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…

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 Murray v Police

Details

AGLC: Murray v Police [2014] NZHC 2123
Case: [2014] NZHC 2123
Decision Date: 4 September 2014

CaseChat Overview and Summary

Walter Phillip Murray appealed his conviction and sentence for wilful damage against the New Zealand Police. The District Court found Murray guilty of damaging the manager's residence by kicking in two doors, breaking three windows, and damaging a door-frame. Murray argued that he had a lawful justification or claim of right for his actions, and that his former counsel failed to follow his instructions. The High Court found that the District Court did not properly address the legal issues surrounding Murray's claim of right and the legality of the termination of the agreement between Murray and the landlord. The Court concluded that the District Court should have considered whether Murray had a legal right to re-enter the premises and the reasonableness of his belief that he was entitled to forcibly enter the premises. The appeal against conviction was allowed, and the matter was referred back to the District Court for rehearing in accordance with the High Court's findings on the legality of the agreement, the termination of that agreement, and Murray's right to enter the premises. The Court did not need to determine the other grounds of appeal against conviction or the appeal against sentence.

Orders