G v Police HC Timaru CRI 2005-476-9

[2006] NZHC 485

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2005-476-000009

G

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         10 May 2006

Counsel:        P Allan for Appellant

C A O'Connor for Respondent

Judgment:      11 May 2006

FINAL JUDGMENT OF PANCKHURST J

Introduction

[1]      I delivered an interim judgment in relation to this case on 28 April 2006.  In light of it, Mr G   wished to take up the opportunity to give evidence in his own defence  in this Court.   I have heard his evidence,  and  the  final submissions of counsel.

The appellant’s evidence

[2]      To recap, Mr G   faces an onus to establish on balance that in causing the damage to Mr Smith’s land he was engaged in maintenance work permitted in terms of the water easement.  If, in that context, he can show the existence of a claim of

G V NZ POLICE HC TIM CRI 2005-476-000009  11 May 2006

right, that is a belief that his actions were lawful (even if based on ignorance or mistake of fact or law), then the defence to an intentional damage charge is made out.

[3]      The gist of Mr G  ’s evidence was as follows.  He formed the view that to ensure a high quality supply of water to his Lodge  it was necessary to sink a new well (or wells).   A resource consent was obtained from Environment Canterbury (Ecan).   On Monday, 21 June a digger/excavator was transported by truck across Mr Smith’s  land,  to  the  intended  well  site,  using  the  same  route  as  Mr  G   ordinarily used to access the pumphouse.   The site was adjacent to Pudding Hill Stream and on Ecan land, but close to Mr Smith’s boundary.  The existing well was in a not dissimilar location.

[4]      Work on the well occupied some days.   On Wednesday, 23 June a truck brought washed pebbles to the well site.  These were to be used to line the well, and thereby surround the bore.  The driver of the truck was concerned whether he would be able to drive back up the hillside on Mr Smith’s property, in order to leave using the same route as he had entered by.  A decision was taken to deposit truck loads of shingle on the hillside, so that the truck would have sufficient traction to be able to drive out.

[5]      Mr G   said that he genuinely believed he was entitled to place gravel on the hillside in order to improve vehicle access.   He stressed that the gravel was placed not just for this specific occasion, but with a view to the long-term.  With the gravel in place the route to the pumphouse would be improved for the benefit of all vehicles which he needed to take there for maintenance purposes.

[6]      Under cross-examination Mr G   was referred to the Seventh Schedule to the Land Transfer Act 1952, which contains the implied powers and rights attaching to a water easement.  Although there was nothing in the schedule which expressly authorised his actions, Mr G   countered that the water easement would amount to a “hollow right” if he was not able to ensure vehicular access over Mr Smith’s property for maintenance purposes.   He also maintained that establishment of the

new well was maintenance work.  A pipe from it would run to the pumphouse and, via the existing easement pipeline, his property enjoy a supply of water.

Discussion

[7]      In the interim judgment I referred (para [49]) to the rights and powers implied in easements by Schedule 4 of the Land Transfer Regulations 2002.   In closing submissions Mr O’Connor pointed out that the transitional provisions in the Land Transfer (Computer Registers and  Electronic  Lodgement)  Amendment  Act  2002 provided that the Seventh Schedule to the parent Act continued to apply to water easements which were registered before 2002, as was Mr G  ’s easement.  It was for this reason that cross-examination of Mr G   was conducted with reference to the Seventh Schedule.

[8]      However, Mr G   also said that he was aware of the Land Transfer Regulations  2002  in  June  2004,  indeed  that  he  had  consulted  a  barrister  with reference to that topic.  Accordingly, I consider that it is appropriate to have regard to the 2002 Regulations (as set out in the interim judgment) in determining whether Mr G   held a genuine belief in relation to his actions.

[9]      On this approach the  most  relevant  elements  of reg  12  provide  that  the grantee may enter upon the servient land by the most reasonable route and with all necessary tools, vehicles and equipment; and remain there for a reasonable time while work is proceeding.   However, the grantee must  also  ensure that  as little damage or disturbance as possible is caused to the servient land, including an obligation to “immediately make good any damage done to the servient land by restoring the surface of the land as nearly as possible to its former condition”.

[10]     I  am  in  no  doubt  that  these  rights  and  powers,  even  given  their  fullest expression,  did  not  justify  the  spreading  of  shingle  on  the  access  route  across Mr Smith’s land.  That is a conclusion which does not require amplification.  What was done in this instance is simply incompatible with the requirements of reg 12.

[11]     But could Mr G   have entertained a genuine, albeit mistaken, belief that his actions were lawful?  This, it seems to me, is the real question.  To answer it, it is necessary to look at not only Mr G  ’s evidence, but at all of the evidence in the case.  This was the approach argued by Mr O’Connor in his closing submissions.

[12]     Two pieces of evidence impress me as particularly significant.   One of the workmen,  Mr  Gamble,  gave  evidence  of  the  discussions  which  preceded  the spreading of the shingle.  He considered that “the simplest thing would have been to just  tow the truck up the hill” with the digger, which was of course on tracks. However, his evidence continued at page 5:

We discussed two or three options.  The second was that we could put some shingle on, or there was an existing track, we could have gravelled that track, or we could put some shingle up the face which could have been cleaned off later on.   Mr G   made it quite clear that he was wanting a track to go straight up that hill to be left so that he had access to the pump shed.

I note that this evidence is consistent with Mr G  ’s evidence before me.

[13]     The other evidence emerged in the course of cross-examination of Mr Smith. On a previous occasion gravel was spread on another part of Mr Smith’s property and in purported reliance upon an airstrip easement.  As to this prior event Mr Smith said at page 57:

This is probably 3000 metres (away) at the end of our airstrip where there is another easement and it is a right of way easement that crosses my land that was gravelled without my permission across our land by either Mr G   or one of his invitees to use the easement.  Our lawyers advised us they had no right to replace the gravel.   We requested that Mr G   or  his  invitee remove the gravel.   We gave them several months notice to remove the gravel and then quite legally and lawfully so I removed the gravel myself and sought recompense for the cost of doing so.   It is not related to this incident at all in any way.

Mr O’Connor drew attention to this evidence and submitted it was a relevant aspect of the past history which must have been in Mr G  ’s mind when he embarked upon a similar action on 23 June 2004.

[14]     Mr Allan submitted in closing that I should accept Mr G  ’s evidence and conclude  he  genuinely  believed  his  actions  were  lawful.    Counsel  referred  to

Mr Gamble’s evidence as confirming  Mr  G  ’s thinking  on  the  relevant  day. Perhaps the strongest pointer in favour of Mr G   holding a genuine belief was the circumstance that the shingle was spread and left there.   It was present for all the world to see.  The photographs bear witness to the extent of the scar on the hillside. There was nothing surreptitious about Mr G  ’s actions.  They were carried out by workmen, at his direction, and they of course were in a position to confirm exactly what had been done.

[15]     This openness (save for the fact that Mr Smith was not advised) does possibly suggest that Mr G   must have believed he was acting within his legal rights.  But despite the initial attractiveness of that proposition, I do not accept it.  As Mr G   readily confirmed in giving evidence, there was no love lost between him and Mr Smith.  There was a history of disagreements which arose in relation to the water, and other, easements.  I regard the evidence in relation to shingle having previously been  spread  adjacent  to  the  airstrip  as  particularly  pertinent.    In  light  of  what happened on that occasion, how could Mr G   have genuinely believed that his actions on 23 June 2004 were lawfully justified?

[16]     With reference to the openness of his actions, or the inevitability that they would come under scrutiny, I am of the view that there was an element of bloody mindedness in what Mr G   did.  The dispute centring on the water easement had become so bitter that Mr G   was, I think, capable of aberrant thinking.  This, I confess, is surprising in light of the calm and considered way in which Mr G   gave evidence before me.   But I fear that in the immediate context of this bitter dispute between neighbours, the capacity to act entirely out of character prevailed.

[17]     For these reasons I reject the defence of claim of right.

Sentence appeal

[18]     Immediately following delivery of his oral judgment, Judge Ryan imposed sentence.  He began by considering a sentence of imprisonment, or community work, but in the event rejected both.  He next observed that given Mr G  ’s maturity and absence of previous convictions, a fine was the appropriate sentence.

[19]     I note, that at this point the Judge was unable to resist further reference to the assault conviction, the quashing of which in this Court he considered an astonishing exercise, although he added that “needless to say that has nothing to do with this matter”.  I entirely agree.  It is a pity that these comments were made at all.

[20]     Attention then turned to the appropriate level of a financial penalty.  Rightly, the Judge noted that the amount of any reparation order must be weighed in the balance in fixing a fine.  The Judge said that “Mr Smith has given me some further evidence as to his assessment of possible costs of some reinstatement”, but this evidence is not on record, even in the full transcript which was ultimately obtained. The Judge’s conclusion as to reparation was expressed in these terms:

So I will take a round view as to reparation.   It is perfectly clear that the amount which Mr Smith would assess for the work depicted in the photographs is not the sole extent of the work, so making the best judgment I can on the available evidence there will be a conviction and a sentence to pay reparation in the sum of $3,500 which is I accept not much more than a token gesture in Mr and Mrs Smith’s favour.

The basis for these observations is not clear to me.

[21]     As already noted there is no record of what Mr Smith apparently said in relation to reparation.  The police summary of facts refers to the shingle damage as about  50 metres long and 3  metres wide, which “will cost  $290 to  remove the shingle and between $600-$1,000 to resow the grass and return the paddock to the condition it was previously in”.   I apprehend that the Judge made allowance for damage to vegetation which Mr Smith described on the lower reaches of his land, in the area near the pumphouse and adjacent to Pudding Hill Stream.  But quite how the figure of $3,500 was arrived at, is not obvious.  The position is unsatisfactory.

[22]     In my view the appropriate, and safe, course is to proceed on the basis of the information contained in the summary of facts.   This, presumably, was based on figures supplied by Mr Smith, who, afterall, had first-hand experience of effecting similar  repairs  on  at  least  one  previous  occasion.    Accordingly,  I  reduce  the reparation figure to $1,300, being the rounded-up maximum amount indicated in the summary.

[23]     As to the fine of $1,200, I am unpersuaded that this was clearly excessive. This was a significant and blatant offence, committed by a man who should have known better.  Thankfully, there should be no chance of further similar occurrences, since Mr G   has sold the subject property.

Result

[24]     The appeal against conviction is dismissed.   The appeal against sentence is allowed, but only to the extent that the reparation order is reduced to $1,300.

Solicitors:

FS Legal, Christchurch for Appellant
Gresson Dorman & Co, Timaru for Respondent