Paul v Police - [2017] NZHC 3021

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI 2017-441-40 [2017] NZHC 3021

BETWEEN
ERNIE OʼNEAL PAUL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 December 2017 (via AVL)

Counsel:

W R Hawkins and A McPherson for Appellant
J E Rielly for Respondent

Judgment:

7 December 2017

JUDGMENT OF SIMON FRANCE J

[1] Mr Paul twice went onto a rural property situated off a road near Napier. Access is down a long drive to reach an area or paddock where a contracting business stores demolition material. The material is later sorted and used for hard fill. On two occasions whilst there, Mr Paul took copper piping and a cylinder. He was convicted of two charges of burglary contrary to s 231(1)(a) of the Crimes Act 1961.1

[2] The only issue on appeal concerns whether the demolition site is an enclosed yard for the purposes of the extended definition of “building” found in s 231(2) of the
Act:

1 New Zealand Police v Paul [2017] NZDC 25883.

PAUL v POLICE [2017] NZHC 3021 [7 December 2017]

231 Burglary

(1) Every one commits burglary and is liable to imprisonment for a term not exceeding 10 years who—

(a) enters any building or ship, or part of a building or ship, without authority and with intent to commit an imprisonable offence in the building or ship; or

(b) having entered any building or ship, remains in it without authority and with intent to commit an imprisonable offence in the building or ship.

(2) In this section and in section 232, building means any building or structure of any description, whether permanent or temporary; and includes a tent, caravan, or houseboat; and also includes any enclosed yard or any closed cave or closed tunnel.

(3) For the purposes of this section and section 232,—

(a) entrance into a building or ship is made as soon as any part of the body of the person making the entrance, or any part of any instrument used by that person, is within the building or ship; and

(b) every one who gains entrance to a building or ship by any threat or artifice used for that purpose is to be treated as having entered without authority.

[3] In R v Letton the Court of Appeal, when considering the analogous offence of being found in an enclosed yard or area, held that for this type of offence the enclosed yard must be appurtenant to a building.2 That decision has consistently been applied over the years. In Hewson v New Zealand Police, the charge was the successor under the Summary Offences Act 1981 of the offence being considered in Letton.3
Laurenson J held that the new offence continued to require the enclosed area to be appurtenant to a building. Letton was subsequently applied to the offence of burglary
under the Crimes Act by the Court of Appeal in R v Dar.4

2 R v Letton [1943] NZLR…

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 Paul v Police

Details

AGLC: Paul v Police [2017] NZHC 3021
Case: [2017] NZHC 3021
Decision Date: 7 December 2017

CaseChat Overview and Summary

The appellant, Ernie O'Neal Paul, appealed against his convictions for burglary under section 231(1)(a) of the Crimes Act 1961. Mr Paul was convicted of twice entering a demolition site, located off a road near Napier, and removing copper piping and a cylinder. The issue before the court was whether the demolition site constituted an "enclosed yard" for the purposes of the extended definition of "building" in section 231(2) of the Act. The court needed to decide if the site met the criteria for being considered an enclosed yard that is appurtenant to a building, as established in previous cases such as R v Letton and R v Dar.

The court found that the demolition site did not meet the criteria of being an enclosed yard appurtenant to a building. The site was a self-sufficient area unconnected to the vineyard's dwellings or the vineyard itself and had no permanent buildings on it. The site was not fully enclosed, with one side being completely open to a private paddock. The court concluded that the site did not satisfy the requirements for being considered an enclosed yard under the Act.

The appeal was allowed, and the convictions for burglary were quashed, with convictions for theft substituted. The sentence was two months' imprisonment, concurrent with other sentences, on one charge, and convicted and discharged on the other charge.

Orders