Morgan v The Queen - [2013] NZCA 494

IN THE COURT OF APPEAL OF NEW ZEALAND

CA303/2013
[2013] NZCA 494

BETWEEN	RAE MICHELLE MORGAN Applicant
AND	THE QUEEN Respondent

Hearing:	14 October 2013
Court:	White, Venning and Andrews JJ
Counsel:	Y Lee Applicant H W Ebersohn for Respondent
Judgment:	17 October 2013 at 10.30 am

JUDGMENT OF THE COURT

The time for filing the application is extended but the application for special leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

Following a defended hearing in the District Court at Auckland Ms Morgan was convicted on charges of failing to provide her name and other particulars (pursuant to the Trespass Act 1980), assault on police, wilful damage, and resisting police (pursuant to the Summary Offences Act 1981).[1] Judge P W Cooper sentenced her to community work and ordered her to make reparation.
[1]Police v Morgan DC Auckland CRI-2011-004-22756, 9 August 2012.
Ms Morgan appealed to the High Court. In a decision delivered on 5 February 2013 Woolford J dismissed the appeal.[2] Ms Morgan then sought leave to appeal to this Court on a question of law. On 16 April 2013 Woolford J declined that application.[3] Ms Morgan now seeks special leave of this Court to appeal on a question of law.[4]

The proposed question of law

[2]Morgan v Police [2013] NZHC 108.

[3]Morgan v Police [2013] NZHC 771.

[4]Section 397 of the Criminal Procedure Act 2011 provides that s 144(3) of the Summary Proceedings Act 1957 applies to this application.

The questions of law sought to be advanced are:[5]
[5]Questions (a)–(d) were posed in the High Court. Question (e) has been added on the application to this Court.
(a)Whether s 9 of the Trespass Act applies to a person found trespassing in a public area of a public tavern owned and managed by a public trust on behalf of the public?

Alternatively:

(b)Whether Ms Morgan 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 had to be revoked before the police could arrest her?
(d)Whether the arrest was illegal?
(e)Whether the Sale of Liquor Act governing the public tavern overrides the Trespass Act where there is no breach of peace or public nuisance?

Background

We take the summary of facts from the decision of Woolford J.
On 10 December 2011 at about 8.00 pm, Ms Morgan entered the Richardson Tavern, Mt Roskill (the Tavern). She appeared intoxicated and was a nuisance. She was asked to leave by Ms Tane, the bar manager. Ms Morgan challenged Ms Tane’s right to require her to leave and refused to do so. Ms Tane wrote up a trespass notice for Ms Morgan. Ms Tane explained the notice to Ms Morgan.
Ms Morgan tore up the trespass notice and threw it on the ground. She confronted Ms Tane, who instructed a security guard to remove Ms Morgan. The security guard removed Ms Morgan from 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 The Queen

Details

AGLC: Morgan v The Queen [2013] NZCA 494
Case: [2013] NZCA 494
Decision Date: 17 October 2013 at 10.30 am

CaseChat Overview and Summary

Rae Michelle Morgan appealed against her conviction for failing to provide her name and other particulars, assault on police, wilful damage, and resisting police, all pursuant to the Trespass Act 1980 and the Summary Offences Act 1981. Morgan was convicted following a hearing in the District Court at Auckland and subsequently appealed to the High Court, which dismissed her appeal. Seeking special leave to appeal to the Court of Appeal of New Zealand on a question of law, Morgan's application was declined by the High Court, prompting her to appeal to the Court of Appeal.

The primary legal issues before the Court were whether the obligation under s 9 of the Trespass Act applied to a person who was in the garden area of licensed premises, whether Ms Morgan was given an implied license to occupy the moment the security guard left her in the small garden area outside the tavern, whether the implied license had to be revoked before the police could arrest her, whether the arrest was illegal, and whether the Sale of Liquor Act governing the public tavern overrides the Trespass Act where there is no breach of peace or public nuisance. The Court of Appeal considered these questions in the context of Ms Morgan's presence in the garden area of the Richardson Tavern, Mt Roskill, and the applicability of the Trespass Act in such circumstances.

The Court of Appeal found that the principal question of law proposed to be advanced had no prospect of success. The Court reasoned that the Trespass Act applied to Ms Morgan as she was on the premises of the Tavern when spoken to by the police. The police were entitled to require Ms Morgan to provide her name and particulars under s 9(1) of the Trespass Act. The Court further determined that none of the alternative matters sought to be raised were properly questions of law or, if they could be categorised as such, they were not questions of general or public importance that ought to be considered by the Court. The Court also dismissed the additional proposed question regarding whether the Sale of Liquor Act 1989 overrides the Trespass Act where there is no breach of peace or public nuisance, as it was based on a presumption of a finding of fact in Ms Morgan’s favour that was contrary to the evidence.

The Court dismissed the application for special leave to appeal, noting that the application was out of time. However, the Court extended the time for filing the application. The appeal was ultimately dismissed on the grounds that none of the proposed questions of law had a prospect of success, and they did not meet the criteria for special leave to appeal.

Orders