Morgan v Police

[2013] NZHC 771

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000308

CRI-2012-404-000310 [2013] NZHC 771

RAE MICHELLE MORGAN

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         On the papers

Counsel:         Y Lee for the Applicant

B Hamlin for the Respondent

Judgment:      16 April 2013

JUDGMENT OF WOOLFORD J

[As to application for leave to appeal to Court of Appeal]

This judgment was delivered by me on Tuesday, 16 April 2013 at 11:30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Y Lee, Barrister, PO Box 33 718, Takapuna, Auckland

Crown Solicitor, Auckland

MORGAN V NZ POLICE HC AK CRI-2012-404-000308 [16 April 2013]

Introduction

[1]      On 9 August 2012, Rae Michelle Morgan (“the applicant”) was convicted and sentenced on a number of charges, including assault on Police, wilful damage, resisting Police and failing to provide her name and other particulars.   She was sentenced to 80 hours community work on the assault, wilful damage and resisting charges.  On the charge of failing to provide her name and other particulars, she was convicted and discharged.

[2]      The applicant appealed to this Court against both conviction and sentence but neither the grounds of appeal, nor the submissions from the applicant, dealt with the sentence.   After hearing submissions from counsel, I gave an oral judgment on

5 February 2013 in which I dismissed the appeal.  The applicant now seeks leave to appeal from my judgment to the Court of Appeal.

Legal principles

[3]      Leave to appeal to the Court of Appeal is dealt with in s 144 of the Summary

Proceedings Act 1957.  It provides:

144      Appeal to Court of Appeal

(1)  Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2)    A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that court, and the High Court may grant leave accordingly if in the opinion of that court the question of law involved in the appeal is one which, by reason of its  general  or  public  importance  or  for  any  other  reason,  ought  to  be submitted to the Court of Appeal for decision.

(3)   Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may

allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that court, for special leave to appeal to that court, and the Court of Appeal may grant leave accordingly if in the opinion of that court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[4]      There are three separate requirements which must be met before leave can be granted. There must be a question of law.  The question of law must be of general or public importance and finally, this Court must be of the opinion that it ought to be submitted to the Court of Appeal.

[5]      The  proper  approach  to  the  exercise  of  the  Court’s  discretion  is  well

established. The leading authority is R v Slater.[1]   There, the Court said:[2]

[1] R v Slater [1997] 1 NZLR 211 (CA).

[2] At 215.

Section 144 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subs (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question  of law,  nor  the question  whether  that  point  of law raises a question of general or public importance, are to be diluted.

Factual background

[6]      On 10 December 2011 at about 8.00 pm, the applicant was seen entering the Richardson  Tavern,  Mt  Roskill,  by  the  bar  manager,  Ms  June  Margaret  Tane. Ms Tane  gave  evidence  that,  according  to  her  observations,  the  applicant  was intoxicated and began helping herself to patrons’ drinks and using foul language.

[7]      The applicant was, apparently, asked to leave by Ms Tane, to which she replied “What fucking right do you have to say that I have to leave?”  The applicant continued to refuse to leave.  Ms Tane subsequently called the Police, and wrote up a trespass notice for the applicant.   Ms Tane gave evidence that she explained the

notice to the applicant by saying:

On issuing her the trespass notice I said because she has been issued with this trespass notice she would have to leave, and if she did not leave, then I would have to go a step further and call the police for assistance.

[8]      The applicant tore up the trespass notice and threw it on the ground.  She then confronted Ms Tane, who in response instructed a security guard to remove the applicant from the tavern by carrying her out.   Ms Tane gave evidence that the applicant remained on the tavern premises, 1.5 metres from the tavern door, until the Police arrived.

[9]      Constable John Paul Belt and Constable Wenli Lui arrived at the tavern at

8.17 pm.  Sergeant Chris Scott arrived shortly after.  Constable Belt addressed the applicant, who became agitated when refused entry back into the tavern.  He then asked her for her name and address, so that she could be issued with another trespass notice.  The applicant refused.  The constable told the applicant that if she did not provide her particulars, she may be arrested.  The applicant continued to refuse, and the constable then notified her that she was under arrest under s 9 of the Trespass Act

1980.

[10]     The constable then took the applicant by the arm and began walking her towards the police car.  She began to struggle and resist.  Constable Belt was assisted by Constable Lui. As they approached the car, the applicant grabbed the aerial of the car and bent it forward.

[11]     Handcuffs were then applied to the applicant. As she was being placed in the police car she began spitting at all three officers.  Constable Lui was spat on.  The police officers decided to apply a ‘spit hood’ to the applicant.  This required another police car to attend the scene.  During the wait, the applicant continued to verbally abuse the police officers, including repeated threats to kill them and their family members.  She was advised of her rights under the New Zealand Bill of Rights Act after being placed in the car.

[12]     Having obtained the spit hood, it was placed on the applicant by the police officers.   She and the three police officers then began driving to the Auckland Central Police Station.   During the drive, the car was forced to stop in order to

prevent the applicant from manipulating off her spit hood.  When the vehicle was stopped, the applicant managed to lodge her leg in the door, forcing it open, while the police officers attempted to re-position her arm. As a result she was struck on the leg by Constable Lui.   The applicant was subsequently taken to Auckland Central Police Station and placed in a cell.  Constable Belt estimated that the incident lasted

20-30 minutes from arrival at the tavern to arrival at the Station.

Application for leave to appeal

[13]     The applicant seeks leave to appeal to the Court of Appeal on the following questions of law:

(a)       Whether s 9 of the Trespass Act applies to a person found trespassing in a public area?

Alternatively

(b)      Whether the defendant was given an implied license to occupy the moment the security guard left her in the small garden area outside the tavern?

(c)       Whether the implied license has to be revoked before the Police may arrest her?

(d)      Whether the arrest was illegal?

[14]     The applicant submits that the proposed appeal involves a question of law by reason of its general and public importance in that s 9 of the Trespass Act applies to trespass of private land, whereas the applicant was on public land.

Discussion

[15]     It seems to me that the application for leave to appeal is based on a false premise, namely, that because the Richardson Tavern is owned by the Portage Licensing Trust Trust, the tavern premises, the garden outside and the car park is all public land to which the Trespass Act does not apply.  It is therefore my view that the

proposed question of law does not arise in the circumstances of the case.   The applicant was not in a public area.

[16]     The alternative questions are also in my view not questions of law or, if they are, they are not questions of general or public importance but apply only to the applicant herself and are of no further significance.   The question whether the applicant was given an implied license to occupy the moment the security guard left her in the small garden area outside the Tavern is a question of fact.  In my decision, I found that the fact that the security guard did not complete the applicant’s removal from the property did not alter her continuing status as a trespasser.

[17]     I am also of the view that the Police had authority to arrest the applicant if she  was  found  committing  any offence.    She  was  not  charged  or  convicted  of trespassing at the tavern.   The charges of assault on Police, wilful damage and resisting Police are all separate offences for which, in my view, she was properly convicted.

[18]     As to whether the arrest was illegal, the arresting officer gave evidence that she was initially arrested because she refused to give her name and address as required under s 9 of the Trespass Act.  This may be a legal question, but does not have any significance beyond its significance for the applicant.

[19]     In those circumstances, the application for leave to appeal is dismissed.

……………………………….

Woolford J