Stanton v Police
[2016] NZHC 993
•17 May 2016
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2016-442-3
CRI-2016-442-4
CRI-2015-442-10 [2016] NZHC 993
BETWEEN LEWIS REGINALD STANTON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 1 March 2016 Counsel:
S M Barclay for Appellant
S J Revell for RespondentJudgment:
17 May 2016
RESERVED JUDGMENT OF ELLIS J
I direct that the delivery time of this judgment is
3 pm on the 17th day of May 2016
STANTON v NEW ZEALAND POLICE [2016] NZHC 993 [17 May 2016]
[1] Mr Stanton is a well-known figure in Nelson. Until relatively recently he has travelled around Nelson in a horse and cart, in which he kept all his belongings.1
Because he supports himself through donations from the public his practice was to park the horse and cart in the central city to maximise donating opportunities. As a revenue gathering exercise, however, the practice turned out to be somewhat self- defeating because his various breaches of the Nelson City parking bylaw led to him receiving a very considerable number of infringement notices from Nelson City
Council’s parking enforcement officers.2
[2] Mr Stanton was, however, undeterred. As a result of his refusal to heed the signals the Council was sending him, the Council sought to injunct him. Mr Stanton’s defence to the Council’s application was both to challenge the application of the bylaw to his horse and cart and to challenge the validity of the bylaw itself. He also submitted that the bylaw should be interpreted consistently with his rights and freedoms under the New Zealand Bill of Rights Act 1990 (NZBORA).
[3] Mr Stanton’s defences did not find judicial favour; an injunction against him was granted by the District Court.3 On appeal to the High Court, Goddard J recorded the District Court ’s reasons for rejecting Mr Stanton’s defences as follows:4
(i) Mr Stanton’s cart falls well within the ambit of the definition of a vehicle as set out in cl 3.1 of the bylaw. The rules as set out in sch 5, and despite the use of the word “car”, apply to all vehicles, including Mr Stanton’s cart.
(ii) The parking bylaw does not breach Mr Stanton’s rights to freedom of expression, freedom of association or freedom of movement as guaranteed under the NZBORA. Personal inconvenience does not equate with a restriction on freedom, because:
·Mr Stanton’s right to freedom of expression is not restricted by the bylaw. The act of parking his cart in breach of the bylaw is not
1 Mr Stanton’s horse has since been taken by the SPCA.
2 Many of the infringement notices were issues under the Parking and Vehicle Control
Bylaw 2011. That bylaw was made under the Local Government Act 2002 and the Land Transport Act 1998. Other infringement notices were issued for vehicle and licensing offences and for exceeding the maximum time allowed for continuous parking under a free parking scheme introduced by the Council on 26 June 2014.
3 Nelson City Council v Stanton DC Nelson CRI-2014-042-000246, 17 October 2014.
4 Stanton v Nelson City Council [2014] NZHC 3117, [2015] NZAR 146 at [13]. Citations omitted.
expressive behaviour and, even if it is, the bylaw does not prevent him from freely expressing himself by parking his cart. He is simply constrained from parking for longer than the prescribed time limits; or from parking without paying to do so.
·Parking his cart for longer than the permitted time, or without payment, does not engage the right to freedom of association. Mr Stanton is not parking his cart in this way in order to join in a particular association. Even if the social interaction with passersby does qualify as association, the bylaw does not restrict Mr Stanton from this activity. He is simply constrained from parking his cart for longer than the prescribed time limits, or from parking without paying to do so.
·Mr Stanton’s right to freedom of movement is not restricted by the bylaw. He is still free to move in, out and around Nelson City. He is simply constrained from parking his cart for longer than the prescribed time limits, or without paying to do so.
(iii) The act of parking without payment or for longer than the allowed time does not take on the quality of personal expression, association or movement, unlike the protesters who occupied Aotea Square in Wadsworth v Auckland Council.
·There will be no chilling effect on his future rights of personal expression, association or movement. Unlike the occupiers in Wadsworth, Mr Stanton is not engaging in protest, or expressing any opinions, or imparting any information while he is parked in Nelson.
·It is not the Council’s responsibility to ensure that Mr Stanton’s belongings are kept safe. Mr Stanton is simply constrained from parking his cart for longer than the prescribed time limits, or from parking without paying to do so.
(iv) Even if Mr Stanton’s rights under NZBORA were limited by the bylaw, the limits are reasonable and justified in a free and democratic society, because:
·The limits prescribed by the bylaw are rationally connected to the objective of regulating the use of public parking spaces to enable all members of the public to make fair use of the City’s parking spaces and to ensure any one space is not monopolised.
·Any impairment is non-existent or at least minimal. The bylaw does not prevent Mr Stanton from parking; it only prevents him from parking without paying the prescribed fee and/or for parking longer than the allocated times.
·The bylaw sets reasonable and proportionate limits on how and when the parking spaces may be used as any person is able to use the parking spaces within the City.
(v) Enforcing the bylaw does not amount to disproportionately severe treatment of Mr Stanton and does not breach his s 9 NZBORA right. All members of the public are subject to the bylaw and all members of the public
may receive infringement notices if they breach the bylaw. The relevant “treatment or punishment” inflicted on Mr Stanton is the issuing of infringement notices and fines and does not amount to unreasonable and disproportionate treatment, let alone severe treatment. As with Mr Ngeru (a homeless alcoholic) in Ngeru v Police, Mr Stanton’s lifestyle is chosen and he could take steps to avoid liability.
[4] Her Honour recorded that, in her view, this reasoning was “unremarkable and unassailable”.5
[5] A subsequent appeal by the Council to the Court of Appeal was later abandoned.
[6] Mr Stanton has yet to pay any of the fines. This, together with his deteriorating relationship with law enforcement officers has resulted in further proceedings. This judgment relates to three appeals brought by Mr Stanton in relation to these matters. More particularly, he appeals:
(a) his conviction for failing to pay the fines and the subsequent cancellation of $50,000 of the fines with an order for 400 hours community work made in substitution under s 88AE(e) of the Summary Proceedings Act 1957 on 18 February 2015 and; and
(b) his conviction on 30 October 2015 for breach of community work;
and
(c) his conviction on 13 November 2015 for obstructing a police officer. [7] Each will be considered in turn.
First appeal: failure to pay fines
[8] On 18 February 2015 Mr Stanton appeared before His Honour Judge Zohrab in relation to $88,000 of unpaid fines. The Judge cancelled $50,000 of the fines and substituted 400 hours community work under s 88AE(e) of the Summary
Proceedings Act 1957. He adjourned the balance of the fines.
5 At [13].
[9] Mr Stanton appeals the order for community work.6 The appeal was filed out of time, although not by much.7 The Crown does not oppose an application for leave in the event that the Court finds the appeal has some prospect of success.
[10] The appeal was adjourned by consent on 8 May 2015, pending the Court of Appeal’s decision in the Council’s injunction appeal. As I have noted, however, that appeal was later abandoned.
Grounds of appeal
[11] The grounds contained in the notice of appeal are:
(a) that the imposition of 400 hours community work was for non- payment of parking and other fines that were imposed by the Nelson City Council in breach of the appellant’s human rights, including those recognised by NZBORA as to freedom of expression, movement and association; and
(b)that the Nelson City Council has pursued Mr Stanton in a sustained way to make an example of him and force him out of the Nelson Central Business District, and the imposition of fines and hence the community work for non-payment of those fines is invalid and unlawful.
[12] There are a number of difficulties with these grounds of appeal.
[13] First, there was no scope to challenge the validity of the fines at the s 88AE hearing. The challenge should have been made to the issuing authority when the fine was an infringement notice, or once the infringement notice was sent to the Court by
making an application under s 78B of the Summary Proceedings Act 1957.
6 He does not appeal the conviction and sentence for contempt of Court.
7 Section 248(2) of the Criminal Procedure Act 2011 states that a notice of appeal must be filed within 20 working days after the date of the decision appealed against. The date of the decision is 18 February 2015. The notice of appeal is dated 24 March 2015.
[14] Secondly, the validity of the bylaw (and therefore of the infringement notices and the fines) has already been determined by the District Court whose reasoning was upheld on appeal. There are strong arguments that Mr Stanton is stopped from pursuing those issues again.
[15] Even if that were not the case, Mr Stanton asks the impossible. He asks this Court to determine, without jurisdiction and without evidence, the validity of the infringement notices, on the basis of a series of complex rights-based issues, set within a highly contested factual matrix. As Gendall J observed in other litigation involving Mr Stanton:8
[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.
[16] And similarly, Dobson J said in his judgment on Mr Stanton’s unsuccessful
appeal against a breach of community work conviction:9
The essence of Mr Stanton’s complaint, namely that the Court and [Nelson City Council] have declined to treat him differently from others, may be justified from his emotional perspective, but is neither rationally nor legally sound.
[17] Accordingly I can only agree with the respondent that the present case was and is a simple matter. This appeal is not the appropriate forum to determine Mr Stanton’s allegations that the Nelson City Council has breached his human rights. Those allegations are complex and the subject of significant factual disagreement.
[18] The appeal from Judge Zohrab’s decision must be dismissed accordingly.
Second appeal: breach of community work
[19] Mr Stanton was later charged with breaching the sentence of community work to which the first appeal relates. More specifically, it was charged that, having
been sentenced to 400 hours’ community work on 18 February 2015, between
8 Stanton aka Heke v Police [2012] NZHC 70.
9 Stanton v R [2015] NZHC 958 at [8].
26 February and 18 June of 2015, Mr Stanton failed, without reasonable excuse, to report or to remain at a place as directed.
[20] The charge was tried by Judge Ruth in a judge alone trial commencing on
30 October 2015. At the close of the prosecution case, it was indicated that Mr Stanton was to give evidence. Judge Ruth then intimated to Mr Stanton’s counsel that:10
… before Mr Stanton was to be sworn or affirmed for his evidence that I would not permit evidence that related to the original imposition of the fines nor indeed the imposition of community work to be raised as possible grounds for not complying with his sentence.
[21] The Judge noted that similar matters of “defence” had been advanced by Mr Stanton a year earlier in an identical context before Judge Barry, without success. The Judge then recorded what happened next:
[10] At the point I indicated to Ms Barclay that I would not permit this Court to be used as a vehicle for traversing Mr Stanton's history and his view on society generally, Mr Stanton became very enraged. I attempted on a number of occasions to quieten him down so that I could speak to him. In the end his behaviour was such that I was required to obtain the services of a corrections officer who came and in the end as a result of continued inflamed behaviour on the part of Mr Stanton, placed him in custody until 5.00 pm today.
[11] In the event I called the matter at 4.15 this afternoon and explained again to Ms Barclay my reason for not allowing the evidence proposed to be led on his behalf and made reference to the decision of Judge Barry to which I have referred. Ms Barclay, no doubt on her instructions, indicated that Mr Stanton had a right of audience in the Court. With respect my view is slightly different. He does have a right to be heard as a witness in his own defence should he so choose, but he does not have the right to place before the Court evidence that is inadmissible or irrelevant to the case at hand.
[12] Although, it is technically true that I am not bound by Judge Barry's previous decision, it happens that I agree with it entirely. I cannot see on any basis that a history of Mr Stanton's passage through life and his dealings with the local council could possibly be a basis for:
(a) Not paying the sorts of charges every other citizen pays for the privilege of parking;
10 Department of Corrections v Stanton CRI-2015-042-001255, Minute of Judge Ruth dated
30 October 2015 at [7]. The Judge recorded in this minute that he was made aware of the types of things that Mr Stanton wished to traverse as a result of receiving an earlier memorandum of submissions which he described (at [6]) as “... a mixture of matters putting forward Mr Stanton’s view of what is a reasonable excuse not to comply with his sentence and possible ways the matter might be dealt with if there was a finding of guilt.”
(b) Simply not complying with a sentence of this Court, which has not been the subject of appeal, simply because he has a different perspective on life.
[13] I endeavoured to explain to Mr Stanton between outbursts that the Court did not seek to penalise him for his view on life, but that rather he was in no different position to anybody else despite his feelings of victimisation and that he was subject to the same rules and regulations that apply to all of us. Indeed if it were different there would be anarchy on the streets and certainly this Court could not tolerate such a situation.
[14] Having again to have had Mr Stanton removed from the Court for his outbursts, including him requiring me to stand down which I felt rather bemused by, I again raised with Ms Barclay where the proceedings should head. In the event Ms Barclay has not unreasonably asked for an adjournment so that she can take further instructions as to the future of this proceeding.
[15] That has been granted and so the matter is adjourned part-heard to be recalled on a nominal date 5 November at 10.00 am at which time hopefully Ms Barclay will be able to inform the Court the direction she proposes to take.
[22] In the intervening period, Mr Stanton’s counsel advised that no evidence was to be called on his behalf. On 14 January 2016, Judge Ruth found the case against Mr Stanton proved.
Grounds of appeal
[23] The appeal is advanced on the basis that Mr Stanton was denied his right to a fair trial by not being permitted to present a defence because he “was not able to adduce the admissible evidence he wished to adduce”. The decisions in Marteley v Legal Services Commissioner11 and R v Clutterbuck12 are relied upon for the propositions that:
(a) a defendant’s right to testify is absolute;
(b) the issue of whether or not a defendant’s evidence will aid in his
defence cannot undermine the importance of a defendant being allowed to present that defence.
11 Marteley v Legal Services Commissioner [2015] NZSC 127.
12 R v Clutterbuck [2013] NZCA 373.
Discussion
[24] The present is not a case where an appellant has been denied the right to give or call evidence. The Judge expressly afforded him that right, which was declined. What was denied was Mr Stanton’s wish to give irrelevant and therefore inadmissible evidence.
[25] The cases relied upon by Mr Stanton do not assist him. Indeed, the Court of Appeal in Clutterbuck expressly recognised that the right of a defendant to give or call evidence was subject to the normal rules of admissibility. The Court said:13
… We do not accept, issues of inadmissibility aside, that the likely content of
Mr Clutterbuck’s evidence was a basis for declining leave.
[26] Judges are routinely required to make determinations about the admissibility of evidence before it is given or called in trial. In the present case, the Judge was careful to specify what evidence he regarded as irrelevant, and which he would not permit to be given. As I have said, Mr Stanton was not precluded.
[27] The trial Judge did not err in refusing to allow Mr Stanton to give irrelevant and therefore inadmissible evidence; his right to a fair trial was not breached. The appeal against conviction must be dismissed.
Third appeal: obstructing a Police Officer
[28] In this appeal, Mr Stanton appeals his conviction following a defended hearing in the Nelson District Court on 13 November 2015, before Judge Tompkins, on one charge of obstructing a Police officer pursuant to s 23 of the Summary
Offences Act 1981.14
13 At [22] (emphasis added).
14 Police v Stanton aka Heke DC Nelson CRI-2015-042-001152, 13 November 2015. Mr Stanton
was convicted and discharged. Section 23 of the Summary Offences Act 1981 relevantly provides:
23 Resisting Police, prison, or traffic officer
Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who resists or intentionally obstructs, or incites or encourages any other person to resist or obstruct,—
(a) any constable or any authorised officer, or any prison officer, or any traffic officer, acting in the execution of his duty; or
(b) …
Facts
[29] From the end of January 2015 until the time of the incident leading to the charge Mr Stanton had been living in a makeshift hut outside the Nelson District Court on Bridge Street. The area outside the Court, Albion Square, is reserve land governed by the Reserves Act 1977 (the Act), managed by the Department of Conservation (DOC).
[30] On 22 May 2015, DOC served Mr Stanton a notice giving him until 9 June
2015 to find suitable alternative accommodation. The notice explained that the land was reserve land and was under DOC’s control and that it was an offence against the Act to use the land for temporary or permanent accommodation without consent. It advised that DOC rangers had the power to seize and impound at any time any equipment used in committing an offence under the Act. Further, it said that if Mr Stanton did not move from the reserve by 9 June 2015, his possessions would be seized and he could be prosecuted.
[31] DOC also indicated that they would be willing to work with Mr Stanton in resolving the issue, including assisting him to find alternative accommodation.
[32] On 4 June 2015 DOC served a further notice formally requiring Mr Stanton to desist immediately from using the Albion Square reserve for temporary accommodation.
[33] On 12 June 2015, Mr Stanton had not moved from the reserve. At approximately 8 am, five DOC staff and three Police officers approached his hut. The DOC staff intended to seize his camping equipment, pursuant to s 95 of the Act. The Police were there to keep the peace and assist.
[34] A short confrontation ensued and Mr Stanton asked if he was able to take some of his possessions. A DOC officer told him to take anything he needed but the DOC would be seizing any camping gear that could be used to set up the temporary accommodation again.
[35] Mr Stanton collected some items from around the back of the hut. He then went to collect some further items from under the flaps of the hut. As he was doing this, he was told by Police that he would have to tell them what he needed as he was not allowed to re-enter the hut.15 A brief argument ensued. He then attempted to re- enter the hut and as he did so, the Police handcuffed and arrested him.
Decision of the District Court
[36] Judge Tompkins heard from three prosecution witnesses and viewed a DVD recording of the event. He then heard from Mr Stanton and the DVD recording was replayed.
[37] In concluding that Mr Stanton intentionally obstructed a Police officer within the terms of s 23(a), Judge Tompkins considered the elements of the offence as set out by this Court in Mackley v Police namely that:16
(a) the complainant was a constable (i.e. Police officer);
(b) the defendant knew that the complainant was a Police officer; (c) the Police officer was acting in the execution of his duty;
(d)the defendant knew that the Police officer was acting in the execution of his duty;
(e) the Police officer was in fact obstructed in the execution of his duty;
and
(f) the defendant intended to obstruct the Police officer in the execution of their duty.
[38] Judge Tompkins was satisfied that all the elements of the offence had been made out on the evidence.
15 At Mr Stanton’s trial, two Police officers gave evidence that at a briefing that morning, it had
been decided that Mr Stanton would not be allowed to re-enter his hut for safety reasons.
16 Mackley v Police (1994) 11 CRNZ 497 (HC).
The appeal
[39] Mr Stanton’s appeal is based on his contentions that the Judge wrongly:
(a) concluded that the instruction given to Mr Stanton by
Sergeant Crawford was given in the course of his lawful duty;
(b)evaluated the situation which gave rise to the charge as “fluid and fast moving” at least insofar as it related to the decision to issue the instruction not to re-enter his tent;17 and
(c) conflated the validity of the entire Police operation that day with the reasonableness of the specific instruction in question.
Discussion
[40] There is considerable overlap between the three grounds. The central, and indeed only, question is whether the Police officer was acting reasonably when he told Mr Stanton not to re-enter his tent. As Ms Barclay submitted for Mr Stanton, that fundamental requirement was made clear in the following passage from Mackley v Police:18
For a police officer to be acting in the execution of his duty it is not necessary that he be doing something which he has a strictly legal duty to do. It is sufficient if he is doing something which he has the legal power to do, provided he is doing so in a reasonable manner and provided also that the exercise of the power is reasonable in the circumstances: see Tirikatene v Police (1989) 5 CRNZ 149, 152 per Hardie Boys J, and Minto v Police [1987] 1 NZLR 374, 378, also reported as Minto v McKay (1987) 2 CRNZ
330, 332 (CA) per Cooke P who emphasised that the rights and liberties of citizens should not be unduly or unreasonably interfered with by police
officers or others in authority.
[41] The essence of the submission for Mr Stanton was that the Police instruction not to re-enter the tent was unreasonable essentially because it could have been given earlier and he did not have an adequate time to process it and to comply. He says
that “it is not fair for an instruction to be given so belatedly that the subject ... does
17 Police v Stanton, above n 14, at [40].
18 Mackley v Police, above n 16, at 499.
not have time to react to it … ”. At the trial his evidence was that he did not hear the Police tell him they would help him get his things because he was “wound up”.
[42] But Mr Stanton’s position is not borne out by the DVD recording of the event which was viewed twice by Judge Tompkins and also by me. As Judge Tompkins recorded in his judgment it shows the following exchange between the Police and Mr Stanton:19
Senior Constable Inglis: Yeah so ... if you just ah let us know what you're wanting to take and we can ah ensure that you'll ... you can get it out alright ... yeah ... don't let him go back in there ... just see ... are there any other personal items, just a minute cos we just don't want yah going in there and getting all ya gear ... hang on just a minute okay.
Stanton: What do you mean you don't want me getting my
Senior Constable Inglis: Well we wanna make sure that um, just let us know what you wanna take okay and we can make, see if um ...
Sergeant Crawford: We can get it for him
Senior Constable Inglis: Yeah we'll get it out for you alright? Stanton: I'll get it out for me right now.
Sergeant Crawford: No, no, no you're not going back in there Stanton: I'm going back in there to get my stuff Sergeant Crawford: No you're not
Senior Constable Inglis: Hey listen
Sergeant Crawford: You're under ... you're under arrest for obstruction[.]
[43] So although it is true that things moved quickly (and were, as the Judge
observed, “fluid and fast moving”), it seems quite clear that Mr Stanton heard and
understood the instruction but went ahead anyway.
19 Police v Stanton, above n 14, at [10].
[44] When Sergeant Crawford was asked by Ms Barclay why he didn’t tell
Mr Stanton not to re-enter the tent earlier there was this exchange:
Q. And you understood that you weren't to let him back in the tent, but you - from the recording, it appears that you didn't say he wasn't to go back into the tent until a few seconds before he attempted to go back in the tent?
A. That's correct, yeah. And the reason for that is I didn't expect him to go back into the tent.
[45] As Judge Tompkins said, Mr Stanton had been given “ample prior warning ... leading up to the contested events, that he was acting unlawfully”. He would have been well aware of what was likely to unfold. Regardless of whether it had earlier been agreed between the Police officers that he would not be permitted to return to his tent, there was no requirement for the Police to lay down these “ground rules” on arrival. The instruction was delivered when it became necessary. It was heard and understood by Mr Stanton. He made a choice not to comply with it.
[46] The obstruction appeal must also be dismissed accordingly.
Conclusion
[47] All three appeals are dismissed for the reasons I have given.
Solicitors: Zindels, Nelson, for Appellant
Crown Solicitor, Nelson, for Respondent
“Rebecca Ellis J”
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