Murray v Police

[2012] NZHC 172

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000150 [2012] NZHC 172

WALTER PHILLIP MURRAY

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 February 2012

Appearances: W P Murray (Self-represented Appellant) in Person

K L Bannister for the Respondent

Judgment:      17 February 2012

INTERIM JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 17 February 2012 at 2.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:   Meredith   Connell   P   O   Box   2213   (DX   CP24063)   Shortland   Street

Auckland 1140 for the Respondent

Copy To:     W  P  Murray  (Self-represented  Appellant)  22A  Mudgeways  Road  Massey

Auckland 0614

MURRAY v POLICE HC AK CRI-2011-404-000150 17 February 2012

[1]      The  appellant,  Mr  Murray,  is  appealing  against  his  conviction  on,  and sentence for, a charge of wilful damage under the Summary Offences Act 1981.  The appeal is opposed.

[2]      In this Court, Mr Murray was self-represented.  He was legally represented in the District Court.  However, he has concerns about the quality of the representation he enjoyed in the District Court.  He also raises issues regarding his right to take the action on which his conviction is based, and his lawyer’s neglect to follow his instructions to summons witnesses to establish his defence.

[3]      Mr Murray was engaged by the complainant to manage and be the caretaker of a boarding house that was owned by the complainant.  In return for Mr Murray’s management services, he was to be entitled to reside in the manager’s residence, rent free.  The arrangement was ended abruptly by the owner.  It seems that Mr Murray was  given 48  hours’ notice.   When  he returned  to  the manager’s  residence,  he discovered the locks had been changed, and there was a note advising him that all his belongings had been removed and where they could be collected from.

[4]      Mr Murray did not accept that his rights to occupy the manager’s residence had been terminated, and it is not clear whether he accepted the information that his goods had been removed from the manager’s residence.   Mr Murray broke glass panels in the entry doors to the manager’s residence in order to gain access.  It is the breaking of the glass panels in the entry doors and also some damage to the wooden framework of the doors that has resulted in the charge on which he was convicted.

[5]      In  this  case,  the  foundation  for  the  charge  of  wilful  damage  is  legally complex.  It is doubtful that a service tenancy can be ended on 48 hours’ notice.  A service tenancy that is covered by the Residential Tenancies Act 1986 (the Act) requires a longer period of notice than 48 hours.

[6]      Mr Murray has advised me that he took the matter to the Tenancy Tribunal, and that he was informed that his circumstances fell outside the scope of the Act because the Act does not apply to boarding houses.

[7]      Whilst the Act did not apply to boarding houses at the time of the offence, the circumstances of someone, who is employed as a manager/caretaker of the boarding house, and who is provided with accommodation, are different from the occupation rights enjoyed by persons living in boarding houses.   There is no reason why a service tenancy could not arise in this circumstance.  Even if it did not, it would arise under the common law.  It seems to me, therefore, that Mr Murray had a reasonably sound argument regarding his rights to occupy the premises and his contention that there had been an attempt to unlawfully determine those rights.   If viewed in this way, the re-entry by the owner was unlawful.

[8]      The legal status of Mr Murray raises further questions about Mr Murray’s rights of self-help to re-enter premises of which he remained the lawful occupant, and his rights to re-enter those premises for the purposes of checking on his personal possessions.  Whilst the owner of the boarding house had said in the notice that Mr Murray’s personal possessions had been removed from the manager’s residence, it could well be that Mr Murray remained entitled to re-enter the property to check for himself  that  all  his  items  were  no  longer  present.     It  would  follow  that  if Mr Murray’s lawful occupation of the manager’s residence continued, the owner had no right to re-enter and no right to take possession, or touch in any way, Mr Murray’s personal possessions.   The action of removing those possessions, or in any way keeping them from Mr Murray, would constitute the tort of conversion.

[9]      I  consider  that  before  any  proper  assessment  of  the  foundation  for  the conviction can be made, the legal position regarding the lawfulness of Mr Murray’s occupation of the manager’s residence and his actions in recovering his personal chattels requires determination.  The answer to these issues will inform the Court as to   whether   or   not   Mr   Murray   had   defences   available   to   him   under   the Summary Offences Act and the Crimes Act 1961.  It will also inform the Court as to whether the police have proved all the essential elements of the charge laid against him.

[10]     Because Mr Murray is at present self-represented, he was not able to help me to any great degree on these issues.  The respondent was caught by surprise when I raised them.  In order to ensure the respondent has every opportunity to address the

foundation issues on which the conviction’s safety currently rests, and to provide Mr Murray with a better opportunity to address those issues, I have adjourned the appeal part-heard.  It is to be brought back before me at a date suitable to the parties and the Registry.  When it is next brought on for hearing, I expect to hear argument on Mr Murray’s status and legal rights at the time he acted to gain entry to the manager’s residence.

Duffy J