Farquhar v Solicitor-General
[2019] NZCA 501
•17 October 2019 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA185/2019 [2019] NZCA 501 |
| BETWEEN | DANIEL JOHN FARQUHAR |
| AND | SOLICITOR-GENERAL |
| Hearing: | 1 August 2019 |
Court: | French, Mallon and Moore JJ |
Counsel: | D J Matthews and E V F Nicol for Appellant |
Judgment: | 17 October 2019 at 9.30 am |
JUDGMENT OF THE COURT
ALeave to appeal is granted.
BThe appeal is dismissed.
CThe case is remitted to the District Court in accordance with the High Court’s order.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mallon J)
Introduction
This appeal concerns the meaning of “found” in s 29 of the Summary Offences Act 1981 (the Act). This section creates an offence when a person is “found” in an enclosed yard without reasonable excuse. The issue is whether “found” includes situations where a person’s presence in the enclosed yard is discovered only from viewing camera footage which has captured their presence in the yard at an earlier time.
This issue arises because Daniel Farquhar (the appellant) was charged with an offence under s 29 in such circumstances. The charge proceeded to a defended hearing in the Christchurch District Court before Judge O’Driscoll. The Judge considered that, for Mr Farquhar to have been found in an enclosed yard, it was necessary for a person to have perceived, come across or otherwise met Mr Farquhar in the yard at the time of the offence. As that had not occurred, he acquitted Mr Farquhar.[1]
[1]R v Farquhar [2018] NZDC 21146.
In the High Court, Gendall J, allowed the Solicitor-General’s appeal from that decision.[2] The Judge considered the contemporaneous capture on camera of a person in a yard and the later viewing of that footage constituted being “found”. The Judge reasoned that the viewer of the footage became aware of Mr Farquhar’s presence in the yard through that viewing, and therefore had found them in the yard through that viewing.
[2]Solicitor-General v Farquhar [2019] NZHC 572.
Mr Farquhar applies for leave to bring a second appeal on a question of law, contending the High Court was wrong to hold that a person is found in a yard through a non-contemporaneous viewing of camera footage capturing their presence in the yard at an earlier time. The Solicitor-General accepts the appeal involves a matter of general or public importance and that leave is appropriate. We agree. Leave is accordingly granted, and we turn to consider the substantive appeal.[3]
The facts
[3]Criminal Procedure Act 2011, s 303.
In April 2018, the complainant came home in the early hours of the morning and found her bedroom window was wide open. She was concerned someone had entered her house through an unlocked sliding door at the back of the house. For the next few weeks she made sure the outside security light was turned on at night. She noticed the light would come on a couple of times per week.
The complainant had a friend install a security camera on her back fence, overlooking her gate. The camera was activated by motion. On 7 May 2018 the complainant checked the camera and found it had captured images of a person leaning over the back gate located up her driveway at 11.09 pm on 5 May 2018. The images showed the person leaving her property after he had tried the gate. Mr Farquhar was identified as the person in the images.
In explanation, Mr Farquhar said that he was having a few drinks at home by himself and wanted to go and introduce himself to his neighbours. The complainant’s flat was 10 or so houses down from Mr Farquhar’s. He said he had seen those neighbours walking down the street and, being new to the area, wanted to get to know them. Mr Farquhar was charged with being found in an enclosed yard, without reasonable excuse, on 5 May 2018.
The statutory provision
Section 29 of the Act provides:
29 Being found on property, etc, without reasonable excuse
(1) Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who is found without reasonable excuse—
(a) in or on any building; or
(b) in any enclosed yard or other such area; or
(c) in or on board any aircraft, hovercraft, or ship or ferry or other vessel, train, or vehicle.
(2) It is not necessary in a prosecution under this section for the prosecutor to prove that the defendant had an intention to commit any other offence, but it is a defence if the defendant satisfies the court that he had no such intention.
(3) If any constable finds a person in any place referred to in subsection (1), without reasonable excuse but in circumstances that do not cause the constable to suspect an intention to commit any other offence, the constable may, instead of arresting him for an offence against subsection (1), warn that person to leave that place and, if the person refuses or fails to do so, he is liable to a fine not exceeding $500.
The section is one of three provisions found under the heading “Loitering and trespass” in the Act that create offences when a person is “found” in certain circumstances.[4] The other two are:
(a)Section 28, which creates an offence when a person “is found in any public place behaving in a manner from which it can reasonably be inferred that he is preparing to commit an imprisonable offence”.
(b)Section 30, which creates an offence when a person “is found by night without reasonable excuse … peeping or peering into a dwellinghouse; or … loitering on any land on which a dwellinghouse is situated”.
[4]The remaining section under this heading (s 31) creates an offence if a person, having been warned to leave a ship by the master or an officer of the ship or by a constable, refuses or fails to do so, or leaves the ship but returns or persists in attempting to return on board.
The purpose of these provisions, as explained in Palmer-Brown v Police, is as follows:[5]
Sections such as these are instruments by which the legislature makes punishable undesirable conduct which otherwise falls outside the ambit of the criminal law the thrust of which is directed at crimes falling squarely within specific statutory prohibitions and attempts to commit those very crimes. Mere preparation to commit a crime is not enough. One who sets out to commit a crime may fail for a number of reasons. He may, for one, change his mind before committing an act sufficient to amount to an attempt. So an intention to commit a crime which does not mature into the crime itself or falls short of an attempt to commit it is not punishable. In some areas, however, by resort to such provisions as ss 28, 29 and 30 of the Summary Offences Act, Parliament has moved to prevent the occurrence of crime before it has reached the stage of an attempt, much less its actual consummation. Such measures as these are used to control and prevent potential crime. Their place and use in the maintenance of public order is discussed by Radzinowicz, A History of English Criminal Law (1956) vol 2, § 4, p 18.
Case law
[5]Palmer-Brownv Police [1985] 1 NZLR 365 (CA) at 368. See also R v Otten [1977] 2 NZLR 44 (SC) at 45: “These vagrancy provisions are designed to control potential criminals and to protect the public and public property from crimes which are patently under consideration by the person concerned”; and Ahmed v R [2009] NZCA 220, [2010] 1 NZLR 262 at [48].
It is established that proof of presence in a place does not equate to proof that a person has been “found” in the yard. So, it is not enough that a person admits to having been in the place after the fact. An example is Braxton v Sugrue where a defendant was charged with being found on unlicensed premises used for the consumption of alcohol contrary to s 37 of the Licensing Amendment Act 1910 (now repealed).[6] When the police arrived to enforce the licensing laws the defendant was not at the premises, but he later admitted he had been there on the date in question. The Judge, Sim J, held that, to be found in a particular place, it was necessary for some person to have in fact found him in that place.[7]
[6]Braxton v Sugrue [1927] GLR 31 (SC).
[7]At 32–33. The Judge observed that “ocular observation” as well as being “seen [at the place in question] by any other person” could constitute being “found”.
It is not necessary for a person to be apprehended in the place to have been found there. As was accepted in R v Goodwin, and endorsed in McKenzie v Police, there may be many cases in which a person is found upon the premises, although he is not apprehended until after he has left the premises.[8] A person can be found at a place, although he or she has later left, if another person perceived them there. In McKenzie, the Judge, Henry J, held that a person is found at a place if “some viewer, unconnected with and not accompanying the person, perceives the person in the particular place”.[9] The Judge referred to dictionary definitions (to come across, fall in with, light upon, detect, discover) “all of which imply that by means of some sense a person has become aware of something”.[10]
[8]R v Goodwin [1944] KB 518 at 522–523 (EWCA Crim); and McKenzie v Police [1956] NZLR 1013 (SC) at 1015–1016.
[9]McKenzie v Police, above 8, at 1016; cited with approval in Police v Carter [1978] 2 NZLR 29 (CA) at 33.
[10]At 1016. The case concerned a police officer who had knocked at the defendant’s door and asked him to accompany him to the Police Station on an unrelated matter. The officer arrested the defendant when they reached the public footpath for being found drunk in a public place. The defendant’s subsequent conviction for this offence was quashed in the then Supreme Court. It could not be said that the officer had found the defendant in the public place when they had together walked to the public path.
In R v Otten (Mahon J) it was held that a person who used an enclosed yard merely as a means of access from one place to another had not been “found” in the that yard even though they may have been seen in the yard.[11] The Judge considered the authorities established there was a distinction between “being seen” and “being “found””.[12] The Judge held that mere presence, though clearly proved, was not sufficient to found liability. The defendant “may have been there, but he was not “found” there”.[13] This was because “found” was to be read with “without lawful excuse” and this gave found an “amplified meaning of discovery in circumstances suggesting a premeditated intrusion for some criminal purpose”.[14]
[11]R v Otten, above n 5, at 49. The case involved a woman who heard a disturbance outside the back door of her house. She investigated but could see nothing. At about the same time police officers saw a man running through the neighbouring property, coming from the direction of the woman’s house and there was a sound indicating he had burst through the hedge that divided the two properties. He was apprehended and admitted he had been in the woman’s property.
[12]At 48–49.
[13] At 49.
[14]At 49.
In reaching this view the Judge followed Police v Carpenter which had held that the defendant must have been found in circumstances “that can be described as a rogue and vagabond situation”.[15] This interpretation was rejected by this Court in Police v Carter.[16] In doing so the Court said that “a rogue and vagabond situation” was an odd phrase that eluded any pinning down.[17] The Court regarded a person’s motives for being in a place were important to the other limbs of the offence but not to whether they had been found in that place.
[15]At 49 citing Police v Carpenter [975] 2 NZLR 62 at 625. The predecessors to ss 28, 29 and 30 were in the Police Offences Act 1927 under the heading “Rogues and Vagabonds”.
[16]Police v Carter, above n 9, at 33.
[17]At 33.
The Court in Carter held “found” was to be given its ordinary meaning rather than an unusual one. It said:[18]
It is often dangerous to try to substitute a hard-and-fast formula for a word actually used in a statute. Without attempting to define exhaustively the circumstances in which a person may be “found” … we hold that they include cases in which in the ordinary sense he has been seen or discovered or come upon there…We agree with Mahon J in R v Otten that mere proof of presence on premises at some stage, as by inference or admission, is not enough: the defendant must have been perceived there by someone. Normally he must have been seen there. There may be cases in which some other form of perception by the senses would be enough … but the present case does not call for any ruling on that possibility. On the other hand, while the points likewise do not arise in the present case, we respectfully doubt the obiter dicta in Otten to the effect that fleeting observance of presence cannot be enough and also that a person seen crossing an enclosed yard as a means of access from one place to another cannot be said to be “found” in that yard. There may be no reason why in ordinary speech the observer could not be said to have found the person in the yard, if only momentarily…
(Emphasis in original)
[18]At 32–33.
Following Carter, this Court in Palmer-Brown agreed that to be found meant to be seen, discovered or perceived by the senses to be present, and “to come across” and “alight upon” illustrated the concept.[19]
[19]Palmer-Brown v Police, above n 5, at 368. See also Ahmed v R, above n 5, at [49]–[50] and [97]. These cases are more concerned with when the finding has to occur in relation to other matters: the conduct from which an inference is to be drawn (Palmer-Brown, concerning s 28 of the Summary Offences Act 1981); or that an offence is being committed to justify a person making an arrest (Ahmed, concerning ss 35 and 36 of the Crimes Act 1961) and therefore do not further assist the disposition of this appeal.
A case illustrating the Carter approach, that found is given its ordinary meaning and is considered separately from the purpose or reason for which the person was present, is Howland v Police.[20] In this case a caretaker was looking out a window of the fourth floor and observed two people, one of whom was Mr Howland, walking around another building testing its windows. Mr Howland was charged with an offence under s 28 of the Act. One of the arguments was whether the caretaker was too remote to have “found” him. In the High Court, Anderson J, rejected this argument. In doing so, the Judge referred to the authorities establishing that if a person is detected, seen or ascertained to be on premises (such as where an officer sees a person actually entering premises and then later coming out of premises) they have been found.[21] The Judge commented that this later example showed that:[22]
… the ordinary meaning of the term “found” is not necessarily confined to circumstances when the observer and the observed are in the same place. One need only to consider such everyday expressions as: “I telephoned various places until I found him at his work” where the discoverer and the discovered are in quite separate locations, and not necessarily in each others sight. Further, one commonly refers to finding references in books where naturally the reference and the discoverer are in quite different loci.
[20]Howland v Police HC Hamilton AP 108/89, 24 July 1989.
[21]At 5 and 6.
[22]At 6.
Although the caretaker had found Mr Howland in a place, he was acquitted. This was because, in the Judge’s view, it was reasonably possible that Mr Howland had simply been nosy rather than preparing to commit an offence.[23]
Our assessment
[23]At 7.
The appellant submits to be “found” requires that there be a temporal connection between that person’s presence in the yard and the person being “found”. He submits to hold otherwise is a contortion of the natural and ordinary meaning of the word “found”. He submits CCTV footage viewed two days later is, as per Otten, “mere proof of presence on premises at some stage, as by inference or admission, [and this] is not enough”.[24] He submits contemporaneity is required between the person being on the property and being found. Otherwise the offence would merely be one of being unlawfully in an enclosed yard (the word “found” would be superfluous).
[24]Police v Carter, above n 9, at 32.
We consider this submission is contrary to the authorities. While it is the case that presence cannot be established by mere inference or admission, as discussed above it is accepted that a person can be found at a place (because they were perceived to be there) but apprehended later. The test is whether they have been seen, discovered or perceived by the senses to have been in that place. The reference in the cases to “by the senses” of course pre-dates the common availability and use of CCTV cameras. We see no reason why the perception of the person’s presence cannot be via their capture on CCTV camera footage and the viewing of that footage. We also see no reason why it matters whether the footage is viewed contemporaneously, immediately following or some time after their image has been captured on the footage. Once that footage is viewed they have been seen or discovered (found) in the enclosed yard.
The appellant submits that a contemporaneity requirement fits with the purpose of controlling and preventing crime. He says that when a person is apprehended in an enclosed yard they ought to face liability if they are unable to provide a reasonable excuse for their presence. Apprehending them prevents them from going on to commit another more serious crime. However, where a person’s presence has been detected by viewing footage some time later, the appellant says there is no need to criminalise their presence. If they have in fact gone on to commit a more serious crime, then they will be charged with that more serious crime.
We do not agree with this submission. The basis for liability if found in a yard is not having a reasonable excuse for being there. It is a deliberately broader basis for liability than requiring the prosecution to prove the person had an intent to commit a crime. It is for a defendant to prove they had no such intent. That defence remains equally open to a defendant where their presence has been detected on CCTV footage viewed after the event as when it is viewed contemporaneously. When the footage is viewed subsequently, a defendant will be able to point to the fact they did not in fact commit any offence in support of that defence.
Nor do we agree with the appellant’s submissions that s 29(3) indicates that only contemporaneous findings are caught by the provision. Section 29(3) provides an option for the disposal of the matter if a constable finds a person who is still present in the place, but it does not expressly or impliedly restrict s 29(1) to that situation.
The question of law posed was:
Did the District Court Judge err in concluding “found” for the purposes of s 29 of the Summary Offences Act 1981 excludes a person captured or discovered in images viewed subsequent to the alleged offence?
We agree with the High Court that the answer to this question is “yes”.
Result
Leave to appeal is granted.
The appeal is dismissed.
The case is remitted to the District Court in accordance with the High Court’s order.
Solicitors:
Public Defence Service, Christchurch for Appellant.
Crown Law Office, Wellington for Respondent.
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