P v Police HC Christchurch Cri-2010-409-59

[2010] NZHC 1566

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000059

O

Appellant

v

POLICE

Respondent

Hearing:         26 August 2010

Appearances: M Callaghan for Appellant

K Bell for Respondent

Judgment:      9 September 2010

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1] Mr O was charged with two offences of depositing litter under s 15 of the Litter Act 1979.

[2]      The charge reads that he “deposited litter, namely vegetation and wire, on private land without the consent of its occupier.”

[3]      Mr O   defended the charges, and following a hearing two Justices of the

Peace dismissed one of the charges and convicted and discharged him of the other.

O V POLICE HC CHCH CRI-2010-409-000059  9 September 2010

[4]      On appeal, Mr O   now seeks to overturn the conviction.

[5]      Absence of consent is an element of the offence and the grounds of appeal focus on consent. Mr O   contends it was never established beyond reasonable doubt there was no permission in existence at the time he deposited the slash and/or that it was never established beyond reasonable doubt he did not have an honest belief he had the consent of the occupier.

Factual background

[6]      The prosecution was brought against the background of an ongoing dispute between Mr O   and his neighbours, Mr and Mrs Kraak, about overhanging trees, cuttings and an easement.

[7]      The evidence established that about six years ago a macrocarpa hedge on Kraak-occupied land had been cut.  Mr O   was aggrieved because slash was left on his driveway, and also because during the cutting process the top single strand wire of his fence was broken.  Then, when the slash was eventually cleared, some of it was jammed down behind a sheep wire boundary fence, with the result that the sheep wire was damaged and some became enmeshed in the slash.

[8]      At the time of the macrocarpa hedge cutting, the sheep wire boundary fence was the joint property of the O’Byrnes and the Kraaks.  During the intervening six years however, the land which the Kraaks occupied was subdivided which meant that as at 2009 the land on which the macrocarpa slash was being stored was owned and occupied by someone else. The Kraaks now occupy a smaller piece of land but still containing the macrocarpa hedge.

[9]      It was common ground there were three separate occasions in 2009 on which

Mr O   deposited cuttings on the Kraak property.

[10]     The  first  occasion  was  in  March  2009  when  wattle  tree  cuttings  were deposited on the Kraak driveway making it impossible for Mrs Kraak to drive her car.

[11]     The second deposit was on 30 July and the third on 1 August.  Only the 30

July and 1 August incidents were the subject of criminal charges. They both involved deposits of macrocarpa slash from the cutting that had taken place six years earlier.

[12]     The 30 July incident was the charge on which Mr O   was found guilty. Mr O   dumped what was described in evidence as a “ball” of macrocarpa on the Kraaks’ property. Both Mr and Mrs Kraak said the deposit had wire wrapped around it.  Mrs Kraak said it was sheep wire.   Mr Kraak said it was just ordinary wire, and that there may have been sheep wire, he couldn’t recall. Reading the transcript it is difficult to determine whether in saying this Mr Kraak was referring to

30 July or 1 August.

[13]     The second charge, on which Mr O   was acquitted, arose out of an incident two days later, on 1 August 2009, when he again dumped macrocarpa cuttings and wire on the Kraak-occupied property.

Discussion

[14]     In their decision, the Justices say they accept Mr O   had permission to dump  the  macrocarpa  slashings  even  though  they  had  been  cut  some  years previously.   The reason for this finding is not expressly articulated.   However, it appears to be based on the commonly understood convention that cuttings may be returned to the property from where they came. The Justices quote from a document described as a Neighbourhood Support New Zealand Fact Sheet:

Where roots encroach or branches overhang onto a neighbour's property, the law also allows a "self help" remedy to put right the nuisance caused. The neighbour can cut off the encroaching roots or branches at the boundary, in order to "abate" the nuisance caused by the tree. Any branches that are cut off must however be returned to the neighbour, as they remain the property of the person that owns the tree.

[15]     After quoting the convention, the Justices go on to state that in their view

“the sheep wire” put on the Kraaks’ property did not come under the convention.

[16]   The Justices conclude by saying “Mr O   may or may not have intentionally included the sheep wire, nevertheless it was dumped over the fence

with slashings, and therefore in this Court’s opinion constitutes litter.  For this reason we find the charge proved.”

[17]     The  evidence  established  however  that  there  was  wire  contained  in  the deposits on both days and as I have mentioned the Justices only convicted on the 30

July  charge.   Unfortunately,  the  Justices  do  not  explain  how  or   why  they distinguished between the two charges.

[18]     There are two possibilities.

[19]     The first arises from certain comments made in the final paragraph of the decision, where before announcing the outcome the Justices express the view that both parties were at fault.  The comments could suggest the Justices decided in effect it should be a draw and the honours evenly divided by convicting on  one and acquitting on the other.

[20]     If that was the reasoning, it would not however be a proper legal basis for finding one charge proven and the other not.

[21]     Another possible justification for the distinction is that there was evidence of express permission being given on 1 August but not 30 July.

[22]     The evidence established that at the time of the 1 August incident Mr Kraak saw what was about to be deposited on his property (which must have included  any wire) and gave express permission.  He later withdrew permission, but conceded that after it was withdrawn Mr O   did not deposit any more material.

[23]     In the case of the 30 July deposit, there was no express permission and accordingly any consent would have had to have been implied consent derived from the convention.

[24]     The issue then becomes whether the wire was covered by the convention.

[25]     As I have mentioned, the Justices held the wire was outside the scope of the convention. However they do not  explain why they reached that conclusion.  In

particular it is unclear whether they thought the wire was outside the scope of the convention because it was not organic material or because they considered the wire was not the property of the Kraaks, the land on which it was located now being owned by someone else.

[26]     Nor do the Justices address the conflict in the evidence as to whether the wire was wrapped around the deposits as the Kraaks claimed (a claim supported to some extent by a police officer) or inextricably enmeshed in it as Mr O   claimed.  If it was the latter, then as a matter of common sense, it is difficult to accept the convention should not apply especially given that the wire (if it was enmeshed) had only become so as a result of the cutting and storage operation.

[27]     To further complicate matters, it is unclear from the evidence which type of wire  was  enmeshed  or  wrapped  around  the  clippings,  and  on  which  day –  i.e. whether on 30 July it was the single strand wire that had always belonged to Mr O  , or whether it was the boundary fence sheep wire that at one time was jointly owned by the Kraaks.

[28]     The Kraaks appear to have given contradictory evidence on that issue.

[29]     Mr  O  ’s  subjective  understanding  of  the  convention  was  that  if someone else’s material is on your side of the fence then it can be dumped over their side of the fence.  He accepted that only related to material that came from the other person’s property which would exclude the single strand wire.  The sheep wire was no longer part of the Kraak property, but Mr O   considered it came within the terms of the convention because it belonged to them at the time it was damaged several years earlier.

[30]     The Justices talk only of sheep wire and do not address the possibility of there being other type of wire as raised by both Messrs Kraak and Mr O  . Their comment that Mr O   may or may not have intentionally included the sheep wire is also difficult to understand because the evidence clearly established he knew the wire was there.  In their analysis of the evidence, the Justices also appear to

have confused the first deposit involving the wattle cuttings (never the subject of any criminal charges) with the 30 July incident.

[31]     The failure of the Justices to address these various issues is understandable. The evidence was confused and confusing.

[32]     However, I have come regrettably to the conclusion that in the absence of findings on these critical issues, the conviction cannot stand.  I am unable to fill the gaps  and  given  the  relatively  minor  nature  of  the  charge  a  re-hearing  is  not warranted.

[33]     The outcome of the appeal is therefore that the appeal is allowed and the conviction is quashed.

[34]     I would like to conclude by making two observations.

[35]     The first is that this decision should not be considered authority for the proposition that although the offence is one of strict liability, proof of an absence of honest belief in consent is required.  It has not been necessary for me to determine that issue because I am satisfied there would have been implied consent arising from the convention if the wire was sheep wire and if it was inextricably enmeshed in the slash.

[36]     The second observation relates to the conduct of the parties.   While Mr O   may have won this appeal, it would be wrong to regard it as vindication. Aspects of the evidence did not reflect well on him.  I agree with the Justices there was fault on both sides.  Like the Justices, I too would urge the parties to try and resolve their differences.

Solicitors:

M J Callaghan, Christchurch

Crown Solicitor’s Office, Christchurch