Fuatavai v Police
[2017] NZHC 707
•11 April 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2017-404-000027 [2017] NZHC 707
BETWEEN CAROLINE FUATAVAI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 10 April 2017 Appearances:
Appellant in Person
T Bellingham for RespondentJudgment:
11 April 2017
JUDGMENT OF VENNING J
This judgment was delivered by me on 11 April 2017 at 3.30 pm, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland
Copy to: Respondent
FUATAVAI v NEW ZEALAND POLICE [2017] NZHC 707 [11 April 2017]
Introduction
[1] Ms Fuatavai has a dispute with the New Zealand Credit Union at Auckland
regarding the operation of her brother’s account with the Credit Union. On 25
January 2017 Ms Fuatavai was convicted of a breach of s 4 of the Trespass Act 1980 in that, having been warned to stay off the Credit Union premises at 695 Penrose Road, she wilfully trespassed at those premises on 18 March 2016. Judge Burns sentenced her to 50 hours community work.1
[2] Ms Fuatavai appeals against conviction and sentence. She represented herself before the District Court and in this Court on appeal.
The issues on appeal
[3] Although the background to the issue of the trespass notice is somewhat complicated, the issue on this appeal is relatively confined as a number of material facts are not in dispute.
[4] Importantly, Ms Fuatavai accepts that she was served with a trespass notice dated 8 December 2015 on 15 January 2016 and also accepts that she returned to and was on the Credit Union premises on 18 March 2016.
[5] Ms Fuatavai’s challenge to the conviction is two-fold:
(a) she says the trespass notice should not have been issued in the first place; and
(b)she says she only went to the premises on 18 March 2016 to present the enduring power of attorney which her brother had executed in her favour to the Credit Union.
The judgment
[6] The first issue is based on Ms Fuatavai’s challenge to the evidence of Mr
Collins, the General Manager of the Credit Union. Ms Fuatavai also challenged that
1 New Zealand Police v Fuatavai [2017] NZDC 1534.
evidence before the District Court Judge. It is apparent from the judgment the Judge
accepted Mr Collins’ evidence.
[7] As to the second point the Judge concluded:
[33] I find that Ms Fuatavai has not established that there was any necessity for her to go to the branch on Great South Road. That she was not operating for her own protection or the protection of her brother and there was no emergency involving his property or the property of some other person. She had been advised that the account had been frozen.
General background
[8] Ms Fuatavai was trespassed from the premises of the Credit Union because of her actions at its Penrose branch. Ms Fuatavai has a dispute with the Credit Union, particularly Mr Collins, its General Manager, regarding the operation of her brother’s, Warren Thomas Elmes (also known as Tamara) bank account.
[9] Mr Elmes has had an account with the Credit Union for a number of years. In November 2015 he received approximately $204,000 from his mother’s estate. It was paid into a Credit Union account. Over the next 13 months approximately
$105,000 was withdrawn, a substantial amount at Sky City. Mr Collins became concerned. He contacted Mr Elmes who came into the branch on 4 December with Ms Fuatavai. At that meeting Ms Fuatavai became abusive towards Mr Collins and his staff. Mr Collins spoke to Mr Elmes on his own and it was agreed to transfer the balance into a savings account that could not be accessed by EFT POS card.
[10] The Credit Union remains concerned at Mr Elmes’ capacity.
[11] Ms Fuatavai’s response was to obtain a power of attorney authorising her to act on her brother’s behalf. Effectively Ms Fuatavai says that Mr Collins and Credit Union have misappropriated her brother’s funds and have wrongly refused to act on the enduring power of attorney which she has obtained.
Decision
[12] Ms Fuatavai was charged under s 4 of the Trespass Act 1980:
4 Trespass after warning to stay off
(1) Where any person is trespassing or has trespassed on any place, an occupier of that place may, at the time of the trespass or within a reasonable time thereafter, warn him to stay off that place.
(2) Where an occupier of any place has reasonable cause to suspect that any person is likely to trespass on that place, he may warn that person to stay off that place.
(3) Where any person is convicted of an offence against this Act committed on or in respect of any place, the court may warn that person to stay off that place.
(4) Subject to subsection (5), every person commits an offence against this Act who, being a person who has been warned under this section to stay off any place, wilfully trespasses on that place within 2 years after the giving of the warning.
(5) It shall be a defence to a charge under subsection (4) if the defendant proves that—
(a) the person by whom or on whose behalf the warning concerned was given is no longer an occupier of the place concerned; or
(b) it was necessary for the defendant to commit the trespass for his own protection or for the protection of some other person, or because of some emergency involving his property or the property of some other person.
[13] The elements of the offence under s 4 are:
(a) The occupier of a place has reasonable cause to suspect a likely trespass on that place by the defendant;
(b) The defendant has been warned to stay off the place;
(c) The defendant has wilfully trespassed within two years after the warning.
[14] In Wilcox v Police Tipping J confirmed that the concept of trespass for the purpose of s 3(1), (which equally applies to s 4) involves simply entering or
remaining on the land of another without that other’s authority express or implied.2
2 Wilcox v Police [1994] 1 NZLR 243.
[15] It is clear enough that Mr Collins as General Manager of Credit Union had authority to issue a trespass notice warning Ms Fuatavai from attending the premises at Credit Union.
[16] Ms Fuatavai challenges the reasonableness of the issue of the trespass notice. This raises whether Mr Collins had reasonable cause to suspect Ms Fuatavai would likely trespass on the premises of Credit Union. The Judge accepted Mr Collins’ evidence in this regard. Ms Fuatavai argues the Judge should not have accepted his evidence.
[17] Ms Fuatavai’s challenge to Mr Collins’ credibility or reliability as a witness was squarely raised in the District Court. Ms Fuatavai challenged Mr Collins with perjury during her cross-examination of him. The Judge implicitly accepted Mr Collins’ evidence as to the reasons why the trespass notice was issued in the first place. The Judge accepted Mr Collins’ evidence about the meeting on 4 December:
[14] Mr Collins asked to speak to Mr Tamara alone to confirm his instructions. Mr Collins gives evidence that Ms Fuatavai refused to allow Mr Tamara to talk with Mr Collins alone. Mr Tamara told Mr Collins he did not want to withdraw the money and wanted to talk to Mr Collins in private. Ms Collins asked Ms Fuatavai to leave the premises, and when she refused Mr Collins called the police.
[15] After Mr Collins told Ms Fuatavai, he had called the police and Ms Fuatavai agreed Ms Tamara could talk to Mr Collins in private. Mr Collins showed Mr Tamara the withdrawals from his account. Mr Tamara was shocked at the number of transactions but said no one else had been using his card. Mr Tamara said that he wanted to keep the rest of the money in a savings account and [signed] a transfer slip.
[18] Mr Collins went on to say that the trespass notice was prepared and served:
“basically around her behaviour. She was abusive whenever she would come into our branch. She would abuse me and my staff personally. She would record and video while she was in the branch despite repeated requests for her to stop. At one point she tried to break into our secure area. When she was asked to leave the branch or the premises she refused. We were required to call 111 on three occasions because of her behaviour … - and that was the sole purpose for the trespass just for safety of myself and my staff.”
[19] Mr Collins then prepared the trespass notice and on 15 January 2016 when Mr Tamara and Ms Fuatavai came to the Penrose branch Mr Collins served the trespass notice on her. When she refused to leave Mr Collins called the police.
[20] The Judge had the opportunity of hearing and seeing both Mr Collins and Ms Fuatavai and was entitled to accept the evidence of Mr Collins.3 The Judge clearly accepted Mr Collins’ evidence in his recitation of it in his decision and in finding the charge proved. Mr Collins had reasonable cause to suspect Ms Fuatavai would return and trespass at Credit Union. It was reasonable to issue the trespass notice.
[21] As noted above, Ms Fuatavai accepts she received the trespass notice on 16
January. She has been warned off trespassing at the premises. That element is satisfied.
[22] Finally, Ms Fuatavai trespassed within two years of the notice. She accepts she returned to the premises on 18 March 2016.
[23] The only remaining issue is whether the defence under s 4(5)(b) of the
Trespass Act 1980 was engaged:
(5) It shall be a defence to a charge under subsection (4) if the defendant proves that—
…
(b) it was necessary for the defendant to commit the trespass for his own protection or for the protection of some other person, or because of some emergency involving his property or the property of some other person.
[24] The words in that subsection should be given their normal meaning. It cannot be said it was necessary for Ms Fuatavai or her brother’s protection to attend the premises. Nor was there any emergency involving property. The only relevant property was Mr Elmes’ interest in the bank account. The evidence before the Court was that the funds had been transferred into a savings account and were held there.
There was no emergency in relation to it. Indeed Ms Fuatavai said on more than one
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at [5] and [13], [2008] 2 NZLR
141.
occasion that the only reason she was there on 18 March was to present the enduring power of attorney. She wanted to present the power of attorney and then, relying on that attorney, deal with the Credit Union in relation to her brother’s bank account.
[25] As is apparent from the Court of Appeal decision of Bayer & Ors v Police an objective standard of reasonableness is to be applied to the word ‘necessary’ in s 5(b):4
The standard under s3(2) is accordingly an objective one; in traditional terms the question is whether a reasonable person aware of all the circumstances would have thought it necessary to remain for the protection of some other person.
[26] Applying that reasoning to the present case the question is whether a reasonable person aware of all the circumstances would have thought it necessary to go into the premises of the Credit Union on 18 March for the protection of Mr Elmes’ property. Whether Ms Fuatavai believed she was justified in acting as she did is not the test. In Bayer the Court addressed the question:5
“Does honest but mistaken belief in the existence of circumstances which, if true, would be by virtue of s3(2) of the Trespass Act 1980 provide a defence to a charge laid pursuant to s3(1) of the Trespass Act 1908, provide a defence to such a charge?:
The answer is “No, the standard is objective”.
[27] In the present case a reasonable person would not have thought it necessary to go onto the premises of the Credit Union on 18 March. The power of attorney could have been delivered by others, by courier or by post. Even if (which I do not accept) Ms Fuatavai had an honest but mistaken belief in the existence of circumstances that her brother’s property was at risk it would not provide a defence on the above authority.
[28] In summary, the Judge has not erred in his assessment of the evidence. There
has been no miscarriage of justice in this proceeding or in the Judge’s finding that
4 Bayer & Ors v Police [1994] 2 NZLR 48, at 50.
5 At 53.
the charge was proved. The elements of the charge are made out and the defence is not available to Ms Fuatavai.
Sentence
[29] Ms Fuatavai did not address the appeal against sentence in any detail, relying on her submissions as to the challenge to the conviction. I note the maximum penalty for the offence is three months’ imprisonment or $1,000 fine. Given Ms Fuatavai’s past convictions (which are relevant to the issue of sentence), a sentence of community work was available to the Judge and was required to meet the purposes of the Sentencing Act. It was within range.
Result
[30] The appeals against conviction and sentence are dismissed.
Venning J
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