H v Police HC Rotorua CRI 2009-463-64

[2009] NZHC 2394

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2009-463-64

BETWEEN  H   

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         30 November 2009

Appearances: Peter Birks for Appellant

Sarah-Louise Wootton for Respondent

Judgment:      30 November 2009

JUDGMENT OF HARRISON J

SOLICITORS

Legal Services Agency (Rotorua) for Appellant

Gordon Pilditch (Rotorua) for Respondent

COUNSEL PT Birks

H   V POLICE HC ROT CRI 2009-463-64  30 November 2009

Introduction

[1]      Mr H   appeals against his conviction in the District Court at

Rotorua on 27 July 2009 on five charges of trespass: ss 3, 4 and 11 Trespass Act

1980.  Each information described the offence as "having been warned by Constable Richard Collier, an agent, to stay off Kuirau Park, Rotorua, [you] wilfully trespassed on that place within two years after the giving of the warning".

[2]      In the District Court Mr H  's counsel, Mr Peter Birks, raised a number of grounds of defence.   As a result, the learned District Court Judge reserved his decision.  During argument on appeal, however, Mr Birks accepted that the real issue is much less complex than the defences originally raised might suggest.  I am thus able to deliver judgment orally.

District Court

[3]      The material facts are not in dispute.  Judge McGuire's decision provided an instructive description of Kuirau Park and the societal circumstances leading to these charges.   It follows that I do not share Mr Birks' criticism that it presented "an elegiac  picture  of  Kuirau  Park  which  is  beset  by criminals  indulging  in  sexual aggressions; muggers; thefts and other serious criminal behaviour".

[4]      The relevant passages from the decision are as follows:

[2]       Kuirau Park is a large open parkland that is adjacent to the Rotorua Central Business District.  Within its bounds are rugby, cricket and netball pitches, the Rotorua City Council baths, known as the Aquatic Centre, walkways, boiling mud pools, ponds, regenerating Manuka and native and exotic tree species, gardens, a pavilion that formerly housed a tea room, children’s playground, a large abstract work of art, an ersatz volcano, which sporadically  emits  steam;  and  it  is  host  to  a  thriving  Saturday  morning market each week.  Also, and of particular interest in this case, Kuirau Park contains   a   foot   bath   of   warm   mineral   water   in   which   weary walkers/travellers and anyone else may dangle their lower legs.   Wooden decking surrounds the foot bath, which is itself tiled.  A roof covers the foot bath, but its sides are open.  The foot bath is approximately 50 metres into the park from Ranolf Street, one of the principal roads accessing the Rotorua Central Business District...  In an ideal world, what is provided appears to be intended as a pleasant and free, and in that sense unexpected, amenity for tourists visiting Rotorua and locals, which they could enjoy in daylight, or in

rather more atmospheric circumstances, at night, with the nearby bubbling of mudpools and wafting steam.

[3]       Regrettably,  the  reality,  on  occasions,  does  not  live  up  to  the creators’ intention.  The park has, on occasion, been the location of sexual assaults, drug dealing, robbery, assaults of violence, vehicle break-ins and thefts.  Innovative burglars and muggers have, in the past, used the park’s vegetation as hides from where they have surveyed potential targets.  That particular problem resulted in the Council removing a considerable amount of the thicker scrub from strategic places in the park, which in turn resulted in a marked decrease of such behaviours.  Overall, so far as I can tell, Kuirau Park is a very successful amenity and a much used amenity by locals and tourists alike.

[5]      One factual point requires elaboration.   Ms Wootten produced a copy of a photograph taken by a police officer, Constable Collier, of Mr H   asleep in a footbath on one occasion.  It depicts him propped up at the end of what is obviously a small oblong shaped structure, with his head tilted forward.  Mr Birks says the pool is about 1.5 metres wide, 5 metres long and knee depth, consistent with a structure used as a footbath.

[6]      Constable Collier was the principal witness at trial.   He worked nightshift regularly in 2008 and 2009.   Included in his duties were routine patrols in Kuirau Park.   He gave evidence of an incident in December 2008 where he encountered about six people sleeping in a structure in rather unpleasant conditions.

[7]      Judge McGuire then summarised the balance of the officer's evidence as follows:

[4]       ... As a result of this, he says the police decided on a strategy to get these people to desist, and that the issuing of trespass notices formed part of that strategy.  He said that on 2 January 2009, he issued the defendant with a trespass notice, a copy of which he produced to the Court.   He said he explained the provisions of the notice to the defendant, being that he was not to go back to Kuirau Park for a period of two years.  He said the defendant understood.

[5]       Constable  Collier  said  that  on  31 January  2009,  he  located  the defendant sleeping in the main foot baths at Kuirau Park.  He said on this occasion, the defendant was wearing a pair of shorts.  The time was between

3.00 and 3.15 in the morning.   He was arrested for breach of the trespass notice.

[6]       Constable Collier said on 17 March, he again located the defendant in the foot baths at Kuirau Park at 9.30 pm and that on that occasion, the

defendant was naked and there was another naked male in the foot bath as well.  He says he again arrested the defendant for trespass.

[7]       Constable Collier says that the next occasion was on 26 March at about 12.45 am.  He said he again located the defendant sleeping in the main foot bath at Kuirau Park.  On this occasion he was wearing his underpants. The constable took a photograph of him on this occasion which he produced. He was again arrested for trespass.

[8]        In  the  course  of  cross-examination,  Constable  Collier  said  that during nightshifts in 2008, he had found the defendant sleeping naked in the main foot bath at Kuirau Park on several occasions and that on these occasions, he asked him to get dressed and move on.  He acknowledged that the police had not received any complaints about the defendant’s behaviour on those occasions and that he had not found the defendant breaching the liquor ban.  He acknowledged that the defendant had not been charged with offensive behaviour...

[8]      Judge McGuire found, following the decision of this Court in Police v Beggs

[1999] 3 NZLR 615, as follows:

[14]      The decision in Beggs case is more apposite to our situation.  I find that these matters are relevant.   Rotorua is a tourist city and the public amenities that it offers, such as Kuirau Park, the lakefront and the Government Gardens, form important parts of its attractiveness.   Kuirau Park, with its lamp lit foot paths and foot bath, is intended to be used and enjoyed by tourists and locals alike, not only in the hours of daylight but at night time as well.  Without a reasonable level of policing, Kuirau Park has, on occasions, been the venue of crime, particularly in the hours of darkness. Indeed, the defendant himself complained that he had money stolen from him whilst partaking of the foot bath in Kuirau Park.

[15]      The fact that on a number of occasions the defendant was found to be naked in the pool at night is relevant.  Whilst opinions may differ as to whether such might amount to disorderly conduct, the defendant’s nakedness was assuredly a disincentive for others to use the foot bath in the manner in which it was intended to be used.

...

[17]      However, I consider in the light of Beggs’ case, that the inquiry as to the correctness or otherwise of the issue of a trespass notice extends wider than considering just whether or not the trespassed person may be behaving in a disorderly manner.  The question is whether that issue of the trespass notice was reasonable in this circumstances.

Decision

[9]      The Trespass Act, s 3(1), provides as follows:

Every person commits an offence against this Act who trespasses on any place and, after being warned to leave that place by an occupier of that place, neglects or refuses to do so.

[10]     There are two elements of the offence of trespass: first, the defendant must be a trespasser, someone "who trespasses on any place"; and, second, he or she must fail to leave after being warned.

[11]     The  first  and  principal  inquiry  must  be  whether  Mr H    was  a trespasser at the relevant times.   Mr Birks submits that, like all members of the public, Mr H   had a right of free access to and use of the recreational facilities at Kuirau Park.  But, as Ms Wootten properly points out, that right is not absolute.  It is subject to reasonable limitations.   While this issue has arisen for judicial consideration mainly in cases where groups have exercised rights of protest in public places,  the  principles  are  of  universal  application.     Examples  were  helpfully discussed by Gendall J in Beggs.  Subsequent appellate authorities have confirmed that the Trespass Act applies equally to public as well as private places: see Bright v Police [2009] 3 NZLR 132 at [35]-[36] (rejecting a submission that the Act is directed towards keeping people off private property); and Police v Abbott [2009] NZCA 451 at [25].

[12]     Kuirau Park is open to the public for recreational use.  The footbath, as its name connotes, is provided for foot bathing.  It is not provided as a dormitory or a place where the general public are entitled to sleep.  Constable Collier's uncontested evidence is that Mr H   was in the habit of using it for that purpose.  In my judgment council as the occupier, acting through the agency of a police officer, was fully entitled to exclude from the park those who chose habitually to sleep there instead of using it for its designated recreational purpose.

[13]     Also, as Ms Wootten points out and the photograph depicts, Mr H   was posing a risk to his own safety.

[14]     It follows that it is unnecessary to traverse the arguments advanced in the District Court about whether Mr H  's behaviour offended or disturbed the peace.    I  should  add,  though,  my  qualified  endorsement  of  Judge  McGuire's

conclusion  that  what  he  described  as  Mr H  's  state  of  "nakedness"  on occasions may also have operated as a disincentive for others to use the bath in its intended manner.

[15]     Once the first or threshold element of trespass is established, it must follow that a warning notice was reasonable.   Mr Birks submits that the police officer should have used his discretion; and that he should have given Mr H   an informal rather than a formal warning and taken steps at an earlier point rather than allowing what Mr Birks says was "matters to ride".  I do not agree.  The transcript of evidence from the District Court hearing discloses that Constable Collier exercised considerable leniency in Mr H  's favour.  As the officer volunteered in answer to a question from Mr Birks in cross-examination, and without undue self-modesty, he has "a very good nature".  The fact that he gave Mr H   the benefit of that generous disposition on some earlier occasions should not operate to render subsequent formal notices unreasonable.

[16]     It follows that, notwithstanding Mr Birks' careful arguments, Mr H  's appeal must be dismissed.

Rhys Harrison J