Brown v Police
[2016] NZHC 2884
•1 December 2016
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2016-412-23 [2016] NZHC 2884
BETWEEN MATTHEW RICHARD BROWN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 November 2016 Appearances:
Appellant in Person
M Grills for RespondentJudgment:
1 December 2016
JUDGMENT OF MANDER J
[1] Matthew Brown was convicted in the Dunedin District Court of one charge of unlawful trespass under the Trespass Act 1980.1 He was fined $500 together with Court costs of $130.2 He has appealed both his conviction and sentence.
Background
The offending
[2] On 27 May 2015, Mr Brown was served a trespass notice by an employee of Dunedin Centre City New World warning him to stay off its premises for a period of two years. On 16 November 2015 at about 8.00 am, Mr Brown deliberately went to the Centre City New World in violation of the notice. He then went to the Dunedin Police Station and advised the police he had breached the notice, effectively turning himself in. He requested to be arrested for trespass. He was subsequently arrested
and charged with wilful trespass under ss 4 and 11 of the Trespass Act 1980.
1 Police v Brown [2016] NZDC 12706.
2 Police v Brown [2016] NZDC 17000.
BROWN v NEW ZEALAND POLICE [2016] NZHC 2884 [1 December 2016]
The hearing
[3] On 6 July the following year, Judge Turner heard the case against Mr Brown. Prior to evidence being called, Mr Brown requested the court issue summonses against a number of persons whom Mr Brown wished to call as witnesses. Judge Turner declined to allow the summonses to be issued.3 He held the proposed witnesses were not relevant to anything of consequence in the determination of the proceeding.
[4] Mr Brown sought to defend the proceeding on the basis the trespass notice could only be issued if he had engaged in unlawful activity. He considered that New World had discriminated against him by issuing the notice of trespass so he intentionally breached it to get his case before the court. Judge Turner did not accept Mr Brown’s defence and held the prosecution had proved beyond reasonable doubt the elements of the offence required to find Mr Brown guilty of the charge. Namely, that Mr Brown had been warned under s 4 of the Trespass act to stay off New World’s premises, and he had wilfully trespassed on that premises within two years of the warning.
[5] The Judge convicted Mr Brown and remanded him for sentencing.
The sentencing
[6] Judge Turner noted that Mr Brown had previous convictions for trespass in
2003 and 2009. In assessing the gravity of the offending the Judge noted it was premeditated although there was no suggestion that Mr Brown acted in an inappropriate way when breaching the notice.
[7] The Judge considered a fine was necessary to hold Mr Brown accountable for his behaviour and to deter him from acting in a similar way in the future. He
therefore fined him $500 and ordered him to pay court costs of $130.
3Police v Brown, above n 1, at [11]-[32], citing Nottingham v Gunner [1999] DCR 56; Brooker v West Coast Regional Council [2015] NZEnvC 31; McPhail v Police HC Auckland CRI-2008-404-000325, 22 June 2009; Chee v Stareast Investment Ltd HC Auckland CIV-2009-404-005255, 1 April 2010; Solicitor-General v Siemer (No 2) HC Auckland CIV-2009-404-006747, 2 November 2009.
Appeal against conviction
Jurisdiction
[8] Mr Brown may bring an appeal against his conviction as of right.4 Mr Brown must satisfy me that Judge Turner erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred or that a miscarriage of justice has occurred for any other reason.5 A “miscarriage of justice” is defined as any error, irregularity, or occurrence in or in relation to or affecting the trial that:6
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[9] A “real risk” will exist if “there is a reasonable possibility that a not guilty (or
more favourable) verdict might have been delivered if nothing had gone wrong”.7
Mr Brown is not required to demonstrate that the verdict is actually unsafe, only that there is a real possibility that it would be.8
[10] An “unfair trial” will exist when there are errors which are prejudicial or which unacceptably give rise to the appearance of unfairness. Again, not every departure from good practice will render a trial unfair, but where errors or irregularities are so gross, persistent, prejudicial or irremediable, the court must
allow the appeal and quash the decision.9
The appeal
[11] Mr Brown filed an extensive notice of appeal. It alleged that he was subjected to bias, prejudice, bad law and violations of his rights through Judge
Turner’s failure to adhere to the provisions of the Human Rights Act 1993,
4 Criminal Procedure Act 2011, ss 229(1) and 230.
5 Section 232(2)(b) and (c).
6 Section 232(4).
7 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
8 At [110].
9 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300.
New Zealand Bill of Rights Act 1990, International Convenant on Civil and Political
Rights, Evidence Act 2006, Criminal Disclosure Act 2008, and Crimes Act 1961.10
[12] Mr Brown’s appeal distilled to two broad complaints. Firstly, that the trespass notice was of no legal effect because he had done nothing illegal to warrant being trespassed and that the serving of the notice and subsequent prosecution was discriminatory in breach of his human rights. Secondly, that his fair trial rights had been breached as a result of Judge Turner’s refusal to allow summonses to be issued in respect of the people Mr Brown had nominated as witnesses.
Discussion
Appeal relevant to the offending
[13] Judge Turner correctly identified the three elements of the offence of a s 4
“two-event” trespass:11
(a) a trespass notice was issued to Mr Brown warning him to stay off the premises;
(b) Mr Brown wilfully trespassed on the premises;
(c) Mr Brown did so within two years of the giving of the warning.
[14] Mr Brown does not appear to dispute that he committed the actions which resulted in the trespass conviction. He in fact intentionally violated the trespass notice and turned himself in so that his case would be heard in court. Mr Brown on
his appeal to this Court reiterated his defence from the District Court; that the
10 Mr Brown cited Human Rights Act 1993, ss 44, 65 and 66(a)(i), (ii) and (iii); New Zealand Bill of Rights Act 1990, ss 25(a), (c), (e) and (f) and 27(1); International Covenant on Civil and Political Rights, arts 3, 5, 6, 7, 8 11(1) and (2), 12, 13(1), 14(1), (2)(d) and (e), 15(1), 16, 19(1) and (2) and 26; Evidence Act 2006, s 7(1) and (3); Criminal Disclosure Act 2008; Crimes Act
1961, s 111.
11 See Routhan v Police [2014] NZHC 3203 where an offence under s 4 of the Trespass Act 1980 involving the breach of a trespass notice is defined as a “two-event” trespass. This can be contrasted with a “single-event” trespass under s 3 where a person refuses to leave a place after being instructed to do so.2
trespass notice was not legitimate because he had not committed an offence or done anything wrong, and his rights had therefore been breached.
[15] In Clarke v Police a trespass notice was issued as a result of “some unpleasantness” between the appellant and the occupier of the premises of a taxi company.12 The appellant went back to the premises and verbally abused staff. The police were called as a result.
[16] On appeal William Young J identified, with reference to previous cases, something of a continuum when it comes to the application and relevance of the New Zealand Bill of Rights and trespass notices:13
1.At one end of the continuum is the Beggs case. There the “occupier” was a public official exercising powers under the Trespass Act in respect of publicly owned land. As well, the effect of the Speaker utilising those powers was to bring a political demonstration to an end.
2.Perhaps in the middle of the continuum is the Ross case. The premises concerned were private, albeit commercial. The bank itself was not subject to any obligations under the New Zealand Bill of Rights Act. If the New Zealand Bill of Rights Act was triggered, it was solely by virtue of the police conveying a trespass warning on behalf of the occupier. Importantly, that case occurred in the context of a political demonstration and the warning given by the police officer concerned had the practical effect of bringing that demonstration to an end.
3.At the other end of the continuum from the Beggs case is the present dispute. The premises were commercial but, unlike those of the bank in Ross they were not the sort of premises to which the public might resort as a matter of practice. Further, it is thoroughly unrealistic to regard the appellant’s behaviour as a political protest. Indeed, Mr Bott was in some difficulty identifying any right guaranteed to the appellant under the New Zealand Bill of Rights Act which was arguably infringed by the police involvement in this case. The best he could do was to suggest the appellant’s right to freedom of movement (see s18 New Zealand Bill of Rights Act) was infringed. But it would be ludicrous to contend that the appellant had a freedom under the New Zealand Bill of Rights Act to trespass on privately owned land.
12 Clarke v Police HC Wellington CRI-2003-485-000028, 18 November 2003.
13 At [28], citing Police v Beggs [1999] 3 NZLR 615 (HC) and Ross v Police (2002) 6 HRNZ 734 (HC).
[17] No mention was made by the Court of any unlawful act having to have been committed prior to a trespass notice being served. William Young J in fact described it as “perfectly understandable that the occupier would wish to exclude [Mr Clarke] from those premises for the future” following the previous unpleasant encounter.14
The decision to exclude the appellant was at the election of the occupier of the private property.
[18] The current case likely falls within the second category identified by William Young J. The case he referred to is Ross v Police.15 In that case Hammond J considered the argument that a bank should be considered a public space. The argument, as described by Hammond J, was that:16
Private property, if sufficiently overlaid with public use, is then said to attract a constitutional burden insofar as the “reasonableness” of the property owners regulation of access to that property comes into play.
[19] The Judge considered the argument to be “intrinsically attractive in a crowded and urbanised world”.17 However, the Judge subsequently made it clear that the types of property which might be considered as falling within such a category were quasi-public type spaces such as airports, bus terminals or shopping malls. When it came to a retail bank premises, which was in issue in the case, the Judge held that “[i]t is truly a private commercial establishment, albeit one to which members of the public may repair for banking transactions and services which the bank can offer”.18
[20] The property in this case, a supermarket, was private property but property which the public might resort as a matter of practice for the purpose of purchasing goods. It does not fall within those properties contemplated by Hammond J however which have a greater quasi-public service function. It appears to be closer to a retail bank in its nature, insofar as it is open to the public for the specific purpose of
transacting its retail business with customers.
14 At [30].
15 Ross v Police, above n 13.
16 At [49].
17 At [50].
18 At [51].
[21] As stated by William Young J, New Zealand Bill of Rights considerations may be triggered by virtue of police involvement in the issuing of a trespass notice. However, in this case the relevant trespass notice was served on Mr Brown by Robert Williams, the maintenance and security manager at New World. He had authority to issue the notice on behalf of his employer. The New Zealand Bill of Rights Act therefore had no application to that part of the process.
[22] There is no requirement that unlawful conduct first be committed before a trespass notice can be issued. Even if some reasonability requirement is applied to the issuing of a notice, it is apparent in the present case that there was some history of dispute and disagreement between Mr Brown and the supermarket and/or some of its staff which had resulted in the supermarket resorting to having Mr Brown trespassed so as to avoid further friction or dispute.
[23] Furthermore, in Jacobs v Police it was held that there is nothing in the Human Rights Act which can prevent a court from convicting a defendant when the ingredients of a charge have been established.19 The appellant had been charged and convicted with male assaults female in circumstances where the complainant had come onto his property. One ground of appeal was that he had been discriminated against based on gender and had been prevented from introducing this as a line of defence. On appeal, the High Court stated:20
There is nothing in the New Zealand Bill of Rights Act 1990 or the Human Rights Act 1993 that can affect the right of the prosecution to bring a charge under that section, nor prevent a Court convicting a defendant against whom the relevant facts are proved.
[24] Members of the public have an obvious implied licence to enter supermarket premises. To deny a person access on a prohibited ground of discrimination would likely violate s 42 of the Human Rights Act 1993. An issue may arise as to whether the police or the Court would be prepared to allow its respective processes to be used to prosecute people who have demonstrably been discriminated against in breach of
s 42 by being prohibited entry to a place by reason of any prohibited ground of
19 Jacobs v Police HC Hamilton CRI-2010-419-40, 17 June 2010.
20 At [14].
discrimination. There is, however, no indication that Mr Brown was subject to prohibited forms of discrimination.
[25] Mr Brown gave evidence in which he insisted that he had not broken any laws. He maintained that false allegations had been made about him. He complained that New World had failed to follow its own complaint procedures. Mr Brown’s focus before the District Court, as it was in the oral submissions he made before me, was that, in the absence of him having violated any law or having done anything wrong, he was entitled to entry to the supermarket otherwise he was being unlawfully discriminated against.
[26] The difficulty with Mr Brown’s argument is that there is a history of dispute and disagreement between himself and the supermarket. Mr Brown referred in his own evidence to the supermarket and its staff making accusations about him, including that he had threatened staff. Mr Brown vehemently denies such allegations and has made complaints to the supermarket which, in his view, have not been appropriately addressed. For its part, the supermarket has chosen to deal with this ongoing conflict or dispute by serving a trespass notice on Mr Brown.
[27] In the circumstances, as an occupier of private premises, the supermarket may choose to bar Mr Brown from its premises. In order to find the charge of trespass proved the Court is not required to embark on an inquiry into Mr Brown’s dispute with the supermarket. Mr Brown may well feel he is being discriminated against but he provided no evidence of the supermarket having trespassed him on
any prohibited grounds of discrimination.21 The fact Mr Brown disputes the
legitimacy of the position the supermarket has taken towards him and contests the allegations or purported grounds for trespassing him does not provide him with a defence to the charge.
[28] Being satisfied, as the District Court was, that the trespass notice had been served on Mr Brown and that he wilfully trespassed on the premises within two years of the warning, the ingredients of the offence were made out and Mr Brown
properly convicted.
21 New Zealand Bill of Rights Act 1990, s 3; Human Rights Act 1993, ss 21 and 42.
Breach of Mr Brown’s fair trial rights
[29] Mr Brown claims that a number of his rights were breached by Judge Turner when he declined to issue the witness summonses which he requested.
[30] Clark J dealt with a very similar issue in Brown v Police, an appeal also relating to the appellant in this case.22 Under the authority of the Speaker of the House of Representatives Mr Brown was served with a trespass notice from the grounds of Parliament. He then intentionally breached that notice. Prior to trial Mr Brown sought the issue of some 35 witness summonses for hearing. In a minute Judge Davidson directed that none of the summonses should issue. Mr Brown did not appear on the day of his trial and was convicted in his absence.
[31] At the hearing of his subsequent appeal against his conviction, Mr Brown proposed a list of 29 witnesses he intended to call. Simon France J issued a minute directing that if, having heard argument, it appeared to the appeal Judge that some of the witnesses should be called, the appeal could be adjourned to allow that to happen. On the hearing of the appeal, Clark J did not consider the appeal needed to
be adjourned to hear from any of the proposed witnesses. Her Honour held:23
(a) If an appeal court thinks it necessary or expedient in the interests of justice it may order the examination of witnesses but the evidence and exercise must be relevant to the appeal.
(b) This appeal is against a conviction which, on the evidence before the District Court Judge, was inevitable. Mr Brown deliberately breached the trespass notice. He had his reasons but he did it with full knowledge of the consequences and indeed invited the consequences. In response to my query Mr Brown confirmed that he had indeed said what he is recorded in the District Court judgment as saying namely, that:
(i) he stubbornly refused to leave the foyer in the hope of meeting someone from the Prime Minister’s office to discuss the violations that have occurred to him;
(ii) he did not leave the foyer when requested because he needed to be arrested;
(iii) when he returned to Parliament on 10 November 2015 he did say he wanted to be arrested and go to Court; and that
22 Brown v Police [2016] NZHC 2359.
23 At [24].
(iv) he was warned that if he did not leave he would be arrested for trespass and he did not leave.
(c) The issue raised by this appeal is whether the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. Mr Brown’s proposed evidence, even if it met the threshold for admissibility of “fresh evidence” on appeal, simply lacks relevance to this narrow question.
[32] In the present case, Judge Turner was mindful of Mr Brown’s right to present an effective defence to the charge but held that the circumstances leading to the issue of a trespass notice were not relevant to the question of proof of the prosecution case.24 He rejected Mr Brown’s submission that the trespass notice could only be valid if the prosecution could demonstrate that he had broken the law. As a result, Judge Turner concluded that any evidence from the proposed witnesses relating to
the background to the dispute was not relevant.
[33] Some of the witnesses Mr Brown proposed to call to give evidence were people involved with trespass notices which had been issued against Mr Brown by other entities. It is clear that such evidence would not meet the relevance test and was properly excluded. Such evidence would not have had a tendency to prove or disprove anything that was of consequence to the determination of the proceeding before Judge Turner.25
[34] Two of the proposed witnesses, Messrs Nieper and Trompetter, were respectively the owner and a member of staff of New World. Mr Brown wished to question them about the background circumstances leading to the issue of the trespass notice. Judge Turner again held that the evidence did not meet the relevance threshold and that, if it did, the value of the evidence would be outweighed by the risk of it needlessly prolonging the proceeding.
[35] In the circumstances of a “two-event” trespass where the police were not involved and the issue of the trespass notice did not engage New Zealand Bill of Rights Act considerations, the background circumstances, as I have already noted,
had no relevance to the determination of the prosecution. As a result, Judge Turner
24 Police v Brown above n 1.
25 Evidence Act 2006, s 7.
correctly held that the witnesses should not be summonsed. Nothing Mr Brown raised on his appeal has altered the validity of that conclusion.
[36] Insofar as Mr Brown has renewed his application for witnesses to be summonsed for the purposes of this appeal, I take the same position the District Court did on the hearing of the trespass charge. The evidence Mr Brown intends to adduce from the proposed witnesses does not meet the threshold of relevance to the issues I must decide on the appeal. As I have already traversed, Mr Brown deliberately breached the trespass notice and committed the offence. His only reason for doing so was for the collateral purpose of contesting the reasons why the supermarket trespassed him and the legitimacy of the supermarket’s actions in so doing in the first place.
[37] Mr Brown is mistaken in his view that because he had broken no law the trespass notice was illegal. Similarly, he is mistaken in his view that the supermarket cannot trespass him from its premises because of its view of the difficulties that have arisen between them, albeit ones disputed by Mr Brown. As I have already observed, there is no suggestion of the supermarket having acted on prohibited grounds of discrimination in trespassing Mr Brown. When he gave evidence in the District Court, he provided no possible basis for such an allegation.
[38] Accordingly, in the absence of any of the proposed witnesses being able to give evidence that bears on the merits of Mr Brown’s appeal from his conviction for trespass, it would be an abuse of this Court’s process to require those persons to be summonsed for the purpose of the appeal.
[39] For completeness, I note the Crown has made inquiries of the police regarding the discharge of the prosecution’s disclosure obligations and received a reassurance that its obligations under the Criminal Disclosure Act 2008 have been complied with. Mr Brown did not pursue that issue before me on the hearing of his appeal and any complaint he has made in that regard has not been substantiated.
[40] Having reached these findings on the two identified grounds of Mr Brown’s
appeal it follows that the appeal against conviction must be dismissed.
Sentence appeal
Jurisdiction
[41] Mr Brown may appeal his sentence as of right.26 As the first appeal Court,27
this Court must allow the appeal if satisfied that:28
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[42] In Tutakangahau v R, the Court of Appeal confirmed that the Criminal Procedure Act 2011 sentence appeal regime was not intended to signify a departure from the position under the previous Crimes Act 1961, s 385(3), and the Summary Proceedings Act 1957, s 121(3), regimes.29
The appeal
[43] Mr Brown was fined $500 and ordered to pay court costs of $130. On appeal he did not raise anything in support of his sentence appeal. A fine not exceeding
$1,000 can be imposed under s 11(2)(a) of the Trespass Act 1980. There is no information to suggest that the sentence was manifestly excessive or that a different sentence should have been imposed. Judge Turner took into account that Mr Brown had two previous convictions for wilful trespass and imposed the sentence necessary to hold Mr Brown accountable for his behaviour and to deter him from acting in a
similar manner in the future.
26 Criminal Procedure Act 2011, s 244.
27 Section 247.
28 Section 250.
29 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
[44] It cannot be said that Judge Turner erred in any way or that a different sentence should be imposed. The sentence appeal is therefore dismissed.
Solicitors:
RPB Law, Dunedin
Copy to:
Matthew Brown, Dunedin
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