Routhan v Police - [2014] NZHC 3203

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 Respondent

Judgment:

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,…

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.

Continue reading Routhan v Police

Details

AGLC: Routhan v Police [2014] NZHC 3203
Case: [2014] NZHC 3203
Decision Date: 15 December 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Ms. Jayne Elizabeth Routhan appeals against her conviction for three counts of trespass. The court must determine whether a miscarriage of justice has occurred. Ms. Routhan argues that her guilty pleas were unsafe due to counsel error, as she was not informed of tenable defences before entering the pleas. The court examines two potential defences: whether the warnings issued were valid, and whether the decisions to issue warnings were reasonable and consistent with the New Zealand Bill of Rights Act 1990. The court finds that the warnings were valid, as the persons issuing them were occupiers of the premises. However, the court acknowledges that a sufficient basis exists to argue that the Ministry of Health must facilitate a right of protest, and this defence did not occur to Ms. Routhan's counsel. The court concludes that the charge related to the Ministry of Health premises cannot safely stand and should be quashed. The appeals against conviction for trespass at the Accident Compensation Corporation (ACC) and the Law Society building are also allowed, as the form of the charge for the ACC premises is uncertain. Ms. Routhan is given leave to vacate her pleas of guilty on those two charges and enter pleas of not guilty on retrial. The appeal against conviction for trespass at the Law Society building is dismissed.

Orders