Murray v Police

[2014] NZHC 2123

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI--2011-404-000150 [2014] NZHC 2123

BETWEEN

WALTER PHILLIP MURRAY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	21 July 2014
Appearances:	W P Murray (Self-represented Appellant) in Person K L Bannister for the Respondent
Judgment:	4 September 2014

JUDGMENT OF DUFFY J

[Re Appeal Against Conviction and Sentence]

This judgment was delivered by Justice Duffy on 4 September 2014 at 12.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:    Meredith Connell, Auckland

Copy To:     W P Murray, Auckland

MURRAY v POLICE [2014] NZHC 2123 [4 September 2014]

[1]      This  judgment  should  be read  together with  the interim  judgment  that  I

delivered on 17 February 2012: see Murray v Police HC Auckland CRI-2011-404-

000150, 17 February 2012.  On that occasion I adjourned the appeal part-heard in order to allow Mr Murray and the respondent the opportunity to file further submissions on the question of the lawfulness of: (a) Mr Murray’s occupation of the manager’s residence (“the premises”); and (b) his actions in damaging the entrance door to the premises in order to gain entrance to them.

[2]      Since the adjournment, Mr Murray has been somewhat occupied by other matters, so the appeal did not come on for hearing until this year.  In a Minute dated

9 August 2012, timetable directions were issued for Mr Murray to file a written memorandum  setting  out  his  concerns  regarding  his  former  counsel’s  failure  to follow instructions in the defended hearing in the District Court.  When the appeal came  on  for  rehearing,  Mr  Murray had  not  filed  this  memorandum,  though  he maintained that his counsel had not followed his instructions.  Nor had he filed any evidence on this topic.

[3]      The facts relevant to the offending are set out in the judgment of 17 February

2012.

District Court decision

[4]      In  the District Court  on 17 March 2011, Mr  Murray was  convicted  and sentenced on one charge of wilful damage under s 11 of the Summary Offences Act

1981 in respect of the premises by kicking in two doors, breaking three windows and a door-frame.

[5]      Judge Roderick Joyce QC canvassed the background facts and considered Mr Murray’s defence that he had a lawful justification or excuse for his actions.  The Judge said that there was no evidence to suggest that Mr Murray enjoyed any legal right of entry that would entitle him to “bust into” the premises and do significant damage  in  the  process.    The  Judge  said  there  were  other  methods  by  which Mr Murray could have obtained access without causing damage.   Here the Judge referred to the possibilities of Mr Murray calling a locksmith, or seeking an urgent

legal remedy to allow him to retrieve his personally possessions peacefully if they

were still in the manager’s residence.

[6]      The Judge admitted the evidential statement of Dean Charles Hogarth, who was  one  of  the  resident  boarders  at  the  boarding  house  but  is  now  deceased. Mr Hogarth was an eye-witness to the incident.

[7]      Regarding whether Mr Murray had a claim of right, the Judge concluded that Mr Murray’s evidence left him un-persuaded that he could possibly have believed that he had an legitimate entitlement to do what he did.  The Judge did not accept that a man with Mr Murray’s experience of real estate (Mr Murray had said that he had once been a real estate agent) could possibly, even irrationally, have believed that he had a claim of right.  The Judge concluded that Mr Murray had “lost it” and that the elements of the charge were proved.

[8]      Mr Murray was convicted, fined $500, ordered to make reparation of $570 and pay Court costs of $132.89.  Judge Joyce on sentencing said that the fine was necessary to address the public interest in keeping the peace.

Grounds of appeal

[9]      In the notice of appeal, Mr Murray appeals his conviction and sentence on the following grounds:

(a)       The Judge did not give due consideration to the appellant’s belief that he had a “colour of right” to enter the premises; and

(b)      The appellant’s lawyer neglected to follow instructions to summon

witnesses for his defence.

Appellant’s submissions

[10]     In Mr Murray’s memorandum to the Court dated 23 August 2012, he has included an additional ground of appeal.  He now submits that the admission of a deceased witness’ evidence statement at the defended hearing prejudiced his defence.

Mr Murray says that he instructed his solicitor, Mr Hoskin, to challenge the inclusion of this witness’ evidence, but the instruction was ignored.  Mr Murray contends that he was severely disadvantaged by this hearsay evidence and the deceased was someone who unreliable and was “most probably blind drunk” at the relevant time. As a result, cross-examination was necessary but, in the circumstances, it was impossible.   Mr Murray considers that the Judge would have viewed the case differently if the deceased’s evidence was excluded.

[11]     Mr Murray also argues that the exclusion of evidence of certain events on

3 March  2010  prejudiced  his  defence.    He  says  that  on  3  March  2010,  certain police officers visited the premises and arrested him for breach of bail.  They assured him that his property was secure and that Mr Wheeler would not enter or interfere with his property.  This event allegedly took place several hours before the conduct that led to the wilful damage charge.

[12]     Mr Murray submits that he had lawful possession of the premises at the relevant time.   He says he lost an irreplaceable military medal and other prized possessions through the landlord unlawfully taking possession of the premises. Further, Mr Murray says that his defence to the charge was that he was defending his property  from  possible  theft  and  damage.    He  says  that  the  police  offered  to withdraw the charges if he paid the landlord $600, but Mr Murray was unable to pay that amount at the time.

[13]   Mr Murray submits that his solicitor, Mr Hoskin, failed to follow his instructions.  He contends that if Mr Hoskin had argued against the admissibility of the deceased witness’ evidence and had summoned the police officers (who had assured Mr Murray that his property would be secure) as witnesses, the outcome may have been different.

Respondent’s submissions

Submissions dated 4 August 2011

[14]     The respondent submits that the Court of Appeal in R v Clode [2008] NZCA

421 has clearly stipulated the need for careful consideration and an independent appraisal of the performance of trial counsel.  In short, the respondent submits that Mr Murray has failed to advance an appeal based on inadequate performance of counsel in the proper manner.

[15]     The respondent submits that in the District Court, Mr Murray had to prove that he had a belief (mistaken or otherwise) that his actions were lawful in order to satisfy the statutory defence of a claim of right.   Regarding whether Mr Murray genuinely believed that he was legally entitled to kick in the two doors permitting access to the premises, the respondent says that the Judge did not find a genuinely held belief.  Further, the credibility of Mr Murray during the defended hearing was a matter for the Judge to determine.  The respondent submits that the finding of the Judge in this respect should be left undisturbed as the appellate Court is in a less informed position regarding the credibility of witnesses.

[16]     The respondent submits that at the time Mr Murray kicked in the doors, he did not genuinely believe that he was acting legally.  This is evidenced by conflicting evidence about material aspects of the incident.

[17]     Regarding the appeal against sentence, the respondent submits that there are no guidelines on appropriate sentences  for wilful damage.   However,  given the maximum penalty for such offending, a fine of $500 was clearly not manifestly excessive.  In respect of the reparation order, Mr Murray had indicated that he was prepared to pay for the repair costs.

Respondents’ submissions dated 14 September 2012

[18]     The  respondent  submits  that  the  five  grounds  of  appeal  put  forward  in

Mr Murray’s memorandum fall into two broad categories:

(a)       Whether  Mr  Murray  was  lawfully  entitled  to  gain  entry  into  the

manager’s residence; and

(b)      Whether  there  had  been  a  miscarriage  of  justice  as  a  result  of

Mr Murray’s former counsel failing to follow his instructions.

[19]     Referring to the interim judgment that raised the issue of whether there was a service tenancy, the respondent accepts that if there was a service tenancy that was covered  by the  Residential Tenancies Act  1986,  s  53  of  that Act  provides  that Mr Wheeler  would  not  have  been  entitled  to  terminate  the  arrangement  with Mr Murray without a period of notice of 14 days.

[20]     The respondent submits that there was no service tenancy because Mr Murray was  a  contractor  under  the  agreement  with  Mr  Wheeler.    In  the  definition  of “service tenancy” at the applicable time, that definition only referred to a contract of service between an employer and employee.

[21]     The respondent submits further that if a service tenancy did exist either under statute   or   at   common   law,   the   exceptions   set   out   in   s   53(2)   of   the Residential Tenancies Act would apply.  The respondent relies upon Mr Wheeler’s statement that Mr Murray was having a detrimental impact on the running of his business because the contracted services were not being adequately performed. Therefore,  Mr  Wheeler  was  not  acting  unlawfully  when  he  terminated  the agreement.

[22]     Regarding  the  conduct  of  Mr  Murray’s  former  counsel,  the  respondent submits that Mr Hoskin did make an application during the defended hearing challenging the admissibility of Mr Hogarth’s statement on the basis of unreliability and bias.  Judge Joyce heard the submissions from Mr Hoskin and ruled the evidence admissible.    Regarding  Mr  Murray’s  desire  for  Mr  Hoskin  to  call  witnesses, Mr Hoskin says he discussed the issue of calling the arresting police officers with Mr Murray.  The respondent submits, therefore, that Mr Hoskin did not fail to follow Mr Murray’s instructions.  Mr Hoskins deposes that Mr Murray accepted his advice not to call the police officers, thought it was done reluctantly.

[23]     The respondent submits that even if Mr Hoskin had ignored Mr Murray’s request, this would not amount to a miscarriage of justice.  The respondent refers to the issue of trial counsel misconduct in R v Sungsuwan [2005] NZSC 57 and says the absence of evidence from the arresting police officers would not have had any real impact on the verdict of the District Court Judge. The respondent submits that this is not a case where the failure to call the evidence amounted to a miscarriage of justice. In any event, calling the police officers would not have had any material effect on the verdict reached by the Judge.

[24]     The respondent submits, therefore, that the appeal against conviction and sentence should be dismissed.

Appeal against conviction

Approach to appeal

[25]     An appeal against conviction is by way of rehearing.  Section 121(2) of the Summary Proceedings Act 1957 allows the High Court to confirm the conviction, set it aside, or amend it.  Thus, the appellate court should form its own view of whether or not the conviction was properly established.   In doing so, the appellate court should  pay  appropriate  deference  to  findings  made  by  a  Judge  who  had  the advantage  of  hearing  the  witnesses  on  questions  of  credibility,  but  it  must nevertheless review the evidential basis for factual findings carefully.

[26]     Section 11 of the Summary Offences Act provides:

11       Wilful damage

(1)       Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who intentionally—

(a)       Damages any property; or

(b)      Sets on fire any tree or other vegetation.

(2)       For the purposes of subsection (1) of this section, a person does an act intentionally if he does it intentionally or recklessly, and without lawful justification or excuse or claim of right.

(3)       The fact that the person charged had an interest in the property at the material time shall not prevent his act constituting an offence against this section if he did it with intent to defraud or to cause loss to any other person.

(4)       For  the  purposes  of  subsection  (3)  of  this  section,  where  any property is subject to any mortgage or charge, each of the parties to the mortgage or charge shall be deemed to have an interest in the property.

[27]     Section 2 of the Residential Tenancies Act defined “service tenancy” between

1 February 1987 to 30 September 2010 as:

Service tenancy means a tenancy granted pursuant to a term of, or otherwise as an incident of, a contract of service between the landlord as employer and the tenant as employee, whether or not a separate tenancy agreement is concluded in writing between the parties, and whether or not any rent is payable for the tenancy; and includes—

(a)       Any such tenancy granted pursuant to or in accordance with any enactment; and

(b)       Any such tenancy granted by one company to an employee of an associated company (within the meaning of subsection (2) of this section); and

(c)       Any tenancy granted by the Armed Forces to any person subject to the Armed Forces Discipline Act 1971:

[28]     The notice requirements for service tenancies provides:

53       Special provisions for notice terminating service tenancies

(1)       The landlord or the tenant must give a minimum period of notice of

14 days to terminate a service tenancy if the contract of service or, as the case requires, the contract for services has been terminated or

either party has given notice to terminate that contract (subject to

subsections (2)to(7)).

(2)       Where the contract of service or, as the case requires, contract for services is terminated, or the tenant is transferred to another district, on less than 14 days' notice, the landlord may terminate the service tenancy by the giving of notice of less than 14 days if—

(a)       The landlord believes on reasonable grounds that the tenant will cause substantial damage to the premises if the tenant is permitted to remain for 14 days; or

(b)       It is necessary for the conduct of the landlord's business where the tenant was employed that a replacement employee be  appointed  within  less  than  14  days  and  no  suitable

alternative accommodation is available for the replacement worker during the period of 14 days.

…

Analysis

[29]     It is not disputed that Mr Murray intended to damage property under s 11(1) of the Summary Offences Act.  The issue is whether he had a lawful justification or a claim of right under s 11(2).

[30]     The current definition of a “service tenancy” in the Residential Tenancies Act makes specific reference to a tenant as a contractor.  However, this definition was only in place from 1 October 2010.  Prior to that, the definition made no reference to a tenant as a contractor.  The tenant could only be an employee of the landlord.  It is this definition that applied at the time Mr Murray was engaged by Mr Wheeler.

[31]     The  agreement  between  Mr  Murray  and  Mr  Wheeler  clearly  referred  to Mr Murray as a “private contractor”.  Therefore, their arrangement did not fall under the definition of a “service tenancy” under the Residential Tenancies Act.

[32]     However, that does not mean that the agreement had no legal status.  It was simply one to which the Residential Tenancies Act did not apply.   The agreement between Mr Wheeler and Mr Murray was that in return for Mr Murray carrying out a manager’s role in the premises, he could live there rent free. The agreement could be terminated on Mr Wheeler giving Mr Murray “reasonable notice”.  In my view, the agreement was legally binding on each of them.

Claim of right

[33]     Mr Murray says that the District Court Judge did not give due consideration to his claim of right.

[34]     A claim of right is defined in s 2 of the Crimes Act 1961 as:

claim of right, in relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence

is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed

[35]     The key requirements of the claim of right defence are set out in Ah’sam v Police HC Christchurch CRI-2010-409-231, 23 March 2011 at [19].  To establish a claim of right, Mr Murray’s belief that he was entitled to do the act must have been held at the time of the act.  Further, that belief must be genuinely held, though it need not be a reasonable belief.   However, the reasonableness of the belief will be of evidential significance on the issue of whether it was genuinely held.

[36]     The respondent submits that the question of whether Mr Murray genuinely believed  that  he  was  legally  entitled  to  damage  the  manager’s  residence  is  a credibility issue that the trial Judge had to determine.

[37]     However, the Judge’s assessment of this question may have been influenced by his failure to make specific findings on whether Mr Murray had any legal right to enter the premises, and if so whether this gave rise to a legal right to force entry of the premises.   Instead of making findings on whether Mr Murray had a right to occupy the premises, or for that matter a right to enter in order to recover his possessions, the Judge simply formed the view that the nature of the damage that Mr Murray carried out was so excessive that no claim of right or lawful justification was established.  The difficulty with this approach is that, as was found in Ah’Sam, the reasonableness of the belief can influence the Court’s view on whether it is genuinely held or not.   If Mr Murray was legally right in believing that he was entitled to re-occupy the premises, the reasonableness of this belief should have been taken  into  account  when  Judge  Joyce  came  to  determine  if  Mr  Murray  held  a genuine belief that he was entitled to force entry into the premises in the manner that he did.

[38]     Judge Joyce referred to  Mr Wheeler having given Mr Murray 48 hours’ notice and then to this being extended to one week’s notice.  However, because the Judge did not rely on the termination of the agreement for finding that Mr Murray had no legal right or lawful justification to break into the premises, the Judge did not describe the extension in a way that would allow me to reach a view on whether the

extension warranted legal recognition.  In the end, I have concluded that 48 hours’ notice  was  not  reasonable.    Not  enough  was  said  in  evidence,  or  found  by Judge Joyce regarding the extension from 48 hours to one week’s notice for me to be able to determine if this extension was properly given and whether it had run its course before Mr Wheeler re-occupied the premises.

[39]     Because Judge Joyce was of the view that nothing justified the actions of Mr Murray, the Judge paid no regard to Mr Murray’s evidence that he did not believe Mr Wheeler’s note that he had removed all of Mr Murray’s possessions from the premises.  In this regard, Mr Murray’s evidence was that he had entered the premises to see what had become of his possessions.  Whilst Mr Wheeler had placed a note on the entrance door saying he had removed Mr Murray’s possessions, Mr Murray’s evidence was that he did not believe what the note stated, hence his entry onto the premises.

[40]     I am satisfied that, in principle, Mr Murray’s occupation of the premises may not have been legally terminated and that Judge Joyce made no proper finding on this topic.   I consider, therefore, that until the agreement between Mr Murray and Mr Wheeler  was  found  to  have  been  lawfully  terminated,  the  question  of  the reasonableness of Mr Murray’s belief that he was entitled to enter onto the premises could not properly be addressed.  This in turn hampered the Judge’s consideration of whether Mr Murray held a genuine belief that he could forcibly enter the premises.

[41]     Further, as Judge Joyce made no finding on Mr Murray’s evidence that he entered the premises to  see if his chattels  were still there, it is not possible to determine if Mr Murray’s conduct in this regard was reasonable.  Once again, this omission by the Judge hampered his consideration of whether Mr Murray genuinely believed that he was entitled to force entry onto the premises.   The common law right of recaption of chattels permits an owner of chattels to enter onto another’s land for the purpose of recovering chattels if the chattels are present on the property through the unlawful action of the land owner: see Stephen Todd (ed) The Law of

Torts in New Zealand (6th  ed, Brookers, Wellington, 2013) at 9.2.06(3).   So, if

Mr Wheeler had unlawfully entered the premises in breach of the agreement with

Mr Murray, then insofar as Mr Murray genuinely believed his chattels remained on

the premises, he would under the right of recaption be entitled to enter the premises to attempt their recovery.  However, he would only have been able to use reasonable force to enter and recover the goods: Todd at 9.2.06(3).  I am satisfied, therefore, that Judge Joyce should have expressly addressed: (a) Mr Murray’s evidence regarding his entering the premises to see if the chattels were still present or not; and (b) determined if Mr Murray was exercising his legal right of recaption.

[42]     The more important question, however, is whether it would have made any difference to the outcome of the defended hearing if Judge Joyce had taken the matters  that  I consider  relevant  into  account.   The Judge was  of the view that Mr Murray’s actions were excessive and that other more reasonable means existed by which he could have obtained entry to the premises.  Here, the Judge referred to Mr Murray taking urgent legal action, or even calling the services of a locksmith to obtain entry to the premises.  In this regard, the Judge was faced with photographic evidence of the damage that was done to the premises, as well as the evidential statement of the deceased, Mr Hogarth.  The legal rights of re-entry that I consider may have been available to Mr Murray, and which Judge Joyce did not explore, would only have permitted Mr Murray reasonable access to the premises.  However, their existence could provide a solid foundation for Mr Murray when it came to his claim of right, as they would support Mr Murray having a genuinely held belief that he could make the forced entry that he did.

[43]     There were two doors leading to the premises. The first door gave access to a vestibule in which there was a second door which gave direct access to the subject premises.  Both doors were comprised of glass panes.  Mr Wheeler had changed the locks on both doors.  The doors were subject to such force that some of the glass panes of both doors were broken.  The Judge found (at [31]) that whilst Mr Murray had told the police at an interview that he had pushed the doors, during the course of giving evidence in the defended hearing he admitted to having “kicked the doors”, which was consistent with Mr Hogarth’s evidence about what had occurred.  Then at [45], the Judge found that Mr Murray had “totally lost it” and that this was borne out by the police photographs of the damage to the doors.

[44]     So, whilst Judge Joyce was wrong insofar as he omitted to consider the relevant legal issues that I have identified, his decision ultimately hinged on the finding that excessive force was used and that Mr Murray could not genuinely have believed such force was justified.

[45]     The  question  for  me  to  determine,  therefore,  is  whether  a  finding  that Mr Murray did have legal rights to re-enter the premises would have made any difference to Judge Joyce’s decision that Mr Murray did not genuinely believe he was entitled to use the degree of force that he did use.

[46]     The  photographs   of  the  damage  confirm   Judge  Joyce’s   finding  that significant force was applied to the two doors.  Further, there was no evidence that Mr Murray urgently required access to the premises.  So the use of a locksmith to gain access would have been the better approach.

[47]     Mr Murray gave evidence that he believed he had a tenancy arrangement that was subject to the Tenancy Tribunal and that he believed the cost of repairing the damage he caused in gaining entry to the premises could be sorted out before that Tribunal as part of his complaint against Mr Wheeler.

[48]     Judge Joyce found that Mr Murray could not have believed that he had the right  to  force  entry onto  the  premises  in  the  way that  he  did:  see  [44]  of  the judgment.  But this finding was made without the Judge first properly addressing the legality of the termination of the agreement between Mr Murray and Mr Wheeler and Mr Murray’s rights of recaption regarding the entry to see if his chattels had in fact  been  removed.    I  consider  that  the  Judge’s  failure  to  address  those  legal questions left him in a position where he could not properly determine Mr Murray’s claim of right to enter the premises by force.  Those legal entitlements could have provided a foundation to establish that Mr Murray had a genuinely held belief that in the circumstances that  he faced, a  forcible entry of the type that he made was permissible.  Particularly, as Mr Murray said he expected that he and Mr Wheeler would be before the Tenancy Tribunal and their respective monetary claims against each other could be resolved in that forum.  Mr Murray was legally wrong about the

scope of that Tribunal’s jurisdiction, but that error does not necessarily undermine the genuineness of his belief in this regard.

[49]     Whether, given all the circumstances as I have found them to be, Mr Murray could be said to have genuinely believed that he could use the amount of force that he did use to access the premises is something that an appellate court is not equipped to determine.  I consider, therefore, that the appropriate outcome for the appeal is to refer it back to the District Court for rehearing in accordance with the law as I have found it to be regarding: (a) the legality of the agreement between Mr Wheeler and Mr Murray; (b) the termination of that agreement; and (c) Mr Murray’s right to enter on to the premises, either to occupy them or for the purposes of ascertaining if his chattels were being detained thereon.

[50]     The findings I have made make it unnecessary for me to determine the other grounds of appeal against conviction or the appeal against sentence.

Result

[51]     The appeal against conviction is allowed.  The matter is referred back to the

District Court for rehearing.

Duffy J