Bright v Police - [2009] NZCA 187

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA796/2008
[2009] NZCA 187
BETWEENPENELOPE MARY BRIGHT

Appellant

ANDNEW ZEALAND POLICE

Respondent

Hearing:1 April 2009

Court:Glazebrook, Hammond and Chambers JJ
Counsel:Appellant in Person

F E Guy Kidd and B C L Charmley for Respondent

Judgment:15 May 2009 at 3.00 pm

JUDGMENT OF THE COURT

A THE APPEAL IS DISMISSED.
BThe answers to the questions of law posed in Andrews J’s decision on the leave to appeal are set out at [52] to [53].

____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No

Introduction  [1]
Background  [4]
Judge Hubble’s decision  [11]
Andrews J’s decision  [16]
Question 1: Does the LGOIM Act provide a presumption
for attendance by the public at council meetings but
subject to the right of the person presiding to require the
removal of a member of the public?  [22]
Question 2: May the LGOIM Act and the Trespass Act
be applied and resorted to, where appropriate, in any
particular situation arising out of the attendance by the
public at a council meeting?  [29]
Section 13(c) of the Trespass Act  [30]
Compatibility of the LGOIM Act and Trespass Act?  [33]
Is the LGOIM Act a code?  [38]
Valid warning  [41]
Discriminatory application?  [44]
Summary of requirements before the Trespass Act can be invoked        [47]
Was the requirement of reasonableness met in this case?  [49]

Answers to questions  [52]
Result  [55]
Introduction
[1]       On 11 September 2007, Ms Bright was convicted by Judge Hubble of one charge of trespass under the Trespass Act 1980. The Judge held that Ms Bright had trespassed on the Auckland Town Hall on 23 November 2006, having been given a warning to leave and having refused to do so.
[2]       On 30 May 2008, in Bright v Police HC AK CRI 2007-404-000301, Andrews J dismissed Ms Bright’s appeal against that conviction. On 12 December 2008, in Bright v Police HC AK CRI 2007-404-000301, Andrews J gave Ms Bright leave to appeal against the decision on the following two questions of law:
(a)Was Andrews J correct in holding that the Local Government Official Information and Meetings Act 1987 (the LGOIM Act) provides a presumption for attendance by the public at council meetings, but that is subject to the right of the person presiding of the meeting to require a member of the public to be removed?
(b)Was Andrews J correct in holding that the LGOIM Act and the Trespass Act may be applied, and resorted to, where appropriate, in any particular situation arising out of the attendance by the public at a council meeting?

[3] Before dealing with those questions, we set out the factual background in more detail and summarise the decisions in the courts below.
Background
[4] On 23 November 2006, the Auckland City Council held a meeting in the Council Chambers at the Auckland Town Hall. It was chaired by the then Mayor, Mr Dick Hubbard, and attended by…

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 Bright v Police

Details

AGLC: Bright v Police [2009] NZCA 187
Case: [2009] NZCA 187
Decision Date: 15 May 2009

CaseChat Overview and Summary

Bright v Police is a case involving a challenge to a conviction for trespass by Ms Penelope Mary Bright. Ms Bright was convicted by Judge Hubble of one charge of trespass under the Trespass Act 1980, for her actions at an Auckland City Council meeting on 23 November 2006. The appeal against the conviction was dismissed by Andrews J, but leave was given to appeal on two questions of law. The Court of Appeal considered whether the Local Government Official Information and Meetings Act 1987 (LGOIM Act) provides a presumption for attendance by the public at council meetings, subject to the right of the person presiding to require a member of the public to be removed, and whether the LGOIM Act and the Trespass Act may be applied, and resorted to, where appropriate, in any particular situation arising out of the attendance by the public at a council meeting.

The Court found that the LGOIM Act does provide a presumption for attendance by the public at council meetings, but this is subject to the right of the person presiding to require a member of the public to be removed. The Court also held that the LGOIM Act and the Trespass Act may be applied, and resorted to, where appropriate, in any particular situation arising out of the attendance by the public at a council meeting. However, the presumption of public attendance at meetings in s 47 of the LGOIM Act has to be displaced, meaning that s 50 of the LGOIM Act (or one of the other limiting provisions, such as s 48) has to have been validly invoked. After the s 47 presumption has been displaced, there must also have been, in terms of s 3(1) of the Trespass Act, a warning given by an occupier to leave the premises and a refusal to do so. The invoking of the Trespass Act would also have to be reasonable (taking into account the Bill of Rights). This requirement would usually be satisfied in cases where s 50 of the LGOIM Act applies because of the antecedent behaviour leading to the invocation of that section.

The appeal was dismissed, upholding the conviction for trespass.

Orders