P v Police HC Whangarei CRI 2007-488-63

[2008] NZHC 382

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2007-488-0063

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         18 March 2008

Appearances: Appellant in person

M Smith for the respondent

Judgment:      27 March 2008

JUDGMENT OF STEVENS J

This judgment was delivered by me on Thursday, 27 March 2008 at 3pm pursuant to r 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, PO Box 146, Whangarei

Copy to:

D P  , Waima School Road, R D 3, Kaikohe

P V NZ POLICE HC WHA CRI 2007-488-0063  27 March 2008

[1]      This is an appeal against conviction by P  , the appellant, on a charge of criminal nuisance arising under s 145(1) of the Crimes Act 1961.   The appellant was convicted following a defended hearing in the District Court at Whangarei before Judge K B de Ridder.  The Judge’s reasons for his decision are contained in an oral judgment dated 4 September 2007.   The appellant was fined

$500 and ordered to pay court costs of $130.

[2]      The appellant has advanced various grounds contending that the decision is erroneous  in  fact  and  law.    Most  of  the  submissions  relate  to  factual  matters canvassed by the Judge in the course of his reasons for convicting the appellant of the charge.

[3]      The appellant, who represented herself, raised additional points during her oral submissions at the hearing.  These will be referred to later in this judgment.  For the reasons set out below, the appellant has failed to sustain any of the grounds of appeal.  The appeal must therefore be dismissed.

Statutory context

[4]      Section 145 of the Act provides:

(1)   Every one commits criminal nuisance who does any unlawful act or omits to discharge any legal duty, such act or omission being one which he knew would endanger the lives, safety, or health of the public, or the life, safety, or health of any individual.

(2)   Every one who commits criminal nuisance is liable to imprisonment for a term not exceeding one year.

[5]      The “unlawful act” relied on in the information concerns the opening and leaving open of a boundary gate, knowing that such an act would endanger the safety of the public.  This constitutes an offence against s 58(2)(c) of the Impounding Act

1955, which provides:

(2)   Every such person is liable to a fine not exceeding [$100] who—

…

(c)   Wilfully leaves open any gate or slip panel, or makes a gap in any fence,  for  the  purpose  of  permitting  or  causing  any  stock  to trespass or to stray or wander on to any road or otherwise wilfully causes any stock to trespass or to stray or wander on to any road;

…

Factual background

[6]      The charge relates to an incident that occurred on 19 February 2007.   The appellant opened a “Taranaki gate” on a property where the complainant, Mr Pehi, was grazing eight steers.  The gate was approximately 300 metres away from State Highway 12, down what was apparently a private road.  No stock escaped onto the road.

[7]      Issues as to the ownership and status of the land were traversed in the hearing but were not considered by the District Court Judge to be relevant to the charge.  The Judge  instead  focused  on  the  elements  of  the  offence  and  the  facts  that  the prosecution was required to establish to prove the charge, including the whereabouts of the steers on the property and the appellant’s state of mind at the time she opened the gate.

[8]      The complainant’s evidence was that the steers were near the gate at the time the appellant opened it.   When she was approached, the appellant swore at the complainant and screamed at him to get the stock out of there.  The appellant, for her part, did not dispute that she opened the gate, but she maintained that the steers were on the property illegally.  She stated that she opened the gate to entice the stock off the property, as she intended to move the stock to a “neutral area” which was part of a local Marae.  The appellant argued that she had no knowledge that the opening of the gate would endanger the public.  She was not concerned about the stock escaping from the property, because they were some distance from the gate.

[9]      After  reviewing  the  facts,  Judge  de  Ridder  accurately  summarised  the elements of the offence required to prove the charge.  He stated at [4] that:

The prosecution has to prove beyond reasonable doubt that the defendant committed an unlawful act and that in doing so she knew that it would endanger the lives, safety, or health of the public.  Of course the onus is on the informant to prove those matters beyond reasonable doubt.   The first issue is whether the defendant has committed an unlawful act.   Section

58(2)(c) of the Impounding Act 1955 provides that every person is liable to a fine who wilfully leaves open any gate for the purposes of permitting or

causing any stock to trespass or to stray or wander onto any road.   If the

defendant  has  in  fact  committed  that  offence  then  of  course  she  has committed an unlawful act for the purposes of s 145 [of the Crimes Act].

[10]     Next, the Judge summarised the evidence from the witnesses and noted that there was a clear conflict in the evidence.  He stated at [7] that:

…it is a question of whether or not I am satisfied that there is sufficient evidence from which I can draw the inference that indeed the defendant did wilfully leave open the gate for the purpose of permitting the stock to stray or to wander onto the road or whether, as she has it, her intention was to simply shift the stock from what she regarded as being an illegal occupation to a neutral area – I understand that to be a local Marae – and there was some evidence in support of the defendant’s position from a Mr Taohari who said that the practice in the Waima area is to move stock onto the Marae that does not belong on the owner’s property because pasture is scarce and stock are moved onto a common area if they do not belong on the property on which they are found.

[11]     The Judge resolved the issue of credibility in favour of the complainant.  He stated at [8] that:

In assessing the evidence I had the ability to observe both the complainant and the defendant in giving their evidence.  It appeared to me that Mr Pehi was telling matters as he saw them and I prefer his evidence to that of the defendant.  The defendant clearly had issues with firstly, the complainant’s occupation of the property, secondly with the existence of the stock on the property and finally, I accept that she was abusive to the complainant and spoke to him in the way in which he said, that is to the effect to get the stock off the property, and she carried through on that request by opening the gate with the intent that the stock would get out of the property and thereby achieve her intent.  I am quite satisfied that the defendant wilfully opened the gate with the express purpose and intent of having the stock get out of that property and wander onto the road.

[12]     On the issue of knowledge of danger to the safety of the public, the Judge concluded at [9] that:

…I am satisfied that the defendant knew that in committing that unlawful act it would endanger the lives, safety or health of the public.   Equally I am satisfied that the defendant knew full well, because of her local knowledge of the area which she explained in evidence, that stock escaping onto the road would endanger the safety or health of the public in that the stock would be left free to wander either on the road immediately outside that property or furthermore down onto State Highway 1, which was only a short distance away and therefore exposing the public to the risk of collision with their motor vehicles with the stock.

[13]     Accordingly, he was satisfied that the necessary elements of the charge had been made out.  He found the charge proved.

Grounds of appeal

[14]     The  appellant  raised  three  points  in  her  notice  of  appeal.     First,  the complainant Mr Pehi was not legally entitled to occupy the property at issue and was consequently trespassing.   Second, the Judge was wrong to conclude that the appellant verbally abused the complainant; and third, the prosecution’s argument and the  Judge’s  final  decision  were  based  on  documents  provided  by  a  Ms  Mere Sullivan, which were the subject of a dispute currently before the Māori Land Court.

[15]     The appellant also presented a written document elaborating on the points of appeal in the notice.  This related to information about the legal ownership of the property and the outcome of a proceeding in the Māori Land Court.  The appellant made an oral submission contending that she was experienced at moving stock.  She argued that the steers were further away from the open gate than the complainant stated and that she had simply followed the common practice of leaving the gate open in order to entice the steers out of the paddock prior to their being moved to the Marae.

[16]     Mr Smith referred to the points on appeal addressing the legal status or ownership of the property.   He submitted that there was no element, within the offence of criminal nuisance, relating to ownership (or indeed occupation) of property.  Next, Mr Smith submitted that the Judge correctly identified the essential elements of the offence.  Having done this, the Judge made findings of credibility against the appellant sufficient to find the offence proved.  In so doing, there was no error of law or fact.

Powers on appeal

[17]     A defendant has a general right of appeal against conviction or sentence pursuant to s 115 of the Summary Proceedings Act 1957.  A general appeal is by way of rehearing:  s 119.  The High Court’s general powers on rehearing are outlined in s 121.

[18]     The principles applicable to general appeals have been recently considered by the Supreme Court in Austin Nichols & Co Ltd v Stichting Lodestar [2007] NZSC

103 11 December 2007.  Giving the judgment of the Court, Elias CJ stated at [16]

that:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment.   If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[19]     Section 119 of the Summary Proceedings Act allows the Court to order that any viva voce evidence be heard again, or to permit fresh evidence to be introduced if it meets the requisite tests.  This issue did not arise in the present case.  According to the Court of Appeal in Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190, an appellate court should not reverse a

factual finding unless compelling grounds can be shown for doing so.  However, this approach needs to be read in the light of the Supreme Court decision in Austin Nichols.  There, care was taken to limit the deference advocated in Rae to instances where findings of fact were credibility-dependent. The Court stated at [13]:

The  appeal  court  must  be  persuaded  that  the  decision  is  wrong  but  in reaching  that  view  no  “deference”  is  required  beyond  the  “customary” caution  appropriate  when  seeing  the  witnesses  provides  an  advantage because credibility is important.  Such caution when facts found by the trial Judge turn on issues of credibility is illustrated by Rae.

[20]     According to the Supreme Court, although an appellate court may rightly be cautious in departing from factual findings, it is nevertheless required to form its own opinion on the basis of all the material before it.   That is the approach to be applied here.

Discussion

[21]     I will deal with each of the points raised by the appellant in turn.  First, the appellant argued that the complainant was not entitled to occupy the property.  The appellant’s submissions focused on her ownership interest in the property and the fact that the complainant was allegedly not a lawful occupier, as set out in the letter from the Mäori Land Court.  However, I agree with Mr Smith that ownership of the property is irrelevant in terms of s 58 of the Impounding Act and consequently s 145 of the Crimes Act.   Section 58(2)(c) of the Impounding Act provides that it is an offence to wilfully leave open any gate for the purpose of causing any stock to stray or wander onto any road.   The subsection does not specify any limits relating to ownership or occupation status over the land:  compare s 58(2)(b) of the Impounding Act.  Section 58(2)(c) does not permit ownership of the property to be a defence, nor can the fact that the owner did not want the stock on his or her land be argued.  The release of stock onto a public road by an owner is no less a hazard than release by a trespasser.   Such a construction is consistent with the “public safety” policy and scheme of the Impounding Act.

[22]   Secondly, the appellant contended that she did not verbally abuse the complainant.  The appellant sought to dispute the weighting that the Judge ascribed

to her own evidence and that of the complainant Mr Pehi.  Austin Nichols has stated that the High Court will be in error if it defers to the lower court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.  However, the Supreme Court in that case acknowledged the lower court’s special advantage in making findings of fact that depend on an assessment of credibility.  The District Court Judge explicitly stated at [8] that his preference for Mr Pehi’s evidence turned on his assessment of credibility.

[23]     Despite the careful submissions and strong entreaties by the appellant, I see no basis for disturbing the Judge’s findings.   He had the benefit of seeing and hearing the  witnesses.    Further,  the  Judge  articulated  clear  and  concise  reasons explaining his findings on credibility and his preference for the evidence of the complainant over the appellant.

[24]     Finally, there is the issue of the dispute before the Māori Land Court.  There are no grounds for concluding that either the prosecution submissions or the Judge’s decision were based on documents currently the subject of a dispute before the Māori Land Court.  It is true that the land on which the steers were grazing at the time was the subject of dispute both as to ownership and occupation.  However, the Judge expressly stated at [3] that he did not consider evidence as to the ownership and status of the property to be relevant.   He was correct to adopt this approach. There is no merit in this point.

Result

[25]     None of the grounds of appeal can succeed.  Accordingly, the appeal must be dismissed.  The respondent did not seek costs.  There will be no order as to costs.

Stevens J