L v Police HC Wellington CRI 2008-485-82

[2008] NZHC 1348

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-485-82

L

v

NEW ZEALAND POLICE

Hearing:         26 August 2008

Appearances: Mr Corry for the appellant

Mr Anderson for the respondent

Judgment:      1 September 2008         at 12.30 pm

JUDGMENT OF MALLON J

Introduction

[1]      Mr L    appeals  against  his  conviction  and  sentence  on  a  charge  of intentionally damaging two trees, without claim of right, and having no interest in that property (an offence under s 269(2)(a) of the Crimes Act 1961).

[2]      The two trees, a Pohutukawa tree and a Eucalyptus tree, were on a property which is on the beach side of Manly Street in Paraparaumu. Mr Sadler has owned the property since 1980.  The property was used for some time as a family home, but in more  recent  times  the  Sadler  family  has  used  it  as  a  weekend  holiday  home. Mr Sadler planted trees on the property, including the Pohutukawa tree and the

Eucalyptus tree, to provide shade, privacy, and shelter from the strong winds that are

L V NEW ZEALAND POLICE HC WN CRI 2008-485-82 1 September 2008

not uncommon on that part of the coast, and from the sand that blows off the seashore.  Mr Sadler had tendered to the trees for many years as they matured into large specimens.

[3]      Mr Sadler discovered that these trees had been damaged when he visited his property on 24 April 2007.  All of the branches on the Pohutukawa tree, which was on the northern side of his boundary, had been cut down.  The main branch of the Eucalyptus tree, which was on the southern boundary, had also been cut.  In addition, small native trees near the Pohutukawa tree had been chopped to a height of about three feet.

[4]      The police were called and Sergeant Shaw discussed what had happened with Mr L  .   Mr L    rented the neighbouring property on the northern side of Mr Sadler’s property.   Mr L   admitted to cutting three of the branches of the Pohutukawa tree but said he did so for safety reasons, the tree having become unstable in strong winds of the kind prevalent in that area.   He denied cutting the Eucalyptus  tree.    Mr L    was  charged  and  pleaded  not  guilty.    Following  a defended hearing he was convicted and sentenced to pay reparation to Mr Sadler of

$6,000 in instalments of $25 per week.

[5]      Mr L   appeals against his conviction on the basis that on the evidence the Judge could not have been satisfied beyond reasonable doubt that Mr L   had cut the Eucalyptus tree and that he did not believe he had a right to cut the Pohutukawa tree.  The appeal against reparation is on the basis that the amount of reparation was excessive   and   over-compensated   Mr Sadler   because   the   wrong   measure   of Mr Sadler’s loss was used.

Appeal against conviction

The evidence before the District Court

[6]      The prosecution’s case was that the Pohutukawa tree was not cut because it was unstable, but that both the Pohutukawa tree and the Eucalyptus tree were cut to

improve Mr L  ’s view of Kapiti Island and the sea from the deck on the second floor of the house in which  Mr L   was living.  Photographs were produced of the cut branches and also of the view from Mr L  ’s deck.

[7]      Mr Sadler gave evidence of an earlier conversation with Mr L   when Mr Sadler says that Mr L   approached him about whether he could cut down some trees.  He said that Mr L   had said that Mr Sadler was not at the property often.  Mr Sadler said Mr L   was not to cut any of the trees.  He gave Mr L   a copy of his business card so Mr L    could contact Mr Sadler if something happened to the property.

[8]      Mr L   gave evidence that he recalled the conversation when he had been given the business  card  but  said  that  he had  not  asked  to  cut  down  any trees. Mr L   also gave evidence that he had no need to cut down the trees to improve the view because he had a view of Kapiti Island and the sea directly in front of his property and to the north.   He said that the deck was too small to be used for entertaining or to spend any length of time on it.

[9]      Mr L  ’s evidence was that on a Sunday morning in April 2007, on a day when the wind was very strong and gusting, he noticed that a large branch, which had been growing over the fence, had sheared off the Pohutukawa tree and was hanging down over the lawn near his son’s trampoline.   Mr L   was concerned about safety and used a hand saw from his work van and cut off the branch.

[10]     In the afternoon a friend of his, a Mr O’Brien, was visiting.  Mr L   gave evidence that he discussed with Mr O’Brien his concern that the Pohutukawa tree had become unstable, as the tree was “whipping around in the wind quite viciously”. He says he was concerned about his family’s safety and also potential damage to Mr Sadler’s property.  Because of his concerns he says he climbed over the fence and on to the tree and used his hand saw to cut off the other two branches of the Pohutukawa tree.  Mr O’Brien also gave evidence and supported Mr L  ’s version of events.

[11]     Mr L   gave evidence that a few days later he noticed the Eucalyptus tree had been cut but he did not know how that had occurred.  He also gave evidence that a few weeks later a Wattle tree, which stood to the left of the balcony on his side of the fence, had blown over in strong winds.  He produced photos appearing to show the wind damage to the Wattle tree.

District Court decision

[12]     The Judge noted that Mr L   denied damaging the Eucalyptus tree at all and that therefore all the elements of the charge in respect of the damage to that tree were in issue.  She noted that Mr L   accepted that he intentionally damaged the Pohutukawa  tree  in  which  he  had  no  interest,  but  that  the  issue  was  whether Mr L   had a “claim of right” to do so.

[13]     The Judge noted that the Eucalyptus tree and the other native trees close to the Pohutukawa tree were damaged at about the same time and in the same manner as the Pohutukawa tree.  She also found that the removal of the Eucalyptus tree and the Pohutukawa tree gave Mr L   a view of the sea and Kapiti Island that was previously obscured.  She said the Wattle tree partly obscured the view but was able to be removed with the permission of the landlord and that it “seems somewhat coincidental that it blew over some weeks later”.  She accepted Mr Sadler’s evidence over Mr L  ’s evidence finding that Mr L   had previously asked permission to cut  trees  on  Mr Sadler’s  property.    This  combination  of  factors  led  her  to  the conclusion that Mr L   had intentionally damaged the Eucalyptus tree.

[14]     Turning to the Pohutukawa tree she noted that the police disputed that the first branch had snapped in the wind but were prepared to proceed on the basis that this had occurred.  As to the cutting of the other branches she said “[h]aving had the opportunity to see and hear the defendant [Mr L  ] give his evidence, I find the evidence to be entirely unconvincing” and she rejected it as “unworthy of belief”. She referred to the evidence that the Pohutukawa tree was a strong coastal tree that had been on the property for about 27 years.   She considered that in the unlikely event of the wind causing the branches on Mr Sadler’s side of the property to snap, it was unlikely that they would snap off, and if they did it was likely that they would

have ended up in Mr Sadler’s, rather than Mr L  ’s, section.   She referred to Mr L   having cut all the branches to such a low level that the tree had very little regrowth on it a year later.   She referred to the cutting of the other trees and the failure of any effort to contact Mr Sadler.   Mr L  ’s explanation that he lost Mr Sadler’s  business  card  was  described  as  “convenient”.    The  Judge  viewed Mr O’Brien’s evidence as “unconvincing”.   She said that he had been “vague and evasive” and was not independent.  She also noted that Mr L   had “a motive to give his evidence in the way he has”.

[15]     Having rejected Mr L  ’s case she turned to the prosecution’s evidence and was satisfied that guilt was established beyond reasonable doubt.

Submissions

[16]     For Mr L   it is said that a key plank of the prosecution’s case was that cutting down the trees improved his view of the sea and Kapiti Island.  The Judge accepted  that  as  part  of  the  circumstantial  evidence  against  Mr L  .    It  is submitted that this finding failed to take into account that:

a)       Mr L   had an unobstructed view of the sea and the northern part of Kapiti Island directly in front of his property and to the north;

b)        Removing the trees did not provide an unobstructed view to the south

– two Norfolk pine trees on Mr Sadler’s property and a Wattle tree on the  property  on  which  Mr L    was  living  would  need  to  be removed to provide an unobstructed view to the south;

c)       The view to the south was from a second floor balcony that was too small to be of much use;

d)In any case, it was not proven that the chopping of the Eucalyptus tree improved the view from the balcony because the evidence as to its location was unclear.

[17]     It is also submitted that on the evidence there was a reasonable possibility that Mr L   believed he had the right to cut down the branches of the Pohutukawa tree.  It is submitted that the Judge placed too much weight on Mr L  ’s inability to  find  Mr Sadler’s  business  card,  when  that  failure  was  understandable  and innocent.

[18]     It is further said that there was insufficient evidence to find that Mr L   had cut the Eucalyptus tree.  This submission follows from the case for Mr L   that  the  Pohutukawa  tree  had  become  unstable  in  the  wind  and  was  cut  solely because of safety concerns.  The submission is also made that, on the evidence, the tree appeared to have been chopped by a different saw than that used on the Pohutukawa tree.

My view

[19]     On a general appeal, as is available here, the Court must come to its own view on the merits.   But before coming to a different view from the Court below caution is required where the lower court had a particular advantage, such as the opportunity to assess the credibility of witnesses: see Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 at [4] and [5].

[20]     Counsel for Mr L   referred me to the photographs that were before the District Court.   It is apparent from them that there is now a view from the south corner of the balcony on the second floor of the property in which Mr L   resided. The view is a partial view of the sea and the southern end of Kapiti Island.   It is apparent from the evidence that the Pohutukawa tree would have obscured this view. It is likely that the Eucalyptus tree did so also.

[21]     I do not agree that the evidence of the Eucalyptus tree’s location was unclear. Mr Sadler identified its position both by description with reference to the vegetation shown in the photographs (I refer to p 4, l 19 to 24; p 13, l 11 to 21 of the notes of evidence) and by marking the photograph with a pen (I refer to p 14, l 4 to 6 of the notes of evidence).  The photograph before me shows that marking.  It was put to Mr Sadler that the cut branch came out at a 45 degree angle and so would not have

obscured the view.   Mr Sadler accepted that the branch came out at an angle, but noted that the branch was the main part of the tree and that it was very bushy.  The photographs confirm Mr Sadler’s evidence – the branch that has been cut appears to be the main branch of the tree, off which a number of other branches have grown. There is substantial foliage on the branches.   It does appear that if Mr L   was seeking to improve his view to the south from the balcony then the cutting of the Eucalyptus tree would have assisted with that.

[22]     The Wattle tree was on Mr L  ’s side of the fence.  At least to some extent (as is perhaps best shown in photograph 10) the view to the south from the balcony remained partially obscured by that tree.  However it is also apparent that the Wattle tree was a thinner tree than the Pohutukawa tree and the clearing of the Pohutukawa tree removed most of the obstruction of the view to the south end.  There was also the potential for the Wattle tree to be removed, as it was in fact a few weeks later (whether  by wind,  or  with  some  assistance  with  or  without  the  consent  of  the landlord).  There are some Norfolk pines on Mr Sadler’s property which still block the view of the middle part of Kapiti Island.   However, just because the Norfolk pines were not removed does not necessarily mean that the Pohutukawa and Eucalyptus trees were not cut so as to improve the view.

[23]     Mr L    says  he  had  no  need  to  chop  any  tree  for  a  view  given  the unobstructed view to the front and north of his property.  I accept that the balcony does not appear to be of a size that would be used for entertaining – at best there is room for one or two people to sit or stand at that end of the balcony.  Chopping the trees for a partial view not able to be enjoyed from a substantial part of the house would seem to be a somewhat extreme action.   However, that is not to say that Mr L   did not take this extreme step whether for this view or for some other reason.

[24]     There is evidence that Mr L   did, for some reason, want to cut some of Mr Sadler’s  trees.    The  Judge  accepted  Mr Sadler’s  evidence  that  there  was  a conversation in which Mr L   is said to have asked if he could cut some trees and was told he could not.  She preferred the evidence of Mr Sadler over Mr L   in this respect.  Having heard and seen the witnesses that was a credibility finding she

was entitled to make and there is no basis on which  I could interfere with her assessment on this appeal.  I accept it is possible that Mr L   quite innocently lost the business card exchanged during this conversation but that was just one of the factors in the Judge’s overall assessment of credibility.   That assessment included rejecting  Mr L  ’s  evidence  as  to  his  concerns  about  the  stability  of  the Pohutukawa tree as unworthy of belief.

[25]     After this conversation the evidence establishes that Mr L   cut all of the branches of the Pohutukawa tree.   The first branch to be cut was the branch on Mr L  ’s side of the property.  The police did not accept that this branch had first snapped as Mr L   said, but conceded in the District Court that it was open to the Court to accept this evidence.  In light of this concession the Judge made no finding but proceeded on the basis that this had occurred.  I do the same.  That means it is possible that the first branch was cut because it was hanging in a way which could result in it becoming completely loose.

[26]     Where Mr L  ’s evidence lacks credibility is that it then became necessary to cut all of the other two branches for safety reasons.  The direction of the wind was described by Mr L   as being a norwesterly.  When he was challenged about how a wind from that direction could give rise to safety concerns in respect of branches on Mr Sadler’s side of the property, Mr L   referred to the wind coming directly in off the beach and being gusty.  However, looking at the position of the tree and the position of where the branches would have been before they were cut, it is difficult to see how there was any risk of damage to Mr L  ’s property or his family from the tree or its remaining branches.

[27]     Further,  whatever  the  risk,  Mr L    should  have  made  some  effort  to contact Mr Sadler – he made none.  He may not have had Mr Sadler’s business card but, according to Mr L  , the tree was unstable on a Sunday when Mr Sadler may have been at his home in Wellington and his phone number obtainable via the telephone directory.  It is also not apparent why it was necessary to cut the whole of the branches, when some lesser cutting may have been all that was required to stabilise the tree.

[28]     The only supporting evidence of the strong winds and the concerns about stability and damage came from Mr O’Brien.  The Judge made an assessment about his credibility.  There is no basis on which I could interfere with that assessment.  In the photographs, the cut branches of the Pohutukawa tree seem to be lying in the position they fell.  There is no suggestion that the trampoline on the lawn blew over on the date of the cutting in contrast with what appears to be the position from the photographs when the Wattle tree was damaged.

[29]     I am satisfied that Mr L   took the opportunity to cut off all the branches of the Pohutukawa tree, when he knew it was not necessary to do so for safety reasons.  That leads to the evidence in relation to the Eucalyptus tree.  The evidence of which saw was used to cut that tree is inconclusive.  However, it was cut at about the same time.  It was also cut in the same manner in that the main branch has been cut off and left where it has fallen.  It can be inferred that the same person who cut the Pohutukawa tree also cut the Eucalyptus tree.  Mr L  ’s denial does not carry any weight given the credibility findings made about his evidence.  His reason for doing so is not clear, although he did obtain a view of a part of the sea and Kapiti Island from his balcony which he did not have before.  But whatever his reason, in my view the Judge was not in error in finding that the evidence established the charge beyond reasonable doubt.

Appeal against sentence

The evidence of loss before the District Court

[30]     Reparation of $17,998 was claimed by the police on behalf of Mr Sadler. The sum was based on a report from an arborist.  The report provides “a monetary evaluation of the damaged trees” and an estimate of the costs for their removal.  The arborist said that his evaluation method was the accepted methodology to determine tree values.   The methodology assesses the tree’s condition, amenity and notable value (the latter covering such things as its rarity, age, feature and form).  From this a wholesale cost is determined, to which is added planting and maintenance costs for the difference between the age of a new tree and the age of the original tree.  Using

this method the arborist assessed the value of the Pohutukawa tree (before it was damaged) at $10,236 and the Eucalyptus tree (before it was damaged) at $6,952.  To this he added an estimate of $810 to remove the trees.

[31]     The  reparation  report  before  the  Court  advised  that,  while  the  arborist’s estimate of value was a useful starting point, Mr Sadler was willing to accept $9,000. Mr Sadler did not wish to be vindictive but considered that a significant amount of compensation was appropriate.

[32]     Mr L   made an offer to replace the Pohutukawa tree with a similar tree to the value of approximately $2,000.  This offer was rejected by Mr Sadler.  (Counsel for Mr L   explains that this offer was to replace the damaged Pohutukawa tree with one of similar size and the $2,000 was the cost of obtaining that tree and planting it.)

The District Court decision

[33]     The  Judge  referred  to  the  reparation  claimed  of  $17,998,  Mr Sadler’s willingness to accept reparation of $9,000, and Mr L  ’s offer to replace the Pohutukawa tree with a similar tree to the value of approximately $2,000 which was rejected.    She  referred  to  Mr Sadler’s  right  to  bring  a  civil  proceeding  against Mr L  .   She considered Mr L  ’s financial position.   She concluded that “a sentence of reparation for an amount less than the value of the loss claimed is appropriate, having regard to [Mr L  ’s] financial means”.  In setting the figure of

$6,000 she noted that, at $25 a week, it would take Mr L   about five years to pay the reparation.  She viewed this as an acceptable time frame.

Submissions

[34]     For Mr L   it is submitted that the reparation order  over-compensated Mr Sadler and is out of proportion to the seriousness of the matter.  It is submitted that  Mr Sadler’s  loss  is  not  the  $17,998  estimated  by  the  arborist  because  that assesses the replacement value of the trees.  It is submitted that Mr Sadler does not

intend to replace the Pohutukawa tree because Mr L  ’s offer to replace it was not accepted.  It is also submitted that Mr Sadler has not lost the trees as a whole because the Pohutukawa tree is regenerating and the Eucalyptus tree is described only as damaged.   Relying on McGregor on Damages (17ed 2003) para 34-005, it is submitted that where damage to property occurs, and replacement or repair are ruled out, the measure of loss is the diminution in value of the property.  It is submitted that because the trees were planted on a substantial beachfront property, the diminution in value of that property by the removal of the two trees is minimal.

My view

[35]     I do not accept the submissions made for Mr L   for a number of reasons. [36]     First, although reparation is compensatory in nature, how the loss would be

compensated in tort need not be the measure of compensation when the Court is assessing reparation.  Reparation is approached in a broad common sense way.  The Court must be satisfied that through or by means of the offence a person has suffered loss and the award must be directed at compensating that loss.

[37]     Secondly, the tort measure of loss would not necessarily be the diminution in value of the property.  As McGregor on Damages sets out (at paras 34-003 to 34-

012) it all depends on the circumstances.  For example, the cost of reinstatement is not appropriate if the owner intended to demolish the damaged property even before it was  damaged.    Diminution  in  value is  not  necessarily  appropriate  where  the damaged property held a special and particular value to the owner.   Of the cases discussed in McGregor¸ perhaps the most relevant is Scott v Lomax (2000) 79 P & CR D31 (CA).  In that case, amongst the property damaged by the defendant were 12 mature willow trees, which had cost 70 p each when they were planted, and four mature cyresses, which had been planted a total cost of £18.   Damages based on replacing the trees of a similar size were claimed.   The Judge considered that a reasonable person in the plaintiff’s position would not spend £13,500 replacing the trees and a further £5,000 tending them when he could spend much less on younger trees.    He  awarded  £8,000  (his  rough  assessment  of  a  reasonable  degree  of

reinstatement) but also allowed general damages for loss of amenity because the trees would be smaller.

[38]     Thirdly, it is not clear what Mr Sadler’s intentions are with respect to the trees.  It cannot be inferred from the rejection of Mr L  ’s offer that Mr Sadler has no intention on reinstating the trees.  Mr Sadler may have rejected Mr L  ’s offer to replace the Pohutukawa tree for a number of reasons.  For example, the offer did not cover the Eucalyptus tree and/or Mr Sadler may have been concerned about the quality of  the  replacement  tree and  how  successful  the  transplanting  would  be. Mr Sadler’s intentions were not covered in the evidence at the defended hearing or in the reparation report.

[39]     There was some evidence of the value of the trees to Mr Sadler.   At the defended hearing he said:

...  I have tended those trees for over, what 28 years and to have them cut down, butchered, it is, you know you can prune trees but you don’t butcher a tree and cut the whole tree down, that is what really annoys me.  Look at the tree on the right hand side.  That is perfect, a fine specimen, they were very robust, very strong trees.   To come back to your property and find the stumps showing there, it does annoy me.  Those trees were my life, I mean I looked after them, got them to where they are and in my life time I will never be able to get trees to where they are now.

[40]     Similarly, in the reparation report, Mr Sadler’s views are reported as follows:

The Victim indicated that he had planted and nurtured these trees which over the  years  had  grown into  impressive  specimens.    He  further  stated  that because of the exposed nature of the property, the trees not only provided an attractive balance to the house, but also offered good protection from driving sand. The Victim noted that the damage done to the trees cannot be replaced in his life time and that money as such also cannot restore what he has lost through this offending.   The Victim stated that he and his wife are upset about this damage to their trees and are angry that the offender chose to damage them despite being clearly told by the Victim that the trees were not to be cut down.

[41]     Mr Sadler may replace the trees.  He may instead allow the trees the chance to regenerate.  If the trees successfully regenerate it will, as Mr Sadler says, be years before they reach the stage they were at before they were cut.  Whether he reinstates with smaller trees, allows the existing trees the chance to regenerate or chops down the remaining part of the trees and does not replace them, he has lost the amenity

they provided.  The value of trees as assessed by the arborist is a useful starting point (the approach Mr Sadler took in coming to his offer to accept $9,000) for what Mr Sadler had lost.

[42]     Finally, the Judge ordered an amount that was considerably less than the loss as assessed by the arborist.  The sum awarded was a common sense reflection of the loss  of  amenity  for  Mr Sadler  by  Mr L  ’s  actions  but  balanced  against Mr L  ’s limited ability to pay.  A higher amount of reparation would not have been excessive if Mr L   had greater means.

[43]     In light of this evidence and these points  I find no error in the Judge’s approach to the reparation order she made.   It was not excessive.   It took account both of the loss to Mr Sadler and the ability of Mr L   to pay.  No other penalty, such as a fine, was imposed.

Result

[44]     The appeal against conviction and sentence is dismissed.

Mallon J

Solicitors:

P Surridge, Surridge & Co, PO Box 50525, Porirua (email: [email protected])

M Anderson, Luke Cunningham Clere, PO Box 10357, Wellington (email: [email protected])