Paterson v Police

[2019] NZHC 1796

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-418-000004

[2019] NZHC 1796

BETWEEN

PHILIP PATERSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

25 July 2019

Appearances:

Appellant in person

J H Whitcombe for Respondent

Judgment:

29 July 2019

JUDGMENT OF DUNNINGHAM J

Introduction

[1]    Mr Paterson appeals his conviction for wilful trespass. Mr Paterson pleaded guilty to that charge in the District Court and was subsequently convicted and ordered to appear for sentence if called upon within nine months. Mr Paterson now takes issue with his conviction on the grounds that he was not on the property in question, but rather on adjacent Crown land. He was found at the site of the water tank for the  Hari Hari water supply. He now argues that information supplied by the Westland Council mapping system places the tank outside the farm property in question so he should not have been convicted.

[2]    The issue on appeal thus, is whether the water tank Mr Paterson was found to be near, is on the rural property in question, or whether it is on adjacent Crown land.

PATERSON v NEW ZEALAND POLICE [2019] NZHC 1796 [29 July 2019]

Background

[3]    There is some history to these proceedings. On 28 March 2019, Osborne J issued a minute following a telephone conference that day. He noted that the evidence filed by the police had left the question of the location of the water tank unclear, particularly because the aerial photos attached to that evidence did not clearly contain the marks which counsel for the police said they did in his memorandum. An opportunity was given for the filing of any further affidavit evidence and memoranda of submissions by both Mr Paterson and police. After some delays, both Mr Paterson and the police have filed further affidavit evidence.

Facts

[4]    The police Summary of Facts alleges that on 25 August 2018 Mr Paterson, together with Daniel Hunt, entered the Wilberg Farm  property  located  at  4093 State Highway 6, Westland. They were seen on camera walking around a water supply tank located on the property.

[5]    Mr Paterson had previously been served with a trespass notice warning him to stay off the property. Included with the notice was a map of the area, showing the boundaries of the property.

[6]    In his explanation to police, Mr Paterson stated he did not think the water tank was on the property; that the map given with the trespass notice was not clear; and the reason for his being at the water tank was to ensure no 1080 pellets had got into the water supply.

Principles on appeal

[7]    Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has

resulted in an unfair trial.1 In this section, a trial includes a proceeding in which the appellant pleaded guilty.2

Affidavit evidence

For the appellant

[8]    Mr Paterson filed a document entitled “Submission on points of appeal” dated 9 May 2019. Attached to this at “A” are documents originally filed in the Environment Court. Also attached to “A” is “ATTACHMENT 1” which is labelled “Hari Hari – Whataroa Aerial Control (8126 – 8021)”. This is a colour aerial map produced by the West Coast Regional Council for the purposes of bovine tuberculosis. The map legend describes the red triangle placed on the map as “Whataroa Hari Hari Water Supplies”, presumably marking the location of the water supply tank. There is a pink line that appears to define the edge of an area which the map legend describes as “Re-Sown (373.449 ha)”. It is unclear what this actually relates to but it does not depict the boundary of the property nor is there any detail on the map which does.

[9]He also filed a document labelled “Final Submission on point of appeal” dated

14 May 2019. Attached to this at “A”, are documents originally filed in the Environment Court, including an aerial map labelled “Water Sample Locations Harihari”. This aerial map marks two points described as: “Downstream sample”; and “Upstream sample at water tank”. It includes the advice underneath that the “Downstream samples have not got GPS readings” but goes on to say that the exact location for the Upstream reading is at GPS .E2314732: N5780589. It also cross-references to a photograph which, presumably, is the photograph on the previous page showing water sampling being taken at a tank on 26 January 2006. The aerial map does not show any land boundaries.

For the respondent

[10]   For  the  police  Mr  Whitcombe  has  first   filed   an   affidavit   of  Constable Callan Mark Nikora, a police constable stationed at Franz Josef in the

1      Section 232(4).

2      Section 232(5).

Police Safety Team. Constable Nikora deposes that he attended the Wilberg Farm property at around 9 am on 30 August 2018. He says he spoke with the farm owner, Jon Sullivan and his farm manager, Laurens Foulger. He then went with Mr Foulger to the farm water intake on the property. When they arrived, he says he took a video and several photos on his iPhone of the area and the tank.

[11]   Constable Nikora deposes further that he began collecting water samples from the farm at about 1.19 pm. As part of this, he returned to the water tank accompanied by Kerry Gordon from CRL Energy Ltd, who took several samples for his own examination. Mr Gordon had a GPS with him and used it to take the GPS co-ordinates while they were at the water tank site. Constable Nikora says he took a photograph of the GPS screen depicting the co-ordinates at the tank site, “NZTM E1405180 N5218606”.

[12]   Mr Whitcombe has also filed an affidavit of Constable Reuben David McCormack, a senior constable working in the Criminal Justice Support Unit in Nelson during January 2019. His role involved preparing prosecution files for Judge-alone trials in Nelson and Greymouth. One of the files he prepared was the prosecution of Mr Paterson. The Constable prepared a map of the scene using the co-ordinates from the photograph of the GPS unit on the file. The co-ordinates he initially used were “NZTM E14051 60 N5218606”. He deposes that he now understands that these numbers were incorrect and were mistakenly read from the photo where one of the numbers was unclear, and that the correct numbers are in fact “NZTM E14051 80 N5218606”. He says that in any event, both sets of co-ordinates relate to locations that are on the property of Jon Sullivan. The Constable says he since produced another map using the correct co-ordinates which is annexed to his affidavit. This map shows the location of the water tank, marked by a red dot, and shows that location as within the boundary of Wilberg Farm, the boundary being marked by a yellow line.

[13]   This is consistent with the  statement  obtained  for  the  prosecution  from  Mr Sullivan, one of the owners of the property in question, Wiberg Farm, who says that the water tank is “well within my boundary”.

Submissions

Appellant’s submissions

[14]   Mr Paterson places considerable weight on the documents he refers to (being the colour map filed in the Environment Court showing the location of the water tank and water samples being taken), and the GPS co-ordinate of the “Upstream sample taken at the water tank”. He says that evidence “is as relevant now as it was in 2006, the water tank being in the same place”. He also says “the evidence was gathered scientifically by Landcare Research”. In short, he says this evidence displaces the police evidence from Constable Nikora and Senior Constable McCormack, and the evidence of the owner of the property.

Respondent’s submissions

[15]   The respondent submits that the evidence it has filed “conclusively proves that the water tank is located on the Wilberg Farm”. Constable Nikora visited the water tank site and obtained GPS co-ordinates there on 30 August 2018. Those co-ordinates were entered by Constable McCormack into the police mapping system. He overlaid the map with the property boundary markings according to Housing New Zealand property details and that map places the water tank squarely within the boundary of Wilberg Farm, land that the appellant had been trespassed from.

[16]   The respondent queries the relevance of much of the material filed by the appellant on appeal, saying much of it fails the test for being credible or fresh.3 The respondent points out that the maps are hearsay evidence as there is no evidence showing how the maps were created, how the co-ordinates were obtained and how they were marked on the map. Furthermore, the maps do not have land boundaries marked on them so they do not show one way or another whether the tank is located on the farm. In any event, the onus is on the appellant to show there has been a miscarriage of justice. None of the evidence the appellant relies on proves that the water tank is not on Wilberg Farm, and so he has failed to satisfy the Court that there has been a miscarriage of justice.

3      Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

Discussion

[17]   I accept that the evidence filed by Mr Paterson is not fresh, nor has he said why he could not raise these issues in the District Court before he pleaded guilty to the charge. However, I am minded to extend some latitude to him as a litigant in person, particularly when there were difficulties identifying the exact location of the water tanks from the respondent’s original affidavit evidence, and latitude was extended to the respondent to file more explicit evidence.

[18]   That said, I consider that large tranches of the further evidence Mr Paterson has sought to file are entirely irrelevant. They deal with Mr Paterson applying for an enforcement order against certain parties in relation to the discharge of 1080 poison on the land, and I take no account of that evidence.

[19]   While evidence as to the exact location of the tank is relevant, I do not find the maps and related evidence filed by Mr Paterson assists on that issue as neither map shows the location of the boundary of the Wilberg Farm property. In contrast, the evidence filed by the police does show the boundary of the farm and that the water tank is located within that boundary.

[20]   Furthermore, the maps adduced by Mr Paterson are technically hearsay evidence. There is no evidence as to their genesis or creation. It is not clear why a completely different set of GPS co-ordinates is given for the water supply tanks from that given by the respondent’s witnesses. In any event, on their face, it is not clear that they show the tank in a position which is outside the Wilberg Farm property.

[21]   In the absence of cogent evidence to suggest the respondent’s evidence is incorrect or unreliable, Mr Paterson has been unable to show that there has been a miscarriage of justice in the entering of the convictions against him. Accordingly, his appeal is dismissed.

Solicitors:

Raymond Donnelly & Co., Christchurch Copy To: Appellant and Respondent