Stanton aka Heke v Police

[2012] NZHC 70

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2011-442-000042 [2012] NZHC 70

BETWEEN  LEWIS REGINALD STANTON AKA HONE MA HEKE

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         3 February 2012

Counsel:         Appellant in person

H J Boyd-Wilson for Respondent

Judgment:      7 February 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 4.00pm on the 7th day of February 2012.

JUDGMENT OF GENDALL J

[1]      This is an appeal against convictions entered in the District Court at Nelson on 7 September 2011 by Judge A A Zohrab on five offences of trespass in breach of s 4 of the Trespass Act 1980, one charge of intentional damage of a footpath, two charges  of  defacing  a  footpath  without  authority  or  consent  and  one  charge  of assault.  The appellant was sentenced on 25 October 2011 to a term of 195 hours community work on each charge.  He challenges his convictions and sentence.

[2]      Grounds of appeal state that the appellant contends that his rights under the New Zealand Bill of Rights Act 1990 had been, and still are, violated and he is a victim of the actions of the complainant Nelson City Council.  Essentially, he says that the convictions would not have resulted had the Council not violated his human

rights and that his actions which involved trespass upon the offices of the Nelson

STANTON V NEW ZEALAND POLICE HC NEL CRI-2011-442-000042 7 February 2012

City Council, and painting or writing on a footpaths in Nelson city arose out of his legitimate right to protest against what he contends are the Council’s unlawful activities.

[3]      The assault conviction involved the appellant striking a member of the public with whom he had an argument in the street and the appellant’s position is that because of the protest that he was lawfully engaging upon complained in the street

“violated” the appellant’s property (his signs) and that the appellant was justified in

applying force.

Background

[4]      There have been ongoing disputes over several years between the appellant and  the  Nelson  City Council.    They have  a  lengthy  history  much  of  which  is recorded in the judgment of Judge Zohrab, which he delivered after a lengthy defended hearing.   It is of background relevance but all of it is not essential or necessary for the purpose of this judgment and I do not repeat it in detail.   The appellant has chosen to live an unconventional and itinerant lifestyle, residing with a horse and cart.   As a result of a number of public complaints  arising from his occupying parks and reserves in the Nelson area, the Nelson City Council and he have had significant differences.  He has been the subject of trespass notices issued by the Council and served upon him in relation to parks and reserves in the Nelson area.  On occasions as a result of his alleged breach of trespass notices his horse and cart have been taken.   Court action has followed but, at least from the Council’s point of view, one prosecution was unsuccessful.  Because the appellant continued to visit and occupy Council reserves with his horse and cart the Council issued a further blanket trespass notice, which referred to multiple City Council reserves and places to which the public may usually have access.  Based upon that notice the appellant was charged with trespass for his occupation of the Tahunanui Reserve, with the Council relying on that blanket notice.  Judge Zohrab dismissed that charge on the basis that the blanket trespass notice was too broad and unreasonable so as to form the basis for a successful prosecution under the Trespass Act 1980.

[5]      But the charges the subject of this appeal arises out of other events.   The judgment of Judge Zohrab summarises the later events as follows:[1]

[1] Nelson City Council v Stanton DC Nelson CRI-2011-042-000435, 7 September 2011 at [7] – [9].

As a consequence of issuing the blanket trespass notice, he ended up being arrested  at  the  Tahunanui  Reserve.    He  had  his  horse  and  cart  taken. Mr Stanton says that the council refuse to return his horse and cart and also his personal belongings, and that he then protested against that by spray- painting on some footpath administered by the local council.

Then what has happened is that by way of further protest he has arrived at the Civic House [Council premises] towards the end of the business day and made it clear that he was not going to leave.  Various warnings have been given.  He has been issued with a trespass notice.  He has refused to leave and has then been arrested.  That course of conduct has continued on, having been released on each occasion after having been arrested.

Then as well as continuing to appear at the council office, he has on two other occasions allegedly wilfully defaced the footpath by writing chalk messages on the footpath.

[6]      The assault charge followed upon the appellant’s striking of a member of the

public who apparently remonstrated with the appellant over his actions in the street.

[7]      A brief chronology of events relating to the charges the subject of appeal and the District Court decision is as follows:

6 February 2011:                   Intentional damage of Trafalgar Street footpath for which the appellant appeared in the Nelson District Court on 7 February 2011.

8 February 2011:                   Trespass on Nelson City Council Civic House.

9 February 2011:                   Trespass on 110 Trafalgar Street (Nelson City

Council premises).

10 February 2011:                 Trespass on Civic House.

11 February 2011:                 Trespass on Civic House.

14 February 2011:                 Trespass on Civic House.

23 February 2011:                  Defacing of footpath in Trafalgar Street.

25 February 2011:                  Defacing of footpath in Trafalgar Street.

5 August 2011:  Commencement of District Court hearing.

Hearing adjourned part-heard.

15 August 2011:  Assault on member of the public.

7 September 2011:                 Resumed hearing.

[8]      As mentioned, the charge in relation to occupation of the Tahunanui Reserve was dismissed but the Judge entered convictions in respect of the five trespass offences and the other charges.  He found as facts that the appellant had been served with the trespass notice in relation to his occupation and refusal to leave the Council premises of Civic House;  various warnings had been contemporaneously given and he had told Council staff he was not going to leave until he was arrested.  The Judge concluded  the  issue  of  the  trespass  notice  under  s  4  of  the  Trespass Act  was appropriate and valid and that in the circumstances individual and separate warnings under s 3 of the Act on each occasion were not required.  The Judge found that the appellant achieved what he wanted, namely to be arrested.  He was seeking to make some point, namely the belief that he was being victimised and that his civil and human rights infringed and his actions were in protest to that.

[9]      In relation to damaging the footpath by applying paint to it the Judge found that the appellant acted in this way because he was upset at the way he was treated by the Council.  But such upset did not provide any excuse for what the Judge found to be a deliberate and damaging act.  In respect of the charge of wilfully defacing the footpath by writing on it in chalk the Judge concluded that the marking in this way whilst not constituting damage was defacing.   He found that the legislation contemplated that there could be a difference between “damage” or “defacing” and that the chalk markings, which followed upon several warnings to the appellant not

to do so, came within the definition of defacing.   The Judge observed that the appellant was entitled to protest but not in the fashion that he did.

Discussion

[10]     I do not propose to go into discussion in any detail of the background other than to observe that the appellant does not contest his actions and indeed says were necessary so that others, apart from the Nelson City Council could be aware of what was happening to him.  He says his actions arose out of what he believed to be his right to protest, that is to communicate to the Council and to the general public over what he said were victimisation on the part oft he Council and especially in the taking of his horse and cart.   For completeness, I record that it seems that the Council had agreed those items be returned to the appellant provided he gave certain assurances.

[11]     Despite various arguments addressed relating to the appellant’s “right” to live as he pleases and to have freedom of movement and to visit and occupy public parks and areas, this appeal is not concerned with those matters but rather solely with his refusing to leave the Nelson City Council’s premises when required to do so, his actions in relation to the footpath in Trafalgar Street and his application of force to a member of the public.

Legislation

[12]     Section 3 of the Trespass Act 1980 provides:

3        Trespass after warning to leave

(1)       Every person commits an offence against this Act who trespasses on any place and, after being warned to leave that place by an occupier of that place, neglects or refuses to do so.

(2)       It shall be a defence ... if the defendant proves that it was necessary for him to remain in or on the place concerned for his own protection or  the  protection  of  some  other  person,  or  because  of  some emergency involving his property or the  property of  some  other person.

[13]     The evidence was clearly sufficient to establish that the appellant entered and occupied Council premises on the five alleged occasions, and after being warned to leave refused to do so and indeed, kept returning.   So after the first occasion on

8 February 2011, which involves trespass and he was served with a trespass notice, he returned again on 9, 10, 11 and 14 February and on each occasion was arrested for failing to vacate the premises, as was his wish.

[14]     The appellant’s evidence before Judge Zohrab was that:

I told them that I was there as part of my protest, and that they would have to arrest me if they wanted me to leave ... well, they asked me to leave of course, and then, so then they had to give me a trespass notice, and then after they gave me the trespass notice they had to ask me to leave again.

Q.       So they went through all that process the right way? A.     Yes, and then I was arrested.

[15]     The issue of the notice which followed was valid and made pursuant to s 4 which provides:

4        Trespass after warning to stay off

(1)       Where any person is trespassing or has trespassed on any place, an occupier of that place may, at the time of the trespass or within a reasonable time thereafter, warn him to stay off that place.

(2)       Where an occupier of any place has reasonable cause to suspect that any person is likely to trespass on that place, he may warn that person to stay off that place.

(3)       Where  any  person  is  convicted  of  an  offence  against  this  Act committed on or in respect of any place, the Court may warn that person to stay off that place.

(4)       Subject to subsection (5) of this section, every person commits an offence against this Act who, being a person who has been warned under this section to stay off any place, wilfully trespasses on that place within 2 years after the giving of the warning.

(5)       It shall be a defence to a charge under subsection (4) of this section if the defendant proves that—

(a)       The  person  by  whom  or  on  whose  behalf  the  warning concerned was given is no longer an occupier of the place concerned;  or

(b)       It was necessary for the defendant to commit the trespass for his  own  protection  or  for  the  protection  of  some  other person,   or   because  of  some   emergency  involving  his property or the property of some other person.

[16]     The Judge correctly applied the law as is set forth in those sections to the facts as he found them to be proven.   The real issue is whether, as the appellant argues, his actions at Civic House which he said were those of “peaceful  protest” were protected actions under the New Zealand Bill of Rights Act 1990.  And further, whether the painting and writing on the footpath were also protected actions of freedom of expression arising out of a peaceful protest on the part of the appellant.

[17]     The appellant argues the issue of the notice under s 4 of the Trespass Act was unreasonable  because  his  protest  at  the  Council  premises  was  peaceful  and legitimate.   It was argued before Judge Zohrab that the appellant could have been removed from that property without issue of the notice, which has had the effect of preventing him from returning or entering the property for legitimate purposes for a period of two years and so, the argument was in the District Court, that the issue of the notice was unreasonable and unnecessary.

[18]     Situations  where  citizens  seek  to  exercise  their  right  to  freedom  of expression, or to “protest”  as is said to be the case, are discussed in a number of High Court cases which were before Judge Zohrab and which are well known to this Court.   These include Bright v New Zealand Police,[2]  Haywood v New Zealand Police,[3] and Police v Beggs[4] (a decision of a Full Court of the High Court, which, as it happens, was delivered by me).  Some of those cases relate to premises or places

to which the public generally have the ability, or right, to visit.  The Trespass Act entitles occupiers of land (rather than owners) to certain protections.   Much will depend upon the use to which the property is being put because, for example, there may be public meetings on Council premises at which citizens have the right of

attending providing disorder is not caused.   But the Trespass Act can be used in

relation to occupation of a public place even where there is a statutory right of initial access to the public.[5]   But that is not the situation in the present case.

[2] Bright v New Zealand Police [2009] NZCA 187, [2009] 3 NZLR 132.

[3] Haywood v New Zealand Police HC Rotorua CRI-2009-463-64, 30 November 2009.

[4] Police v Beggs [1999] 3 NZLR 615 (HC).

[5] Bright v New Zealand Police [2009] NZCA 187, [2009] 3 NZLR 132 and Police v Abbot [2009] NZCA 451.

[19]     Bill of Rights freedoms do not alone enable people to enter and remain in occupation of property.   This was not a case involving freedom of assembly with others.  It was a case where the appellant said he was free to express his rights.  But as was said in Beggs the test will always be what is reasonable in the circumstances because rights to express concerns of a person are not absolute and the rights of others, which must include the rights of the occupier, include reasonable limitations of the right to use and express viewpoints. The factual situations are infinite.

[20]     Judge  Zohrab’s  conclusions  that  the  issue  of  the  trespass  notice  was appropriate, and not a disproportionate response in the wide circumstances involving the appellant and the Council were conclusions open to the Judge.  The appellant had made his point but when asked to move, refused and “got  what he wanted, which was arrest”.   It is quite clear that the repeated returning by the appellant, over the ensuing several days, and refusing to leave, were deliberate breaches of the trespass notice  which  the  Judge  correctly  found  had  been  reasonably  and  appropriately issued.  The appellant may have believed that he was “protesting” or conveying his displeasure, but he was not quite “protesting” in these sense of conveying views to the general public or citizens.  He was repeatedly conveying his views in a somewhat extreme way to Council staff on Council premises so as to create annoyance and nuisance – and indeed the Council premises could not be closed for the day without the appellant being removed.  The Judge was entitled on the facts, and the law to conclude there had been offences under the Trespass Act. The appellant was warned, issued with a valid notice and deliberately defied it so as to achieve his end, namely arrest on several occasions.

[21]     The appeal cannot succeed and in respect of those Trespass Act convictions it is dismissed.

[22]     Turning to the offence of wilful damage, namely spraying the footpath.  The Judge was entitled to conclude that the facts established beyond reasonable doubt that this was damage and it was wilful.   The painting may have been in order to convey what the appellant contends was a “message”, but it was with a permanent or at least semi-permanent paint akin to “tagging” through spray painting.  The charges of defacing the footpath related to the marking with chalk.

[23]     Section 11(1)(a) of the Summary Offences Act 1981 makes it an offence if a person:

damages or defaces any building, structure, road, tree, or property or other thing by writing, drawing, painting, spraying, or etching on it, or otherwise marking it,–

(a)       without lawful authority;  and

(b)      without the consent of the occupier or owner or other person in lawful control.

[24]    It is clear that the prosecution needs to prove that there was no lawful justification or excuse or claim of right where there is an allegation of damaging of property (or for that matter defacing property).[6]

[6] R v Gorrie [2007] NZCA 144, [2008] 3 NZLR 620.

[25]     A claim of right, in terms of s 2(1) of the Crimes Act 1961:

means a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.

[26]     Although a belief does not have to be reasonable,[7] the reasonableness of the claimed belief may have evidential relevance to whether or not it was actually heard and a defence based on some idiosyncratic moral view may not succeed.

[7] Hayes v R [2008] NZSC 3, [2008] 2 NZLR 321.

[27]     I accept the submissions of the respondent that the appellant’s comments at the time of the offending make it clear that he did not believe that his actions were lawful.   Indeed he was retaliating against the Council’s actions, which he felt victimised him and that he knew he would be arrested and that was what he wanted.

Likewise, spray painting the footpath in protest was not asserted by the appellant to

be an act that he believed to be lawful, but rather one which he wished to undertake irrespective of the legality.

[28]     Judge Zohrab was correct to conclude that the application of paint to the footpath in the circumstances of this case comprised damaging and the conviction in respect of that charge is not disturbed.

[29]     With regard to the charges of defacing the footpath by writing or drawing upon it.  The Judge concluded that the application of chalk markings tot he footpath after warnings were given to the appellant may not be the same as “damaging it” but came within the definition of “defacing”.  The Judge’s view was that the appellant was entitled to protest but not in that fashion.

[30]     There can be many different situations in respect of which a footpath is marked with chalk.   Not all will involve “defacing”.   Nor would they justify the bringing of charges.   Pavement artists are not prosecuted, nor are maintenance or construction workers who place markings on the footpath, nor are children drawing (for example) a hopscotch design.  I am not at all sure that the purpose of which the chalk was applied to the pavement or the particular message it conveys, is logically relevant as to whether there has been defacing of the footpath.  It may be in some circumstances what is written is of such a nature so as to mar or injure the footpath and its appearance (for example, through the drawing of racially or ethnic “hate” symbols).  But it will always be a question of degree, based upon the surrounding circumstances,  whether  what  is  done is  of sufficient  moment  or significance to constitute “defacing”.

[31]     A  dictionary  definition  of  deface  is  to  “spoil  appearance  or  beauty  of,

disfigures ...”.

[32]     “Deface” according to Brack’s Law Dictionary 9th Edition includes:

To mar or injure (a building, monument or other structure).

And it seems a common feature of “defacing” is “to mar”.   This is apparent in the

case of Bolton v Dance:[8]

The various dictionary definitions which were cited all show that the word [deface] means “to mar the face of an object” and it is commonly used in that sense in relation to a monument, and, in particular, according to Webster’s Dictionary, it means to mar the face or external appearance or to mar by effacing an important feature or portion. ...

[8] Bolton v Dance [1968] VR 631 at 643 per Gowans J.

[33]     The evidence in relation to the chalk markings was that:

The writing was in different letters.  It was, “33rd  week, NCC no food, no income, no home. Ask your NCC? And what are you doing about it?

[34]     As I have said, it will always be a question of degree whether that what has been done defaces the object be it a building, roadway, pavement or structure.  And that must be inevitably a question of fact as to whether writing in chalk, and its extent, is of such a nature or degree to constitute “marring”.  The Judge thought it was.  It was very marginal in this case and whether the chalk writings, to the limited extent as the evidence established went as far as “marring”, required an evaluative judgment.   On the one hand the writing could be removed simply by elementary washing or brushing.  No doubt the charging of the appellant with these offences of defacing  arose  because  of  the  frustration  by  the  counsel  and  others  over  the appellant.  But I think it was somewhat heavy-handed.  Technically the footpath may have been marred by the inscriptions on it.  Even if convictions were warranted the outcome should simply have been that he was discharged and the concurrent community  work  sentence  in  respect  of  those  charges  ought  not  to  have  been applied.   The 95 hours’ community work sentence on the other charges of course would remain.

[35]     I think the justice of the case requires that although the convictions in respect of the writing of chalk on the footpath remain, the concurrent community work sentence is quashed.  He is convicted and discharged on those two charges.

[36]     In other respects the appeal is dismissed.

J W Gendall J

Solicitors:

Crown Solicitor, Nelson for Respondent