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

1. 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.

2. 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.

1. 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

1. We take the summary of facts from the decision of Woolford J. 

2. 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.  

3. 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 tavern by carrying her outside the front entrance.  Ms Morgan remained outside the front door under a covered entrance.  Ms Tane called the police. 

4. When the police arrived they spoke to Ms Morgan, who by this time was in a small garden area outside the entrance to the tavern, still on the tavern premises.  The police asked Ms Morgan for her name and address relying on the power in s 9(1) of the Trespass Act to do so.  Ms Morgan refused.  Ms Morgan was told by the police officer that if she did not provide her particulars she might be arrested.  She continued to refuse to provide her details.  The police officer then notified her she was under arrest under s 9(2) of the Trespass Act.  The incidents leading to the other charges then followed the attempt by the police to effect Ms Morgan’s arrest.

The High Court decision

1. In dismissing the application for leave, Woolford J was of the view that the first proposed question of law did not arise in the circumstances of the case as Ms Morgan was not in a public area.  The alternative questions were, in the Judge’s view, not questions of law or, if they were, they were not questions of public importance but only applied to the applicant herself and were of no further significance.

The applicant’s submissions

1. Underlying Mr Lee’s submissions for the applicant are the propositions that the provisions of the Trespass Act do not apply where there are adequate provisions under the Sale of Liquor Act 1989 to deal with like situations and that Ms Morgan was entitled to be in the Tavern’s garden.

Decision

1. During the course of argument Mr Lee sought to reformulate the primary question of law.  With the Court’s assistance, he accepted it was best put as “Does the obligation under s 9 Trespass Act apply to a person who is in the garden area of licensed premises?”

2. Mr Lee relied on the authority of Police v Kanuta,[6] to first submit s 9 of the Trespass Act did not apply to Ms Morgan when she was in the garden of the Tavern.  In Kanuta Wylie J held that s 188 of the Sale of Liquor Act 1962 provided a complete code regulating the rights of access of the public to licensed premises and the rights of the licensee or manager to restrict that access.  Accordingly, the Trespass Act did not apply to the public bar of a hotel during the hours when the public bar was required to be open. 

   [6]Police v Kanuta [1987] 1 NZLR 629 (HC).

3. There are two principal difficulties with Mr Lee’s reliance on the Kanuta decision.  First, in response to the decision, s 12A was inserted into the Trespass Act 1980 to confirm that, notwithstanding anything in ss 187 and 188 of the Sale of Liquor Act 1962, the Trespass Act applied in respect of public bars. 

4. Second, ss 187 and 188 were not repeated in the Sale of Liquor Act 1989 which is now the relevant and applicable statute dealing with the sale of liquor. 

5. Mr Lee also referred to ss 176 and 168 of the Sale of Liquor Act 1989 and submitted those sections rather than the Trespass Act applied in this case.  Section 176(1) empowers the police to demand particulars of a person suspected of committing an offence under the Sale of Liquor Act.  Ms Morgan was not committing an offence under that Act.  The offence she had committed was a breach of the Trespass Act by refusing to leave the Tavern premises when required to do so.  Section 176 of the Sale of Liquor Act was not engaged. 

6. Next, s 168 prescribes an offence which a manager or licensee of licensed premises may commit if they allow drunkenness or disorderly conduct on licensed premises.  It has no relevance to Ms Morgan’s obligations under s 9 of the Trespass Act. 

7. The short point in the present case is that Ms Morgan was required by Ms Tane, an authorised agent of the owner of the Richardson Tavern, to leave the premises of the Tavern.  Ms Morgan refused.  She was forcibly put outside but remained on the Tavern property.  Mr Lee accepted the garden area was part of the Tavern property, but argued it was a public area because of the nature of the Licensing Trust.  But as Ms Morgan was still on Tavern property when spoken to by the police, the Trespass Act applied.  The police were entitled to require Ms Morgan to provide her name and particulars under s 9(1) of that Act.  To the extent Mr Lee’s submission relies on the proposition that the Trespass Act cannot apply because Ms Morgan was in a public place, it is misconceived.  The reference to private land carries an extended definition in the Trespass Act.[7]  Even where there is generally a public right of access to a place the Trespass Act can apply.[8]

   [7]Trespass Act 1980, s 2(1): “private land means any land alienated from the Crown in fee simple or for any lesser estate or interest and any land, whether alienated from the Crown or not, of which any person is in actual occupation or in receipt of the rent or profits”.

   [8]Police v Abbott [2009] NZCA 451, [2009] NZAR 705 at [25] and Bright v Police [2009] NZCA 187, [2009] 3 NZLR 132 at [36].

8. The principal question of law proposed to be advanced has no prospect of success.

9. For the reasons given by Woolford J we agree that none of the alternative matters sought to be raised on the application before the High Court and repeated in the application to this Court are properly questions of law or, even if they could be categorised as such, they are not questions of such general or public importance that ought to be considered by this Court.[9] 

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

10. The additional proposed question, namely whether the Sale of Liquor Act 1989 overrides the Trespass Act where there is no breach of peace or public nuisance adds nothing to the merits of the application for special leave.  It proceeds on a presumption of a finding of fact in Ms Morgan’s favour there was no breach of the peace or public nuisance when the evidence was contrary to that.  The evidence as found by the District Court and confirmed in the High Court is that Ms Morgan was making a nuisance of herself.  That is the reason she was issued with the trespass notice in the first place.

Result

1. The application is out of time.  No objection was raised to our extending the time for filing the application and we order accordingly.  For the reasons we have given, the application for special leave to appeal is dismissed.