G v Police HC Greymouth Cri-2007-418-2
[2007] NZHC 923
•18 September 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
CRI-2007-418-000002
G
v
POLICE
Hearing: 30 August 2007
Appearances: Appellant appears In Person (with AND Garrett assisting) K Dalziel for Crown
Judgment: 18 September 2007
JUDGMENT OF HON. JUSTICE JOHN HANSEN
A. The appeal against conviction is dismissed.
B. The appeal against sentence is dismissed.
REASONS
[1] On 19 April last the appellant was convicted of one charge of criminal nuisance by doing an unlawful act. Judge Couch fined him $1000 with Court costs of $130, with reparation of $7000.
G V POLICE HC GRY CRI-2007-418-000002 18 September 2007
[2] The background giving rise to the charges has a lengthy history. That history was succinctly set out by Judge Somerville in a hearing before the Land Valuation Tribunal in February 2006:
[8] Between 1873 and 1892, Mr G ’s great-grandfather, JM Langdon, acquired five adjacent pieces of land along the Buller River at Stillwater immediately adjoining the site of the Brunner Mine.
[9] When Mr Langdon died in 1917 the five titles he had purchased from the Crown were held in trust and administered by a Greymouth lawyer, Mr Guinness, as administrator and trustee.
[10] During the course of the next 24 years two power lines were erected across the property and one of those is now operated by Transpower as a 66
KV transmission line. Mr G says that this line was erected in 1927 on seven wooden poles. He says that this occurred without the proper procedures at the time being followed. In his view, therefore, the
establishment of this line was unlawful.
[11] In 1941 Mr Langdon’s estate was distributed but, just prior to distribution, Mr Guinness divided the interest in the land from the interest in the minerals contained within it, obtaining two separate certificates of title. One of those titles, CT 43/157 (Westland Registry), recognised that the registered proprietor was possessed of “all coal, fire clay, minerals, mineral oils and other veins and strata of minerals or stone” in the land together with “all such rights as may be necessary for the efficient and proper working of all such coal, fire clay, minerals, mineral oils and other veins and strata of minerals and stone including such rights as may be necessary for building shafts, pits, engine houses, bins, drives and other works in connection with such working and including the right to withdraw the support of the surface of the said land.”
[12] The other certificate of title which related to the fee simple in the land, was made subject to the rights given in the mining title.
[13] In 1989 Mr G inherited a one-quarter share in the mining title and in March 1999 he became the sole registered proprietor after having acquired the interests of the other three co-owners.
[14] In 1999 Transpower replaced the six wooden poles with six concrete poles which may or may not have been on the same line as the previous poles which remained in situ until the new line had been constructed.
[15] In March 1999 Mr G wrote to Electrix Ltd, the maintenance contractors employed by Transpower to erect the new poles. After noting that he owned the minerals in the property over which Transpower’s line traversed Mr G suggested that Transpower should enter into a contract for the use of his ground which was supporting their poles. There was then an exchange of correspondence between Mr G and Transpower and their solicitors, Simpson Grierson. In the course of this correspondence Mr G issued, and then retracted, a trespass notice to Transpower. There was also extensive debate about the date upon which the original line had been erected and the legal basis for doing so.
[16] On 14 June 1999 Mr G wrote to Simpson Grierson as
Transpower’s solicitors seeking “compensation under the Public Works Act
1981 under ss2 and 63 of compensation for injurious affection where no land taken.” He quantified his claim by stating that there were seven transmission poles, each of which required a 100 square metres of earth for support and he sought rent for each pole from 1927 until March 1999 at 20 cents a square metre.
[17] By reply of 16 July 1999 Simpson Grierson rejected the claim for compensation on the basis that there was no legal basis to the claim as any right to compensation had expired many years before.
[18] There was further correspondence between Mr G and Simpson Grierson until November 1999 following which there was no contact until the present claim was filed in the Land Valuation Tribunal at Greymouth on
31 August 2005.
[3] On 30 May 2006, Mr G carried out some excavation work on the land. As a consequence of excavating too close to a power pole, that power pole assumed a leaning position, and high voltage cables were left close to the ground.
[4] Mr G ’s defence can be succinctly stated. As the owner of the mineral rights for the property he is entitled to mine the whole of the surface of the property. The power poles have been placed on the land illegally, and, as he was exercising his legal rights, no criminal nuisance arose.
[5] At trial Mr G was represented by Mr Garrett. Although no longer formally instructed, Mr Garrett has attempted to assist Mr G , and I am grateful for that.
[6] I also gave the parties the opportunity to file further written submissions relating to the legality or otherwise of the power poles on the land. However, having considered those, it appears to me the appeal must fail for other reasons. I also note that the extensive written submissions relating to the legality of the poles had been filed by Mr G without Mr Garrett’s specific approval. Of course such approval is not needed given that Mr Garrett is not formally instructed in this matter. In any event, I will briefly address the relevance of the legality of the installation of the poles.
[7] The real problem confronting Mr G on this appeal is that he claims he was mining the land at the time and was legally entitled to. However, at paragraphs
6 to 9 of the decision, Judge Couch found:
[6] On 30 May 2006 the defendant, to use his own words, decided to “make a point” to West Power Limited. Using a mechanical digger he excavated the earth from around the base of one of the poles in question. He also excavated around what is known as a “dead man” which is a large block of concrete or wood some distance from the pole and used to anchor a straining wire which holds the pole up. As a result of these actions the straining wire came loose as did the pole. The pole tilted to an angle of 45 degrees or more and the live lines came down to within two metres of the ground.
[7] The defendant admits that he knew that this was a likely result of his actions. The defendant also admits that this caused a safety problem. Indeed, shortly after doing this work he went and told the police what he had done so that arrangements could be made for the line to be repaired. The line was subsequently repaired by West Power Limited at a cost in excess of
$2000.
[8] In the course of his evidence the defendant said that before he did this work he did not turn his mind to the consequences of destabilising this power pole and that he did not care what those consequences were. He reiterated that his focus was on getting at West Power Limited in the context of the dispute that he had with that company.
[9] Turning to the specific offences I deal first with the charge of intentional damage. Proof of this charge requires not only that there be intentional damage, but that this be done without claim of right. The defence advanced on behalf of Mr G is that in this case he had claim of right. That term “claim of right” is essentially defined as having an honest belief of a right to do the act in question notwithstanding that that belief may be incorrect or based on a misunderstanding of fact or law. The emphasis here must be on whether Mr G actually had that belief and whether he held it honestly. I therefore do not have to decide whether Mr G did or did not have the right he said he relied on. Thus, although I was provided with extensive materials relating to the history of the property and various statutory provisions and the correspondence between Mr G and West Power Limited, I do not need to consider that in detail. I need only to decide whether Mr G had an honest belief that he had a right to do what he did. I find that Mr G did have such an honest belief. It may well be in the course of time and in the course of the litigation currently before the High Court that the correctness or otherwise of that belief will be finally determined but, as I said that, is not for me to do today. It is enough that I am satisfied that Mr G had a claim of right. Therefore I dismiss the charge of intentional damage. [emphasis added]
[8] The Judge was entitled to conclude on the evidence that Mr G was not mining on the relevant occasion. A reference to the transcript establishes that:
Page 25, lines 16-18:
Q. You weren’t mining or excavating for that purpose on that day were
you.
A. No, I was proving a point.
From page 26, line 44:
Q. … when you were digging around this pole your sole interest was in
making a point to West Power is that right. A. Um, sort of yes.
Q. Well what other purpose did you have.
A. Well without my minerals they don’t have a transmission line.
Q. Yes, but you were wanting to make a point to West Power. A. I was making that point yes
Page 27, from line 40:
Q. So you were not actually digging for any minerals that day.
A. The, it was proving whether or not that was there whether it was soil.
Whether it was gravel, um or whatever, um, yes there was doing,
proving what minerals were there.
Q. Well have you done similar proving exercises over the rest of this land. A. No. there is (inaudible) areas over the land that have been mined.
Q.Well no I just asked you if you had done, were you doing other proving exercises (interrupted)
A. I haven't done any other digging no.
[9] As well, Mr G had been advised by the West Coast Regional Council that he required a resource consent to mine. He did not have one at the relevant time because he did not accept that advice.
[10] That is enough to dispose of the appeal, because it follows that Mr G was not mining on the occasion in question, but was attempting to make a point to West Power Limited. That entitled the Judge to make the finding he did.
[11] Against that background the Judge then clearly identified the key elements of the offence at [11] and following of the judgment. The Judge found that the unlawfulness arose from a clear breach of regulation 93(a) of the Electricity Regulations 1997. He found the electricity lines in question were works for the purposes of the Electricity Act, and interference with them was contrary to the regulations. In my view these findings are clearly correct. He also found, inevitably on the evidence, that Mr G interfered with works by destabilising the pole in the course of “making a point”.
[12] He also correctly identified the question of knowledge, referring to the decision of Andersen v R CA367/03 22 September 2004 that made it clear that s145 created an offence of recklessness. He pointed to the evidence of the appellant that he did not turn his mind to the consequences of his actions in excavating around the pole and the “dead man”, and further he did not care what the consequences were. He inevitably found that that was recklessness and the required element of knowledge was proved. He finally noted that the danger was self-evident.
[13] It follows for those reasons that the appeal must be dismissed. [14] However, it is appropriate I briefly refer to other matters raised.
[15] There appears to be no documentation available in respect of the installation of the poles in the 1920s. It appears West Power accepts the appellant’s assertion they were first erected in 1927. At that date they were governed by the provisions of the Electric Power Boards Act 1925. Under that legislation in order to install or construct lines over private land certain steps were required including the making of an order in council and ongoing licensing/ministerial approval. There was an order in council in 1925 for the Grey Electric Power District, but it is unclear from the face of the document if it extends to the power lines in question.
[16] Whether such steps were properly taken did not impact on the right to compensation under s94 of the Act. However, under the legislation applying (ie Public Works Act 1908), claims for compensation needed to be made within a period of five years. There is no indication on the documents before the Court that the appellant’s great-grandfather’s estate sought compensation. If he did, the matter is at an end. If he did not, the lapse of time prevents any right to compensation.
[17] In 1996/97 West Power replaced the old poles. The appellant wrote to West Power in March of 1999. This ultimately led to Mr G claiming compensation before the Land Valuation Tribunal. Parts of the judgment of Judge Somerville have already been referred to. In the event, Judge Somerville struck out the application as an abuse of process. As I understand it, no appeal has been lodged against that decision. I also understand the appellant has made no application to this Court
seeking a declaration on the illegality of the poles, nor has he sought any relief to have them removed. Any such application would necessarily involve the Court considering existing rights use under s10 of the Resource Management Act which may give the poles legal status.
[18] What that makes clear is there are other remedies available for Mr G to determine the legality of the poles, short of his actions in this case which can be said to be “taking the law into his own hands”: in so doing he created a dangerous situation.
[19] Furthermore, I understand that West Power have applied for injunctive relief in this Court. The relief sought is to prevent further similar actions by the appellant. I understand it is for hearing before Chisholm J shortly.
[20] However, it is necessary to consider the situation if the poles are illegally on the land. Regulation 93A of the Electricity Regulations 1997 reads:
Interference with, or movement of, works
A person must not interfere with, or move or attempt to move, any works, whether or not the works have been damaged, unless—
(a) the person obtains permission from the owner or operator of the works; or
(b) the person is authorised by an enactment; or
(c) an emergency requires it.
[21] Section 2(1) of the Electricity Act 1992 defines works as follows:
works—
(a) means any fittings that are used, or designed or intended for use, in or in connection with the generation, conversion, transformation, or conveyance of electricity; but
(b) does not include—
(i) any fittings that are used, or designed or intended for use, by any person, in or in connection with the generation of electricity for that person's use and not for supply to any other person; or
(ii) any part of any electrical installation.
[22] There is nothing in the Act which changes the meaning of “the works” if they are there illegally. I am satisfied the Crown submission is correct. Given the significant health and safety issues around electrical works, regulation 93A is clearly intended to require individuals to look to other remedies if they wish to exercise a legal right near “the works”.
[23] It follows that even if the Judge had found there had been mining, it would be not enough to assist Mr G . I urge Mr G , if it proves necessary after the injunction hearing, to pursue proper remedies seeking a declaration as to the legality of the poles. However, I suspect that issue is likely to be resolved in the context of the injunction hearings. Furthermore, it seems to me that it would be a simple matter if Mr G has all other necessary consents to mine, to have a mining plan that related to the rest of the land, and negotiate with West Power to move the poles and allow the area affected by the poles to be mined at a later stage.
[24] Mr G also appeals against sentence. There is nothing to indicate the fine and costs imposed are manifestly excessive. As to reparation, the Judge had information before him which he relied on in exercising his discretion to award the sum he did. Again in the circumstances I see nothing to suggest his exercise of discretion was wrong.
[25] The appeal against sentence is also dismissed.
Solicitors:
Appellant in person, Greymouth
Crown Solicitor’s Office, Christchurch
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