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 by Mr Barber, Mr Thornton acknowledged that he did not know if Mr Barber’s vehicle was on the land he had previously leased for grazing  purposes.3    When  Mr  Barber  asked  if  he  was  on  the  grazing  area

Mr Thornton said “I don’t know, not to my knowledge”.4   When questioned further

by Judge Ross, Mr Thornton said that Mr Barber was outside the “trespass area”

when he blocked Mr Thornton’s vehicle.5

[10]     Constables Gardner and Whitehead were the police officers who responded to Mr Thornton’s request for assistance.  Constable Gardner spoke to Mr Barber after which he arrested Mr Barber and charged him with breaching the Trespass Act 1980.

[11]     Constable  Gardner’s  notes  of  his  interview  of  Mr  Barber  include  the following questions and answers:

Q        Are you aware that you were trespassed from this property?

A        Yes, of course I am, that’s why I brought documents into the police

station to nullify the trespass.

Q        Why are you here if you know you are trespassed?

AI have come to feed my chickens that are still here.   But people having been stealing them, I have only about 20 left.

[12]     When cross-examined by Mr Barber, Constable Gardner acknowledged that

Mr Barber’s vehicle was “directly outside the Amateur Radio Club building”.6

The hearing before Judge Ross

[13]     I have carefully studied the Notes of Evidence.   Those notes indicate that

Mr Barber believed he was on a public road when he blocked Mr Thornton’s vehicle.

3      Notes of Evidence at 37, line 14.

4      Notes of Evidence at 37, line 18.

5      Notes of Evidence at 40, line 25.

6      Notes of Evidence at 44, line 27.

[14]     At the end of the hearing Judge Ross delivered an oral decision in which he concluded:

(1)The trespass notice served on 27 July 2012 complied with the relevant provisions of the Trespass Act 1980.

(2)The trespass notice prohibited Mr Barber from being on the land in question for two years.7

(3)       Mr Barber was on the land to which the trespass notice applied.

(4)Mr Barber knew he was on the land to which the trespass notice applied and that he intended to be there.

[15]     Judge Ross convicted Mr Barber and fined him $300 plus costs and witness expenses.

General appeal

[16]     Mr Barber has exercised his right to a general appeal pursuant to s 115 of the Summary Proceedings Act 1957.   Mr Barber’s appeal is therefore conducted as a rehearing.8    My duty is to review all of the evidence and reach my own view on whether or not Mr Barber is guilty of trespass.

[17]     In  Austin,  Nichols  &  Co  Inc  v  Stichting  Lodestar9   the  Supreme  Court explained that those who have general rights of appeal are entitled to have:

(1)       the appellate court come to its own view on the merits of the case;

and

(2)their conviction overturned if the appellate court believes the lower court  decision  was  wrong,  even  if  that  assessment  involves  an

evaluation of fact and judgement.

7      Trespass Act 1980, s 4(4).

8      Summary Proceedings Act 1957, s 19(1).

9      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

Issue on appeal

[18]    Although it was not raised directly by Mr Barber, I do believe that an unfortunate error occurred when the Council prepared the trespass notice that was served on Mr Barber on 27 July 2012.   That error was to identify an area that Mr Barber  was  precluded  from  entering  that  extended  well  beyond  the  areas previously leased by Mr Barber and included areas that were owned but not occupied by the Council.  The area which was identified on the aerial map attached to the trespass notice included land occupied by approximately nine social clubs.

[19]     It appears from Mr Thornton’s evidence that on 9 November 2012 Mr Barber was   not   on   the   land   that   he   had   previously   leased   from   the   Council. Constable Gardner confirmed this to some extent when  he said Mr  Barber was directly outside the Amateur Radio Club building.

[20]     The term “occupier” is defined in the Trespass Act 1980 to mean:

... any person in lawful occupation of that place or land;  and includes any employee or other person acting under the authority of any person in lawful occupation of that place or land.

The Trespass Act protects rights of occupation, not ownership.10

[21]     In my assessment, notwithstanding Mr Barber’s apparent acknowledgements to Constable Gardner, there is a real question over whether in fact Mr Barber was on land occupied by the Council.  In any event, the issue of whether or not Mr Barber was trespassing involved matters of fact and law.    Mr Barber’s apparent acknowledgement was made without him having the benefit of knowing the legal ingredients of trespass.

[22]     It is quite likely Mr Barber was not on land that he had previously leased (and which by 9 November 2012 was occupied by the Council) but on land occupied by

one or more of the social clubs that leased land and buildings from the Council.

10     Police v Roha [2008] NZCA 541 at [15]; Bright v Police HC Auckland CRI-2007-404-301,

30 May 2008 at [53].

[23]     In  my  judgement,  Mr  Barber  cannot  be  guilty  in  the  absence  of  clear evidence that he was in fact on land occupied by the Council at the time it is alleged he was trespassing.  I am not satisfied that the evidence established to the requisite degree that Mr Barber was  on  land occupied by the Council when  he blocked Mr Thornton’s vehicle on 9 November 2012.

Conclusion

[24]     The appeal is allowed.  Mr Barber’s conviction is quashed.

D B Collins J

Solicitors:

Crown Solicitor, Palmerston North for Respondent