R v Police HC Whangarei CRI 2007-488-71
[2008] NZHC 133
•15 February 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2007-488-0071
BETWEEN R
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 15 February 2008
Counsel: JW Watson for Apellant
AL Hyndman for Crown
Judgment: 15 February 2008
ORAL JUDGMENT OF RODNEY HANSEN J
Solicitors: Marsden Woods Inskip & Smith, P O Box 146, Whangarei for the Crown
Mr JW Watson, P O Box 502, Whangarei for Respondent
R V POLICE HC WHA CRI 2007-488-0071 15 February 2008
[1] On 21 December 2006, Mr R was one of a group of about ten protestors who assembled in the foyer of the Family Court in Whangarei. He refused to leave when asked by a member of the Court staff and later by a police officer. He was arrested and charged with trespassing. After a defended hearing in the Whangarei District Court, he was convicted and fined $300 and ordered to pay Court costs of $130.
[2] Mr R appeals against his conviction. Two grounds are advanced:
a) The Judge was wrong to find he had been requested to leave by the occupier of the building.
b) It was not reasonable for the occupier to have asked him to leave.
Elements of offence
[3] The charge was laid under the Trespass Act 1980 (the Act). Section 3 of the
Act relevantly provides:
Trespass after warning to leave
(1)Every person commits an offence against this Act who trespasses on any place and, after being warned to leave that place by an occupier of that place, neglects or refuses to do so.
[4] Section 2(1) defines an “occupier” as follows:
In relation to any place or land, means any person in lawful occupation of that place or land; and includes any employee or other person acting under the authority of any person in lawful occupation of that place or land.
[5] Section 5 deals with the way in which warnings are to be given. It provides:
Delivery of warnings
A warning under section 3 or section 4 of this Act shall be given to the individual person concerned either orally, or by notice in writing delivered to him or sent to him by post in a registered letter at his usual place of abode in New Zealand.
[6] The offence requires proof of three elements:
a) The person charged was trespassing on the relevant place;
b) The person charged was warned to leave that place by an occupier;
and
c) The trespasser neglected or refused to do so.
Wilcox v Police [1994] 1 NZLR 243, 246.
[7] As Tipping J pointed out in Wilcox at 247, proof of the first two elements generally requires two requests or warnings to leave. The first is required, on the assumption there has been authorised entry onto the property, and it is necessary for that authority to be revoked by way of a request or warning to leave before the person concerned can become a trespasser. A further warning to leave will be required in order to satisfy the second element of the offence.
Judge’s findings
[8] There is no issue that the two necessary warnings were given. Evidence was given by Kevin McCartain, the Support Services Manager in the Whangarei District Court, that after noticing the group assembling in the foyer of the Family Court, he asked members of the group, and specifically Mr R , to move outside the building. Mr R did not leave. He was then advised by Mr McCartain that he could be arrested if he maintained his refusal to leave. Mr McCartain then spoke to Sergeant Grant Rouse of the Whangarei Police who authorised him to ask Mr R and others to leave the building. He spoke to Mr R and, as the Judge said, no doubt out of an abundance of caution, gave him his Bill of Rights. He asked him on more than one occasion to leave the building but he refused to do so.
[9] Mr R represented himself at first instance. He argued that Mr McCartain had no authority to exclude him from the building. He submitted that Mr McCartain was required to produce written authority confirming that he had
authority from the building owner, Her Majesty the Queen. The Judge found that Mr McCartain had the necessary authority and that it was not necessary for him to produce any written evidence of the authority.
First ground of appeal – no warning
[10] On appeal Mr Watson does not seek to contend that Mr McCartain was required to produce written authority at the time he delivered the warnings. Rather, he submits the prosecution failed to show that Mr McCartain was an occupier in terms of s 2(1) of the Act. Mr Watson points out that the position of manager is not recognised by the District Courts Act 1947. He also relies on a passage in Polly v Police [1985] 1 NZLR 443 as suggesting that where the authority of an employee to issue a warning is contested, there may be a requirement to call evidence of that fact.
[11] I do not think that the absence of any reference to managerial positions in the District Courts Act assists the argument. It is indisputable that the Department of Justice is in lawful occupation of the land on which the Court is situated and the evidence that Mr McCartain was an employee with implied authority to act on behalf of the Department was not, in any real sense, challenged at the hearing.
[12] In Polly McMullin J discussed at length the evidence necessary to establish that a person was an occupier under the Act. In a passage containing the proposition relied on by Mr Watson, at 448 at line 20, he said:
Where an individual person, as distinct from a corporation, is the occupier of land, the prosecution in proof that the person giving the warning is an “employee or other person acting under the authority of any person in lawful occupation of that place or land” need only call evidence of that fact and this, at least where the authorisation is uncontested, may be given by the employee or authorised person himself. This is because the chain of authority between the occupier and the employee or other person authorised by him has been established.
[13] McMullin J then went on to discuss issues of proof where the occupier of a building is a corporation. He emphasised that the practicalities of the situation should be recognised and that persons of managerial rank or executive status in the employ of the corporation should be treated as being in lawful occupation of the
premises which the corporation holds as owner. He said that is to do no more than recognise that corporations habitually give such persons day-to-day control of premises. He concluded:
It does not strain the definition of occupier under the Trespass Act 1980 to treat such a person as being in lawful occupation of corporate premises, with the result that he can authorise another such as a police officer to give the warning required by s 3(1). The phrase “in lawful occupation” where used in s 2(1) of the Trespass Act is appropriate to decide the status of a person who has the right for the time being to control the place or land.
[14] Although Mr R questioned Mr McCartain about the existence of written authority to exclude members of the public from the Court building, his position and the fact that he was the senior manager present at the Court on the day, was not questioned. In those circumstances, I am satisfied that the Judge was entitled to find that he was an occupier for the purpose of the Act.
Second ground - reasonableness
[15] The second ground of appeal was not argued before the District Court Judge and no finding on the issue raised by it was made. It rests on the principle that members of the public have a right to be present in a public place such as a courthouse and can only be required to leave on reasonable grounds.
[16] The principle was first articulated in Police v Beggs [1999] 3 NZLR 615, a decision of the Full Court involving a protest in the grounds of Parliament, and has since been applied to the presence of protestors in the precincts of Courts in Bright and anor v Police HC AK CRI 2006-404-133 & 134 27 October 2006 Lang J and to a member of the public in the Court foyer in Terry v Police HC GRY CRI 2006-418-
09 11 May 2007 Panckhurst J.
[17] In Beggs the Court held that, consistently with the New Zealand Bill of Rights Act 1999, the right of the occupier of Parliament grounds to exclude members of the public can only be exercised when reasonably necessary in the circumstances. At 627 the Court considered the factors which might bear on the test of what is
reasonable in the circumstances, noting that the right to freedom of assembly and freedom of expression were not absolute. The Court went on to say:
If a protest assembly is unlawful or individuals behave in a disorderly manner, or breach or threaten to breach the peace, or unreasonably infringe the rights of others, or create a civil nuisance, then the Speaker could not be said to be acting unreasonably in requiring their departure. In our view the rights of others must include the rights of the occupier, to enable preservation of the occupier’s property and reasonable limitation upon its use.
[18] In Bright the appellants were charged with trespassing in the foyer of one of the courtrooms. They were part of a group of six or so who had assembled in order to support one of their number with the intention of later entering the courtroom. A member of the Court staff formed the view that if they entered the courtroom they were likely to disrupt proceedings and asked them to leave the premises. When they refused, the charges of trespass followed.
[19] The decision of Lang J followed an appeal against a refusal to grant costs following the dismissal of the informations. In the course of considering, as a relevant criteria to the order of costs, whether the prosecution had sufficient evidence at the commencement of the proceedings to support the appellant’s conviction, he accepted that the principles articulated in Beggs also applies to the courthouses of this country (at [39]). He noted (at [33]) that every sitting of any Court is required to be open to the public. Members of the public have an absolute right to attend any proceedings in respect of a criminal offence. He referred (at [34] and [35]) to the protestors in that case having, in common with other citizens, the right under ss 14 and 16 of the New Zealand Bill of Rights Act to freedom of expression and freedom of assembly. He said that applied to the initial gathering of the protestors outside the front of the Court and also “perhaps to a lesser extent” to the gathering in the foyer.
[20] Having regard to the test of reasonableness discussed in Beggs, he concluded at [41] that the appellant had a right to be present in the courthouse as well as to enter the courtroom and observe the proceedings. He said their right to be present could occur only in circumstances where the occupier of the courthouse acted in a manner that was reasonable. He went on to say at [42]that if the protestors had been acting in a disorderly or disruptive manner or their conduct breached or threatened to
breach the peace or that they were creating a civil nuisance, the occupier would have been within his rights to tell them to leave.
[21] In Terry the appellant was asked to leave the foyer of the Greymouth District Court and charged with trespassing after he refused to do so. He had been attending a hearing in which he had been personally involved and later became involved in a discussion in the Court office with a member of the Court staff and another member of the public. After leaving the office he went into the foyer and engaged in a conversation with two men sitting there. He was asked at that point to leave.
[22] After referring to Beggs and Bright, Panckhurst J accepted that the appellant had a right to be present in the foyer of the Court and could only have been trespassing if he had declined a reasonable request to leave. He accepted a submission that in the context of a general appeal, it was appropriate to revisit the facts and to enquire whether they satisfied the reasonableness requirement. He found that, while the earlier events might have provided a reasonable basis for the subsequent request to leave, there had been no finding by the Judge to that effect. On the other hand, the events in the foyer of the Court provided no basis for a reasonable requirement to leave. He found that the evidence did not enable him to conclude that the reasonable test was met. He quashed the conviction but declined to order a retrial so that each charge could be reconsidered in the light of his decision.
[23] Ms Hyndman does not dispute that there is a requirement for reasonableness. However, she urges me to adopt the approach favoured by Panckhurst J in Terry and to enquire whether the evidence satisfies the reasonableness requirement. She further submits that there was in fact sufficient evidence before the Judge to support a finding of reasonableness. She relies in particular on evidence given in cross- examination by Sergeant Rouse that the protestors were making a noise in the foyer of the courtroom and his statement, which he was not asked to elaborate, that at one point in time Mr R himself was making a noise.
[24] I do not accept that the evidence shows the request to leave was made on reasonable grounds. Mr McCartain said the reason why he asked the group to leave the foyer of the Court was because, as a matter of policy, the management did not
allow protest action of any sort on the premises. He said protestors are asked to conduct their protests outside the building. He did not suggest the protestors were acting in a disorderly way or disrupting the business of the Court. And, apart from the passing reference to noise, neither he nor Sergeant Rouse provided any information which might have permitted an assessment of whether it was objectively reasonable for Mr McCartain to ask the protestors to leave. There was, for example, no evidence as to how long they had been present, what they were doing, whether or not they were acting in a disruptive or disorderly manner, and whether they were interfering with members of the public or others in the area or in adjacent courts.
[25] The issue of reasonableness simply was not explored at the hearing before the District Court and it is not possible for me to reach a conclusion one way or the other whether Mr McCartain in fact had reasonable grounds for asking Mr R to leave. It follows that the prosecution failed to establish that Mr R was a trespasser and that his refusal to leave when requested was a breach of the Act.
[26] The appeal must be allowed but remitted to the District Court for rehearing to enable the issue of reasonableness to be canvassed in evidence and the subject of a finding by the Judge who rehears the prosecution.
Result
[27] The appeal is allowed and the matter remitted to the District Court for rehearing.
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