Police v A HC Auckland CRI 2008-409-3

[2008] NZHC 1087

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-000003
CRI 2008-409-000004

CRI 2008-409-000005

POLICE

Applicants

v

A
M
L
Respondents

Hearing:         On Papers

Counsel:         Z R Johnston for Applicants

M J Knowles and M M Cole for Respondents

Judgment:      10 July 2008

JUDGMENT OF FOGARTY J  ON APPLICATION FOR LEAVE TO APPEAL TO THE COURT OF APPEAL ON POINT OF LAW

[1]      This is an application for leave to appeal to the Court of Appeal on a point of law.  It arises out of a judgment of this Court delivered on 27 May 2008.  A number of protesters against the demolition of a fountain had gathered on a construction site located on a road being a city mall.  The decision of this Court set aside a conviction entered in the District Court, on the basis that they were trespassers because the

Council owned the road and had asked them to leave.   The Court held that it is

POLICE V  A AND ORS HC CHCH CRI 2008-409-000003  10 July 2008

necessary in such a circumstances for there to be a finding of fact that the protesters were creating a nuisance or an obstruction.  Mere assembly on a road is not enough.

[2]      I agree that the case raises an issue of general or public importance worthy of consideration by the Court of Appeal.   After exchanging memoranda and minutes with counsel, counsel and the Court agree that the questions of law are:

1.Does a local authority occupy land within the meaning of s 3(1) of the Trespass Act 1980 when, having regard to s 316 of the Local Government Act 1974, the Council under s 353(a) of that Act causes that land as part of a road to be fenced for the purposes of s 353(a).

2.If the answer to question one is “yes”, may the authority as occupier invoke s 3 of the Trespass Act in relation to uninvited persons exercising a right of protest within the fenced off land, who refuse to leave that place, without proof of obstruction or nuisance by the protesters.

[3]      Accordingly, the application for leave is granted on the foregoing questions of law.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Applicants

M J Knowles & M M Cole, Christchurch, for Respondents