Potaka-Kiu v Police - [2016] NZHC 3063

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2016-441-30 [2016] NZHC 3063

BETWEEN
HONORIA JESSE POTAKA-KIU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 December 2016

Counsel:

W Hawkins for Appellant
M M Mitchell for Respondent

Judgment:

14 December 2016

JUDGMENT OF WILLIAMS J

Introduction

[1] On 11 July 2016, Ms Potaka-Kiu was convicted of burglary following a Judge-alone trial. The hearing proceeded “on the papers”. While this seems rather irregular the appellant consented to this mode of trial and no issue is taken with it in this appeal. Ms Potaka-Kiu now appeals against her conviction, although she does so on narrow grounds.

Facts

[2] Ms Potaka-Kiu was trespassed from Pak’n Save Hastings on 27 January

2015. She was warned that if she trespassed she may be charged with burglary. On

6 February 2016, she went to Pak’n Save with her partner. She selected a number of items, substituted the barcodes on them for barcodes with lower prices, and then went through the self-checkout, scanning the new barcodes. Store security viewed this on CCTV and contacted police. The police met Ms Potaka-Kiu at the exit and
escorted her to the security office. The goods were recovered.

POTAKA-KIU v NEW ZEALAND POLICE [2016] NZHC 3063 [14 December 2016]

District Court decision

[3] There is no verdict decision as such on the file, but there is a record of the legal discussion before Judge Adeane. Mr Hawkins argued that the trespass notice was invalid because it referred to two other occupiers who had not given consent, and it was overly broad. These arguments were rejected. He also submitted that the burglary charge should be amended to theft. The Judge rejected this because, he said, it is standard practice for the police to lay burglary charges against recidivist shoplifters who are trespassed. He was satisfied that the elements of burglary were made out.

Appellant’s submissions

[4] Ms Potaka-Kiu appeals on two grounds:

(a) the trespass notice was not valid; and

(b) the charge should have been amended to theft.

[5] As to the first point, counsel submits that the trespass notice included other occupiers, Unichem Pharmacy (in Hastings), Obsess Café (Napier) and Pak’n’Save Napier, who did not give their authority to issue the notice. The consent of all occupiers was required to authorise the valid service of a trespass notice on their behalf. There was no evidence that the consent of the other three occupiers was given, and it may in fact be against their wishes. And there was no evidence that those occupiers had reasonable grounds to issue a notice.

[6] Accordingly, the trespass notice is similar to “blanket trespass” schemes that have been found to be illegal. Counsel points to the Solicitor-General’s advice recorded in Auckland Council for Civil Liberties Inc v Attorney-General to that
effect.1 The Judge therefore erred in upholding the validity of the trespass notice.

1 Auckland Council for Civil Liberties Inc v Attorney-General HC Auckland CP 452/93,
10 November 1993. The Solicitor-General’s advice is not set…

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.

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Details

Case: [2016] NZHC 3063
Decision Date: 14 December 2016

CaseChat Overview and Summary

In this case, the appellant, Honoria Jesse Potaka-Kiu, was convicted of burglary after she was caught shoplifting at a Pak’n Save supermarket. She had been trespassed from the supermarket previously and was warned that any further trespass would result in a burglary charge. On appeal, Potaka-Kiu argued that the trespass notice was invalid and that the charge should have been amended to theft. The court had to decide whether the trespass notice was valid and if the charge of burglary was appropriate.

The court found that the trespass notice was valid as it was served at the Pak’n Save in Napier, which seemed to have been authorised by the owner of that store. The court also found that the charge of burglary was appropriate as the appellant had a history of previous offending and the offence was premeditated. The court held that the validity of the trespass notice was not relevant to the charge of burglary, and that the burglary charge was within the discretion of the police. The court concluded that there was no reason to amend the charge under s 133 of the Criminal Procedure Act 2011.

The appeal was dismissed, and the conviction for burglary was upheld. The court acknowledged that burglaries by way of trespassed shoplifting are a special category of burglary and should be sentenced on their own terms rather than in accordance with the usual guidance for burglary offending. However, this issue was not before the court as the appeal was against conviction, not sentence.

Orders