Morgan v Police - [2013] NZHC 108

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000308

CRI-2012-404-000310 [2013] NZHC 108

RAE MICHELLE MORGAN
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 5 February 2013

Counsel: Y Lee for the Appellant
B Hamlin for the Respondent

Judgment: 5 February 2013

JUDGMENT OF WOOLFORD J

Solicitors/Counsel:

Mr Y Lees, Barrister, PO Box 33 718, Takapuna, Auckland. Crown Solicitor, Auckland.

MORGAN V POLICE HC AK CRI-2012-404-000308 [5 February 2013]

Background

[1] On 9 August 2012 in the Auckland District Court, Rae Michelle Morgan (“the appellant”) was convicted and sentenced on the following charges:1

Offence Section / Act Maximum penalty

Assault on Police Summary Offences Act 1981, s 10.

6 months’ imprisonment

or a fine not exceeding

$4,000.

Wilful damage Summary Offences Act 1981, s 11(1)(a).

3 months’ imprisonment

or a fine not exceeding

$2,000.

Resisting Police Summary Offences Act 1981, s 23(a).

2 months’ imprisonment

or a fine not exceeding

$2,000.

Failing to provide name and other particulars

Trespass Act 1980, s 9(3). Fine not exceeding $500.

[2] The appellant was sentenced to 80 hours community work on the assault, wilful damage and resisting Police charges. She was also ordered to pay $102.57 in reparation on the wilful damage charge. On the charge of failing to provide her name and other particulars, the appellant was convicted and discharged.

Grounds of appeal

[3] The appellant appeals against her convictions and sentence but neither the grounds of appeal nor the submissions from the appellant deal with sentence.

[4] With respect, the grounds of appeal and the submissions depart significantly from each other. It appears that the appellant now challenges all four of her convictions by submitting that her arrest by the Police under s 9 of the Trespass Act
1980 was unlawful on the following grounds:

(a) The tavern manager failed to comply with the requirements of ss 3 and 4 of the Trespass Act 1980;

(b)The appellant was not trespassing when sitting in a garden area adjacent to the door of the tavern, as by placing her there, the security guard had given her an implied license to remain;

(c) The appellant was not trespassing because the Richardson Tavern is owned by the Portage Licensing Trust on behalf of the public, and the appellant was accordingly entitled to be there;

(d)The appellant was not trespassing because ss 188–189 of the Sale of Liquor Act 1962 codified the powers of publicans to eject patrons from licensed premises.

[5] In relation to the other charges faced by the appellant, she submits that should any of the above submissions succeed:

All the other charges followed on after Ms Morgan was arrested for trespassing. If the appeal is allowed, the other three charges cannot stand because they were caused by the intervening event that was unlawful.

Factual background

[6] On 10 December 2011 at about 8:00 pm, the appellant 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morgan v Police

Details

AGLC: Morgan v Police [2013] NZHC 108
Case: [2013] NZHC 108
Decision Date: 5 February 2013

CaseChat Overview and Summary

The appellant, Rae Michelle Morgan, appeals against her convictions and sentence imposed by the Auckland District Court. The convictions were for assault on police, wilful damage, resisting police, and failing to provide name and other particulars. The legal issues before the court were whether the tavern manager complied with the requirements of the Trespass Act 1980, whether the security guard gave the appellant an implied license to remain, whether the tavern was a public place, and whether the Trespass Act 1980 applies to public taverns. The court found that the tavern manager complied with the requirements of the Act, that the security guard did not give the appellant an implied license to remain, that there was no evidence to support the claim that the tavern was a public place, and that the Trespass Act 1980 applies to public taverns. The appeal was dismissed.
The final orders of the court were that the appeal be dismissed, and that the convictions and sentence imposed by the Auckland District Court be upheld.

Orders