Solicitor-General v Farquhar
[2019] NZHC 572
•26 March 2019
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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 have given “found” its ordinary meaning of “come across” or “discovered”. For a person to be “found” in a place it is not sufficient that there be proof that he or she was at some stage present there, whether this be established by inference or by admission. Instead it is essential that the defendant be perceived there by someone.
[7] His Honour adopted this meaning of “found”, noting the Court of Appeal authority of Police v Carter in which Cooke J said:4
Another way of expressing the natural and ordinary meaning of “found” is to say that the person has been come upon or met with in the place.
[8] The Judge then concluded that Mr Farquhar was not “found” because he was not “perceived”, “come across” or otherwise “met” in the complainant’s back yard by some other person. As such, the required element that the defendant be “found” was not made out and Mr Farquhar could not be liable of the offence.
Submissions
Appellant’s submissions
[9] Mr Hawes for the Solicitor-General contends that “finding” can include a person being captured or discovered in images taken at the time of the alleged offending. He says that given the origin of this provision lies in the now repealed Police Offences Act 1927, “finding” by a motion sensitive camera was plainly not within the original contemplation of Parliament but it is nonetheless consistent with the purpose of the statutory provision. Counsel submits an absurdity flows from Judge O’Driscoll’s definition of “found” whereby a prosecution could stem from a postman seeing someone in a homeowner’s yard but not from the evidence of the homeowner who saw for herself the same behaviour via camera footage.
[10] In relation to temporality, Mr Hawes submits that if “finding” can occur by the person being observed contemporaneously via a camera, there is no logical reason why viewing contemporaneity is a requirement. If the evidence of a person who watches footage at the time of the behaviour but delays reporting it is sufficient, then evidence
4 Police v Carter [1978] 2 NZLR 29 (CA) at 32.
of a person who watches the footage after the fact and then reports it must also be sufficient. This is particularly so because an arrest need not be simultaneous.5
Respondent’s submissions
[11] Mr Matthews for Mr Farquhar submits that the issue for determination is not whether “finding” can occur via CCTV but whether the post fact discovery that someone has been on a property can be proof of “finding”. He submits a “finding” must involve a contemporaneous coming across or meeting with someone on a property. Mr Matthews says this must be the case as the “plain and ordinary meaning” of “found” excludes the wider definition contended for by the Crown and that Parliament’s intent that this is the case is clear from the way “found” is used elsewhere in s 29 and in the Summary Offences Act.
[12] Mr Matthews argues that the plain and ordinary meaning of “found” is a “coming upon” or “meeting” by another person. He relies on the Court of Appeal’s decision in Police v Carter as authority for the proposition that “found” has this narrow meaning, as that is the meaning cited by the Court of Appeal. He also highlights the Court of Appeal’s noted agreement with Mahon J in R v Otten;6 where the Court stated:
7
…mere proof of presence on premises at some stage as by inference or admission, is not enough: the defendant must have been perceived there by someone. Normally he must have been seen there.
(emphasis original)
Mr Matthews submits that in the present case, the discovery that CCTV images captured Mr Farquhar’s presence on the premises is “mere proof of presence at some stage” and that it did not involve a “meeting” or “coming across” of Mr Farquhar by some other person, as the dicta in Carter suggests is required.
[13] Mr Matthews also cites Mahon J’s reference in Otten to the case of Braxton v Sugrue where the defendant was convicted of being “found” on premises contrary to
5 See Moran v Jones (1911) 104 LT 921 (KB).
6 R v Otten [1977] 2 NZLR 44 (SC).
7 Police v Carter, above n 4, at 32.
s 37(4) of the Licensing Amendment Act 1910.8 In Braxton the defendant was not on the premises when the police arrived and police only discovered he had been there when he admitted it to them the following day. Mahon J noted:9
It was held by Sim J that it would be doing violence to the ordinary meaning of the word to say that a person had been “found” in a particular place unless there be some person who can be shown to have come across him in that place.
[14] Mr Matthews then submits the statutory context in which s 29 of the Summary Offences Act sits demands that “found” excludes the capturing of behaviour via CCTV. He cites s 29(3):
If any constable finds a person in any place referred to in subsection (1)…the constable may, instead of arresting him for an offence against subsection (1), warn that person to leave that place and, if the person refuses or fails to do so, he is liable of a fine…
[15] In his submission, the use of “finds” in subs (3) can only be a contemporaneous meeting or coming upon, as the constable then has the power to warn the person to leave – something they can only do if they are present at the time the person is in an area described in subs (1) without reasonable excuse. Further, Mr Matthews suggests the Crown’s contended meaning of “found” in terms of subs (1) would render subs (3) otiose. He also points to s 39(3) of the Summary Offences Act as restricting “found” to a contemporaneous finding. He notes that this section empowers any owner or occupier of property who finds any person on or in their property committing an offence against ss 9 – 11, 29 and 30 of the Act to arrest that person without a warrant. As with s 29(3) this contingent power implies the finding occurs contemporaneously as the power can only be exercised if the finder is present with the defendant.
[16] Mr Matthews finally submits that s 29(2) operates to exclude the Crown’s contended meaning of “found”. Subsection (2) provides that “it is a defence if the defendant satisfies the court that he had no [intention to commit any other offence]”. Mr Matthews says that if CCTV footage reviewed after the fact reveals someone prima facie in breach of s 29, the defendant will almost always be able to make out the defence under subs (2) because the footage will show that no other offence was
8 Braxton v Sugrue [1927] GLR 31 (SC).
9 R v Otten, above n 6, at 48.
committed, and thus there was no such intention to commit any other offence. In the case where a further offence was committed or attempted, that in itself would give rise to a more serious charge rendering prosecution under s 29 of no practical purpose.
Analysis
[17] The type of error of law alleged to have been made here by Judge O’Driscoll is that his Honour made a misdirection of the law in failing to identify and apply the correct meaning of “found”, under the first category of errors of law identified in Brown.10 That is the sole question before the Court.
[18] The starting point for any exercise of statutory interpretation is s 5 of the Interpretation Act 1999. That section provides: “[t]he meaning of an enactment must be ascertained from its text and in the light of its purpose”. Thus, the Court must endeavour to find the plain and ordinary meaning of the text as well as the statutory purpose behind the provision.
[19] The Oxford English Dictionary defines “find” as “[t]o come upon by chance or in the course of events” and “[t]o become aware of, come into contact with, or get possession of, in the course of some activity; to come across, meet with, light upon, discover”.11 This dictionary definition might be seen as tending to support Mr Farquhar’s position. The act of finding according to this definition must occur contemporaneous to the defendant being in or on a place described in s 29(1). No person can “come across” or “meet with” someone (being the object of the finding) after they are no longer in the relevant place. Thus, as Mr Matthews submits, the plain and ordinary meaning of “found” does seem to require contemporaneous finding.
[20] In ascertaining Parliament’s purpose in enacting s 29 we can look to the analysis of Mahon J in Otten where his Honour considered the statutory intent behind an offence similar to the predecessor offence of s 29, under s 52(1)(i) of the Police Offences Act 1927. Mahon J said:12
10 Brown v R, above n 2, at [16](a).
11 Oxford English Dictionary (online ed, Oxford University Press).
12 R v Otten, above n 6, at 45 and 46.
These vagrancy provisions are designed to control potential criminals and to protect the public and public property from crimes which are patently under consideration by the person concerned.
…
One of the prime duties of the police is the prevention of crime. Performance of that duty would be stultified without recourse by the police to the provisions of s 52.
Thus, the statutory intent carried forward into s 29 of the Summary Offences Act13 (as part of its wider species of offence)14 is the creation of a more minor form of criminal liability on the basis of inchoate criminality to discourage the commission of more serious offending.
[21] In Ahmed v R15 the Court of Appeal referred with approval to comments of Somers J in Palmer-Brown v Police16 and said:
[48] Discussing the context of the concept of “finding”, Somers J formulated a number of propositions, derived from the language and purpose of s 28. His Honour stated those propositions as follows, at 369-370:
“1. The offence thereby created is one against public order. That emerges from the place where the behaviour must occur and from the requirement that the suspect ‘is found’ in that place.
2.The necessity for a finding also means that the offence cannot be evidenced simply by a confession.
3.A person is ‘found’ when he is seen or discovered or perceived to be present. Expressions such as ‘to come across’ and ‘to light upon’ illustrate the concept.
4.‘Behaving’ has reference to the way in which the defendant is conducting himself; necessarily that must include words then spoken by the defendant which explain or form part of the behaviour.
5.There must be a concurrence of finding and behaviour. The grammar points to that; the past participle ‘found’ and the gerund (or substantive noun) ‘behaving’ each relate to or describe the state or condition of the defendant. But it does not follow that the defendant must be behaving in the manner
13 The long title of the Summary Offences Act 1981, states that it is “An Act to reform and restate the law relating to summary offences, and to replace the Police Offences Act 1927 and its amendments”.
14 See the offences grouped under the heading “Loitering and trespass” in the Summary Offences Act.
15 Ahmed v R [2009] NZCA 220, [2010] 1 NZLR 262.
16 Palmer-Brown v Police [1985] 1 NZLR 365 (CA).
described in s 28 when first seen or discovered. If a person who is found behaving innocently begins to behave in the manner described in s 28 he is also found behaving in the latter manner.”
[22] Under the clear statutory purpose of s 29, the Crown’s submission that a wider definition of “found” should be preferred by the Court, in my view, has merit. The mischief envisaged by s 29 is trespass by persons contemplating the commission of crimes against persons or property located in close proximity to the property trespassed upon. Permitting non-contemporaneous evidence that a person committed the actus reus of the offence (such as CCTV footage viewed after the fact) to constitute a “finding”, as I see the position, demonstrably addresses this mischief better than strict adherence to a contemporaneous finding by an individual present at the time. It makes it much more likely that people prima facie in breach of s 29 will be apprehended, and thus potential offenders would be less likely to attempt the type of offending that flows from trespass in the places described by s 29(1).
[23] Moreover, as a matter of logic it seems odd that evidence obtained from CCTV footage should not be sufficient to establish someone’s unexcused presence in an area described by s 29(1), particularly given the increasing ubiquity of security cameras installed on both public and private property. Contemporaneous camera footage also has the advantage of avoiding many of the evidential issues that arise when a person gives evidence as to their finding or perceiving someone in a location. In lieu of actual human perception it could be argued that the camera acts as the agent or “eyes” for its human owner; maintaining surveillance of an area when an owner cannot physically observe it themselves. This has the advantage (in many cases) of better quality evidence being placed before a trial court. This also might increase the chance that people committing the actus reus of the offence will be apprehended if surveillance can occur 24 hours per day, rather than only at a time when a person happens to see someone committing the act in the flesh.
[24] It is also right to note that the quality and availability of CCTV technology currently is vastly superior to anything known to Parliament in 1981, let alone 1927. This type of observation obviously could not have been in the contemplation of Parliament when it originally drafted this provision. The reason for refusing to accept
“mere proof of presence on premises at some stage, as by inference or admission…”17 is clear. It is plainly inconsistent with “found” being an integral element of the offence created by s 29. If Parliament intended to criminalise the actus reus of the offence with mere proof of presence (by inference or admission), it is arguable that it would not have used the word “found”. It would have been entirely superfluous to its purpose.
[25] While the issue of whether CCTV footage revealing someone being on a property without reasonable excuse can come within the definition of “found” raises an interesting question, it is not necessary to decide the issue for the purposes of the present appeal. As Mr Matthews for Mr Farquhar submits, the true issue here is whether the “finding” must occur contemporaneous to the actus reus or whether it can occur after the fact.
[26] The plain meaning of “found”, as already noted, is to “come across” or “meet”. In the case of s 29, it is an element of the offence that the defendant be “found in…” or “found on…” a relevant place or thing. Thus, the text itself tends to point to the conclusion that the finding must occur contemporaneously to the actus reus. Moreover, as Mr Matthews noted, s 29(3) to some extent seems to bolster this reading of “found” because a constable would need to find a person at the time in order to exercise their power to warn (instead of arresting) the person to leave the place. However, it is entirely possible that subs (3) is specifying a certain type of finding, that is contemporaneous finding, without evidencing a statutory intention that this is the only type of finding permissible in terms of s 29(1).
[27] A justification created by s 39(3) also uses “find” in the sense of “meet” or “come across”, as it permits an occupier of a house to arrest a person they find committing a relevant offence on their property. This would be possible only where the finding is contemporaneous to the wrongful presence of the other person. As with s 29(3) discussed above, there is no reason that the meaning of “find” in s 39(3) must be effectively identical to “found” in s 29. Importantly, the Court of Appeal, while identifying “come upon”, “met”, “seen” or “discovered” as coming within the
17 Police v Carter, above n 4, at 32; R v Otten, above n 6, at 47.
definition of found in Carter, expressly said it did so “[w]ithout attempting to define exhaustively the circumstances in which a person may be ‘found’…”18 Thus, the question is whether there is a wider definition of “found” available from the text and consistent with Parliament’s purpose.
[28] Mr Matthews submits the Crown’s contended definition of “found” could be largely frustrated by the defence created by subs (2). Subsection (2) states “it is a defence if the defendant satisfies the court that he [did not have an intention to commit any other offence]”. However, this ignores possible scenarios where the defence would not be able to be made out, and the CCTV evidence alone would sustain a conviction under s 29 where evidence of further offending may not be sufficient to sustain a conviction of a different crime. For example, CCTV footage may show a person entering a yard, but then moving out of view. In that case, it is possible that the defendant may have offended or attempted to offend further, or possibly evinced an intention to commit an offence, but the footage would be useless in determining what happened when the defendant was out of view. Thus, the CCTV footage could not have a wholly exculpatory effect in such a case.
[29] Mr Matthews’ submission also appears to assume that a finding that occurs in person means the finder will “intervene” in a way that prevents the commission of a further offence. However, this is not necessarily true. It may be in the majority of cases that the finder does not make themselves known, and only passively observes the defendant, particularly if criminal activity is suspected. As the Court of Appeal observed in Carter, “…there is no reason why a person’s own consciousness or otherwise of observation should be treated as having a bearing on whether or not he has been ‘found’ somewhere”.19 Thus, in my view, it is irrelevant whether or not there is any sort of intervention by the finder, or whether it is a merely passive response.
[30] Despite Mr Matthews’ submission that the statutory context makes the Crown’s definition of “found” unavailable from the text, his concerns are not fatal to the Crown’s contention. There is nothing within s 29 that suggests Parliament was concerned that the defendant must be found contemporaneously. Some of the case law
18 Police v Carter, above n 4, at 32.
19 Above n 4, at 32.
does say “mere proof of presence on premises at some stage, as by inference or admission, is not enough”.20 However, CCTV footage of the alleged offending captured contemporaneously and then viewed later is direct evidence of what an eyewitness would have observed had they been where the camera was at the time rather than circumstantial evidence from which it is possible to draw an inference.
[31]As the authors of Adams on Criminal Law notes21 at SO28.01(2):
In Howland v Police HC Hamilton AP108/09, 24 July 1989, Anderson J notes that in ordinary usage one person may “find” another although the two are in quite separate locations, and might not be in each other’s sight, as when one “finds” another at a place by telephoning there.
This is not dissimilar to the “finding” of a defendant on premises by the later viewing elsewhere of contemporaneous CCTV footage showing that presence.
[32] Section 29 of the Summary Offences Act 1981 is included in the section of the Act now labelled “Loitering and Trespass”. It dates back to its predecessor 1927 statute and beyond where it was part of the general vagrancy offences. There, offenders were then (but no longer now) described as “idle or disorderly persons” or “rogues and vagabonds”. The law, however, is not static and needs to adapt and apply to changing times and technology developments. As I note at [13] above, the Court of Appeal in Police v Carter22 at [32] said that “to be found” on premises “the defendant must have been perceived there by someone…”. The Concise Oxford English Dictionary23 defines “perceive” as to “ become aware or conscious of” and “perception” as “the ability to see, hear or become aware of something through the senses…” (emphasis added). The contemporaneous capture of a trespass-type event on CCTV footage and the later viewing of that footage must, in my view, satisfy the “found” test. This is so because there is clearly someone perceived as being on those premises by a viewer who becomes aware of that fact through his or her viewing of the footage. As I see the position, in 2019 this must be seen as the purpose of the statutory provision in s 29.
20 Police v Carter, above n 4, at 32.
21 Adams on Criminal Law, above n 3 at SO28.01(2).
22 Police v Carter, above n 4, at [32].
23 Concise Oxford English Dictionary (11th ed, Oxford University Press, 2004)
Conclusion
[33] For all the reasons I have outlined above, I am satisfied that the Judge erred here in that he made a misdirection of the law by concluding that “found” for the purposes of s 29 of the Summary Offences Act excluded a person captured or discovered only in CCTV images viewed subsequent to the alleged offence.
[34] The appeal is allowed. This case is remitted back to the District Court, with the answer to the question “Did the Judge err in concluding “found” for the purposes of s 29 of the Summary Offences Act 1981 excludes a person captured or discovered in images viewed subject to the alleged offence?” recorded as “Yes”.
...................................................
Gendall J
Solicitors:
Raymond Donnelly & Co, Christchurch Public Defence Service, Christchurch