R v Police HC Christchurch CRI 2006-409-197

[2006] NZHC 1531

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2006-409-000197

R

Appellant

v

POLICE

Respondent

Hearing:         7 December 2006

Appearances: A S Greig for Appellant

Judgment:      7 December 2006

JUDGMENT OF FOGARTY J

[1]      Mr R   appeals against his conviction on a charge of being unlawfully on a building, Summary Offences Act 1981, s 29:

29     Being found on property, etc., without reasonable excuse

(1)      Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who is found without reasonable excuse—

(a)     In or on any building; or

(b)     In any enclosed yard or other such area; or

(c)     In or on board any aircraft, hovercraft, or ship or ferry or other vessel, train, or vehicle.

R V POLICE  HC CHCH CRI 2006-409-000197  7 December 2006

(2)     It is not necessary in a prosecution under this section for the prosecutor to prove that the defendant had an intention to commit any other offence, but it  is  a  defence if the defendant  satisfies  the Court  that  he  had  no  such intention.

(3)      If any constable finds a person in any place referred to in subsection (1) of this section, without reasonable excuse but in circumstances that do not cause the constable to suspect an intention to commit any other offence, the constable may, instead of arresting him for an offence against subsection (1) of this section, warn that person to leave that place and, if the person refuses or fails to do so, he is liable to a fine not exceeding $500.

[2]      The appellant was one of three protesters who went to the premises of Solid Energy and protested against the company’s involvement in coal mining in a particular area on the West Coast.

[3]      The Solid Energy building  is an office  building set  back  from the road. Between the building and the road there is a grass verge and three small oak trees.  A part of that grass verge is a reserve and part of it is private property.  Solid Energy are used to protests and have, as it were, a protocol where they recognise the right of protesters to protest on the reserve but point out to protesters where they will leave the reserve and cross on to Solid Energy property.

[4]      The consequence of there being a grass verge is that  in the case of this appellant, he having been previously warned, the offence of trespass began when he crossed from the reserve on to that part of the grass owned by Solid Energy before he climbed on to the building.

[5]      It is common ground between counsel that from the time he crossed on to the property until apprehended he was committing a continuing offence of trespass.  In this appeal Mr Greig takes two points, the second of which was not taken before the learned District Court Judge.  These are:

1.That  the  offence  of  trespass  was  complete  before  the  appellant climbed on to the building and he cannot therefore have intended to commit “any other offence”.

2.That the relevant elements of the offences of trespass and being unlawfully on a building are the same and contravene s 10 of the Crimes Act 1961.

Trespass complete before appellant on building

[6]      The critical criterion appears in subs (2) of s 29 where a defendant can satisfy the Court that he had no “intention to commit any other offence”.     The time of applying that criterion is when he is in or on any building, enclosed yard etc.   It being accepted that the offence of trespass began before the appellant reached the building, there is an argument that there was no intention once at the building to commit any other offence.  By that I mean to indicate a meaning which requires an intention dating or commencing from the time a person goes in or on a building to commit any other offence.  On this argument, the fact that he is currently committing an offence of trespass when  he arrives at  the building does not  fall  within  the language of subs (2).

[7]      The other possible interpretation is that while on the building it is sufficient if the defendant satisfies the Court that he had no intention to commit any other offence but that intention can include an intention to commit trespass which is a continuing offence and just as the actus res of that offence is continuing so is the mens rea.

[8]      This second interpretation seems to me, to accord more with a purposive construction of s 29.   Of course purposive construction is required by s 5 of the Interpretation Act 1999.    I am of this view because s 29 is clearly intended to avoid persons being convicted for merely being found without reasonable excuses in or on a  building  when  they  had  no  intention  to  commit  any  other  offence.    This  is reinforced by subs (3) which gives the constable finding a person on a building the opportunity of warning that person to leave and if the person refuses or fails to do so he is liable to a fine.   For these reasons I think that the learned District Court Judge was right.

Multiple prosecutions for the same conduct

[9]      It therefore seems to me that the appeal depends on the second point, s 10 of the Crimes Act which provides:

10     Offence under more than one enactment

(1)      Where an act or omission constitutes an offence under this Act and under any other Act, the offender may be prosecuted and punished either under this Act or under that other Act.

(2)     Where an Act or omission constitutes an offence under 2 or more Acts other than this Act, the offender may be prosecuted and punished under any one of those Acts.

(3)       Where an act or omission constitutes an offence under 2 or more provisions of this Act or of any other Act, the offender may be prosecuted and punished under any one of those provisions.

(4)      No one shall be liable, whether on conviction on indictment or on summary conviction, to be punished twice in respect of the same offence.

[10]     Mr Greig argues that the same conduct of the appellant constitutes both the offence under s 29 of the Summary Offences Act and the offence under s 4(4) of the Trespass Act 1980.

[11]     The act under s 29 of the Summary Offences Act is being without reasonable excuse in or on any building (s 29(1)(a)).   Section 4(4) of the Trespass Act provides:

4     Trespass after warning to stay off

…

(4)      Subject to subsection (5) of this section, every person commits an offence against this Act who, being a person who has been warned under this section to stay off any place, wilfully trespasses on that place within 2 years after the giving of the warning.

[12]     The conduct of trespassing is the same conduct, namely, in this case, being on a building.   Section 10 was considered by the Court of Appeal in R v Clarke [1982] 1 NZLR 654. In that decision the Court did avert to subs (4) of s 10. This appears to be a curiosity for the previous three subsections are directed to ensuring that when exercising the discretion to prosecute, the prosecutor selects one of the available offences constituted by the relevant act or omission. If the previous

subsections are applied it is difficult to envisage how anyone could be punished twice in respect of the same offence.  It may be that subs (4) is a reiteration of the double jeopardy principle reiterated in this context to reinforce the purpose of the preceding three subsections which are to ensure that a person is not charged for more than one offence in respect of the same act or omission.

[13]     In this case it could be said that the act of trespass occurs when crossing the boundary and is a different act from going on the building.  However, the problem with that argument is that a trespass is a continuing offence and just as it is a trespass to cross the grass and indeed to stay on the grass, it is also a trespass when the conduct continues on to the building and it is that conduct which also constitutes the offence under s 29 of the Summary Offences Act.

[14]     The Court of Appeal in Clarke said that the test is:

…  the act or omission of the applicant constituting each offence was not the same or substantially the same.

[15]     In this offence of trespass the basic act is being on another person’s land having been warned off.   I think it is splitting hairs to distinguish between being on the grass or being on the building vis-à-vis the offence of trespass.   Reading s 10 purposefully I think in a substantial sense the appellant’s conduct, his actions, both constituted  an offence  under  s 4(4) of the  Trespass Act  and  under  s 29 of the Summary Offences Act.

[16]     Ms Butchard argued that the circumstances, however, were quite different, that it is one thing to cross over from the publicly owned grass to the privately owned grass while trespassing, it is another to climb up on the building and unfurl banners and hang off the building on climbing ropes.

[17]     The latter set of conduct certainly has aggravating features beyond merely crossing on to the private property while trespassing on the grass area.  But, it seems to me that s 10 accommodates aggravating features.  Section 10 is really directed to the discretion to be exercised by the prosecutor as to which offence the offender will be prosecuted under in respect of an act or omission.  It will frequently be the case

that the circumstances of the essential element of the act, for the purpose of the offence,  will  make  it  more  appropriate  for  one  offence  to  be  chosen  for  the prosecution than the other.   But, where the essential element  is the same,  here, presence on another person’s land, it could not be said that s 10 would justify two prosecutions under the Summary Offences Act and under the Trespass Act, because the offending on the building was more grave than the trespass itself considered as being both the crossing of the grass and going on to the building, ignoring for the moment the unfurling of banners.

[18]     I am satisfied, therefore, that s 10 does apply.  This is a case where the Crown should have elected to prosecute either under s 29 of the summary Offences Act or under s 4 of the Trespass Act.  Having decided to prosecute against both the Crown has breached unwittingly s 10 of the Crimes Act.  Section 10 of the  Crimes Act does not say what the consequence is when an offender, for the same act or omission is prosecuted, in fact for more than one offence.

[19]     Having heard from Mr Greig, he confirms that his appeal is solely against the conviction under the Summary Offences Act.  Allowing this appeal leaves in place the conviction under the Trespass Act.   That is an outcome which, in my view, coincides with the purpose of s 10 of the Crimes Act.

[20]     Accordingly, for these reasons the appeal is allowed.   The conviction under the Summary Offences Act is set aside.

Fogarty J

Solicitors:

A S Greig, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent