O'Byrne v The King - [2025] NZHC 1471

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-247

[2025] NZHC 1471

BETWEEN
ROGER WILLIAM O’BYRNE

Appellant

AND

THE KING

Respondent

Hearing: 29 May 2025

Appearances:

H A Evans and V P Kenworthy for Appellant G J Barrett for the Crown

Judgment:

5 June 2025

JUDGMENT OF OSBORNE J

[on sentence appeal]

Introduction

[1] Roger O’Byrne (aged 73) was sentenced by Judge B P Callaghan on 11 September 2024 on a charge of wilful damage—1an offence2 of which he had been convicted following trial.3 The offending involved excavating a large trench across his victim’s driveway during heavy rain to enable flood water to flow off Mr O’Byrne’s land. The Judge imposed a sentence of “actual reparation” of $4,221.37 and emotional harm reparation of $1,000, together with court costs.

1      R v O’Byrne [2024] NZDC 32326.
2      Summary Offences Act 1981, s 11(1)(a)—maximum penalty: three months’ imprisonment or a fine not exceeding $2,000.
3      R v O’Byrne [2024] NZDC 5720.
O’BYRNE v R [2025] NZHC 1471 [5 June 2025]

[2] Mr O’Byrne, by his notice of appeal, appeals both the actual reparation and the emotional harm reparation orders. His grounds of appeal, however, focused on the actual reparation order, asserting:

(a)there was insufficient evidence to support a reparation figure of
$4,221.37;

(b)the complainant ought to have had adequate drainage on her property;

(c)the reparation order, in covering the cost of new drainage, involved an element of betterment that the appellant should not have been required to pay for.

Factual background

[3] Mr O’Byrne and the victim are neighbours in rural North Canterbury. On 13 February 2022, there was cyclonic rain causing substantial flooding through the district. Mr O’Byrne drove a digger through a gate adjoining the victim’s driveway and used it to dig a trench across the victim’s driveway. This was in an effort to alleviate what he said were flood waters on his property which were threatening a portion of his crops.

[4] The victim tried to stop Mr O’Byrne by standing in front of the approaching digger, but Mr O’Byrne continued to drive forwards onto the victim’s driveway. A confrontation between Mr O’Byrne and the victim ensued, which was filmed by Mr O’Byrne’s son.

[5] The digging of the trench left the victim’s driveway inoperable until urgent repairs were carried out the following day (resulting in an invoice of $1,127.29).

[6] Two weeks after the incident, Mr O’Byrne issued an invoice to the victim in which he purported to charge her $210 for two hours’ work with his digger.

[7] Subsequently, the victim had permanent repairs effected on the driveway (resulting in an invoice of $3,094.08).

Victim impact statement

[8] The victim (65 years of age) described her ongoing anxiety caused by the large digger being relentlessly driven towards her—Mr O’Byrne appeared to her as an implacable and hostile driver. The victim watched as Mr O’Byrne destroyed part of her driveway and swept away the fences on either side, whilst…

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 O'Byrne v The King

Details

AGLC: O'Byrne v The King [2025] NZHC 1471
Case: [2025] NZHC 1471
Decision Date: 5 June 2025

CaseChat Overview and Summary

The case of O'Byrne v The King is an appeal against a sentence imposed by Judge B P Callaghan on Roger O'Byrne for wilful damage to a neighbour's property. O'Byrne excavated a trench across his neighbour's driveway to divert floodwater from his land, causing substantial damage. He was sentenced to pay reparation for the damage caused. O'Byrne appealed the reparation order, arguing that the amount awarded was excessive and included elements of betterment not caused by his actions. The High Court considered the arguments and evidence presented and determined whether the District Court had erred in imposing the reparation order.

The key legal issues in this appeal were whether the reparation order was excessive and whether it included elements of betterment that O'Byrne should not have been required to pay for. The Court had to consider the evidence and submissions on the appropriate level of reparation, including whether the victim's installation of new pipes constituted an unnecessary improvement or betterment. The Court also considered whether O'Byrne had discharged the onus of proving that the reparation order involved betterment.

The Court held that O'Byrne had not established that the District Court had erred in setting the amount of reparation. The Court found that the victim had discharged the onus of proving the presence and quantum of her costs, and O'Byrne had failed to provide admissible evidence to establish that the reparation order involved betterment. The Court concluded that the District Court was entitled to proceed on the basis of the information provided by the victim, which indicated that the full amount had been necessary to repair the damage to the standard it was before. The appeal was dismissed, and the reparation order remained in place.

The final orders of the Court were that the appeal against the reparation order was dismissed. The reparation order requiring O'Byrne to pay $4,221.37 for the damage caused to his neighbour's driveway remained in effect.

Orders