Routhan v Police
[2014] NZHC 3203
•15 December 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2014-485-53
CRI 2014-485-48
CRI 2014-485-46 [2014] NZHC 3203
BETWEEN JAYNE ELIZABETH ROUTHAN
Appellant
AND
POLICE Respondent
Hearing: 25 November 2014 Counsel:
M R Bott for Appellant
G A Kelly for RespondentJudgment:
15 December 2014
JUDGMENT OF THE HON JUSTICE KÓS (Appeals against conviction)
[1] On 20 May 2014 Ms Routhan pleaded guilty to three charges of trespass following a sentencing indication given by a District Court Judge. Consistent with the indication given the Judge entered a conviction and ordered Ms Routhan to come up for sentence if called upon within 12 months.1
[2] Ms Routhan now appeals against her conviction. She says her guilty pleas were unsafe because of counsel error. She says she was not informed of tenable defences before entering the guilty pleas. She submits her convictions should be quashed.
Background
[3] Ms Routhan gave evidence before me. She is intelligent and articulate. But she has suffered from mental health difficulties since the late 1990s. They were
1 Police v Routhan DC Wellington CRI-2013-085-4440, 20 May 2014.
worsened by a serious assault in 2002. She has undertaken a marathon battle with various agencies about her treatment and social services entitlements. A feature of it has been “guerrilla poetry”, written in chalk on city pavements under the pseudonym “JR Murphy, Poet”. There have also been songs, letters, phone calls and direct protest. The present convictions arise from that battle, and protest activity.
[4] Psychiatric reports before the District Court establish that Ms Routhan was neither insane nor unfit to stand trial. The reports eschew a formal diagnosis. However, her symptoms are similar to those of post traumatic stress disorder. Ms Routhan suffers from anxiety (opening mail sends her into a panic), anger problems (she had strong urges to assault the psychiatrists who assessed her and asked for security to be present to protect them), eating and other disorders.
Trespass law
[5] The Trespass Act 1980 (the Act) contains two essential trespass provisions. The first is s 3. It provides that a person commits an offence who trespasses on any place and, after being warned to leave that place by an occupier of the place, neglects or refuses to do so. It is a “single event” provision. The warning must be given by
an “occupier”. As Tipping J said in Wilcox v The Police.2
There are three elements to the offence created by s 3(1) of the Act. Each element must of course be proved beyond reasonable doubt by the prosecutor before a conviction can be entered. First, it must be proved that the person charged was trespassing on the relevant place; secondly, that the person charged was warned to leave the place by an occupier; and thirdly that he or she neglected or refused to do so.
[6] Section 4 is somewhat different. It is a “two event” provision. It provides, first, for a warning to stay off a place where a person is trespassing, has trespassed, or there is reasonable cause to suspect that a person is likely to trespass.3 Section
4(4) then provides that a person commits an offence who “being a person who has
been warned under this section to stay off any place, wilfully trespasses on that place
2 Wilcox v The Police [1994] 1 NZLR 243 (HC) at 246.
3 Trespass Act 1980, s 4(1) and (2).
within two years after the giving of the warning”. It is common under s 4 to give a written trespass warning. But it is not necessary to do so.4
Three protests, and three arrests
[7] On 17 April 2013 Ms Routhan entered the New Zealand Law Society building at 26 Waring Taylor St. She was in a highly agitated state and demanded to see a lawyer. She claimed the Law Society was obliged to provide her with one. She then sat in the foyer singing, reciting poetry and “telling [occupants] what [she] thought of them”. Mr Neil Mallon, a Law Society employee and complaints team leader, was called down. He asked Ms Routhan to leave. She refused. Police were called. At the request of Mr Mallon they asked her to leave. She refused. She was arrested, removed and given police bail.
[8] The charge laid against Ms Routhan was brought under s 3(1) and 11(2)(a) of the Act. It was that she trespassed on 26 Waring Taylor Street “and after being warned to leave that place by Neil Mallon, an occupier, refused to do so”.
[9] On 14 August 2013 Ms Routhan was warned to stay out of the building
containing ACC’s offices at 19 Aitken St, Wellington by a Sergeant Mark Lewis. On
18 December 2013 Ms Routhan entered the building at 19 Aitken St and went to the offices of ACC on level 1. She had fake blood smeared on her arms and neck. ACC staff members were initially concerned that she had wounded herself. The reception area had to be closed to staff and visitors while the confrontation continued. The police were called. She was asked to leave repeatedly by Mr Richard Price, an ACC business services manager. The police also asked her to leave. She refused. Again she was arrested, removed and given police bail.
[10] The charge in relation to the ACC offices was brought under ss 4(4) and
11(2)(a) of the Act, and was that she trespassed on 19 Aitken Street “and after being
warned to leave that place by an occupier, Richard Price, and Constable Seda
Clayton-Greene, refused to do so”.
4 Russell v Police (1981) 1 NZCPR 349 (HC) at 351.
[11] On 29 April 2013 Ms Routhan was given a written trespass notice to stay off the Ministry of Health’s premises at 133 Molesworth St, Wellington by Constable Japeth. He did so at the request of Ms Margaret Lewis, office services manager at the Ministry. On 22 January 2014 Ms Routhan re-entered the Ministry’s premises at
133 Molesworth St, Wellington. She had covered her arms in red dye to simulate injuries. She held a cardboard protest sign. And she demanded to meet with the Director of Mental Health. An associate was filming her. She started to shout at people coming and going from the building. Police were called and Ms Routhan refused to leave when they arrived. Again she was arrested, removed and given police bail.
[12] The charge in relation to the Ministry of Health premises was brought under ss 4(4) and 11(2)(a) of the Act, and was that “having been warned by Margaret Lewis, an occupier, 133 Molesworth Street, Wellington, wilfully trespassed on that place within two years after the giving of the warning”.
Legal representation
[13] A number of different lawyers have acted for Ms Routhan since the first charge was laid, on 17 April 2013. First Ms Bailey acted, and then Mr Hay took over. I am not sure what happened to Ms Bailey, but Ms Routhan fell out with Mr Hay.
[14] On 29 January 2014 Ms Paish from the Wellington office of the Public Defence Service was assigned to Ms Routhan’s case. Ms Paish gave evidence before me. The assignment was urgent. There was a chambers hearing that day. Ms Paish met Ms Routhan and her support person for about an hour before the hearing. She took a detailed file note. She says Ms Routhan expressed her views about political protest very clearly. She wanted to defend the charges based on her right to protest. Ms Bailey had advised that the prospects of a successful defence were limited. Ms Paish said she concurred with that discouraging view of things. But no decision had to be made that day. The chambers hearing was just to deal with issues under the Criminal Procedure (Mentally Impaired Persons) Act 2003. A s 38 report was ordered. A second report was ordered at a subsequent hearing on 19 March 2014.
[15] The evidence shows there was extensive telephone and text communication between Ms Paish and Ms Routhan in March, April and May 2014. Ms Paish wrote to Ms Routhan making an appointment to confer on 11 April 2014. On 3 April they had a telephone conversation of almost an hour’s duration. In it Ms Paish became aware that Ms Routhan had anxiety issues about opening mail. On 8 April there was another telephone conversation in advance of the scheduled conference. Ms Routhan now did not want to meet. The 11 April conference was cancelled.
[16] A fixture of 20 May 2014 was allocated by the District Court for the s 9 fitness to plead enquiry. Ms Paish received the second s 38 report only the day before the fixture. Both reports negatived insanity. Both confirmed Ms Routhan was fit to plead and stand trial. Ms Paish texted Ms Routhan asking her to come and see her at 9.15 am the next day, ahead of the hearing. She later received some abusive texts from Ms Routhan. She did not come to Ms Paish’s office. But she did come to Court.
A hearing on 20 May 2014
[17] The purpose of the hearing on 20 May 2014 was simply to deal with s 9 issues. A second hearing would need to be held to deal with capacity questions under s 14. That would require the attendance of the two psychiatrists if the defence wished to challenge their conclusions as to fitness to plead and stand trial.
[18] The 20 May hearing was not convened to provide a sentence indication or to enter guilty pleas. Yet that is what happened. How did that occur? And what had Ms Routhan been told about potential defences at that point? It is best to consider those questions in reverse order.
[19] What had Ms Routhan been told about potential defences? Ms Routhan said in her evidence:
I was unaware of my defences. I had never discussed any possible defences, nor did I have any opportunity to discuss my defences with my lawyer.
Ms Paish’s evidence was that she had given thought to eventual defences that might be run. She had thought about whether the validity of the warnings issued to Ms Routhan could be challenged on the basis that they were not made by persons who qualified as an “occupier”. But, based on the employment designations of the three staff members she rejected that line of defence. She did not discuss it in any detail with Ms Routhan. She also had given some thought to a defence based on freedom of expression under the New Zealand Bill of Rights Act 1990. But she did not give Ms Routhan any advice based on the duty of public bodies to exercise their powers reasonably and with regard to the NZBORA.
[20] How did the s 9 hearing end up in convictions? Ms Paish’s evidence is that she had the s 9 hearing stood down to the end of a relatively short list so it would occur in a quiet courtroom. The hearing itself ended taking up about two hours, on and off. She says Ms Routhan was adamant from the moment she arrived at Court that she wanted the matter resolved that day. She did not want to talk about the s 38 reports. She accepted the ss 9 and 14 hearings would go against her. Ms Routhan in evidence largely accepted this account. As she put it:
I couldn’t handle it anymore. I just wanted it over.
[21] Ms Paish’s evidence was:
Whilst Ms Routhan was adamant she wanted matters resolved, I wanted to spend time on the case and strongly advised her that it was in her best interests to obtain a sentencing indication before making any firm decisions. Based on that advice that is exactly what happened.
Implicit in that advice must be an assessment that no strong line of defence existed. Ms Paish did not say so in so many words in her evidence. But the inference is irresistible.
[22] Ms Paish prepared a written authority which Ms Routhan signed. So far as relevant it reads:
…
I understand & instruct my lawyer to speak openly with the Judge to see if the case can be resolved today.
I understand my lawyer will ask the court to consider discharging me without conviction but that this is open to the Court. I instruct her to file a written application if this is required.
I understand all of the decisions on how my case proceeds today will be made by [the Judge].
[23] The matter was called before the Judge at 10.30 am. There is a District Court transcript of the submissions made. Ms Paish accepted the outcome of the s 9 threshold was met by the prosecution, and that Ms Routhan was fit to stand trial. On that basis the Judge said he would set the matter down for a Judge-alone trial. At that point Ms Paish said, perfectly correctly, that she had instructions to see if the matter could be resolved today, and that she was “seeking a somewhat informal sentencing indication”. Ms Paish went on to make what can only be described as very thorough submissions in support of a discharge without conviction. After lengthy argument and discussion the Judge indicated that he was not prepared to discharge altogether, but was amenable to conviction and an order to come up for sentence if called upon. The police prosecutor concurred in that outcome. At
11.31 am the Court adjourned so Ms Paish could take instructions. At 11.54 am Court resumed. Ms Paish said she had oral instructions to accept the indication given. She said Ms Routhan accepted there would be convictions today, but she wanted to proceed and was positive about things. She still urged discharge without conviction, but accepted that outcome might not occur. She asked for waiver of Court costs, release of the s 38 reports to the District Health Board, and for time to obtain final written instructions. The Court stood down again from 11.59 am to
12.11 pm.
[24] During that second adjournment Ms Routhan signed the following further written instructions:
I, JAYNE ROUTHAN, after discussions with my lawyer and a very lengthy informal Sentencing Indication I accept the Judge’s informal indication and seek to enter guilty pleas to the Wilful Trespasses x 3 (ACC, NZ Law Society, Ministry of Health). I understand the Section 9 hearing was proved and Section 14 was unproven. I then received an indication after my lawyer requested this. The Judge has indicated conviction and discharge or conviction and come up if called upon. I accept this and understand one of these sentences will be imposed today. I instruct my lawyer to resolve matters today.
I understand the court costs will be waived and my fine of $230.00 will also be waived.
[25] At about 12.20 pm guilty pleas were entered. Ms Routhan was convicted and ordered to come up for sentence if called on within 12 months. No order for costs or reparation was made, and an infringement fee was remitted.
[26] I should conclude by noting that Mr Bott, appearing for Ms Routhan on the appeal, expressly states that he is not submitting that Ms Paish was negligent in her representation of Ms Routhan on and before 20 May 2014.
[27] So what should Ms Paish have done instead? Mr Bott says she should have given greater recognition to Ms Routhan’s inherent vulnerabilities and “prevented her from pleading on that day”. At the very least she should have “counselled her strongly” against entering pleas until she had considered and reviewed with her available positive defences.
Approach on appeal
[28] The Court must allow an appeal against conviction if a “miscarriage of justice has occurred for any reason.”5 A miscarriage of justice means:6
any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[29] The word “trial” includes a proceeding in which the defendant pleads guilty.7
[30] An appeal against conviction after entering a guilty plea will only be
entertained in “exceptional circumstances” where there is evidence of a miscarriage
5 Criminal Procedure Act 2011, s 232(2)(c).
6 Section 232(4).
7 Section 232(5).
of justice.8 One such example of a miscarriage of justice is failure of defence counsel to inform the defendant of a possible defence. As Cooke J put it:9
There may be cases where a line of defence is sufficiently tenable to call for a fuller and more explicit explanation to the accused by counsel than seems to have occurred in the present case. We do not say that a miscarriage of justice can never be established on such a ground. But when the accused has the advice of experienced counsel, such cases will be rare… In deciding whether a miscarriage of justice has been shown the Court should, in our view, look at all the circumstances. Here these include the accused’s own strong inclination to plead guilty, and the unanimous opinion of his professional advisers that the murder charge was unlikely to be successfully defended.
[31] More recently in R v Merrilees the Court of Appeal said:10
[33] … where an appellant fully appreciates the merits of his position and makes an informed decision to plead guilty, a conviction cannot be impugned…
[34] There will be a further situation where trial counsel errs in his or her advice to an accused as to the non-availability of certain defences, or outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision on the part of a client to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.
[32] In Cooper v R the Court of Appeal observed that the required strength of the proposed defence is not clear, but in essence it must have some substance:11
[20] In a case like the present, the Court will need to make some assessment of the proposed defence in order to determine whether what has occurred has given rise to a miscarriage. In the context of considering the adequacy of advice about possible defences, various terms have been used to describe the nature of the defence required, including an “arguable defence”, a “tenable defence”, a “credible defence”, or a “discernible defence”. In a case involving Arms Act charges, Randerson J referred to a “reasonably arguable” defence which “ought to be heard”.
[21] These adequacy of advice cases all have, as a common denominator, the raising of a defence which has some substance.
8 R v Stretch [1982] 1 NZLR 225 (CA) at 229; R v Le Page [2005] 2 NZLR 845 (CA) at [16].
9 R v Stretch [1982] 1 NZLR 225 (CA) at 229–230.
10 R v Merrilees [2009] NZCA 59.
11 Cooper v R [2013] NZCA 551 (citations omitted).
Grounds of appeal
[33] Mr Bott submits Ms Routhan did not make a fully informed choice to enter her pleas of guilty. In essence he submits that her counsel, Ms Paish failed to advise her that there were tenable defences to the charges she faced. In particular:
(a) a challenge to the validity of the warnings issued to Ms Routhan, alleging they were not made by persons who qualified as an “occupier”; and
(b)a challenge to the validity of the decisions of those persons to issue warnings, bearing in mind the duty of public bodies to exercise their powers reasonably and having regard to the NZBORA. This ground was advanced only in relation to the second and third charges, involving ACC and the Ministry of Health.
[34] A suggested defence of necessity, advanced in written submissions, was abandoned in oral argument.
Analysis
[35] I need therefore to address two questions: Were arguable defences available? And, if so, was there a miscarriage of justice in those defences not being advanced? I will consider these questions together, under each defence mooted.
Qualification as an occupier
[36] Mr Bott submits that it is arguable that none of the persons who warned Ms Routhan to stay off the premises by issuing a trespass notice (or in the case of the Law Society, asked her to leave) were entitled to do so. He submits there is no proof that they were the “occupier” of the premises or had properly delegated authorisation to issue notices on behalf of the occupier.
[37] “Occupier” is defined in s 2 of the Act:
occupier, 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.
[38] In Polly v Police the Court of Appeal considered the meaning of the word
“occupier” in s 2:12
Where the occupier is a corporation regard must be had to the way in which corporations work. Many acts done by agents or employees or corporations are not the subject of express authorisation. Corporations of necessity act through their agents or servants. Where authorisations are the subject of resolutions or expressed in writing, the precise scope and terms of the authorisation can be established. But express authorisations are likely to be the exception rather than the rule. More often than not, much of the business of corporations is done through agents or employees without specific authorisation. The practicalities of the situation should be recognised. The somewhat pragmatic way in which, we think, s 3 has been applied is demonstrated by the relative absence of case law. Persons of managerial rank or executive status in the employ of a corporation should be treated as being in lawful occupation of the premises which the corporation holds as owner, lessee, or under other form of tenure. To take that view is to do no more than recognise that corporations habitually give such persons day to day control of such premises. To do otherwise would be to require corporations to give specific authorisations for a range of activities which are commonly considered to come within the scope of authority of the manager or secretary. It is in the nature of the powers of a person who occupies a managerial role (whether as manager or sub-manager or acting manager) that he should control matters of access to his employer’s property and in a sense he is the alter ego of the corporate occupier. (Emphasis added)
[39] I do not think that too formalistic an approach should be taken to the meaning of the word “occupier”. Parliament clearly intended it to apply to any employee, acting with authority from the person in lawful occupation, with sufficient practical authority to require a trespasser to leave. As the Court of Appeal made clear in Polly, that does not require formal delegation. Nor does it necessarily require managerial or executive rank. It is sufficient that the person giving the warning has effective control of the premises, or the part of the premises concerned.
[40] In the case of the Law Society building charge, Mr Mallon was team leader for complaints at the New Zealand Law Society. He occupied a managerial role. He was the person called in to deal with Ms Routhan’s protest activity. He is plainly an occupier for the purposes of the Act.
[41] In the ACC office protest, the warning was given by Mr Richard Price. He is a business manager at ACC. He too was the person called to deal with the issue and it is clear he was an occupier for the purposes of the Act.
[42] The same conclusion must be reached in relation to the Ministry of Health office protest. The warning there was given by Constable Japeth, at the request of Ms Margaret Lewis, the office services manager. She too was an occupier for the purposes of the Act.
[43] No tenable line of defence on this ground has been shown.
Warnings reasonable and consistent with the NZBORA?
[44] Mr Bott submits that police officers giving warnings or issuing notices, whether under s 3 or s 4, are considered to be exercising a public duty, and in so doing are bound to act reasonably, having regard to the New Zealand Bill of Rights Act 1990. This defence, he accepts, could apply only to the second and third charges. Not to the Law Society trespass charge.
[45] The reference to “reasonableness” is not an invocation of reasonableness in a public law, Wednesbury, sense. Rather Mr Bott relies on the following passage from Ross v Police where Hammond J held:13
[45] In my view the police officers were at the time exercising a public duty. Hence having regard to the Bill of Rights Act 1990 and decisions such as Police v Beggs the powers under the Trespass Act had to be exercised in a manner which was reasonable in all the circumstances.
[46] Police v Beggs was a case where the Speaker trespassed a large number of student protesters from Parliament’s grounds. The passage referred to by Hammond J reads as follows:14
Circumstances can arise in which there is conflict between competing rights and freedoms. Some rights and freedoms are affirmed in the Bill of Rights and some may arise through other statutes, such as is the case here. The Trespass Act gives to an occupier the power, or right, to require a person
13 Ross v Police (2002) 6 HRNZ 734 (HC).
14 Police v Beggs [1999] 3 NZLR 615 (HC) at 625-627 per Wild J and Gendall J.
who is trespassing to leave a “place”. It also gives the occupier the power or right to “warn off” a person who has trespassed. But what if the “trespasser” is asserting a right of peaceable assembly — with or without expression — under the Bill of Rights? We think Gault J supplied the answer in Simpson v A-G:
Flexibility necessarily will be valuable in those circumstances. In the absence of entrenched supreme law there is no imperative to accord greater status to the rights affirmed in the [Bill of Rights]. It can be said that ss 4-6 probably go little further than the common law presumption of statutory interpretation that where possible statutes are not to be interpreted as abrogating the common law rights of citizens.
….
We do not think s 4 of the Bill of Rights Act is the key to this case. Rather, we focus on the act of warning, as provided in s 3(1) of the Trespass Act. The statutory right given to the occupier to warn, in circumstances where the act of warning is being performed by a person or body performing a public function, may limit the right of assembly in s 16 of the Bill of Rights. The power or right to warn can be given a meaning consistent with the s 16 right of assembly by application of the standard of reasonableness. Because such an act limits the right and freedoms contained in the Bill of Rights, such limitation must be reasonable in terms of s 5. The exercise of this statutory power can be resorted to only when reasonably necessary.
….
The test will always be what is reasonable in the circumstances. People permitted access to a public “place”, such as Parliament grounds, must be able to exercise their freedom of assembly, with or without “freedom of expression” rights. Yet those rights are not absolute. 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. Should or can there be a precise formula to govern the test of reasonableness? We think not: the factual situations that might arise are infinite. Any attempted formula will rapidly become an inconvenient shackle.
(Emphasis added)
[47] The Court went on to set out a list of considerations that would be relevant to reasonableness:15
(a) Whether the assembly is unreasonably prolonged;
(b)The degree to which the rights and freedoms of other people are affected by the trespass notice;
(c) The degree to which the assembly or protest interferes with the rights of the occupier to use the premises for ordinary business or duties free of nuisance;
(d) The size of the assembly and its duration;
(e) The content of what is being expressed, if the message is one of hatred, racial abuse, intolerance or obscenity;
(f) Whether the notice is justified on the grounds of maintenance of public order (such as lack of prior notice to police of time and location or maintenance of public order in street traffic).
[48] That formulation has recently been approved by the Court of Appeal in
Bright v Police.16
[49] Mr Bott submitted that in a free and democratic society, if someone wishes to protest at a perceived breach of duty by a public body, that body has a positive duty to facilitate the protest by advising the person where he or she can lawfully protest. A trespass notice issued by a public body under s 4 should only be issued where reasonable. It may encompass an obligation to provide advice as to alternative means of communication, where that person has on-going business with the public body. As Mr Bott put it:
For a vulnerable person who cannot afford access to counsel to advocate on their behalf to be unable to enter the ACC building or the Ministry of Health and lobby for changes and or speak to a representative of the organisation face to face about their funding needs, the effect of being trespassed for two years could be devastating. Questions of the appropriateness of the Notice must be able to [be] raised as part of their defence if they are charged with an offence.
[50] This submission is a primary attack on the charge relating to the Ministry of Health. In substance it is a s 4(4) charge, depending on the validity of a prior notice. The ACC premises charge, on the other hand, although expressed to be under s 4(4), is in substance brought under s 3(1). I will return to that point later.17
[51] Ms Kelly, for the police, submitted that there was no authority suggesting that the Ministry of Health or ACC must facilitate a right of protest. Persons exercising rights of access to public places, including the offices of public bodies, do not have absolute rights to exercise freedom of assembly or freedom of expression. Ms Routhan did not need to be told that she could carry out her protest outside the relevant buildings. Indeed she had made much of the public protest undertaken by a Mr McIvor-Dickson in the street outside the ACC building in Aitken Street.
[52] The argument advanced by Mr Bott may not necessarily prevail, upon full consideration. But I accept that a sufficient basis to advance the defence exists in relation to the charge concerning the Ministry of Health premises. It is that charge that depends upon the validity of the earlier notice given. Ms Routhan is entitled to have the circumstances of the issue of the initial warning off examined. It is not something I can form a summary view on, on an appeal where guilty pleas were entered and evidence was not heard.
[53] While I do not think any particular criticism can be made of the work done by Ms Paish (and it is clear from the evidence that she has been highly attentive to her client’s interests), this line of defence plainly did not occur to her. She cannot be criticised for that. As I noted earlier, the hearing on 20 May 2014 was not supposed to deal with questions of guilt, but rather questions of participation and capacity under the Criminal Procedure (Mental Impaired Persons) Act 2003. Ms Routhan’s change of heart, after earlier insisting upon defending the charges, to instead want all matters resolved at that hearing, clearly came as a surprise.
[54] It was plain that Ms Routhan had mental health issues. The s 38 reports, which were for consideration by the Court that day, made that perfectly clear. Even if they did not support findings of insanity or unfitness to plead or stand trial, they
showed that she suffered from a disorder akin to post traumatic stress disorder. The Court in those circumstances should not have permitted guilty pleas to have been entered without being sure that Ms Routhan had either been advised of potential lines of defence or had, after due consideration (probably involving the matter being stood down to another fixture), made an informed decision to waive such advice. That precaution is not evident from the transcript. I am satisfied therefore that the charge in relation to trespass at the Ministry of Health offices cannot safely stand, and that it should therefore be quashed. Ms Routhan should now be permitted to enter a plea of not guilty upon retrial.
[55] That conclusion does not apply in the case of the ACC trespass charge. That in substance was a s 3(1) charge, and does not depend on an earlier warning off. But it does raise another problem which I turn to now.
Were any other defences available?
[56] The charge brought in respect of the ACC premises is, as I have said, in substance a s 3(1) charge. It is that she trespassed on those premises and refused to leave after being warned to leave by Mr Price and Constable Clayton-Greene. The charging document however references s 4(4), which depends instead on the giving of a prior notice. In that event the same potential defence identified in relation to the Ministry of Health building would then arise. In this state of abject uncertainty, because of the form of the charge, I do not think that conviction can stand either. It is quashed and Ms Routhan should now be permitted to enter a plea of not guilty upon retrial.
[57] I note that it is not suggested by Mr Bott that rights of freedom of expression would provide a higher level defence to any charge here. Given that Ms Routhan is to be retried on two charges, I express no view in the absence of argument. But in the case of the remaining charge, involving trespass at the Law Society building, I am satisfied that Ms Routhan’s conduct exceeded her protected rights of freedom of
expression to protest under s 14 of the New Zealand Bill of Rights Act 1990.18
18 See Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1; Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 and Taueki v Police [2012] NZHC 3538.
Result
[58] The appeal against conviction in respect of trespass at the Law Society building at 26 Waring Taylor Street, Wellington, is dismissed.
[59] The remaining appeals are allowed. Ms Routhan is given leave to vacate her pleas of guilty on those two charges and enter pleas of not guilty on retrial.
Stephen Kós J
Solicitors:
Heretaunga Law, Silverstream for Appellant
Crown Solicitor, Wellington for Respondent
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