Flavell v Police
[2013] NZHC 481
•13 March 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2012-485-110 [2013] NZHC 481
TAKURUA POMARE FLAVELL
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 29 January 2013
Submissions: 14, 27 February 2013
Counsel: S J Iorns for Appellant
A J Ewing for Respondent
Judgment: 13 March 2013
JUDGMENT OF RONALD YOUNG J
[1] On 17 March 2012 the owner of a house in Trentham arrived home. The back door of his house had been left unlocked. As he arrived he saw a man trying to open a window from inside his house. He shouted at the man and shortly afterwards called the Police. He saw the man leave the house and jump over a fence. The property owner gave chase. A police dog handler arrived and tracked and located the appellant at a nearby property. The appellant ran off but was caught by the police
dog.
FLAVELL V NEW ZEALAND POLICE HC WN CRI 2012-485-110 [13 March 2013]
[2] At his trial Mr Flavell initially faced a charge of burglary contrary to s 231(1)(a) of the Crimes Act 1961. He admitted he had been in the house. The Judge concluded, however, that he could not be satisfied beyond reasonable doubt that when Mr Flavell entered the house he intended to commit a crime inside. And so the Judge amended the information to s 29(1)(a) of the Summary Offences Act
1981 that Mr Flavell was found in the house without reasonable excuse. The Judge convicted the appellant.
[3] The appellant’s case on appeal is that the Judge failed to consider whether the appellant had proved the defence available in s 29(2) that he had no intention to commit any other crime. This, the appellant emphasised, was especially important because the Judge had already concluded that the prosecution could not prove (in the charge of burglary) that when the appellant entered the house he was intending to commit a crime.
[4] Two other grounds of appeal were raised; that the Judge failed to recognise the onus of establishing reasonable excuse was on the appellant; the prosecution failed to prove the necessary mens rea required by s 29(1).
District Court Judgment
[5] Although property had been stolen from the house sometime that evening, there was nothing to link the appellant with this crime. Given the Judge in the District Court said that he could not be satisfied beyond reasonable doubt that when the appellant entered the house he intended to commit a crime, an essential element of the charge of burglary could not be established.
[6] After the Judge amended the burglary charge to one pursuant to s 29 of the Summary Offences Act 1981, he concluded that the effect of the appellant’s evidence was that he had no reason to be at the house. Thus, the Judge said the appellant had no reasonable excuse for his presence in the house. He, therefore, convicted the appellant.
Discussion
Onus in s 29(1)
[7] Section 29 of the Summary Offences Act 1981 provides as follows:
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) of this section, 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) of this section, 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].
[8] The appellant says that the Judge did not expressly consider where the onus of establishing reasonable excuse1 lay and therefore the standard of proof required. Both the appellant and the Crown in their supplementary submissions say that the onus of establishing reasonable excuse in s 29(1) is on the defendant. The Crown observed that given the Judge concluded that on the appellant’s own evidence, he did not have a reasonable excuse, then irrespective of where the onus fell (prosecution or defendant) there was no reasonable excuse in this case.
[9] Because I disagree with counsel’s conclusions as to the onus with respect to “reasonable excuse”, and because there appears to be conflicting High Court decisions on this issue, I wish to add some brief comments to this debate. However, I agree with the Crown that in this case it does not matter on whom the onus falls or what standard of proof is required. The appellant clearly had no reasonable excuse and this was established by his own evidence.
[10] The essence of the parties’ submissions that the onus to establish reasonable excuse is on the appellant is based on the application of s 67(8) of the Summary Proceedings Act 1957. That provides as follows:
67 Conduct of hearing
...
(8) Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the offence in the enactment creating the offence, may be proved by the defendant, but, subject to the provisions of section 17 of this Act, need not be negatived in the information, and, whether or not it is so negatived, no proof in relation to the matter shall be required on the part of the informant.
[11] The parties say reasonable “excuse” in s 29(1) is an “excuse” within s 67(8)
and, therefore, must be proved by the defendant.
[12] In R v Gorrie2 the Court of Appeal reaffirmed the appropriate approach to the construction of such provisions was, as undertaken, in R (Sheahan) v Justices of County Cork where the Court said:3
The test, or dividing line, appears to be this: Does the statute make the act described an offence subject to particular exceptions, qualifications, etc, which, where applicable, make the prima facie offence an innocent act? Or does the statute make an act prima facie innocent, an offence when done under certain conditions? In the former case the exception need not be negative; in the latter, words of exception may constitute the gist of the offence.
[13] I, therefore, adopt this analysis to test whether the act described in s 29(1) is itself innocent, or whether prima facie an offence made innocent by the exception. Here, the act of being “found ... in a building” (s 29(1)) is not prima facie an offence. This offence is often referred to as an offence alleging that a defendant has been “unlawfully” found in a building. Indeed, the information in this case when amended by the Judge used the words “unlawfully”. But “unlawfully” is not a word that is used in s 29(1). The first part of s 29(1) simply requires evidence that a defendant has been found in a building. Being found in a building is an ordinary event. It is not prima facie a crime. It becomes a crime when there is no reasonable excuse for being in the building. This analysis points strongly toward the onus being on the prosecution.
[14] Other factors support this analysis. The “defence” in s 29(2) explicitly identifies the fact that the onus is on the defendant to establish. There is no equivalent provision in s 29(1).
[15] Section 29(2)’s predecessor, s 544 explicitly placed the onus of proving the excuse on the defendant. The words in s 54 “the proof of which excuse shall be on him” are omitted from s 29(1).
[16] This brief summary identifies why I consider the onus in s 29(1) of establishing reasonable excuse is on the prosecution, to prove beyond reasonable doubt.
[17] Therefore, to prove an offence under s 29(1), the prosecution must firstly establish that a defendant has been “found in a building”. This will typically require the observation of another person. The second element to be established is that the defendant had no reasonable excuse for being in that building. In some cases the defendant will say nothing when apprehended nor give evidence that he had a reasonable excuse. Then proof of lack of reasonable excuse may require no more than the person in charge of the building (e.g. owner, tenant) giving evidence that the
defendant did not have authority to be in the building. Where the defendant offers a
4 Police Offences Act 1927, s 54.
reason for his presence at the building then the prosecution will need to establish beyond reasonable doubt such a reason was either not true or not a “reasonable excuse”, for the prosecution to succeed.
[18] In this case there can be no doubt that the prosecution established beyond reasonable doubt, that Mr Flavell had no reasonable excuse for being in the property. The Judge in the District Court found, and I agree, that Mr Flavell’s evidence effectively established a lack of reasonable excuse.
Section 29(2)
[19] The second ground of appeal relates to s 29(2) and the statutory defence provided therein. The Crown and the appellant agree the Judge failed to consider the statutory defence in ss (2). The parties agree, therefore, that on this basis the appeal should be allowed. I agree with the parties that the Judge failed to consider s 29(2) and that this failure means the conviction must be quashed. Given the Judge’s findings with regard to the burglary charge, there was a real issue as to whether or not Mr Flavell could establish (the onus is expressly on him in ss (2)) that he had no intention to commit any other offence when found in the house.
[20] Here, once the Judge decided to amend the information to allege an offence under s 29, the appellant should have been explicitly offered the chance to give, and call evidence, relating to the s 29(2) statutory defence. No such opportunity was given.
[21] The Crown say the case should be remitted to the District Court to rehear. The appellant submits that in view of the Judge’s finding with respect to the burglary charge this Court could conclude the appellant had established on the balance of probabilities that he did not have an intention to commit any other offence.
I am not satisfied that the burglary charge is proved beyond reasonable doubt and I will not spend a lot of time discussing the situation. In short, while there is ground for suspicion about whether Mr Flavell is telling the truth about the way he came to be there I am certainly not in a position where I can reject his explanation and be sure that he entered the building with the intent to commit a crime. I am not able to exclude his explanation as being untenable or impossible to accept.
On the contrary, I think there is one piece of evidence which tends to corroborate what he says, which is his attempt, apparently, to get out of the window in the bedroom. If he were there having entered the open back door for the purposes of burglary I cannot think why he might have been wanting to go out that window. That rather tends to corroborate his confusion. But fundamentally there is just too little evidence that he was involved in any crime, and therefore too little evidence that he entered with intent to commit one.
[23] The Crown stress that the onus and standard of proof are quite different as between the Judge’s conclusions and the question of whether the appellant had met the standard of proof required in s 29(2). The Judge’s focus was on whether the prosecution had established beyond reasonable doubt an intention to commit a crime on entering the house. Section 29(2) is concerned with the defendant establishing that he did not intend to commit any other crime.
[24] If the trial Judge had made a clear finding that no crime was intended by Mr Flavell, then I would have been prepared to quash the conviction and not return the charge for rehearing. Here, however, the Judge said there was ground for suspicion about Mr Flavell’s explanation. In those circumstances, I cannot unequivocally conclude the trial Judge would have found Mr Flavell had established the s 29(2) defence.
[25] Based on this ground of appeal I quash the conviction and return the case for rehearing in the District Court subject only to my conclusions in the next ground of
appeal.
5 At [1] and [2].
[26] The appellant’s case and the third ground of appeal, is that the prosecution did not prove the appellant had the necessary mens rea required by s 29(1) and, therefore, the conviction should be quashed without return to the District Court for rehearing.
[27] The appellant says the mens rea required to be proved in s 29(1) is the “defendant’s intention to be in the building”. The appellant says that the prosecution could not prove this intention in this case, given the appellant’s evidence of his intoxication and confusion when “found” in the house.
[28] In his submissions counsel for the appellant seemed to equate this intent to be in the building with an intention to enter the building. The example used by the appellant was the grossly intoxicated person who through intoxicated confusion “enters the wrong house”.
[29] The first point to be kept in mind is that offending in s 29(1) is not concerned with entry into a building. An offence under s 29(1) could be committed by a defendant who lawfully entered a house. The concern which s 29(1) is aimed at, is that when a defendant is “found” in the house he or she had no reasonable excuse for being there. A genuine mistake by a defendant as to entitlement to be in a building would likely be a reasonable excuse.
[30] However, the submissions of the appellant focus on a situation where by virtue of drugs or alcohol a defendant is found in a building and is effectively incapable of forming any intent because of intoxication. This situation is more akin to the concept of automatism than illustrating the need to identify an appropriate mens rea in s 29(1).
[31] In this case, the obligation on the prosecution to disprove reasonable excuse provides the necessary protection for a defendant akin to intention. Unless the prosecution can prove beyond reasonable doubt the defendant did not have a
reasonable excuse for being in the building when found, the defendant will be entitled to be acquitted even where he is found in the building.
[32] Although “found in the building” such a defendant will be entitled to an acquittal because there was a reasonable possibility that he had a reasonable excuse for being in the building. The fact a defendant may not have meant to be in the building, may be sufficient to create a reasonable doubt about the absence of a reasonable excuse.
[33] In this context, s 29 cannot be seen as a strict liability offence of a type analysed by the Court of Appeal in Miller v Ministry of Transport 1986 1 NZLR 660 (CA). To be found in a building alone is not sufficient to constitute the crime here. It must be without reasonable excuse. As I have said, akin to an intention to be disproved by the prosecution.
[34] Finally, the Summary Offences Act 1981 itself is not concerned with serious crime. Its focus is on nuisance, obstruction offences and public disorder offending. The penalties are at the low end of criminal offending. Nor can it be said despite the appellant’s submissions that the absence of a specific intent in s 29(1) casts the legislative net too wide. Those whom the appellant identified as unfairly vulnerable to prosecution will, I consider, have either a reasonable excuse or a s 29(2) defence or should legitimately be caught by this section.
[35] For the reasons given, therefore, I am satisfied the prosecution does not have to prove any form of specific intent in s 29(1) related to being present in the house. This is because such an intent is essentially gathered up by the obligation on the prosecution to prove, that a defendant did not have a reasonable excuse for being in the property. I, therefore, reject this ground of appeal.
[36] For the reasons given relating to the second ground of appeal, I am satisfied the conviction should be quashed. Also for the reasons given, I am satisfied that the matter should be referred back to the District Court for rehearing. I order
accordingly.
Ronald Young J
Solicitors:
S J Iorns, Barrister, Trentham, email: [email protected]
A J Ewing, Crown Solicitor, Luke Cunningham & Clere, Wellington, email: [email protected]
0
0