Solicitor-General v Farquhar - [2019] NZHC 572

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000123

[2019] NZHC 572

BETWEEN
THE SOLICITOR-GENERAL

Appellant

AND

DANIEL JOHN FARQUHAR

Respondent

Hearing: 12 March 2019

Appearances:

B Hawes and S Bicknell-Young for Appellant D J Matthews and E Nicol for Respondent

Judgment:

26 March 2019

JUDGMENT OF GENDALL J

Introduction

[1] On 15 October 2018 Judge O’Driscoll in the District Court acquitted Daniel Farquhar on the charge of being found in an enclosed yard without reasonable excuse under s 29(1)(b) of the Summary Offences Act 1981. The Judge determined that Mr Farquhar could not be guilty of the offence as his image being captured on a security camera apparently committing the offence did not come within the definition of “found” under s 29(1)(b). The Solicitor-General appeals on a question of law. She argues that Judge O’Driscoll erred in adopting this definition of “found”.

Facts

[2] On 5 May 2018 the female complainant installed a security camera on her back fence, overlooking the gate of her residential property where she lived. On 7 May 2018 the complainant reviewed the security camera footage, finding that it had

SOLICITOR-GENERAL v FARQUHAR [2019] NZHC 572 [26 March 2019]

captured photographs of a man at her back gate at 11.09 pm on 5 May 2018. The man is now identified as Mr Farquhar.

Principles on appeal

[3] Section 296 of the Criminal Procedure Act 2011 allows a prosecutor or defendant, with leave of the first appeal court, to appeal on a question of law. Leave to appeal will generally be granted if there is an arguable question of law identified.1

[4] In Brown v R the Court of Appeal identified that to succeed “questions of law” must raise one of three standard errors:2

…

(a)a misdirection of law apparent in the decision (what Fisher J called “a conventional legal question on unchallenged facts”);

(b)oversight of a relevant matter, or consideration of an irrelevant matter; or

(c)a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.

(footnotes omitted)

Leave to appeal

[5] Mr Farquhar accepts that leave to appeal cannot be opposed because the Solicitor-General does have at least an arguable case that Judge O’Driscoll made an error of law. I agree that there is an arguable question of law here that the Judge may have interpreted “found” too narrowly. Leave to appeal is granted.

District Court decision

[6] In his decision in the District Court Judge O’Driscoll noted first that the authors of Adams on Criminal Law have recognised that the courts have given the term “found” a restricted meaning:3

1      Police v Neutze [2018] NZHC 1510 at [2].
2      Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16].
3      Adams on Criminal Law (online ed, Thomson Reuters) at [SO28.01].

In this context, the courts…

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 Solicitor-General v Farquhar

Details

AGLC: Solicitor-General v Farquhar [2019] NZHC 572
Case: [2019] NZHC 572
Decision Date: 26 March 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the Solicitor-General sought leave to appeal against a decision of Judge O'Driscoll in the Christchurch District Court, which acquitted Daniel John Farquhar of the charge of being found in an enclosed yard without reasonable excuse under s 29(1)(b) of the Summary Offences Act 1981. The central legal issue in the appeal was whether the term "found" in s 29(1)(b) of the Act required a contemporaneous observation of the defendant by another person, or if it could include being captured or discovered in images taken at the time of the alleged offence. The High Court held that the term "found" should be interpreted in a way that aligns with the purpose of the statutory provision, which is to discourage inchoate criminality and prevent crimes against persons or property. The Court concluded that the contemporaneous requirement of a finding was not necessary, and that the contemporaneous capture of a trespass-type event on CCTV footage and the later viewing of that footage could satisfy the "found" test. The appeal was allowed, and the case was remitted back to the District Court for further proceedings.

Orders