S v Police HC Auckland CRI 2006-404-147

[2006] NZHC 1548

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-147

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 December 2006

Appearances: Mr Harold for appellant

Mr Harborow for respondent

Judgment:      8 December 2006 at 2.30 pm

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 8 December 2006 at 2.30 pm pursuant to Rule540(4)

of the High Court Rules.

Registrar/ Deputy Registrar

Owen E Harold, Mt Roskill

Meredith Connell, Auckland

S V POLICE HC AK CRI 2006-404-147  8 December 2006

[1]      Mr S   appeals against his 3 May 2006 conviction on one charge of being found in an enclosed yard without reasonable excuse, contrary to s 29(1)(b) of the Summary Offences Act 1981.  Mr S   was sentenced on that day to come up for sentence if called upon within nine months.

Factual background

[2]      On  28  March  2005,  at  about  11.15  pm  Mr  S    was  walking  along

Palomino Drive, Henderson.  He climbed over a fence and into the property of 42

Palomino Drive, Henderson.  He was known by the occupants at the address but had no authority to be there.   The complainant, who was an occupant of the address, heard a noise and went outside to find Mr S   about a metre away from his house, some four metres from the boundary.   The complainant yelled out to Mr S   who pulled up his hood on his sweatshirt and ran from the address, jumping over the fence before running off down Palomino Drive toward Henderson Valley Road.

[3]      When spoken to by the Police, Mr S   provided a statement.   He said that he had left his girlfriend’s house at Brittany Drive about 10.30 pm on 28 March

2005, and was walking to his home in Border Road, down Palomino Drive.  On his way he was accosted by a person unknown to him who grabbed his cellphone.  He gave chase and the other person threw the cellphone towards the property on Palomino  Drive.    He  went  on  to  that  property  to  try  and  find  it.    He  was unsuccessful.  When the complainant shouted at him, Mr S   said he took fright and ran off.

[4]      Constable Godsalve gave evidence at trial.   He said that he had searched Mr Day’s property looking for Mr S  ’s cellphone.   By ringing the cellphone number the phone was located in a pile of stones on the grass verge between the footpath and the fence at the front of the property.

Oral judgment of His Honour, Judge Mather

[5]      The Judge reviewed the evidence that had been produced at trial.   He then reminded himself that the onus remained on the prosecution throughout and that the prosecution had to prove the ingredients of the offence beyond reasonable doubt.  He then said that he was satisfied beyond reasonable doubt that the defendant was in an enclosed yard at Palomino Drive, Henderson on 28 March.  He said:

The other ingredient is that he is there with without reasonable excuse.  It is for the  Police to  show as  the  prosecution  that  there  was  no  reasonable excuse.    The  only  basis  for  excuse,  which  can  be  extracted  from  the evidence, is that the defendant was looking for his cellphone.  He gave his explanation about the cellphone at the time.

[6]      The Judge then canvassed the evidence in relation to the cellphone.  He noted that it was found outside 42 Palomino Drive and there was no evidence to contradict Mr S  ’s claim that the cellphone had been taken from him.  He then however considered the credibility of the explanation that Mr S   gave to the police at the time and concluded:

The view I have come to is his being on the property in the way that he was and his actions immediately following that are inconsistent with his innocent explanation.   If that was the only reason he was on number 42 Palomino Drive then even if he was somewhat uncomfortable with Mr Day, his actions in pulling up his hood and taking off are inconsistent with his being there for an innocent purpose, namely, looking for his cellphone.

The Judge therefore found all ingredients of the offence proved.

This appeal

[7]      The appeal is brought on the basis that Mr S   had a reasonable excuse for being in the enclosed yard, looking for his cellphone.  Counsel for Mr S   says that the Judge directed himself correctly that the onus of proof remained on the prosecution throughout to prove the elements of the offence.  However, he says that there was insufficient evidence before the Judge to enable him to be satisfied beyond reasonable doubt that there was no reasonable excuse for Mr S  ’s presence

inside the enclosed yard.   The fact that he absconded when accosted by the complainant was not sufficient evidence.   The fact of flight is consistent with the explanation  given  by Mr  S  ,  namely that  he  “freaked  and  ran  off”  when accosted by the complainant.

[8]      The respondent argues firstly, that the Judge erred in directing himself that the burden of proof remained on the prosecution throughout. The onus of proving the reasonable excuse was upon Mr S   and the standard of proof was on the balance of probabilities.  Secondly, the respondent argues that even if Mr S   had established the excuse he claims on the balance of probabilities, that would not constitute a reasonable excuse at law.  Finally, the finding of the Judge was available to him even assuming that the onus remained upon the Crown from beginning to end.

Relevant legal principles

[9]      The phrase ‘reasonable excuse’ includes any exculpatory fact or belief on the part of the defendant.  That is wide enough to include any reasonable mistake of fact or of law which somehow leads the defendant to suppose he or she has an excuse for being  in  the  building:    Grey  v  Police  HC  HAM  AP  65/01  31  October  2001, Hammond J.   The reasonableness of an excuse is to be judged in the light of the particular circumstances (R v Hyde (1990) 7 CRNZ 366 at 372) and an assessment of the reasonableness of the  excuse will  involve  the  Court  assessing  and  applying community standards to the particular facts of the case: (Mark v Henshaw (1998)

155 ALR 118).

[10]     As to the issue of the onus and standard of proof, in supporting the approach of the District Court Judge, counsel for Mr S   referred me to Grey, where Hammond J said:

There was some discussion before me as to the burden of proof when such a defence is raised.   There is an argument that an excuse under this section would be an “excuse” within the meaning of s67(8) of the Summary Proceedings Act 1957.  If that was so, a defendant would face the burden of establishing the defence, on the balance of probabilities.  That may possibly have been true of the section in its earlier forms in our legislation where a

defendant advanced an excuse of being found “without lawful excuse” in the building.   I am inclined to think however, that in the form the legislation now is, it is for a defendant to raise an evidentiary basis for the defence; but it is the prosecution which ultimately has the persuasive burden.   In other words, the Crown must displace a defence of this character if it is appropriately raised.   Having regard to ss6 and 25(c) of the New Zealand Bill of Rights Act 1990, such an interpretation is to be preferred.

[11]     In arguing for a different approach counsel for the respondent relies upon Police v Wineera (1989) 4 CRNZ 449.  In that case the appellant had been charged with having a knife in his possession in a public place without reasonable excuse. Greig J held that the provisions of s 67(8) of the Summary Proceedings Act applied. Section 67(8) of the Summary Proceedings Act provides:

Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the offence in the enactment creating the offence, may be proved by the defendant, but, subject to the provisions  of  section  17  of  this  Act,  need  not  be  negatived  in  the information, and, whether or not it is so negatived, no proof in relation to the matter shall be required on the part of the informant.

[12]     A more recent authority is Juken Nissho Ltd v Northland Regional Council [2000] 2 NZLR 556. In that case the Court of Appeal was considering an appeal from a decision of Salmon J convicting the appellant of offences under s 15(1) of the Resource Management Act 1991. That section provided that no person was to discharge contaminants unless the discharge was expressly authorised by, inter alia, a resource consent.

[13]     The appeal was dismissed, the Court upholding the approach of Salmon J that the phrase “unless” was intended as a qualification to what went before, providing an exceptional excuse.   The burden of showing that the discharges were within the terms of the consent was therefore upon the defendant.

[14]     In the High Court Salmon J had adopted the comments of Thorp J in Bay of Plenty Regional Council v Bay Milk Products Ltd [1996] 3 NZLR 120 where he said:

It follows that in the summary jurisdiction the first task of a Judge seeking to determine whether s 67(8) applies to a particular provision must be, as in all cases of statutory interpretation, to determine whether that provision plainly comes within the ordinary significance of the words "exception, exemption, proviso, excuse or qualification". It is only if that "linguistic interpretation"

leaves the issue in doubt that the Court will need, in terms of R v Rangi at p

388:

". . . to have regard to the orthodox considerations recognised in

Hunt and Nimmo, because the intention is not plain on its face."

[15]     The “orthodox considerations” referred to in R v Hunt [1987] AC 352 and Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 determining the intention of Parliament by examining the mischief at which the Act was aimed, and practical considerations effecting the burden of proof, in particular, the ease or difficulty the respective parties would encounter in discharging the burden of proof.

[16]     In  this  case  of  s  29(1)(b)  of  the  Summary  Offences  Act  the  expression “without reasonable excuse” plainly falls within the provision of s 67(8) of the Summary Proceedings Act providing as it does that the defendant’s otherwise unlawful conduct is thereby excused.  I therefore respectfully differ from the view expressed by Hammond J in Grey, and the District Court Judge in this case.   The onus of proof was upon Mr S   to establish on the balance of probabilities that he had a reasonable excuse for his presence on the property.

Analysis

[17]     I accept that the Judge’s conclusion that the prosecution had excluded beyond reasonable doubt the existence of a reasonable excuse for Mr S  ’s presence in the enclosed yard was available to him on the facts.   He rejected Mr S  ’s explanation  as  implausible  in  the  face  of  his  conduct  generally,  including  his presence inside an enclosed yard at 11.00 o’clock at night.  He also took into account as he was entitled to, Mr S  ’s conduct when accosted by the complainant, namely pulling down his sweatshirt hood and running off.  He was also entitled to take into account that there was evidence to suggest that the complainant had discarded his sweatshirt in an attempt to conceal his identity.  The finding that the prosecution had excluded beyond reasonable doubt the existence of a reasonable excuse is dispositive of the appeal.

[18]     I have also held that the Judge erred in directing himself to the burden and standard of proof.   But that error is immaterial to this appeal since it favoured Mr S  .

[19]     The  final  issue  raised  by  the  respondent,  was  the  reasonableness  of  the excuse.   The evidence was that Mr S   was four or  five metres inside  an enclosed yard at 11 o’clock at night.  The fence around the property was at a height that he had to jump over it to enter.  His excuse was that he was attempting to find a cellphone he believed had been thrown into the property.   In the particular circumstances of the case, community standards would require that rather than enter on to the property without permission and commence a search at that time of night, Mr S   should either have knocked and sought permission to search for his cellphone or else returned in the daylight hours and done the same.  Our community would not regard as acceptable a person entering and wandering about an enclosed yard at night time attempting to find an item of lost property.  The potential for that to cause alarm and confusion is obvious.   Therefore, if I had been called upon to decide this issue, I would have held that the excuse offered by Mr S   was not

‘reasonable’ for the purposes of s 29(1)(b).

Conclusion

[20]     The appeal is dismissed.

Winkelmann J