Hill v The Queen
[2015] NZHC 3116
•8 December 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2015-485-000071 [2015] NZHC 3116
BETWEEN RUSSELL JOHN HILL
Appellant
AND
THE QUEEN Respondent
Hearing: 8 December 2015 Counsel:
S J Iorns for Appellant
C M Gisler for RespondentJudgment:
8 December 2015
JUDGMENT OF COLLINS J
Summary of judgment
[1] Mr Hill appeals a judgment of Judge Tompkins, in which Mr Hill was convicted on a charge of aggravated burglary.1
[2] Mr Hill was also convicted of one charge of injuring with intent to injure, but that conviction is not challenged. Mr Hill was sentenced to three years’ imprisonment on both charges. The sentences were concurrent.
[3] The sole point on appeal concerns an error Judge Tompkins made when he misapplied the analysis set out by the Court of Appeal in R v Keen when assessing whether or not Mr Hill believed he had the authority to enter the complainant’s
premises at the time of the offending.2
1 Crimes Act 1961, s 232(1)(a). Maximum penalty of 14 years’ imprisonment.
2 R v Keen [2008] NZCA 36 at [8].
HILL v R [2015] NZHC 3116 [8 December 2015]
[4] In my assessment, the Judge conflated the mental element that Mr Hill knew that his entry into the premises was without authority with his intention to commit an offence within the building. That error caused a miscarriage of justice in this case.
[5] This judgment explains why I have:
(1)allowed the appeal against conviction in relation to the charge of aggravated burglary;
(2) quashed the “three strikes” warning given in relation to the
aggravated burglary charge; and
(3)quashed the three years’ imprisonment sentence imposed for the injuring with intent to injure charge and substituted that sentence with one of two years three months’ imprisonment.
Background
[6] Mr Hill and the complainant Mr Hunter are known to each other through Mr Hill’s step-daughter Ms Dalton. Mr Hunter was staying at Ms Dalton’s house when the offending occurred.
[7] On the night of 30 November 2013, Ms Dalton and Mr Hill’s partner,
Ms Dunn, were involved in an altercation. Both were injured. Later, at around
7.30 am on 1 December 2013, Mr Hill went to Ms Dalton’s address in Upper Hutt. He had a baseball bat with him. Ms Dalton is the sole tenant of the property. She was not present at the address at this time. There were several other people who were staying at the address, including Ms Dalton’s partner, his brother and cousin. Mr Hunter was not a usual resident, but a friend of Ms Dalton’s partner.
[8] Mr Hill entered the property through an unlocked door, forced his way through an internal door that was secured by a small slide bolt on the inside of the door, entered a bedroom where the complainant was in bed and struck him with a baseball bat. Mr Hunter woke up during this time and realised Mr Hill was in the bedroom. He instinctively raised one arm as Mr Hill struck him with the baseball
bat with enough force that it broke Mr Hunter’s arm. That was the basis of the
injuring with intent charge.
[9] Mr Hill’s intention when entering the house and assaulting Mr Hunter was to retaliate for the earlier events involving Ms Dunn and Ms Dalton.
[10] The issue on appeal is whether Mr Hill knew he had no authority to enter the address. This issue arises because Mr Hill would often go to and from Ms Dalton’s property at all hours of the day. He had his own key to the property. The Crown says he did not have authority to remain at the property because he entered the address for the purpose of assaulting the occupants. The Crown says therefore Mr Hill must have known he did not have authority to be at the property.
The District Court Judge’s decision
[11] The principal issue on appeal is whether Judge Tompkins could conclude beyond a reasonable doubt that Mr Hill knew his entry into the premises was without authority.
[12] The critical parts of Judge Tompkins’ decision for the purposes of this appeal
are as follows:3
Mr Iorns submitted that because of the circumstances involving Ms Chloe Dulton being the sole legal tenant of that property, and because of the circumstance where the defendant and his partner, as mother and step- father of Ms Dulton, were frequent visitors to the property and would often arrive unannounced and even perhaps enter unannounced, that there was implied authority for Mr Hill to enter the property on this occasion. However, in my view, this case falls squarely within the kind of situation described by the Court of Appeal in [Keen] and in particular where within the situation described by the Court when noting, “The implied authority could only be to the extent [to collect the property or visit the brother] where in fact the intention was to commit a crime rather than to fulfil any of those purpose there is no authority to enter.”
Whilst there was some evidence that the defendant’s partner wished to revisit the Islington Street address simply to uplift the keys to her car, her handbag continuing credit cards and the like, in my view it is established on the evidence that the defendant formed a quite different intention namely, as Ms Goodhew submitted, to seek retribution on the then occupants of that address for what had unfolded the previous night at the address. In those
circumstances any implied authority that Mr Hill may have had to come and go from his step-daughter’s house was exceeded and therefore when he entered the house carrying the baseball bat he had no authority, and he knew that because what he was intending in the house was to exact retribution on the occupants, that he did not have any such implied authority. It also follows from that factual finding that I conclude that when Mr Hill entered the house, he did so with an intent to commit an imprisonable offence in that building, namely to assault one or more of the then occupants of the house.
[13] While Ms Dalton was giving her evidence-in-chief, the point of whether Mr Hill knew he had no authority to be on the property was addressed. The critical parts of the transcript of the hearing relating to that issue are:4
Q. … Now, can you describe that photograph please?
A. Um, the backdoor which is up to the laundry. Q. And this is your address at 11 Islington Street?
A. Yep.
Q. Okay, did that door lock?
A. Um, no, it’s always been broken ever since we moved in.
…
Q. Was that slide bolt the only thing stopping people from the outside world entering the address at 11 Islington Street?
A. Yeah, that’s why I sometimes, you’d go from the back and just tug
the door and that was open so that’s why that’s all scuffed up the top
and that.
Q. Okay and was that bolt particularly strong? A. Um, not really.
Q. Now, just talking about your relationship with the defendant, Russell
Hill? A. Mhm.
Q. Can you describe for the Court that relationship?
A. Um, he’s been in my life since I was about two and a half so he’s
pretty much like my father, yeah.
Q. And you’re (sic) relationship with your mother and Russell, your step-father, that’s, how is that, can you describe that relationship for us?
A. Yep, we’re really close, all of us.
Q. Really close? A. Mhm.
Q. Is it fair to say that you go around to their house a lot?
A. Yep.
Q. And they would come around to your house a lot? A. Yeah, definitely.
Q. Okay, would it be unusual for them to, to come and go as they
please?
A. No, not at all, my mum used to come round every morning was I was still asleep and do dishes. Russell used to come round if he, sometimes if, like, had plumbing that he needed to fix, just whatever.
Q. So would it be fair to say that they had a standing authority to be in your house?
A. Yeah, definitely, I think they even had a key somewhere.
[14] During cross-examination, the point of whether or not Mr Hill had no authority to enter the address was not put in contention. The fact that Mr Hill had a key to the property and Ms Dalton’s permission to be at the address was not challenged.
Principles governing appeal against conviction
[15] I can only allow Mr Hill’s appeal if I conclude Judge Tompkins erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred, or if for any other reason a miscarriage of justice has occurred.5
[16] A miscarriage of justice is defined to mean:6
… any error, irregularity, or occurrence in or in relation to or affecting the trial that–
(1) has created a real risk that the outcome of the trial was affected; or
(2) has resulted in an unfair trial or a trial that was a nullity.
[17] The test contained in s 232 of the Criminal Procedure Act 2011 involves, in part, an assessment of whether the Judge in the court below made an error of such a nature that there is a real risk that the outcome of the trial was affected.
[18] An appeal against conviction proceeds by way of rehearing. I am therefore required to carefully consider all matters that were before Judge Tompkins, but ultimately I must reach my own decision on the merits. The weight I give to the evidence is a matter for my judgement. If I conclude that the Judge below was
wrong I must act on my own view of what the outcome should be.7
5 Criminal Procedure Act 2011, s 232(2)(b) and (c).
6 Section 232(4).
7 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
“Without authority”
The law
[19] Section 232 of the Crimes Act 1961 states:
232 Aggravated burglary
(1) Every one is liable to imprisonment for a term not exceeding 14 years who,--
(a) while committing burglary, has a weapon with him or her or
uses any thing as a weapon …
…
[20] Section 231 states:
231 Burglary
(1) Every one commits burglary … who—
(a) enters any building or ship, or part of a building or ship, without authority and with intent to commit an imprisonable offence in the building or ship…
…
(3) For the purposes of this section and section 232,--
(a) entrance into a building or ship is made as soon as any part of the body of the person making the entrance, or any part of any instrument used by that person, is within the building or ship; and
(b) every one who gains entrance to a building or ship by any threat or artifice used for that purpose is to be treated as having entered without authority.
[21] In R v Lyttleton (No 2) Wylie J said:8
I appreciate that the actus reus of some offences includes mens rea to an extent, in particular, where mens rea is a definitional feature of the offence
… The actus reus of the offence [of aggravated burglary] requires proof that
the accused knew or was aware that the entry was without authority. There is a mental element to the actus reus, which is distinct from the intention to commit an offence in the building, which forms part of the mens rea.
8 R v Lyttleton HC Auckland CRI-2008-044-9466, 4 November 2009 at [41].
[22] In Keen the Court of Appeal held that where there is an issue as to authority raised, the Judge should address the issue in the following form:9
(1) What is the authority asserted?
(2) What is the extent of that authority? (3) Was it exceeded?
[23] I am satisfied that Judge Tompkins made two errors when applying Keen to
the circumstances of Mr Hill’s case.
[24] First, Judge Tompkins heard Ms Dalton’s evidence on the issue of implied authority. Although it was open to Judge Tompkins to reject Ms Dalton’s evidence for the most part as being incredible because of her loyalty to Mr Hill, the issue of authority was never put in contention. Therefore I am satisfied on the evidence that Judge Tompkins was required to accept her evidence on the point of authority. There was no evidence to suggest that Mr Hill knew he did not have implied authority.
[25] Second, because Mr Hill had the authority to come and go from Ms Dalton’s property as he pleased, that makes the facts of Mr Hill’s case materially different from the facts of Keen, which Judge Tompkins relied on when he established that Mr Hill exceeded his authority to be at the property. In Keen, the appellant’s authority to be at the victim’s address (the victim was known to him) came from the fact that he thought his dog and some of his property were inside the address, and he believed his brother was residing at that address.
[26] The Court of Appeal clarified that at the most favourable view to Mr Keen:10
(1) He had a general authority to be at the address in relation to his property and the dog, as his brother was not living at the address.
(2) His authority could only extend to matters relating to his dog, his property and visiting his brother if he was in the flat.
(3) The authority was clearly exceeded as Mr Keen did not have the authority to kick open the door, nor authority to enter the premises to commit a crime.
9 R v Keen, above n 2, at [8].
10 At [13].
[27] The Court of Appeal added:11
… Where in fact the intention was to commit a crime rather than to fulfil any of those purposes there is no authority to enter. While this is the position in this case, it will not always be so. Each case will depend on the nature and extent of the authority relied upon.
[28] Mr Hill’s authority was much broader than that of Mr Keen’s. Ms Dalton confirmed that it was not unusual for Mr Hill and her mother to come and go as they pleased at that address. Further, she believed he may have had a key to the property. Therefore, applying the analysis in Keen in the most favourable light to Mr Hill:
(1)He had a standing authority to be at the address at any time of day or night as his step-daughter, Ms Dalton, was the sole legal tenant.
(2) His authority extended to, using Ms Dalton’s words, “just whatever”.
That includes the authority to enter the property under any circumstances.
(3)He had the authority to enter the unlocked door of the address. That door had a broken lock, which could be forced open by pushing on it. Even if it had been locked, he would have had the authority to enter as Ms Dalton believed he had a spare key to the property.
[29] In my assessment, this case falls squarely within the circumstances envisaged by the Court of Appeal in Keen that I have set out in paragraph [28]. Mr Hill’s case depends entirely upon whether he knew he did not have authority.
[30] I am satisfied that Judge Tompkins made an error when he based his conclusion that Mr Hill knew he did not have authority to enter Ms Dalton’s address on his assessment that Mr Hill intended to assault an occupant of the house. That conclusion does not satisfy the first limb of s 231(1)(a) of whether Mr Hill knew he did not have authority to enter the property. That mental element is entirely separate to the issue of whether he intended to assault Mr Hunter.
[31] On that basis, I am satisfied that Judge Tompkins erred in law when he based his conclusion that Mr Hill knew he exceeded his authority to enter the property on evidence relating to Mr Hill’s intention to assault Mr Hunter when he arrived at Ms Dalton’s property.
Was it a material error?
[32] Irregularities “which plainly could not, either singly or collectively, have affected the result of the trial” are not properly miscarriages of justice.12
[33] In my assessment, by not addressing the authority issue in the manner as set out by the Court of Appeal in Keen, Judge Tompkins made a material error. Second, Ms Dalton was not cross-examined on the point of whether Mr Hill had an implied authority to be at the property. It was important for Judge Tompkins to reach a conclusion based on the evidence before him. As that evidence was undisputed, Judge Tompkins was required to accept Ms Dalton’s evidence on that point. A blanket rejection of Ms Dalton’s evidence due to his adverse finding of her credibility was not sufficient to rebut her evidence in relation to Mr Hill’s authority to be at her address. Those two errors were material errors in law.
Conclusion
[34] I quash the conviction under s 232(1)(a) of the Crimes Act.
[35] I also quash the “three strikes” warning given in relation to the aggravated
burglary conviction.
[36] I invited counsel to make submissions on what adjustments if any should be made to the sentence Mr Hill received in relation to the conviction for injuring with intent to injure. Having heard those submissions, I am satisfied some adjustment needs to be made to that sentence. I am, however, very satisfied that the end sentence needs to reflect the fact that Mr Hill’s offending was serious and that a sentence of imprisonment must continue to be imposed. Mr Iorns accepted a sentence of between two years to two years three months’ imprisonment would be
appropriate in the circumstances of this case, although he also urged me to consider imposing a sentence which would render Mr Hill eligible for a sentence of home detention.
[37] In my assessment, a sentence of two years three months’ imprisonment for the conviction for injuring with intent to injure is the minimum sentence that can be imposed in the circumstances of this case to reflect the purposes and principles of the Sentencing Act 2002.
[38] The sentence of three years’ imprisonment on the injuring with intent to injure charge is quashed and substituted with a sentence of two years three months’
imprisonment.
D B Collins J
Solicitors:
Crown Solicitor, Wellington for Respondent
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