Barber v Police - [2013] NZHC 1808

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2013-454-000021 [2013] NZHC 1808

BETWEEN DAVID OTTO BARBER Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 July 2013

Counsel:

Appellant in person
D J Flinn for Respondent

Judgment:

18 July 2013

JUDGMENT OF COLLINS J

Introduction

[1] The question I have to answer is whether Mr Barber was properly convicted of trespass by Judge Ross on 6 May 2013.1

[2] The answer to that question depends on whether or not Mr Barber was on land occupied by the Palmerston North City Council (the Council) at the time he is alleged to have been trespassing.

Background

[3] On 1 September 2007 Mr Barber began leasing an area of land owned by the Council. The land in question adjoins Totara Road and was leased by Mr Barber for grazing stock and growing Comfrey. Mr Barber had a caravan and sheds on the
leased land.

1 Trespass Act 1980, s 4(4).

BARBER v NEW ZEALAND POLICE [2013] NZHC 1808 [18 July 2013]

[4] The lease came to an end on 16 June 2012. It appears Mr Barber continued to occupy the land after the end of the lease.

[5] On 27 July 2012 Mr Brenkley, the Parks and Property Manager of the Council, served a trespass notice on Mr Barber. The notice was served pursuant to s 4(1)(b) of the Trespass Act 1980 and warned Mr Barber “to stay off the place known as Palmerston North City Council land on Totara Road”. Attached to the notice was an aerial photograph with the area in question identified with a boundary marked with a felt pen and lateral lines between the highlighted boundary.

[6] The area which was identified on the aerial map that accompanied the trespass notice encompassed the area previously leased by Mr Barber and also an area leased by approximately nine social clubs, including:

(1) a Small Ball Rifle Club; (2) the Deaf Association;
(3) the Archery Society;

(4) the Palmerston North Brass Band; and

(5) a Amateur Radio Club.

The area occupied by the social clubs is immediately adjacent to Totara Road and separates part of the land previously leased by Mr Barber from Totara Road.

[7] On 9 November 2012 Mr Thornton, an animal control officer employed by the Council, went to the Totara Road land. He was driving a utility with animal control markings. He “parked at the gate in front of the property near the Amateur Radio Club building”.2 When Mr Thornton was starting to reverse his vehicle, a four wheel drive vehicle driven by Mr Barber blocked Mr Thornton’s ability to continue
reversing down the track.

2 Police v Barber DC Palmerston North CRI-2012-054-3431, 11 June 2013, Notes of Evidence at
27, line 15.

[8] Mr Thornton knew Mr Barber and believed that he had “been trespassed” from the property they were on. Mr Thornton repeatedly asked Mr Barber to move. When Mr Barber refused to move his vehicle Mr Thornton called the police.

[9] When cross-examined…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barber v Police

Details

AGLC: Barber v Police [2013] NZHC 1808
Case: [2013] NZHC 1808
Decision Date: 18 July 2013

CaseChat Overview and Summary

In Barber v Police, the appellant, David Otto Barber, challenged his conviction for trespass under the Trespass Act 1980, arguing that he was not on land occupied by the Palmerston North City Council when he allegedly trespassed. The case arose from an incident where Barber blocked an animal control officer's vehicle on land adjacent to Totara Road, which was previously leased by Barber but subsequently occupied by the Council after the lease expired. The Council had served a trespass notice on Barber, prohibiting him from entering the area. The issue before the High Court was whether Barber was on Council land when he blocked the vehicle, which would determine whether he was trespassing.

The court found that the trespass notice served on Barber was flawed as it encompassed areas beyond his leased land, including areas occupied by social clubs. The key legal issue was whether the evidence sufficiently established that Barber was on Council land when he blocked the vehicle. The court concluded that there was insufficient evidence to determine whether Barber was on Council land, as he might have been on land occupied by the social clubs instead. The court held that without clear evidence that Barber was on Council land at the time of the incident, he could not be found guilty of trespass.

The court allowed the appeal, quashed the conviction, and set aside the fine imposed on Barber. The decision highlights the importance of accurately identifying the land in question in a trespass notice and the necessity of clear evidence to establish that the defendant was on the specified land when the alleged trespass occurred.

Orders