Langford v Police

[2014] NZHC 2214

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-59 [2014] NZHC 2214

BETWEEN

SHARON  JANICE LANGFORD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	8 & 9 September 2014
Appearances:	Appellant on own behalf NMH Whittington and S R Jacobs for the Respondent
Judgment:	12 September 2014

JUDGMENT OF BROWN J

This judgment was delivered by me on 12 September 2014 at 12 noon, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitors, Auckland

Copy To:       Appellant

LANGFORD v POLICE [2014] NZHC 2214 [12 September 2014]

[1]      On 12 December 2013 Mrs Langford was convicted in the District Court at Pukekohe of an offence against s 22(1)(b) of the Summary Offences Act 1981 by without reasonable excuse obstructing a public way.  She was ordered to come up for sentence if called upon within 12 months.

[2]      Mrs Langford appeals against her conviction.  Her primary ground of appeal is that the incidents of alleged obstruction by her did not occur on a public way, namely on the paper road known as Brown Road but rather on Mrs Langford’s own land.

[3]      The material portion of Brown Road runs between Mrs Langford’s property and the property of Mr Hunkin and it is shown in various plans and aerial photographs.   The key issue is precisely where the paper road is located on the relevant area of land.

[4]      There seems to have been an assumption that, from the point on Brown Road at which the seal ends, the paper road follows the course of a metalled right of way which runs across both Mrs Langford’s properties at Lot 1 and Lot 2 DP 117261 and provides access to the Lee property being Lot 3 DP 117261.  That perception of the situation is reflected in the aerial photographs from the Waikato District Council which were Exhibit 1 and admitted by consent although those photographs made clear that the Council does not warrant the accuracy of the information provided.

[5]      Mrs Langford made an application to adduce new evidence.  I received from Mrs Langford a number of documents on a de bene esse basis, for the purpose of endeavouring to identify with precision the different perspectives concerning the location of the paper road.  Mr Whittington did not object to this course and indeed provided significant  assistance in analysing the documents which  Mrs  Langford obtained over night on Monday 8 September and which I considered at the resumed hearing on Tuesday afternoon 9 September.

[6]      Those documents included an easement certificate supporting Mrs Langford’s contention that a right of way easement had been granted over Lots 1 and 2 in favour of Lot 3 together with plans dated prior to 1987 (the date of a relevant subdivision).

The plans appeared to show the paper road being located north of the metalled track and at a location which Mrs Langford maintained was impassable for vehicles.  On the face of it, the plans were at odds with the position suggested by the Waikato District Council aerial photographs.

[7]      In fairness to all parties as well as to the Judge below, it is important to appreciate the manner in which the hearing proceeded.  Certain plans, including the Waikato District Council aerial photographs, were produced by consent.  As a consequence of this I was advised by Mr Whittington that evidence was not led from a person who may have been able to assist on the issue of the survey of the paper road.  Furthermore at the conclusion of the prosecution case a submission was made on behalf of Mrs Langford that there was no case to answer.  When that submission was rejected by the Judge, Mrs Langford elected not to give evidence, a stance with which she now appears to take issue.  It appears at least possible that there may have been some confusion between client and counsel on the matter.

[8]      This is a general appeal and as such the High Court is required to follow the approach explained in Austin Nichols.1   However it is very difficult to form a view as to the correct location of the paper road on the basis of the evidence below and the apparently contradictory material which Mrs Langford has produced to me.

[9]      In  the  particular  circumstances  of  this  case  and  having  regard  to  the apparently tense relationship between Mrs Langford and Mr Hunkin and the consequent desirability of absolute certainty being obtained concerning the location on the relevant land of the paper road, I have reached the conclusion that the best course is to quash Mrs Langford’s conviction and to remit the matter back to the District Court under s 131 of the Summary Proceedings Act 1957 for a rehearing.

[10]     At that time it will be open to the prosecution to adduce survey evidence which for various reasons may not have been led.   Likewise it will be open to Mrs Langford to put in evidence the additional material which, having regard to its legal  nature and  the  fact that  the solicitor  acting for her  at  the  time  when  the

easement certificate was prepared is now deceased, may fairly be regarded as fresh evidence in terms of the test in R v Bain.2

[11]     The prosecution will need to take stock of the new material to which I have referred including the pre-subdivision plans and the easement certificate.   For her part, Mrs Langford will need to consider and perhaps take advice on the contents of the Field Report of Mr L A Clements dated April 2011 (Exhibit 2) which appears to indicate the survey “position 7” is in fact located in the stock yards which I understand are situated on land which Mrs Langford understands to be her property.

[12]     Finally I wish to record my gratitude to Mr Whittington for the constructive way in which he has approached what has transpired to be a somewhat difficult factual and legal matter.   In particular I acknowledge his helpful memorandum of

10 September 2014 addressing the issue of the jurisdiction to remit back under s 131.

Brown J