Robinson v Police
[2013] NZHC 1511
•21 June 2013
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2013-488-10 [2013] NZHC 1511
BETWEEN JOHN CLIFFORD WALTER ROBINSON Appellant
ANDTHE POLICE Respondent
Hearing: 2 May 2013
Appearances: Appellant in person
D B Stevens for the respondent
Judgment: 21 June 2013
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 2 pm on Friday 21 June 2013.
Solicitors:
J C W Robinson
Crown Solicitor Whangarei
ROBINSON v POLICE [2013] NZHC 1511 [21 June 2013]
Introduction
[1] Mr Robinson appeals against his conviction on a charge of wilful trespass.1
He was immediately convicted and ordered to come up for sentence within six months if called upon. There is no appeal against that sentence.
[2] In broad terms, his grounds of appeal are:
(a) The alleged trespass occurred in respect of commercial property occupied by a company in which he had an interest. The trespass notice which formed the foundation for the prosecution was signed by and issued on behalf of Mr Victor Freakley, who had formerly been a co-director and co-shareholder of Whangarei Heads Enterprises Ltd with Mr Robinson. In 2011, Mr Robinson transferred his shares to Mr Freakley to be held in trust for Mr Robinson. Subsequently, Mr Freakley wrongfully removed Mr Robinson as a director following a falling out. Mr Robinson argues that:
(i)He was entitled to be reinstated as a director, and he is the owner in equity of half of the shares in the company. The trespass notice was invalid because Mr Freakley had no authority to issue it on behalf of the company;
(ii)Mr Robinson was entitled to believe, and did believe that the trespass notice was invalid and he accordingly lacked the necessary intent to give rise to criminal liability.
(b)Mr Robinson personally owned a building situated on the land that was the subject of the trespass notice and accordingly he could not be prevented by the service of the notice from occupying that building;
(c) Judge Davis was wrong to decline to receive certain material relating to the underlying commercial dispute or to the question of
Mr Freakley’s veracity;
1 Police v Robinson DC Whangarei CRI-2012-088-3883, 11 February 2013.
(d)If Judge Davis was nevertheless correct to find him guilty, then he ought in all the circumstances to be discharged without conviction pursuant to s 106 of the Sentencing Act 2002.
Brief factual background
[3] The business relationship between Mr Freakley and Mr Robinson is complicated. It has given rise to several separate sets of civil proceedings in this Court. For present purposes it is necessary to provide only a brief summary of certain aspects of Mr Robinson’s commercial dealings with Mr Freakley.
[4] Mr Robinson and Mr Freakley were each shareholders and directors of the company which was formed in 2009. From premises at Pataua South Road, Whangarei Heads, the company carried on a contracting business, hiring out machinery, dealing in building supplies, and also trading in stock feed and related agricultural products. These are the premises which are the subject of the trespass notice.
[5] By July 2011, Mr Robinson was in serious financial difficulties. He agreed to transfer his 500 shares in the company to Mr Freakley. The share transfer was back dated to March 2011. Mr Robinson was to remain a director. By a resolution dated
18 March 2012, Mr Freakley, being the sole shareholder in the company, passed a resolution removing Mr Robinson as a director of the company.
[6] Mr Robinson’s case is that the shares were transferred to Mr Freakley for two quite separate reasons. The first is that because Mr Robinson was facing insolvency issues and was concerned about the possibility that the shares would vest in the Official Assignee, he considered that the shares would be better off in Mr Freakley’s ownership (I note that Mr Robinson was adjudicated bankrupt on 3 December 2012). Assuming that to be a reason for the transfer, Mr Robinson would appear to face difficulties in maintaining his contention that these shares by Mr Freakley are held on a resulting trust for him. That was noted by Associate Judge Bell in a recent
judgment given in related civil proceedings.2
[7] A transfer of assets in contemplation of bankruptcy will generally be considered to be absolute, in that it is not possible to assert a beneficial interest in assets which were transferred in order to put them out of the reach of creditors.3
[8] The second reason for the share transfer, according to Mr Robinson, was that it occurred pursuant to a somewhat complicated arrangement between himself and Mr Freakley, under which Mr Freakley was entitled to maintain full control of the company for a period of one year, ending in about October 2012, during which time Mr Freakley was to have an option to buy Mr Robinson out. If the option was not exercised by Mr Freakley, then positions would be reversed. Mr Robinson would become entitled to run the company for a year and he would have an option to buy Mr Freakley out. This somewhat complex and unusual arrangement is not the subject of any formal legal agreement, but it is recorded in legal correspondence from Mr Robinson’s solicitors, and is the subject of certain notes made by him, some of which were initialled by Mr Freakley. Mr Robinson says there was a contract between the two, partly written (being Mr Robinson’s notes) but mostly oral. In October 2012. he was entitled to have all of the shares transferred to him because Mr Freakley had not exercised his option.
[9] Although the share transfer specified a consideration of $250,000, that sum was never paid either in cash or by way of set off, on Mr Robinson’s argument. The transfer, which on its face was absolute, was subject to the arrangements between the parties and to the equitable and contractual rights which stemmed from their agreement.
[10] Mr Freakley’s position is quite different. He says he did give consideration for the shares, and that the transfer was absolute. He accepts that Mr Robinson remained a director of the company after the date of the share sale, but that he removed Mr Robinson as a director after the parties had seriously fallen out in March 2012. Interestingly, Mr Robinson wrote to Mr Freakley giving notice of his intention to resign as a director in a letter dated 20 March 2012, presumably in the context of their disagreement. At that stage Mr Robinson had been unaware of the
fact that Mr Freakley had already taken steps to remove him as a director. In any event, Mr Robinson seems not to have actually given notice of resignation.
[11] It is common ground that a trespass notice was duly served on Mr Robinson on 13 November 2012. Prior to that, he had apparently evinced an intention to return to the company’s premises, he having stayed away for a significant period because, he says, Mr Freakley was entitled to have control of the company for a one year period. Two days later, on 15 November 2012, Mr Robinson walked into the offices of the company. Mr Freakley was there. Mr Freakley said that Mr Robinson had come onto the property because he wanted to test the validity of the trespass notice in court. There was no confrontation. Mr Robinson was polite. Indeed, Mr Freakley said he was “smug”. The police were called. Mr Robinson was arrested and charged with wilful trespass.
The District Court decision
[12] Judge Davis considered that the case turned entirely on the validity of the Trespass Act notice, and the ownership of the company. He noted Mr Robinson’s contention that the shares were held by Mr Freakley on trust for him, but said that no evidence had been produced to show the creation of the trust or the terms upon which the shares were held. Mr Freakley denied the existence of any such trust.
[13] Although the onus and burden of proof rested with the police, Judge Davis concluded that this was one of those situations in which the documents spoke for themselves. The legal position was that, as at 15 November 2012, the company was solely owned by Mr Freakley, and he was the sole director. It followed that the day to day affairs of the company were to be run by him. Mr Robinson did not have a legal interest, although he may have had an equitable interest.
[14] The Judge was satisfied beyond reasonable doubt that, for a consideration of
$250,000, paid in the form of a reduction of debt on a loan owed by Robinson Group to Mr Freakley, the shares were transferred to Mr Freakley. He considered that that evidence of payment by set-off of a real consideration did not support the trust relationship as alleged by Mr Robinson. Rather, the relationship between
Mr Freakley and Mr Robinson had “ … all the hallmarks of a commercial nature –
that relationship having subsequently soured”.4
[15] The Judge referred to two documents which he had permitted Mr Robinson to adduce in evidence. They were in Mr Robinson’s handwriting and appeared to be notes of business dealings. The Judge did not consider that they evidenced a legal agreement. The documents were not signed, and Mr Freakley denied the commercial purpose or objective which Mr Robinson attributed to the contents of the notes. He rejected the argument that the documents amounted to or evidenced an agreement at law. Although accepting that it was possible that the High Court might in due course determine that Mr Robinson had an equitable interest in the company, Judge Davis concluded that there was insufficient evidence before him to justify departing from the share transfer documents and the resolution removing Mr Robinson as a director. They were clear on their face and the Court was bound to give effect to them.
[16] He concluded that the trespass notice was valid, that it had been validly served, and that the offence had been proved.
Mr Robinson’s status in the company
[17] Although the overall burden of proof remained with the police, it was discharged (as Judge Davis held), upon proof of Mr Freakley’s status as owner and shareholder of the occupier company, service of the notice, and the breach. Mr Robinson sought to meet the police case by adducing evidence to show that he ought never to have been removed as a director, and that his removal ought to be regarded as null and void. If he could establish that, then it was open to him to argue that Mr Freakley had no authority from the company to issue the notice in the first place.
[18] However, Mr Robinson faced a formidable task. In practical terms, he was obliged to call detailed evidence in the context of a complex commercial dispute in order to demonstrate that there was a reasonable doubt as to Mr Freakley’s authority
to issue the notice. Had the terms of the agreement between them been in writing, or
4 At [15].
largely in writing, then there may have been some prospect of success. But they were not. On Mr Robinson’s account, the agreement consisted largely of oral terms, supplemented by some notes recording various other terms to which he says Mr Freakley assented. For his part, Mr Freakley denies any agreement of the sort relied upon by Mr Robinson.
[19] Moreover, Mr Robinson faced insurmountable procedural hurdles. Evidence in criminal cases is given viva voce by witnesses in the witness box, who are available for cross-examination. They may produce such documents as may be appropriate. But in this case, Mr Robinson sought to produce to the Court a bundle of documents from a number of sources. There were documents sworn by a variety of deponents in various High Court civil proceedings, copies of various handwritten notes, notices, and a number of other documents which formed exhibits to the affidavits. The affidavits in particular were simply inadmissible as evidence in a criminal proceeding.
[20] One deponent, Mr Badham, was called as a witness. He had been Mr Robinson’s solicitor for at least 20 years. He gave evidence of having attended a meeting with Mr Freakley and Mr Robinson, during which Mr Freakley accepted that there existed some sort of arrangement under which he and Mr Robinson would, in turn, have sole control of the company for a period of 12 months. Mr Badham did not himself have any personal knowledge of these arrangements. He was dependent on his instructions from Mr Robinson. Mr Badham’s evidence did not take Mr Robinson very far. Judge Davis was entitled to put his evidence to one side in my view.
[21] The other witness for the defence was Mrs Freakley, Mr Freakley’s former wife. She was unable to give any evidence as to the substance of the arrangements between Mr Robinson and Mr Freakley. Mr Robinson’s purpose in calling her was to adduce evidence going to Mr Freakley’s veracity. I deal with that topic below.
[22] Further, even if he could show that he had some equitable interest in the shares, which might entitle him to a transfer back from Mr Freakley, it did not follow at all that any such equitable entitlement supported a defence to the trespass charge.
In my view, Judge Davis was quite right to take the share transfer and the
shareholders’ resolution removing Mr Robinson as a director, at face value.
[23] Mr Robinson’s decision to provoke a prosecution was not well advised. His proper course, if he considered that Mr Freakley was acting unlawfully in serving a trespass notice, was to obtain urgent relief in civil proceedings, as he has done in other contexts.
[24] In summary, I do not regard the possibility that Mr Robinson may have had an equitable interest in the shares as a proper basis for avoiding criminal liability for breach of the trespass notice.
Honest belief
[25] As a separate argument, Mr Robinson contends that he had an honest belief that the trespass notice was invalid, because Mr Freakley alone had no authority from the company to issue it. Even though Mr Robinson’s belief may have been wrong or misguided, it was genuinely held and ought to afford him a defence, he argues.
[26] I am satisfied that this argument cannot be upheld. It is no defence to a charge of trespass that a defendant may believe that a trespass notice was invalid for one reason or another.5 The same answer must be given to Mr Robinson’s argument that he genuinely believed that he had a right to be on the property, notwithstanding the trespass notice, because his 12 month period of entitlement to sole control of the company had recently commenced.
Building ownership
[27] Mr Robinson argued that he personally owned a building standing on the land occupied by the company, and that he had an absolute right to occupy that building. There is little evidence about that, but even if it is so, it cannot provide a defence to
the present charge because in order to reach the building, Mr Robinson had to cross
5 See Anaru v Police HC Whangarei CRI-2005-466-21, 27 July 2005, Roha v Police HC Whangarei
CRI-2007-488-31, 16 October 2007.
land from which he was trespassed. It does not appear that this issue was raised before Judge Davis.
Mrs Freakley’s evidence
[28] Mr Robinson called Mrs Freakley as a witness, but she was prevented from giving any further evidence after a few minutes, when it became apparent that Mr Robinson’s purpose was to adduce evidence that Mr Freakley had, on previous occasions, acted in a dishonest or dishonourable way in relation to business or property dealings; and further, that his evidence was not to be believed.
[29] In my view, Judge Davis was quite entitled to decline to hear Mrs Freakley’s evidence insofar as it concerned previous dealings. The evidence could not have been probative of the arrangements upon which Mr Robinson relied in the present case. If Mr Robinson wished to attack Mr Freakley’s veracity, he had to persuade
the Court that the evidence would be substantially helpful in a veracity assessment.6
[30] There was nothing to suggest that the factors set out in s 37(3) of the Evidence Act 2006 were engaged. The Judge’s decision not to receive Mrs Freakley’s evidence is readily understandable.
Conclusion
[31] I am satisfied that there was a proper basis for Judge Davis’s determination
that the police had established Mr Robinson’s guilt.
Discharge without conviction
[32] In the event that I concluded, as I have, that the finding of guilt in the District Court should remain undisturbed, Mr Robinson asks this Court to discharge him without conviction pursuant to s 106 of the Sentencing Act 2002. He did not seek a discharge without conviction in the District Court. This Court has certain
information relevant to penalty that was not before the District Court.
6 Evidence Act 2006 s 37(1).
[33] A sentencing Judge has a discretion to discharge without conviction a person who has pleaded guilty to an offence.7 However, that discretion must not be exercised unless the Judge is satisfied that the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offence.8 The inquiry is in two stages. At the first stage, it is necessary to consider the gravity of the offence, the direct and indirect consequences of a conviction, and whether those consequences are out of all proportion to the gravity of the offence.
[34] The second stage consists of a residual discretion that is engaged only if jurisdiction is made out.9 This offence lies at the least serious end of the criminal culpability spectrum. In a sense, the offending is technical in that there was none of the disorder that often accompanies trespass offending. Mr Robinson considered that he was on strong ground legally, and he was courteous and cooperative at all times. Those considerations are reflected in the modest penalty imposed by the Judge.
[35] I turn to the consequences of the offending. Mr Robinson has produced to the Court a medical certificate from his doctor which confirms that he suffers from a condition that causes chronic pain. He finds that spending a short period of time in a warmer climate eases his discomfort considerably, and he regularly spends time overseas, particularly in Vanuatu. As I understand it, he goes there for several weeks at a time, several times a year. His current permit to enter Vanuatu expires on
5 December 2013. Thereafter, he must apply for a fresh visa renewal, and in the course of doing so must supply a police clearance certificate. As matters stand that certificate will record his current conviction. Mr Robinson thinks that the conviction may stand in the way of a visa renewal, although there is no formal evidence of the attitude the Vanuatu authorities are likely to take. The Court is told also that Mr Robinson has some business interests in Vanuatu.
[36] Although the position concerning the renewal of his Vanuatu visa is somewhat equivocal, the Court does not have to be satisfied that the direct and
indirect consequences of the conviction will inevitably or probably occur. It is
7 Sentencing Act 2002 s 106(1).
8 Section 107.
9 Z(CA447/2012) v R [2012] NZAR 142 at [27].
sufficient if the Court is satisfied that there is a real and appreciable risk of the identified consequences.10
[37] I consider that there is a real and appreciable risk that Mr Robinson may not be able to return to Vanuatu after December by reason of the conviction. In my view, that consequence would be all together disproportionate to the gravity of the offending. I am satisfied that the Court should exercise its discretion in Mr Robinson’s favour.
[38] Mr Robinson is accordingly discharged without conviction.
C J Allan J
10 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222; Iosefa v Police HC Christchurch CRI-2005-
409-64 21 April 2005 at [34]; Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20]; Currie v Police HC Auckland CRI-2008-404-307, 27 May 2009 at [49].
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