Darroch v Police HC Hamilton CRI-2010-419-80

[2011] NZHC 454

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-419-80

JOHN DARROCH

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 May 2011

Appearances: Ms S A Magnussen (granted leave to withdraw)

Mr R B Annandale and Ms J Tarrant for Respondent

Judgment:      5 May 2011

(ORAL) JUDGMENT OF LANG J [on appeal against conviction]

DARROCH V NEW ZEALAND POLICE HC HAM CRI-2010-419-80 5 May 2011

[1]      Mr Darroch faced a charge of trespass in the District Court.   Following a defended hearing on 10 September 2010, he was convicted on that charge by His Honour Judge Spiller.  The Judge fined Mr Darroch $200 and ordered him to pay Court costs of $130.

[2]      Mr Darroch now appeals to this Court against conviction.

The facts

[3]      The  facts  that  gave  rise  to  the  charge  were  relatively  straightforward. Mr Darroch is a person who obviously holds strong views about the manner in which animals are reared and housed.

[4]      On 11 April 2010 he decided to carry out a protest against the conditions in which pigs are reared in this country.   He went to a piggery near Cambridge, and used a ladder to climb to the top of a silo.  Once on the top of the silo, he chained himself to it using two padlocks.  He then hung a banner over the side of the silo, no doubt bringing the attention of the media and passersby to the plight of animals kept at the piggery.

[5]      The police were called to the address and made contact with Mr Darroch during the course of the day on several occasions.  The police had been in touch with the owner of the property, and had ascertained that the owner had no great objection to the presence of Mr Darroch on the top of the silo at that stage.  During discussions with the police he told them that he expected to leave the property at about 5.00 pm.

[6]      During  the  course  of  the  afternoon,  Mr  Darroch  changed  his  mind  and decided to remain on top of the silo for the night.   He had brought with him a sleeping bag, torch and reading material, so he was equipped to do so.  At about

9.00 pm, he observed several police cars arriving.  When the police personnel got out of their vehicles, it was clear that they were there to remove him from the silo.  They had brought with them electrical cutting equipment and ladders.

[7]      Also  present  at  this  time  was  Mr  Francis,  the  manager  of  the  piggery. Mr Frances called out to Mr Darroch from the foot of the silo, and told him that he was trespassing and was required to leave the property.  That warning was echoed by a police officer, who also told Mr Darroch that he was trespassing and needed to leave the property immediately.  Mr Darroch responded by saying that he wanted to think about it.

[8]      This response did not satisfy the police.   They used their ladders to gain access to  the top  of the silo.   When  they climbed up,  they found  Mr Darroch attempting to talk by portable radio to his supporters, who were stationed outside the gates of the property.   One of the police officers removed the radio, and asked Mr Darroch to unlock the chains so that he could be escorted from the premises. Mr Darroch responded by saying that he did not have the keys to the two padlocks. He said that the keys were held by his supporters, and that they could have returned to Hamilton.  The police then used an angle grinder to cut through the chains and to remove Mr Darroch from the top of the silo.  He was immediately arrested and taken to a police station, where the remainder of the chains were cut from him.

[9]      Mr Darroch’s alleged refusal to come down from the top of the silo after

being warned by the occupier that he was trespassing led to the charge of trespass.

The appeal

[10]     Up until this morning Mr Darroch has been represented by Ms Magnussen, who appears to have been acting on his behalf in a pro bono capacity.  Yesterday, Ms Magnussen filed detailed and helpful submissions in support of the appeal.  She advised the Registry this morning that Mr Darroch no longer required her services, and that he proposed to represent himself at the hearing of the appeal.  She had just received advice from Mr Darroch, however, that for family reasons he was unable to attend the hearing today.  Ms Magnusson conveyed Mr Darroch’s apologies, and said that he wished the Court to determine the appeal on the papers filed to date.

[11]     It  is  common  ground  that  in  order  to  prove  a  charge  of  trespass  the prosecution needs to prove three elements. These are:

(a)       That the defendant was trespassing.

(b)That the defendant was warned to leave the property by an occupier of the property; and

(c)       That the defendant refused to leave the property after being required to do so.

[12]     Counsel for Mr Darroch concedes that the prosecution established the first two elements.  She contends, however, that the prosecution failed to establish that Mr Darroch refused to leave the top of the silo after having been warned that he was trespassing and should leave the premises.

Decision

[13]     Judge Spiller determined this issue in the following terms:

[7]  I find that the defendant, by his response to the warning, refused to leave the premises.  Here I take into account the following factors: First of all, after the defendant had been on the premises for several hours, he advised the police that he expected to be on the premises until about 5.00pm.   This fact is confirmed by the evidence of Sergeant Greenwood and substantially by the defendant.  However, the defendant accepted that he later changed his mind and decided to stay until the morning.  The defendant did this without advising the police of his change of mind.  Therefore by 9.00pm, the time when the defendant was told to leave by the occupier, he was clearly on notice that he would be required to leave and he should have been in a position to do so immediately.  The defendant confirmed that when he was warned to leave he did not have the key to release himself and so could not leave the premises immediately.

[8] The second factor is that the defendant’s response to the warning by the occupier was that he wanted time to think about his response and so he did not in fact proceed to leave immediately.  This fact is confirmed  by the  evidence  of Mr  Frances, Sergeant  Greenwood, Constable Wilson and the defendant.

[9]  A third factor is that the occupier’s warning to leave was then followed by the warning of Constable Hayden Wilson that the defendant was trespassing.  This fact is confirmed by the evidence of Sergeant Greenwood and Constable Wilson, and the defendant accepts that he received such a warning from someone below him. Still the defendant did not leave immediately and he advised the constable that he did not have the key to his padlock which could be possibly with someone in Hamilton.  This fact is confirmed by the

evidence of Sergeant Greenwood, Constable Wilson, the defendant and substantially by Mr Francis.  I agree with the defendant, that it was unrealistic to expect the police to wait for the key to be fetched from Hamilton at that stage.

[14]     Counsel for Mr Darroch contends that the Judge failed to have proper regard to Mr Darroch’s evidence regarding the circumstances in which he found himself at the time that he was required to leave the top of the silo.  At that stage he did not have the keys to the padlocks on his person.   He said in evidence that he was concerned that he might drop or lose the keys whilst on the top of the silo.  For that reason he had given them to his supporters for safekeeping.  Counsel contends that the police ought to have given Mr Darroch an opportunity to contact his supporters so that they could bring the keys to the silo and he could then have unlocked the chains that secured him to the top of the silo.

[15]     Implicit in this submission is the suggestion that the police were required to give Mr Darroch a reasonable opportunity to comply with the warning given to him by Mr Francis.  That submission flies in the face of the conclusion reached by Gallen J in Police v Hague1.  In that case one of the submissions for the appellant was that he ought to have been given a reasonable opportunity to comply with a warning before  being  arrested  and  charged  with  trespass.    Gallen  J  did  not  accept  that

submission and said:

The obligation imposed is an individual one.  The decision must be made when the warning is given.   Mr Hague further argued, however, that the action of the Police Sergeant was precipitate and there was in fact insufficient time given to enable him or others to comply.

On the  facts  as  found by the  learned  District Court  Judge, the  Police Sergeant followed the warning given by Mr Clark by an individual warning before carrying out the arrest and under those circumstances, in the absence of  any  evidence  that  Mr  Hague  or  indeed  any  of  the  other  persons concerned were complying with Mr Clark’s warning, I do not think that the submission can succeed.2

[16]     I respectfully agree with His Honour’s conclusion.  If a person goes onto a property in the knowledge that he or she is trespassing, that person must be prepared to leave immediately once required to do so by the occupier.   I accept that the

exigencies of the situation may sometimes mean that a reasonable opportunity has to

1 Hague v Police (High Court, Auckland, M1634/85, 16 September 1986, Gallen J)

2 At 6-7

be given to the trespasser to leave the property.  By way of example, the trespasser may, through no fault of his or her own, find it physically impossible to leave the property when required to do so.   That limited exception to the general principle cannot   apply,   however,   when   the   trespasser   has   deliberately   created   the circumstances that prevent him or her from immediately leaving the property.

[17]     Here, Mr Darroch candidly accepted that when he went onto the property he knew that if he was asked to leave the property and refused to do so he would be trespassing.  He knew that he could be asked to leave at any time, and he also knew that there was a realistic possibility that his continued presence on the property could lead to his arrest.  Notwithstanding that knowledge, he elected to leave the keys to the padlocks with his supporters.  He did not know which of his supporters held the keys, and he did not know exactly where that supporter was.  The only means by which he could make contact with his supporters was by using the portable radio.  I therefore take the view that he deliberately created a situation in which he was unable to comply immediately with any requirement to leave the property.

[18]     That being the case, his inability to leave the top of the silo when being required to do so amounted to a deliberate refusal in terms of the Act.   For that reason I consider that the Judge was correct to conclude that Mr Darroch refused to leave the silo after being required to do so.

Result

[19]     The appeal against conviction is dismissed.

Lang J

Solicitors:

Crown Solicitor, Hamilton