Ms B   on the charge of trespass.  Accordingly, her appeal is dismissed.

Andrews J