L v Police HC Napier CRI 2009-441-43

[2009] NZHC 2508

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2009-441-43

BETWEEN  L

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 December 2009

Counsel:         Appellant in person

N M Graham for Respondent

Judgment:      15 December 2009

JUDGMENT OF WILD J

Introduction

[1]      Ms L   appeals against her convictions for trespass and intentionally obstructing a constable acting in the execution of his duty.   The convictions were entered by Judge Adeane in the District Court at Hastings following a defended hearing on 15 October.  Ms L   was represented at that hearing by Mr Church.

[2]      In her Notice of Appeal filed on 11 November Ms L   stated, as the grounds of her appeal:

My Bill of Rights were completed ignored. Convicted on insufficient evidence.

[3]      In a letter received by the Court on 2 December, Ms L   expanded on her points of appeal in these terms:

L V NEW ZEALAND POLICE HC NAP CRI 2009-441-43  15 December 2009

My Bill of Rights were completely ignored.

1.I was not allowed to leave the premises when a trespass notice was verbally given.

2.        I was not told of any charges when I was taken into custody.

3.        I was refused a test at the police station, when I asked for one.

4.I was not offered any other accommodation other than the police cells.

5.        I was not given any numbers for a solicitor at the police station and I

wasn’t allowed to ring anyone else.

6.        I was put in a cell with no blanket or pillow.

The background and the evidence at the hearing

[4]      Ms L  ’s convictions stem out of what occurred at the home of her sister, Ms Downs, on 16-17 May.  The prosecution witnesses were Ms Downs and Constable Darren Cooper.  Ms Downs said that Ms L   had, at her invitation, been staying with her for about five to eight weeks.  On the evening of 16 May, the two sisters went to a bar for an hour or so.  Ms L   was drinking, Ms Downs was not.   After they arrived home Ms L   drank almost an entire bottle of Baileys and became very intoxicated.  An argument then broke out, over a bottle that had been thrown and smashed.  Ms L   wanted to call the Police, Ms Downs did not.  Someone did call the Police, and Constable Cooper and another police officer arrived.

[5]      Constable  Cooper’s  evidence  was  that  he  and  the  other  officer  were confronted by Ms L   yelling and screaming abuse at them when they arrived at the house.  He said Ms L   was highly intoxicated, but that Ms Downs seemed to be sober.   The Constable said Ms Downs told him she wanted Ms L   to leave, and the Police tried to get Ms L   to go.  They offered to help find her accommodation.  After further yelling and abuse, Ms Downs said she herself told Ms L   to leave.

[6]      Constable Cooper said that he then told Ms L   she would have to leave or she would  be trespassing.   Ms  L   collected some belongings  from her

bedroom and went around to the back of the property to the carport where her motorcycle was standing.  Constable Cooper said that he told Ms L   that they would not let her drive the motorcycle away because she was intoxicated, and also told her that she would be arrested for trespass if she did not leave the property.  Ms L   continued to refuse to leave on foot and to insist on taking her motorbike, and was then arrested and given her rights.

[7]      Both Constable Cooper and Ms Downs said in evidence that Ms L   was yelling and screaming abuse the whole time that the officers were at the property. Constable Cooper said that Ms L   was warned that she was obstructing the Police and would be arrested if she did not stop.

[8]      Ms L   gave evidence in her own defence.  She said that Ms Downs was the one who was drunk, and was screaming abuse and calling at the Police.   She claimed that she herself was “cool, calm and collected”, and was neither intoxicated nor abusive.   She maintained that her sister and the Police had ganged up on her. She claimed that she had asked to be breathalysed after arriving at the Police Station but that her request was refused.

[9]      Ms L   agreed that, after she was trespassed, she got some things from her bedroom, left the house and went round to the back of the property to get her motorbike.   She agreed that the Police had refused to allow her to ride off on the motorbike, and that she had been arrested.  She claimed she was never warned about obstructing.  At one point in her evidence she suggested that she had been paying rent to Ms Downs, but she had not put this to Ms Downs, and the point was not pursued.

The Judge’s decision

[10]     In his decision given orally at the end of the hearing, Judge Adeane:

•         Found that Ms L   was an invitee at will of Ms Downs.

•Accepted Constable Cooper’s assessment that Ms Downs was sober, but Ms L   very intoxicated.

•Accepted that Ms L   had been asked to leave (the Judge pointed out that Ms L   accepted this in her own evidence).

•Found that, in pursuing her intention of riding off on her motorbike, after the Police had told her they would not permit that, Ms L   obstructed Constable Cooper.

Accordingly, the Judge found both charges proved, and convicted Ms L   on both.

Appellant’s submissions

[11]     Ms L  ’s submissions to me ranged over a number of points, but I think the following captures the essence of the points she argued:

•She was not an invitee.   She paid rent to her sister.   However, she accepted that she had not produced any evidence about this.

•She denied that she was too intoxicated safely to ride off from her sister’s property on her motorbike.  She reiterated that her request to be breathalysed upon arrival at the Police Station had been refused.

•She  denied  obstructing  the  Police.    She  claimed  she  had  done everything the Police had asked her to do.

•She complained that she had been poorly represented by her counsel at the hearing before the Judge.

•She claimed that her rights had not been given to her.  Her concern was that she might have avoided a claustrophobic and unpleasant

night in the cells at Hastings Police Station if her rights had been explained to her, and she had been able to exercise them.

•She produced a number of documents to me, including her criminal record, a copy of her Police bail bond, and a copy of the “Notice to Person in Custody” addressed to her, but with an indecipherable signature that she claimed was not hers.

Decision

Trespass

[12]     The three elements of the offence of trespass in s 3(1) Trespass Act 1980 are a physical trespass, a warning to leave, and a refusal to leave:   Wilcox v Police [1994] 1 NZLR 243.

[13]     Having read the evidence which the Judge heard, I am satisfied that there was ample evidence justifying the Judge finding Ms L   guilty of trespass.   The evidence of both Ms Downs and Constable Cooper was that, after Ms Downs had asked Ms L   to leave, and made it clear to the Police that she wanted Ms L   out, the Police again asked Ms L   to leave, and did so two or three times.  Despite this, she refused or failed simply to leave.

[14]     I am not surprised that the Judge preferred the evidence of Constable Cooper (who was completely sober) and Ms Downs (who had had little or nothing to drink) to that given by Ms L  .  I think Ms L  ’s recollection of the events of that evening is impaired by her highly intoxicated state.

Obstruction

[15]     The offence of obstructing a constable in the execution of his duty does not require the use of physical force, but includes a failure to act in a way lawfully required by a constable:  Smith v Police HC Wellington CRI 2006-485-23, 23 June

2006.  Obstructing generally means making it more difficult for the Police to carry out their duties:  Urlich v Police (1989) 4 CRNZ 144.

[16]     As I have pointed out, Ms L   maintained in her evidence that she was “cool,  calm  and  collected”,  and  that  she would  never  be abusive  or  aggressive towards the Police.  She reiterated the latter submission to me.

[17]     Unfortunately, as I have mentioned, the Judge had evidence from Constable Cooper and from Ms Downs that on this unfortunate evening Ms  L   was anything but cool, calm and collected.  Rather, she was yelling and screaming abuse constantly, refused to comply with Police requests that she leave the property, and repeatedly attempted to get to her motorbike so that she could ride off on it, after Constable Cooper had forbidden her from doing that.

[18]     The  Judge’s  findings  are  squarely  against  Ms  L  .     He  simply disbelieved her evidence, and preferred that of the two sober witnesses, particularly Constable Cooper.

[19]     There is no basis for me to disturb the conviction for obstructing Constable

Cooper in the execution of his duty.

Bill of Rights

[20]     This ground of appeal substantially comprises the six points Ms L   listed in her letter, which I have set out in [3] above.

[21]     Refusing to administer a breath test to a person charged with trespass and obstruction, failing to provide accommodation other than in police cells, and failing to provide a blanket and pillow do not amount to a breach of Ms L  ’s rights under the New Zealand Bill of Rights Act 1990.  Nor is there any general right for an arrested person to ring anybody other than a lawyer:   Police v Ellis HC Dunedin AP93/94 2 November 1994.

[22]     In her evidence before the Judge, Ms L   did not suggest that her rights had been breached.  She did not contest Constable Cooper’s evidence that he gave Ms L   her rights, and that she had indicated to him that she understood those.

[23]     This aspect of the appeal has no substance and I dismiss it.

Result

[24]     None of Ms L  ’s grounds of appeal has succeeded.   Her appeal is accordingly dismissed.  Her convictions for trespass and obstructing a Police Officer in the execution of his duty stand.

Solicitors:

Crown Solicitor, Napier for Respondent