M v Police HC Wellington CRI-2008-435-13

[2009] NZHC 216

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-435-13

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 February 2009

Counsel:         M W Snape for the Respondent

Appellant in Person

Judgment:      25 February 2009

JUDGMENT OF JOSEPH WILLIAMS J

[1]      The  appellant  was  convicted  on  one  charge  of  trepass  in  the  Masterton District Court on 22 October 2008 and ordered to come up for sentence if called upon within six months.  The events relating to this conviction are briefly as follows.

[2]      The appellant went with her sister and niece to the CYFS office in Masterton to request information held by that office.  They were told they would have to make an appointment, and they were not given an opportunity to speak either with the relevant official or to see the relevant information.   A tense situation followed. There is a difference of opinion as to whether all three were asked to leave or

whether it was just the appellant’s sister but once the others left, the appellant asked

M V NEW ZEALAND POLICE HC WN CRI-2008-435-13 25 February 2009

for a pen and a piece of paper so that she could make a complaint.   These were provided by the receptionist.   Shortly thereafter the police  arrived  and she was arrested.

[3]      The appellant argues that she had an honest belief in her right to be at the CYFS office and therefore that the conviction was wrong.  She represented herself in the District Court, rather ably I might add, and did again here on appeal.

[4]      If the appellant can establish that there is an argument that she could have had an honest belief in her right to be at the CYFS office when she was arrested then she has a defence.  It is clear on reading the judgment of His Honour in the District Court that that particular issue was not squarely addressed in his reasons for convicting the appellant.

[5]      Crown counsel very helpfully provided me with a decision of Nicholson J in Albert v The Police HC WHA AP 04/03 25 March 2003 in which this particular issue was fully traversed.   I will refer firstly to the legal principles to which he referred.  In R v Thomas (1991) 7 CRNZ 123 the Court of Appeal considered:

It is now settled law in New Zealand that in the ordinary class of case where the prosecution must prove means rea:  “an honest belief in a state of affairs or as to the existence of a fact, which if true would make the act innocent, will provide a defence itself.   It is not then incumbent on an accused to establish reasonable grounds for such belief although such may be relevant in testing the honesty of the belief in the first place”.

[6]      And then again in the decision of Tipping J in Mackley v Police (1994)

11 CRNZ 497, 503 where His Honour held:

Once an evidentiary foundation was established, as it undoubtedly was, for the existence of such honest belief, it  was  for  the  prosecution to  prove beyond reasonable doubt that Mr Mackley did not hold such belief.

[7]      It seems to me that there was a clear argument available to the appellant in this case at the trial that she had an honest belief in her entitlement to be at the CYFS reception area.   She had asked for a pen and paper to make a complaint and the receptionist had provided her with those items.   That it seems to me creates an argument of an implied licence to be there to complete the task before the licence was revoked.  Whether that was actually the case or not it seems to me quite clear

that the provision of those items provided reasonable grounds to so believe, and therefore the police have failed to meet the reverse onus set out in the authorities I have cited.  It is equally clear that the Judge did not turn his mind to this question at all.  I am at pains to point out that I mean no criticism of the learned Judge for that. Neither the appellant who represented herself nor the police raised the issue.   It is possible that defence counsel may have if counsel had been instructed, but in any event in the heat of the moment missing an issue like this is relatively common.

[8]      On these grounds therefore, I will allow the appeal.

“Joseph Williams J”

Solicitors:

Luke Cunningham & Clere, Wellington

Debra Janice M  , 56 Johnstone Street, Masterton