P v Police HC Whangarei CRI 2007-488-22

[2008] NZHC 634

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2007-488-0022

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 May 2008

Appearances: K C Bailey for Appellant

N J Dore for Respondent

Judgment:      6 May 2008

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Whangarei

P V POLICE HC WHA CRI 2007-488-0022  6 May 2008

[1]       P   appeals his conviction and sentence in respect of two offences on 12 January 2005 at Awanui: trespass and following knowing that this was likely to intimidate.

[2]      The case was heard over three days, 5 October 2005, 8 March 2006 and 24

July  2006.  The  Judge  gave  his  decision  on  31  August  2006.  Mr  P    was convicted of the two offences on 8 September 2006 and on 31 January 2007 fined for each offence $350.  On this appeal, which appears to have been brought out of time but as to which there is no issue, Mr P  ’s principal point is that the prosecution took such a protracted and interrupted path that there can be little confidence, objectively speaking, in the Judge’s decision to convict him.

[3]      Mr P   takes three other points as to the offences themselves. One is that the trespass charge was so imprecise as to where the trespass happened that he was misled in his defence. He also questions whether the person who ordered him off had authority. As to the intimidation offence, he contends, he was not following in the sense required. The first of these points has merit, as counsel for the police fairly concedes. But these points are secondary. The principal point as to the objective safety of the Judge’s decision is where I must begin.

[4]      In embryo this was a simple case. It could perhaps,   had Mr P   been represented, have been completed in half a day. It became complex because Mr P  ,  unrepresented,  conducted  his  own  defence  and  exchanges  between  the Judge and Mr P   as to the scope of the case largely explain the length of time that it eventually took.

Context

[5]      In January 2005, Mr P   and Mrs Whitehead, the person whom he has said to have intimidated, were neighbours. Each had some right or duty in respect of a shared right of way. They differed as to the right of way and more generally. They were completely at arms length. That came to a head on 12 January 2005.

[6]      The case against Mr P   was firstly that he came to Mrs Whitehead’s property when she was to the front part of it with Keith Fryer, a plumber who had just accidentally driven over one of her dogs, and they were burying the dog. Mr P   was said to have entered her property, which he denied doing, and also to have been highly abusive to her.

[7]      The second aspect of the case began when Mrs Whitehead and Mr Fryer, after having taken perhaps half an hour to have a cup of tea in her home, then left her property to go to another, the Boyce property, further down the right of way, that had recently been sold. Mrs Whitehead had the keys. Mr Fryer was to fix the pump.

[8]      The case against Mr P   was that as Mrs Whitehead and Mr Fryer walked down the right of way Mr P   followed them and when they entered the Boyce property he did too. Mr Fryer warned Mr P   off, in part because he had entered at all, and in part because he and Mr P   had given each other undertakings to keep away from each other. Despite that warning, the case was, and knowing that, by following Mrs Whitehead and coming up to her, he would intimidate her, Mr P   persisted. He remained on the property. Indeed he came up close to Mrs Whitehead and thrust a letter at her.

[9]      Mr P   denied following Mrs Whitehead and Mr Fryer down the right of way or entering the Boyce property. He maintained that he left the letter at the fence. He called his partner, Ms Urlich, who was at their house some distance away, to confirm that she witnessed this using binoculars.

[10]     In his decision the Judge accepted the evidence of Mrs Whitehead and Mr Fryer,  and  that  of  a  police  constable  to  the  extent  that  it  was  consistent.  He disbelieved Mr P   and Ms Urlich. His view of Mr P  ’s culpability is reflected in the fines that he imposed that was more than nominal.

Objective safety of decision

[11]     The principal point that Mr P   takes on this appeal is that his conviction

for these two offences, objectively speaking, cannot be safe. It rested on the Judge’s assessment of credibility as to a relatively confined incident relying on evidence received on three separate days over nine months.  The Judge, Mr P   says, was placed in an impossible position.  His convictions ought not to stand.   In this, Mr P   relies on Caie v Police (HC Auckland, CRI 2004-404-000-535, 1 July 2005) Simon France J.

[12]     The Caie case, which also turned on credibility, occupied eight sitting days over 14 months.   One concern was that the sheer passage of time meant that the Judge’s assessment of the early critical prosecution witnesses had become remote. Whereas his assessment of the defence witnesses would still have been fresh in his mind.   In that case that could have favoured the prosecution.   Another was that witnesses did not all give their evidence uninterrupted. There were gaps of months between one part of their evidence and another. The predicament that placed the Judge in, Simon France J considered, was unenviable, especially as in the gaps he would have been preoccupied with many other matters. Simon France J quashed the conviction on the basis that it could not be objectively safe.

[13]     This case, as counsel for the police points out, is less extreme. The case, once commenced, nine months after the incident itself, was accomplished in nine, not 14, months.  There were three fixtures as opposed to eight.  Each witness completed his or her evidence within a single day. The fact remains that the risks that concerned Simon France J arise here as well, if perhaps less extremely, and there are also other causes for concern.

[14]     One is that the protracted course this hearing took was preventable. The case was first called on 15 June 2005, six months after the incident. It was not then embarked on. Mr P   identified 45 potential witnesses. The Judge that day, not the Judge who eventually heard the case, considered it important that Mr P   obtain legal advice.  He thought a case management hearing desirable to identify the issues, to fix the scope of the evidence relevant, to identify the witnesses to be called, and to allocate an adequate fixture. Even then, he estimated that a fixture of up to two days was required.

[15]     A one day fixture was given for 5 October 2005 and it seems that it was not a full day. Only the first of the police witnesses, Mrs Whitehead, gave her evidence that day.  The next fixture was five months or more later, on 8 March 2006. A further fixture was called for four months after that on 24 July 2006.   Yet it should have been evident from 15 June 2005 that a fixture of up to two days was called for and, on the first day, 5 October 2005, that at least two more were required.

[16]     Also of concern is that between fixtures a transcript of evidence was not made.   Transcripts may normally only be prepared for the purpose of an appeal. When, however, there is to be a significant gap between one part of a part-heard case and another it is not unknown for a transcript to be completed and that was highly desirable. The result was that on the second and third days, Mr P  , the prosecutor, and the Judge were reliant on whatever notes they might have made. More importantly, when he came to give his decision, the Judge was entirely reliant on his note and memory, neither of which over the space of nine months could have been expected to be completely accurate.

[17]     An adverse effect of the absence of a record, Mr P   contends, lies in this, that when he came to give his evidence in his own defence, the Judge assisted him, sometimes referring, presumably from his own note, to some feature of the evidence given on the earlier two days. He was, he complains, constrained.

[18]     That Mr P   might have been constrained as he says is quite likely.  But that, in a larger sense, was a difficulty inherent in the case. From the first Mr P   saw the case in much larger terms than the law recognises. The Judge was obliged to keep it within a proper scope. The result was, regrettably, that the evidence was very frequently punctuated by exchanges between Mr P   and the Judge.  It was given less coherently and perhaps completely than is desirable.  The exchanges dominated. The Judge became drawn into the arena. That made the Judge’s ultimate task even more onerous.

[19]     These factors, to my mind, converge in this conclusion, that this is one of those rare cases where, however it came about, the objective safety of the Judge’s decision has to be open to question. It points also to a systemic problem of real

difficulty. Where an outlying Court sits only occasionally, and where especially there is a litigant in person, a fixture adequate to the case, both objectively and allowing for the litigant in person, needs to be given at the outset. A day here and a day there can result in the order of difficulty experienced in this case.

[20]     Where, furthermore, a fixture proves inadequate the Judge needs to ensure that the next fixture will be adequate and consider whether to obtain a transcript. And if the next fixture is likely to be well into the future the Judge will need to consider whether that might affect the objective safety of his or her decision. In an extreme case the lesser evil may be to abort the hearing. To have the case set down before another Judge at a single adequate fixture. Hopefully, that would be rare.

Remaining issues

[21]     The trespass conviction is, I consider, infirm independently. The charge was not particular as to where Mr P   trespassed. It did not identify the property. It said that he was warned off by Mr Fryer, who was neither an occupier of Mrs Whitehead’s  nor  the  Boyce  property,  so  no  clue  lay  there.  The  confusion  that resulted was real. As late as the second day even the Judge thought the focus of was on Mrs Whitehead’s property. Yet in his decision he found Mr P   culpable of trespass on the Boyce property.

[22]     The other deficiency eroding that conviction is as to Mr Fryer’s status. The Judge found him to be an employee of Mrs Whitehead. His own evidence was that he was a contractor engaged by absent owners. In Polly v R [1984] 1 CRNZ 426, CA the Court of Appeal held that a person in actual occupancy is the occupier entitled to give the warning. Whatever Mr Fryer was, it is unlikely that he was an occupier in that sense.

[23]     Finally, Mr P   contends, the Judge should not have concluded that he followed Mrs Whitehead with intent to intimidate her. That, to my mind, lacks cogency.  When Mrs Whitehead and Mr Fryer went down the right of way to the Boyce property Mr P   was not far behind. He came after them with intent to give Mrs Whitehead the letter. On any understanding of “following” that is what it

was. It was purposeful.  The Judge was entitled to conclude that, given especially what had happened scarcely half an hour before, Mr P   would have known that Mrs Whitehead would have found this intimidating.

[24]     Returning to the principal point taken for Mr P  , however, I consider that  neither  conviction  can  be  regarded  as  objectively  safe.  Also  that  any  risk inherent in the protracted and interrupted form the hearing took was avoidable and Mr P  , no matter how self indulgently he saw his case, ought not to bear the

risk. The convictions will be set aside. There will be no rehearing.

P.J. Keane  J