G v Police HC Timaru Cri-2005-476-9

[2006] NZHC 905

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2005-476-000009

IN THE MATTER OF     an appeal against conviction and sentence

BETWEEN  G

Applicant

AND  NEW ZEALAND POLICE Respondent

Hearing:         2 August 2006

(Heard at Christchurch)

Counsel:        Applicant In Person

C A O'Connor for Respondent

Judgment:      3 August 2006

JUDGMENT OF PANCKHURST J

[1]      Mr G   seeks special leave to appeal to the Court of Appeal against my interim  and  final  judgments  by  which  his  appeal  against  conviction  for  wilful damage was dismissed.

[2]      The notice of application seeking leave pursuant to s144 of the Summary Proceedings Act 1957 identifies eight questions in relation to which leave is sought. More accurately, the notice identifies eight topics, but with reference to them no endeavour was made to formulate actual questions of law as the subject of the leave application.   Moreover, in making submissions directed to these eight topics Mr G   raised additional matters, with the result that the legal propositions I was being asked to consider became even more elusive.  I note also that on the first page of his written submission Mr G   used the phrase “without being exhaustive” by

way of introduction to the eight aspects he wished to pursue.

G V NZ POLICE HC TIM CRI-2005-476-000009  3 August 2006

[3]      I mention these matters because at the end of the day I found it very difficult to  identify questions of law  in relation to  which  leave was sought.   I  am sure Mr O’Connor laboured under a similar difficulty.  The leave application was pursued on a basis more appropriate to a general appeal.  That is, Mr G   sought leave in relation  to  every  conceivable  point  which  he  considered  was  available  upon  a reading of my two decisions.

[4]      That  said  Mr  G    correctly  identified  the  test  posed  under  s144  and referred to the leading authority, R v Slater [1997] 1 NZLR 211 (CA). As that case makes clear, s144(3) requires that there be a question of law, which by reason of its general and public importance or for any other reason, ought to be submitted to the Court of Appeal; and, standing back, I must also be of the opinion that the question ought to be the subject-matter of a further appeal. Slater also confirms that s144 is not a vehicle to provide a second tier of appeal against decisions of the District Court.   To the contrary, the terms of subs (3) are to be duly applied, so that the requirements for granting leave are not diluted.

[5]      I now turn to consider the eight topics, as best I can, which are the subject of this leave application.

Question 1:   What implied powers are conferred on the dominant tenement under a water easement?

[6]      The gist of the issue raised under this heading was that the implied powers under a water easement of the kind held by Mr G  , or his company Huia Resorts Limited, were “purposefully and deliberately left wide” under the Land Transfer Act

1956, but that I failed to interpret the powers in such a manner.   No identifiable question was formulated.  I do not understand the issue in relation to which leave is sought, much less am I persuaded that leave is appropriate.

Question 2:   Was there bias in the conduct of the trial by the District Court

Judge?

[7]      It seemed that the issues raised here were that I applied the wrong test for apparent bias, or, alternatively, that my finding that the District Court Judge was not afflicted by bias was wrong.  As to the former point I adopted the test of bias laid down in E H Cochrane Limited v MOT [1987] 1 NZLR 146, as summarised in a passage from R v Ellis CA31/97 4 June 1997.  It was not adequately explained why this formulation was wrong or inappropriate.  The second issue I regard as a question of fact and therefore unsuited to a grant of leave.

Question 3:  Was it appropriate to rely on evidence pertaining to a right of way easement, when considering whether Mr G   genuinely but mistakenly considered his actions justified in terms of the water easement?

[8]      In the final judgment  I rejected Mr G  ’s claim of right  (that  he was justified in forming a shingle track on Mr Smith’s land), in part by reference to Mr Smith’s evidence concerning his reaction when there was a somewhat similar occurrence in the context of a right of way easement.  The complaint is that because the rights and  powers  enjoyed  by  Mr  G    under  the  two  easements  may  be different, reliance on such evidence was inappropriate.  I do not consider this point is capable  of  meeting  the  tests  contained  in  s144(3).    No  question  of  law  was formulated and, even assuming one was available, I cannot imagine that it would meet the general and public importance, or any other reason, test.

Question 4:  Did the District Court comply with the direction of this Court to provide a full transcript?

[9]      Prior to the substantive appeal hearing Fogarty J directed that a full transcript of the District Court hearing be provided.  He also reserved leave for Mr G   to revisit  production of the  tapes of the  hearing,  should  it  appear  that  the  further transcript remained deficient.  It is common ground that no request was made to me at the substantive appeal hearing for the tapes to be produced or further transcribed.

[10]     However, in relation to the sentence appeal I observed that it seemed the Judge had asked some questions of the complainant, Mr Smith, in relation to reparation, which were not recorded in the transcript.  Absent those answers, I was not satisfied that the reparation figure ordered in the District Court could stand.   I reduced the amount of reparation to the figure mentioned in the summary of facts.

[11]     As I understand it Mr G  , in light of this development, considers that it may be the case that the final transcript of the substantive hearing in the District Court was generally deficient.  How this gives rise to a question of law, in relation to which leave is appropriate, I do not know.   To the extent that a deficiency was identified in the transcript, a decision favourable to Mr G   was taken.   More generally, there was nothing to suggest that the transcript was otherwise deficient and, importantly, no complaint was made on that score, despite Fogarty J having left that option open.  In my view it is much too late to raise the issue at this stage.

Question 5:  Was s66(1) of the Crimes Act 1961 misinterpreted?

[12]     Both in the District Court and on appeal Mr G   maintained that he was a secondary party and that the principal party was the person, or persons, who spread the shingle on Mr Smith’s land which action in turn gave rise to the charge of intentional damage.    Because none of the  workmen  were  charged  with  causing intentional damage, Mr G   maintains that it was not open to the police to charge him as a secondary party.

[13]     In light of the submissions made with reference to the leave application, I now have a better appreciation of Mr G  ’s concern in relation to this aspect.  It is that before a secondary party may be convicted where the actual offence was committed by someone else, that principal party must be unknown, dead, or not amenable to prosecution.

[14]     Mr O’Connor submitted that it was entirely appropriate for Mr G   alone to be charged in relation to  this offence,  because the workmen who  spread the shingle lacked the mens rea to make them principal offenders.   Judge Ryan found this to be the case (paras [7] and [8] of his decision).  On checking the evidence of

the two relevant witnesses, Mr Gamble and Mr M E Smith, I am in no doubt that there was evidence to support the Judge’s finding.

[15]     That being the case I consider that the workmen are properly characterised as innocent agents.  And, in terms of R v Paterson [1976] 2 NZLR 394 (CA) at 396:

In the present case the question which we have to decide is whether or not the words "Actually commits the offence" are in their ordinary meaning apt to describe a person who, with the necessary criminal intent, uses another but innocent person as an instrument to perform the physical act necessary to commit the particular crime. In our view the words in question are perfectly appropriate to cover such a case. Indeed, we believe that the ordinary man in the street would have no hesitation in saying that a dishonest employee who made use of an innocent carrier to bring about the physical taking of goods from his employer's premises would be a person who "actually committed" the crime of theft.

Hence, Paterson decided that where an innocent agent commits the actus reas, the person who procures them to do so is not a secondary, but rather the principal party. In these circumstances, I am unpersuaded there is a question of law suitable for submission to the Court of Appeal, arising in relation to s66(1).

Question  6:   Was  it  correct  to  place  reliance  upon  s67(8)  of the  Summary

Proceedings Act 1957?

[16]     I concurred with Judge Ryan’s view that s67(8) applied in relation to the offence of intentional damage, with the result that an onus rested on Mr G   to establish  a  claim  of  right  in  relation  to  his  actions.    I  regarded  this  point  as established in Sheehan v Police [1994] 3 NZLR 592 (HC). In my view there is no sufficient basis to suggest that this point should be the subject of a further appeal. The basis upon which Sheehan should be doubted was not explained.   Leave  is inappropriate.

Question 7:  Was my finding “that there was an element of bloody mindedness in what Mr G   did” open?

[17]     Between the interim and the final judgment Mr G   took advantage of the opportunity to give evidence before me in support of his claim that he genuinely believed  he  was  justified  in  terms  of the  water  easement  in  forming  a  shingle

roadway on Mr Smith’s land.  Having heard that evidence, and in rejecting it, I found that Mr G   acted with bloody mindedness, on account of the fraught relationship which existed between him and his neighbour.   In my view this finding (or observation) does not raise any question of law, and certainly does not impress as a point which could appropriately be the subject of leave to appeal to the Court of Appeal.

Question 8:  Was s119(3) of the Summary Proceedings Act 1957 misapplied?

[18]     In  order  to  receive  further  evidence  on  appeal  from  Mr  G  ,  it  was necessary for me to hold that such evidence could not reasonably have been adduced at  the  District  Court  hearing.    I  held  that  Judge  Ryan’s omission to  explain to Mr G   that he faced a reverse onus (in relation to his claim of right), provided a basis to allow in evidence on appeal.  This was a finding favourable to Mr G  .  It may perhaps give rise to a question of law, which could be susceptible of appeal, but at the suit of the informant, not Mr G  .   In these circumstances I regard the application for leave as wholly inappropriate.

[19]     Although not identified in the notice of application as a question (or topic) in relation to which leave was sought, Mr G   in the course of his submissions argued that the charge of intentional damage should have been brought against Huia Resorts Limited, rather than himself.   The basis for this submission was that the company owned the land on which his accommodation business was situated and, therefore, it was the company which enjoyed the benefits of the water easement.  He submitted that the actions he took were on behalf of the company, and it should have been charged.

[20]     This cannot be right.  Obviously enough, the offence of wilful damage under the Summary Offences Act 1981 may be committed by a “person”.  Here, Mr G   did intentionally damage Mr Smith’s land, absent any claim of right to do so, albeit through the use of innocent agents.   That made Mr G   the principal offender. Therefore, it was perfectly appropriate that he be personally prosecuted.

[21]     Whether Huia Resorts Limited could also have been prosecuted for the same offence, is another question.   It would depend whether attribution of Mr G  ’s actions to the company was appropriate.  But, in the circumstances of this case, that question does not arise.  With reference to the prosecution of an individual, where a company might also be charged, see the discussion in Giltrap City Limited v Commerce Commission [2004] 1 NZLR 608 (CA), at para [51] where the Court explained quite shortly why it is “comparatively simple” that an individual is personally responsible in such situations, provided he has brought about the proscribed event.

[22]     For these reasons leave to appeal is refused in relation to all of the suggested questions.

Solicitors:

Applicant – Mr D J G  , 150 Yaldhurst Road, Christchurch
Gresson Dorman & Co, Timaru for Respondent