S v Police HC Hamilton CRI 2007 419 64

[2007] NZHC 707

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007 419 64

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         25 July 2007

Counsel:        K Clews for Appellant

C D Bean for Respondent

Judgment:      25 July 2007

ORAL JUDGMENT OF RONALD YOUNG J

[1]      Mr S   is a baker in Hamilton.   Next to his shop is a superette.   For years it seems there have been disputes between Mr S   and the owner of the superette.  Mr S   says that over many years the proprietor of the superette has abused his customers.  No doubt the proprietor of the superette has a different view. But in any event, Mr S   became so upset by this that he regularly sought medical treatment for stress.  He says the stress got too much for him.  He went to see an Indian friend to ask for advice about what to do with the Indian proprietor of the superette.   His friend told  him that  there was an Indian custom that  if one

sprinkled rice and curry powder on the ground, bad luck would befall those who

S V NEW ZEALAND POLICE HC HAM CRI 2007 419 64  25 July 2007

crossed this powder.   Mr S   got a mixture of curry powder and rice.   He spread it outside the superette.

[2]      The proprietor of the superette said he did not wish to cross the curry powder and rice.  He complained to the police.  The police charged Mr S   with an offence under s 21(2) of the Summary Offences Act 1981 alleging that he forcibly hindered the complainant from working at the business at the superette. Unsurprisingly, he initially pleaded not guilty.   Surprisingly, he changed his plea later to guilty.   He sought a discharge without conviction from the District Court Judge.  He filed affidavits by others who have been the subject of, and knew of, the abusive conduct of the proprietor of the superette.  The District Court Judge refused to grant him a discharge without conviction.  He said the appellant’s actions were the equivalent of throwing petrol on a fire.  He fined the appellant $200.

[3]      The appellant appealed against his conviction saying the Judge should have given him a discharge without conviction.

[4]      Section 21(2) of the Summary Offences Act 1981 provides as follows:

21       Intimidation

. . .

(2)       Every person commits an offence who forcibly hinders or prevents  any  person  from  working  at  or  exercising  any lawful trade, business, or occupation.

[5]      The police summary of facts alleges no forcible hindering of the proprietor of the superette by Mr S  .   Indeed, the police summary of facts appears to allege no crime at all.  It simply describes the incident as I have.  It is clear that as far as the actions of Mr S   are concerned there are no other facts relevant to the charge.

[6]      As a result, at the commencement of this appeal I invited the Crown, who supported the Judge’s decision in its submissions, to identify how the summary of facts, or indeed any other facts known to the Crown, could possibly have established the crime alleged.  They now accept that they cannot do so, that the summary of facts

describes no such crime, nor are there other facts relating to the acts of Mr S   which would establish any “forcible hindering” by him.

[7]      At my invitation, the appellant’s counsel sought and was granted leave by me to vacate the plea of guilty.

[8]      As I have said, the Crown now accepts that the only  evidence  it  has  is contained in the summary of facts supplemented by the appellant’s affidavit.   It is clear, as the Crown now accepts, that there is no evidence to establish the crime that Mr S   was charged with.  I therefore allow the appeal and dismiss the charge.

[9]      I should say in addition that if I had been faced with deciding whether the Judge erred under s 106 of the Sentencing Act 2002 in failing to grant a discharge without  conviction,  I  would  also  have  allowed  the  appeal  and  discharged  the appellant without conviction.  In my view, a conviction was wholly out of proportion to the very minor incident that occurred here.   I reject the suggestion of both the District   Court   Judge  and   the   Crown  that  this   was   offending   with  serious ramifications.  It was simply a spat between two neighbours.   It should have been dealt with by the police on an informal basis.  Perhaps the lesson in all of this is that not all unattractive conduct is a crime.

[10]     For the reasons given the appeal is allowed and the conviction quashed.

……………………………

Ronald Young J

Solicitors:

Crown Solicitor, Hamilton