L v Police HC Auckland CRI 2005-404-317

[2006] NZHC 529

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-317

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 April 2006

Appearances: R A A Weir for Appellant

A Longdill for Respondent

Judgment:      18 May 2006

JUDGMENT OF KEANE J

Solicitors

Crown Solicitor, Auckland

L V POLICE HC AK CRI 2005-404-317  18 May 2006

[1]      On 17 August 2005 Jamie L   was convicted of trespass on 5 April 2005 at Vittles Panel and Paint, Glenfield, and of threatening to injure Ian Vittle with intent to intimidate him. He was fined $1,500 for the intimidation offence, two-thirds of which went to Mr Vittle, and $500 for the trespass. He appeals the decision as wrong in fact and law.

[2]      Originally Mr L  ’s ground for appeal was that fresh evidence from a witness, in Australia at the time of trial, could justify his convictions being set aside. Then, very recently, he contended in an amended notice of appeal that the intimidation conviction was inconsistent with his later acquittal by a jury of an assault with intent to injure in the same incident.  Also that the trespass conviction depended on a trespass notice given for an improper purpose; and that the Judge failed to take into account the right of a process server to enter a property to effect service.

[3]      On this appeal all of these grounds have been abandoned except one, that the conviction for trespass was in error because Mr L   never entered Vittles Panel and Paint.  He remained on the next door property, to which he was pursued by Mr Vittle, who assaulted him. The intimidation conviction is also infirm, it was contended orally, because the Judge misstated and misapplied what the statute requires.

Context

[4]       On 5 April 2005, it was uncontested at the original hearing, Mr L   was subject to a trespass notice warning him to stay off ‘the place known as Vittles Panel and Paint, 6 Kaimahi Place, Glenfield, and occupied by Ian Vittle.’ The notice, issued by a police constable on 7 October 2003, it was uncontested also, remained effective until 7 October 2005.

[5]      Secondly, it was uncontested, Vittles Panel and Paint was within a building complex housing a number of other businesses, and that in front of Vittles and  the adjoining business, High Pressure Equipment, was a common forecourt with a single entrance and exit containing ten carparks, five in front of each business.

[6]      Thirdly, it was uncontested, at about 11.30 am on 5 April Mr L   drove his van into the carpark, and stopped just past the entrance on the right hand side facing High Pressure Equipment. That, he said in evidence, he believed placed him beyond the reach of the notice.

[7]      Fourthly, it was uncontested, Mr L   left his van and began to note the registration numbers of cars parked in the carpark. He was, he said, intent on looking for a particular car and any assets of value. A number of cars held by Mr Vittle were being repossessed, he said, and he had to act quickly.  To do this, he maintained, he needed only to stay where he was.

[8]      Fifthly, it was uncontested, when Mr L   entered the carpark Mr Vittle’s partner, Carolyn Vittle, was standing in the carpark talking to a customer, Michelle Raymond.   What passed between Ms Vittle and Mr L   was in some degree contested.

[9]      When Ms Vittle saw Mr L   taking down registration numbers, she asked him why and how she could help.  He did not tell her.  She told him that she could have a registration check done on him.  She was expecting insurance assessors that day. Mr L  , she said, became aggressive.  He said that she became abusive.  Ms Raymond confirmed that Mr L   was insulting and that Ms Vittle told him to get off the property.

[10]     Finally, it was uncontested, Ms Vittle called out to Mr Vittle, or he came out of his own accord when he heard the exchange. He and Mr L   had an equally acrimonious exchange in which he ended on the ground, and suffered an injury to his head and a seizure, and cuts and bruises.

[11]     How that came to be was contested. Mr L   was charged with assault with intent to injure that was severed for trial before a jury; and at a retrial, after he was convicted summarily of intimidation, he was acquitted of the assault. On this appeal the fact that Mr Vittle ended on the ground serves only to distinguish what occurred before that happened from what occurred after.

Discretion on appeal

[12]     A general appeal under s 115 of the Summary Proceedings Act 1957, as this appeal is, is by way of rehearing: s 119(1). However, as Fisher J said in Herewini v Ministry of Transport [1992] 3 NZLR 482, 489:

On a rehearing the appellate court can come to its own conclusions on questions of fact and law but the onus still lies upon the appellant to satisfy the appellate court that the decision given in the court below was wrong.

[13]     On  appeal,  this  Court  will  be  astute,  where  a  case  is  wholly  or  partly inferential, and that is put in issue, to be assured that the essential elements of the offence have been proved: R v Ramage [1985] 1 NZLR 392, CA; R v Hart [1986] 2

NZLR 408, CA.

[14]     This Court will be slow to differ from the trial Judge’s findings of credibility: Tetau v McPherson [1956] NZLR 34, Turner J; or from any inferences taken unless they were essential to the decision, and rested on a clear misunderstanding or were completely unsupportable: R v Puttick (1985) 1 CRNZ 644, CA.

[15]   In the ultimate, however, this Court on appeal must discharge its own responsibilities under ss 119 and 121, consistently with what is ‘feasible and best calculated to meet the interests of justice’: R v Jeffries [1999] 3 NZLR 211, CA, paras 16, 22.

Intimidation

[16]     Two points are taken as to the Judge’s decision to convict Mr L   of intimidating Mr Vittle. One is that he misstated what s 21(1)(a) of the Summary Offences Act 1981 requires as to intent. The other is that there was no evidence that Mr L   threatened Mr Vittle.

[17]     There is no criticism of the way in which the Judge put Mr L  ’s defence:

The defence raised by Mr L   is twofold. Firstly, that no altercation occurred between he and the complainant … . No intimidation occurred, no threatening behaviour occurred and, according to Mr L  , no threats

were used, and if Mr Vittle ended up on the ground having an epileptic fit, that was because Mr Vittle had slipped and indeed Mr L   insisted that he helped Mr Vittle to the ground.

[18]     The attack lies rather against the Judge’s conclusions, when he rejected this defence out of hand. He said this:

I simply do not accept that version of Mr L  . Putting his evidence to one side and assessing the evidence given by Mr Vittle and the prosecution witnesses I am satisfied beyond reasonable doubt that there was an attempt by Mr L   by his behaviour on that morning to intimidate Mr Vittle and that  he  threatened  to  injure  Mr  Vittle.  Accordingly,  the  defendant  is convicted of that charge.

[19]     Mr L  ’s first point is that in concluding that ‘there was an attempt by Mr L   by his behaviour … to intimidate’, the Judge understated what s 21(1)(a) requires: he stopped short of concluding, as he had to do, that Mr L   had the

‘intent to frighten or intimidate’, or knew that ‘his or her conduct … (was) likely to cause that other person reasonably to be frightened or intimidated’.

[20]     I do not agree.  The Judge did not need to use the exact words of the section. He was entitled to convey its sense accurately in other words, and that is what he did. In concluding that Mr L   attempted to intimidate Mr Vittle, as counsel for the Police said, he must also have concluded that Mr L   had that intent. There is nothing in the first point taken.

[21]     Mr L  ’s second point is that there was no evidence that, before Mr Vittle went to the ground, and not on the jury’s verdict on the assault charge as a result of anything he did himself, he threatened Mr Vittle with injury. But there was that foundation in the evidence and it more than sufficed.

[22]     According to Mr Vittle, whom the Judge accepted as truthful and accurate, Mr L  , abusive and foul mouthed, was intent on pursuing a debt he believed Mr Vittle owed him. When asked by the Judge what Mr L   said to him before he went to the ground, Mr Vittle said ‘I hadn’t seen the last of him, he was going to get me, stuff like that …’.  Also, according to Mr Vittle, when Mr L   left he said:

'Where’s my money? And – I haven’t finished with you yet’.

[23]     The Judge’s conclusion that Mr L   culpably intimidated Mr Vittle was entirely open to him in law and fact and I agree with it.  There is no basis for this aspect of Mr L  ’s appeal.

Trespass

[24]     In convicting Mr L   of trespass, it is contended on this appeal, the Judge made a material error of fact going to the ambit of the trespass notice to which Mr L   was subject. The Judge said this:

Quite clearly Mr L   was served with a trespass notice that precluded him from entering the address at 6 Kaimahi Place, Glenfield. A reading of that trespass notice would have made it very clear to Mr L   that the area of 6 Kaimahi Place was out of bounds as far as he was concerned and that he could not go on that area. The defendant acknowledges that he was on that place but he says that he was only on the area of 6E Kaimahi Place. That is not a defence to a charge of trespass because the trespass notice expressly precludes an entry by the defendant on 6 Kaimahi Place. So the defendant will be convicted of that charge as well.

[25]     The trespass notice, as is said for Mr L  , did not preclude Mr L   from  entering  6  Kaimahi  Place  as  such,  a  complex  in  which  there  are  other businesses. It was more particular. It forbade him from entering ‘the place known as Vittles Panel & Paint, 6 Kaimahi Place, Glenfield, and occupied by Ian Vittle.’ In mistaking its ambit, the Judge made a mistake not merely material, but essential, to his decision.

[26]     Whether on this appeal that error, of itself, requires the conviction to be quashed depends on whether, on the evidence before him, the Judge could equally well have concluded that Mr L   had committed the offence. On this appeal I am obliged to assess that independently.

[27]     Section 4(4) of the Trespass Act 1980 creates the offence of which Mr Vittle was convicted. That offence is subject to the defence conferred by subs (5) but neither aspect of the defence was invoked at the hearing or on this appeal. Only the elements of the offence itself were material. Section 4(4) says this:

… every person commits an offence against this Act who, being a person who has been warned under this section  to stay off  any place,  wilfully trespasses on that place within 2 years after the giving of the warning.

[28]     Did then the Judge conclude without a cogent basis in the evidence either that, in entering the forecourt to the extent that he did, Mr L   entered a ‘place’ denied him by the trespass notice issued on 5 April 2005; or that he trespassed

‘wilfully’?

Place and occupancy

[29]     ‘Place’ is not defined and in the widest sense can be highly abstract. But it can only be, as appears from s 4(1), (2) and the defence in s 4(5)(a), a place to which the ‘occupier’ has the right to deny entry. ‘Occupier’ is defined in s 2(1) to mean ‘… any person in lawful occupation of that place or land’; and, in the last resort, the registered proprietor: s 2(2). What a ‘place’ is and who the ‘occupier’ may be are, then, coextensive issues of fact as well as law.

[30]     In contrast to cases like Polly v Police [1985] 1 NZLR 443, CA, Mr Vittle’s status as occupier was not in issue at the hearing. The issue was rather how far his tenure extended and how apparently. He clearly occupied his workshop and office, on the exterior of which there was, it appears, the unambiguous sign ‘Vittles Panel & Paint’. In issue was to what extent Mr Vittle was the occupier of the forecourt. Also how evident it must have been to Mr L that the forecourt was a place to which he was denied entry by the notice.

[31]     That the forecourt was a carpark open to the customers of the two businesses it served did not result at the hearing in any challenge to Mr Vittle’s right to exercise dominion as an occupier. Nor could that have been an issue: Williams v Police (HC Auckland, CRI 2005-404-0060, 3 June 2005, Cooper J).  Instead the issue was how, if it all, the area of the forecourt Mr Vittle occupied was distinct from that occupied by High Pressure Equipment. Also, how obviously distinguishable, if at all, any such separate areas were.

[32]     As a matter of fact, the Judge was right to conclude, as he did, that the notice issued to Mr L   did deny him entry to the part of the carpark that he entered. Mr Vittle, under whatever form of tenure he held the workshop and office area, was entitled also, he said, and in this he was unchallenged, to the five carparks in front of

his workshop and office but also, on the far side, at least to carpark six. It was on or near to that last carpark, Mr L   said, that he stood. It was there, Mr Vittle said, that he was intimidated.

Wilful trespass

[33]     But that does not end the matter. Did the evidence support the Judge’s further conclusion that Mr L   trespassed on that area ‘wilfully’? If Mr L   did that cannot be on the basis that the Judge identified, that Mr L   knew that he was denied entry to 6 Kaimahi Place at any point. It has to be that Mr L   knew that he was denied entry to any part occupied by Mr Vittle.

[34]     The use of the word ‘wilful’, Speight J held in Police v Cunard [1975] 1

NZLR 511, 515, makes mens rea an ingredient of the offence and requires proof that any trespass was ‘deliberate’. Mr L  ’s trespass could have been ‘wilful’, therefore, in the strict sense: that is, if he had acted, as Lord Russell of Killowen said in R v Senior [1899] 1 QB 283 at 290, 291, ‘deliberately and intentionally, not by accident or inadvertence’. Or he could have been ‘wilful’ in the allied sense that he was ‘reckless’, which, as Lord Hailsham of St Marylebone said in R v Lawrence [1981] 1 All ER 974, at 978, evinces instead:

… a state of mind stopping short of deliberate intention, and going beyond mere inadvertence, or, in its modern though not its etymological and original sense, mere carelessness.

[35]     Simester & Brookbanks, Principles of Criminal Law, (2002, 2nd ed) confirm at para 4.7 that in New Zealand ‘wilfulness’ has always been understood in that wider way: ‘wilfulness is an alternative term for subjective recklessness and is satisfied if the defendant either intends or foresees the prohibited outcome’. And that wider understanding best serves, I consider, the policy of the Trespass Act 1980.

[36]     It is true that occupiers can only deny entry to their own property. They do not have the ability to deny entry to that lying just beyond to create a cordon sanitaire. But neither ought those warned off to be able to trespass with impunity by claiming, especially where areas are held in common and boundaries are less than clear, that they cannot have known exactly where the boundary lay and cannot have

intended to trespass. If they must have known that they were near, at or over the boundary, and were indifferent to the risk, they ought to be equally culpable. So while, as Speight J said in the Cunard case at 515, ‘wilfulness is a subjective matter’, and any genuine mistake must be excluded, there remains room for common sense. Where, as he went on to say, a claim to have been mistaken is absurd it is also unlikely to be genuine.

[37]     It remains to add that a mistake of law could not have availed Mr L  . In Police v Shadbolt [1976] 2 NZLR 409 Wilson J held that a trespasser, who understands the facts accurately enough, but who may misunderstand his or her rights in law, is still a wilful trespasser.

[38]     Did  then  Mr  L    know  that  he  was  denied  entry  to  the  part  of  the forecourt he entered, and did he enter deliberately and intentionally? Did he foresee that he might be entering a part of the forecourt that he was denied and was he reckless as to whether or not he was? Did he enter under any genuine mistake of fact?

Conclusions

[39]     Mr L   knew that, as a result of the trespass notice, he was denied entry to ‘Vittles Panel & Paint, 6 Kaimahi Place, Glenfield’. Thus he knew that he was denied entry to the office and workshop area. As to that, there is no issue. Mr L   knew also that he was denied entry to any part of 6 Kaimahi Place, Glenfield

‘occupied by Ian Vittle’; and thus to whatever part of the forecourt Mr Vittle was entitled to use. As to that, there is no issue.

[40]     Mr L   entered the forecourt as an ostensible visitor to High Pressure Equipment, though he had no business there, relying on the implied licence to enter that this may have conferred. But, as he then knew, he could only avoid the reach of Mr Vittle’s trespass notice if High Pressure Equipment occupied the carparks to the right and he entered, he says, assuming that to be so. As to this too, there is no issue.

[41]     In entering the forecourt to the extent that he did Mr L   did trespass. What he says he had assumed as to how the forecourt was shared proved to be wrong; and I cannot see how he can now claim to have been under any genuine mistake of fact. He had no basis for what he says he assumed. There were no signs pointing one way or the other.

[42]     Mr  L    must  have  known,  before  he  entered  the  forecourt,  that  the carparks could have been shared as he hoped that they were, they could have been shared unevenly as indeed they were, or they could have been wholly shared. He could not possibly say.   Nor could he discount the possibility that the moment he entered the single shared entranceway he could well have been trespassing. That did not deter him.

[43]     Mr  L    might  not  have  trespassed  into  the  forecourt  wilfully  in  the narrow and literal sense. He might not have been aware that he was trespassing and gone ahead intentionally. But he was clearly reckless as to whether or not he was trespassing and that suffices to support the Judge’s conclusion with which I agree.

The appeal in all its aspects will be dismissed.

P.J. Keane  J