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…

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.

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Details

Case: [2012] NZHC 70
Decision Date: 7 February 2012

CaseChat Overview and Summary

The appellant, Lewis Reginald Stanton, also known as Hone Ma Heke, appeals against his convictions and sentences entered by the District Court at Nelson. The convictions were for five offences of trespass in breach 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 to a term of 195 hours community work on each charge. The primary issues before the court were whether the trespass notice was reasonable and appropriate, and whether the appellant's actions of spray painting and writing on the footpath were protected under the New Zealand Bill of Rights Act 1990. The court found that the trespass notice was reasonable and appropriate, and that the appellant's actions were not protected under the Act. The court dismissed the appeal in respect of the Trespass Act convictions and the convictions for wilful damage and defacing the footpath, but quashed the concurrent community work sentence for the latter two charges.
The appellant had a history of disputes with the Nelson City Council, which culminated in the charges that form the basis of this appeal. The appellant had been issued with a trespass notice prohibiting him from entering certain public areas, including Council premises. Despite this, the appellant repeatedly entered the Council premises and refused to leave, resulting in his arrest on multiple occasions. The court found that the trespass notice was appropriately issued and that the appellant's actions constituted deliberate breaches of the notice. The appellant's argument that his actions were a form of peaceful protest was rejected by the court, which found that his actions were intended to cause annoyance and nuisance to Council staff. The court also found that the appellant's actions of spray painting and writing on the footpath were not protected under the New Zealand Bill of Rights Act 1990. The court held that the appellant's belief that his actions were lawful did not provide a defence to the charges of wilful damage and defacing the footpath. The court dismissed the appeal in respect of the trespass convictions and the convictions for wilful damage and defacing the footpath, but quashed the concurrent community work sentence for the latter two charges.

Orders