Farquhar v Solicitor-General - [2019] NZCA 501

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA185/2019
[2019] NZCA 501

BETWEEN	DANIEL JOHN FARQUHAR Appellant
AND	SOLICITOR-GENERAL Respondent

Hearing:	1 August 2019
Court:	French, Mallon and Moore JJ
Counsel:	D J Matthews and E V F Nicol for Appellant A J Ewing for Respondent
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.

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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…

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 Farquhar v Solicitor-General

Details

AGLC: Farquhar v Solicitor-General [2019] NZCA 501
Case: [2019] NZCA 501
Decision Date: 17 October 2019 at 9.30 am

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Daniel John Farquhar appeals against his conviction for being found in an enclosed yard without a reasonable excuse, contrary to section 29 of the Summary Offences Act 1981. The issue for determination is whether the word "found" in section 29 includes a situation where a person's presence in the yard is discovered only from viewing camera footage that captured their presence in the yard at an earlier time. The Christchurch District Court acquitted Mr Farquhar, holding that a person had to be perceived, come across or otherwise met in the yard at the time of the offence. The High Court disagreed and convicted Mr Farquhar, holding that the viewer of the footage became aware of Mr Farquhar's presence in the yard through that viewing. The Court of Appeal granted leave to appeal, dismissed the appeal and remitted the case to the District Court. The Court found that the word "found" should be given its ordinary meaning and that there is no requirement that the person must be perceived in the yard at the time of the offence. Viewing CCTV footage, whether contemporaneously or subsequently, satisfies the requirement that a person has been found in the yard.

Orders