Fleming v Police - [2015] NZHC 1057

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-069-001319 [2015] NZHC 1057

BETWEEN
BOURKE TINERAU FLEMING

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 February 2015

Counsel:

G C Burt for the Appellant
A C Cresswell for the Respondent

Judgment:

19 May 2014

JUDGMENT OF COURTNEY J

[Appeal Against Refusal to Dismiss Prosecution]

This judgment was delivered by Justice Courtney on 19 May 2015 at 4.00 pm
pursuant to r 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

FLEMING v NZ POLICE [2015] NZHC 1057 [19 May 2014]

Introduction

[1] Police Constable Coleman came onto Bourke Fleming’s property to conduct a bail check. He did so pursuant to the implied licence that exists at common law. Mr Fleming required him to leave before the bail check was completed. Constable Coleman refused to leave. Mr Fleming is alleged to have then threatened him, which resulted in a charge of assaulting a police constable acting in the execution of his duty1. Proof of an offence under s 10 of the Summary Offences Act 1981 requires that the victim is a police constable acting in the execution of his duty. If the officer is trespassing at the relevant time he is not acting in the execution of his duty.

[2] Mr Fleming claimed he was entitled to revoke the implied licence and that he had done so by the time the alleged assault occurred, so that Constable Coleman was trespassing at the relevant time.

[3] Judge C J McGuire refused Mr Fleming’s application for an order dismissing the charge against him.2 He held that, notwithstanding Mr Fleming’s demand, Constable Coleman was not required to leave the property until he had completed his enquiries and was, therefore, not trespassing.3 Mr Fleming wishes to appeal that decision. He was out of time by two days but there was no objection to leave being granted to bring the appeal out of time and I accordingly grant leave.

Circumstances of alleged offending

[4] The facts were not in dispute for the purposes of the appeal. The charge arose from an incident on the evening of 4 November 2013 at Mr Fleming’s home in Turangi. Mr Fleming’s son, Jira Fleming, was bailed to that address on a 24-hour curfew. The conditions recorded in the bail bond included:

24 hour curfew to the above address unless in the direct company of his father – Bourke Fleming or Uncle Tauri Fleming.

[5] Unusually, there was no requirement that Jira Fleming present himself at the door when required.

1      Summary Offences Act 1981, s 10.
2      Criminal Procedure Act 2011, s 147.
3      R v Fleming DC Rotorua CRI-2013-069-1319, 1 September 2014.

[6] Constable Coleman gave evidence that he and Senior Constable Wells went to the address to conduct a bail check. Senior Constable Wells was off duty at the time and went only to assist. As they arrived at the address, they saw a male on a motorbike about 100 metres away from the property. Constable…

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 Fleming v Police

Details

AGLC: Fleming v Police [2015] NZHC 1057
Case: [2015] NZHC 1057
Decision Date: 19 May 2014

CaseChat Overview and Summary

Police Constable Coleman was on Bourke Fleming’s property to conduct a bail check, which he was entitled to do under an implied licence at common law. Mr Fleming required him to leave before the bail check was completed. Constable Coleman refused to leave. Mr Fleming is alleged to have then threatened him, which resulted in a charge of assaulting a police constable acting in the execution of his duty. The issue for the Court was whether the Constable was acting in the execution of his duty when the alleged assault occurred. If the officer is trespassing at the relevant time he is not acting in the execution of his duty. Mr Fleming claimed he was entitled to revoke the implied licence and that he had done so by the time the alleged assault occurred, so that Constable Coleman was trespassing at the relevant time.

The Court held that the implied licence could be revoked by the occupier. If the visitor is directed to leave and fails to do so, he becomes a trespasser. A police officer who fails to leave when directed becomes a trespasser and can no longer be said to be acting in the execution of his duty. The occupier has the right to revoke the implied licence at any time. Whether inquiries have been completed cannot affect that right. That this must be so can be tested by considering the position where the occupier exercises the right to revoke the implied licence in advance, by locking the gate or putting up a sign. Yet it would be inconsistent if an occupier could effectively exclude the police wishing to undertake a bail check by locking his gate, signalling that the implied licence had been revoked, but could not achieve the same effect by exercising that right after the police had entered the property.

The appeal is allowed and the Judge’s decision set aside. There will be an order under s 147 of the Criminal Procedure Act dismissing the charge against Mr Fleming.

Orders