Sunbird v Police
[2025] NZHC 2689
•16 September 2025
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2025-442-17
[2025] NZHC 2689
UNDER the Criminal Procedure Act 2011 and the Criminal Procedure Rules 2012 BETWEEN
SUNBIRD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 September 2025 Appearances:
S J Zindel for Appellant
A R Goodison for Respondent
Judgment:
16 September 2025
JUDGMENT OF McHERRON J
[1] The appellant was convicted on seven charges of wilful trespass1 and one charge of criminal harassment,2 after a judge-alone trial in the Nelson District Court.3 For her offending, the appellant was sentenced to three months’ imprisonment on the criminal harassment charge and two months’ imprisonment on each trespass charge, to be served concurrently. A protection order was also imposed upon conviction.4
[2] The appellant now appeals against her convictions. She submits that Judge Snell erred in his findings that:
1 Trespass Act 1980, s 4.
2 Harassment Act 1997, s 8.
3 Police v [Sunbird] [2025] NZDC 10598 [Judgment under appeal]. To protect the privacy of family members, the name of the appellant has been anonymised.
4 Sentencing Act 2002, s 123B.
SUNBIRD v NEW ZEALAND POLICE [2025] NZHC 2689 [16 September 2025]
(a)she was not an occupier of the address from which she was trespassed (the Address); and
(b)her actions were sufficient to constitute harassment, having reasonably caused the complainant, referred to in this judgment as L, and the parties’ children, to fear for their safety.
[3] The appellant also seeks leave to appeal out of time. Her appeal was only filed on 4 June 2025, more than three months late.
Factual background
[4] The appellant and L married each other in 2013. They had been renting the Address as their family home since March 2021. They have two children together, aged 12 and 13. In October 2022, they separated but continued to live together at the Address until February 2023 when the appellant left for the United States to find employment. She was unsuccessful and returned to New Zealand around four months later. She did not return to live at the Address and instead lived at various other addresses within the local community, maintaining some contact with her children and L.
[5] The tenancy agreement for the Address was renewed in January 2023 for another one-year term, with both the appellant and L signing as tenants. L advised the landlord around September 2023 that the two had separated, that the appellant was no longer living at the Address, and that L wanted to take the appellant’s name off the tenancy. The landlord agreed to this, but only after the conclusion of the then current tenancy agreement at the end of February 2024.
[6] In or about November 2023, the appellant left again for the United States. L applied for a parenting order, on the basis that he wanted stability and certainty for his children. He felt that the appellant had been acting erratically and was unstable. An interim parenting order was granted in January 2024, requiring the appellant not to see her children unless her access was supervised through a person approved by the Court.
[7] L signed a new fixed term tenancy agreement for the Address in March 2024 which only had his name on it as a tenant, not the appellant’s. However, it appears that agreement was not signed by the landlord, and the appellant did not expressly consent to being removed from the agreement.
[8] When the appellant returned to New Zealand in about March 2024, she again lived at various other addresses within the local area. She claimed in the District Court that she had difficulty arranging supervised access to her children according to the terms of the interim parenting order. She continued to contact L and turn up at the Address, despite the parenting order and his communications that they were separated and he did not consent to her being there.
[9] On 9 July 2024, L went to the police, gave a victim video statement, and sought a trespass notice. A constable then served that trespass notice on the appellant. Despite this, the appellant attended the Address on 20 July, 20 August, 27 August, 8 September, 26 September, 9 November and 27 December 2024.
[10] After her first trespass on 20 July 2024, the appellant appeared in Court and was granted bail, with conditions that she not go to the Address or contact L. She breached her bail on multiple occasions, either by trespassing or by messaging L. She was at various times remanded into custody before being re-admitted to bail on progressively stricter conditions. On 9 November 2024, she was banned from going into the area at all, which she breached on 27 December 2024 by attending the Address to drop off presents to the children.
Judgment under appeal
[11] Judge Snell heard evidence from L, the appellant and the constable, and read statements from other police officers. He noted the above facts and the divergence between the evidence of L and the appellant, particularly relating to their relationship. The Judge also noted the need to consider the honesty and reliability of each of the witnesses. The Judge generally found L to be a careful, credible and reliable witness,
with his evidence supported by independent evidence, and found that he had foregone opportunities to exaggerate his position.5
[12] The Judge did not disbelieve the appellant’s evidence that she loved her children and wanted to care for them and bring them gifts.6 However, he considered that to some degree she minimised her attendances at the Address and her knowledge that she was not supposed to go there.7 He also referred to the appellant’s views on her marriage as “unusual”:8
… she maintains what I can only describe as a slightly unusual viewpoint that she should be provided for by her husband, that he remains her husband and should be caring for her, and that she is entitled to access to her husband to discuss matters in relation to the family at points that she determines. I note that it is slightly unusual given the orders that are currently in place and the concessions that she accepts that there is a parenting order, that for all but one of the trespasses there were bail conditions that she was plainly in breach of, and that there was a trespass notice.
Trespass charges
[13] The Judge noted that, under s 4(4) of the Trespass Act 1980, the appellant committed an offence if she had been warned to stay away from a particular place (the Address) and wilfully went back to that place within two years of the warning to stay away.9
[14] It was not disputed that the appellant went to the Address after being warned to stay away. Instead, the appellant’s defence was that she was never lawfully trespassed in the first place, because she was still a tenant of the Address and was lawfully entitled to be there.10 The Judge noted that trespass as a criminal offence is primarily concerned with violations of the rights of occupancy, not of ownership.11 Accordingly, the Judge concluded, if the appellant was still in lawful occupation of the Address as a tenant she could not be charged with trespass.12
5 Judgment under appeal, above n 3, at [46]–[48].
6 At [50].
7 At [51].
8 At [52].
9 At [5].
10 At [7].
11 At [56], citing Polly v Police [1985] 1 NZLR 443; and Police v Abbott [2009] NZCA 451, [2009] NZAR 705.
12 At [57].
[15] The Judge turned to consider whether the appellant was still a tenant. Under s 60A of the Residential Tenancies Act 1986, on the expiry of a fixed-term tenancy of more than 90 days, the tenancy continues on terms consistent with a periodic tenancy unless one of the exceptions in s 60A(2) applies. One of those exceptions is that, before the expiry, the parties renew the existing tenancy agreement.13
[16] L’s evidence was that the landlord had provided him with a copy of a varied agreement renewing the lease for another fixed term with him as the sole tenant, which he had signed and returned. However, there was no evidence that this renewal was then signed by the landlord or that the appellant was asked to sign a variation, as required by s 13B of the Residential Tenancies Act.14 Section 13C provides that a variation to a tenancy agreement is not unenforceable merely because it is not in writing. The Judge therefore needed to consider whether the variation to the lease was valid despite that failure. If it was not, then the lease would have continued as a periodic tenancy with the appellant still a tenant.15
The Judge found that the following factors pointed to the variation being valid:
(a)The appellant had not been living at the Address since February 2023.16
(b)The appellant had not been paying rent at the Address for a period of nearly two years (though noting that an absence of rent payments does not in itself negate a tenancy).17
(c)The appellant left for the United States for employment purposes without a set date of return. She then returned to New Zealand and resided at different addresses, including having a residential tenancy agreement for at least one of those addresses.18
13 Residential Tenancies Act 1986, s 60A(2)(a).
14 Judgment under appeal, above n 3, at [64]–[66].
15 At [63]–[65].
16 At [68].
17 At [67]–[68]; citing Whitley v Stewart St Properties Ltd HC Auckland CIV-2011-404-66-21, 25 November 2011 at [34].
18 At [70].
(d)The appellant could not have lawfully occupied the Address once the interim parenting order was made in January 2024, without breaching the order.19
[18] Based on these factors, the Judge found that the variation was enforceable. The appellant’s actions since her first trip to the United States supported at least an implied variation to the tenancy agreement.20 The appellant was therefore found not to be a lawful occupier of the Address from March 2024 onwards. As the other elements of the trespass charges were proven, the Judge convicted the appellant of all seven charges of trespass.21
Harassment charge
[19]Under s 3(1) of the Harassment Act 1997:
…a person harasses another person if he or she engages in a pattern of behaviour that is directed against that other person, being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months
[20] A “specified act” is defined in s 4 and, as the Judge noted, includes entering, or interfering with, property in that person’s possession, making contact with that person, and entering onto property from which the person has been trespassed.
[21]Section 8(1) of the Harassment Act 1997 provides:
8 Criminal harassment
(1)Every person commits an offence who harasses another person in any case where—
(a)the first-mentioned person intends that harassment to cause that other person to fear for—
(i)that other person’s safety; or
(ii)the safety of any person with whom that other person is in a family relationship; or
19 At [72]–[73].
20 At [76].
21 At [77] and [85]–[86].
(b)the first-mentioned person knows that the harassment is likely to cause the other person, given his or her particular circumstances, to reasonably fear for—
(i)that other person’s safety; or
(ii)the safety of any person with whom that other person is in a family relationship.
[22] The Judge was satisfied that the appellant’s actions could constitute harassment as defined.22 He turned to consider whether she knew that her actions were likely to cause L to reasonably fear for his own safety and/or that of the children, and if he actually ever feared for his own or their safety. He noted that “safety” is broader than that related to a threat of violence:23
… what I say about safety is, that it is a broader sense of safety. It is not necessary that it be some sort of threat such as being stabbed or shot or something like that, violence. It is safety in the respect of the unknown, the unpredictability of her behaviour, the concern around the effect on the children that her behaviour was having, and having her removed by police and/or in confrontations with him that [L] complained of. He said he was feeling increasingly uneasy about her erratic behaviour, he was conscious that she was on bail conditions not to attend the address, that she was on a parenting order not to attend and speak with the children, and that she had a trespass order and had been removed by police. Essentially, I interpreted his evidence as being that he had exhausted all attempts to keep her away from the address and keep contact reasonable and sensible, and she was thwarting that, turning up at all times of the day and into the night even after dark, and simply walking into the house when she felt like it on some occasions.
[82] It is evidence that I am entitled to take into account that he locked himself or remained in the bathroom on some episodes, that he would immediately call the police, and indeed on one occasion removed the children on the advice of the police and waited with them shielded in the car at the end of the driveway for the police to come and remove [the appellant] from the house, where she had simply walked in, locked the doors and refused to leave.
[23] In those circumstances, the Judge was satisfied beyond reasonable doubt that the appellant knew her harassment of L “that is the constant messaging of her partner in the face of him asking her not to and her trespasses, was likely to cause him to fear for the safety of himself and of the … children”, and that he was increasingly concerned for their safety. “He was concerned about her unpredictability, and he made mention in his evidence that her erratic behaviour was concerning because he never
22 At [78].
23 At [81]–[82].
quite knew wat she would do next and to what levels she would go.” Accordingly, the Judge convicted the appellant of criminal harassment.24
Approach on appeal
[24] Appeals against conviction are brought under pt 6, subpt 3 of the Criminal Procedure Act 2011 (CPA). This Court must allow the appeal if it is satisfied that the Judge erred in his assessment of the evidence to such an extent a miscarriage of justice occurred or that a miscarriage of justice occurred for any other reason.25 The definition of “miscarriage of justice” for the purposes of this appeal is set out in s 232(4) of the CPA:
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[25] To be successful under subs (4)(a), the appellant must establish there is a reasonable possibility that a more favourable verdict, such as not guilty, might have been entered had there been no error.26 The appellant need not be concerned necessarily about the verdict itself but, rather, the process in reaching the verdict.27 She must point to an error which is such a gross departure from good practice that the verdict cannot be sustained.28 The error, irregularity, or occurrence must be of “sufficient seriousness to warrant the verdict being set aside without further inquiry”.29
[26] It is a general appeal: if this Court comes to a different view of the evidence, the trial judge has accordingly erred in their assessment of the evidence. However, customary caution must be exercised in assessing the evidence; an appellate court does not have the same advantages as the trial judge in hearing evidence in the first
24 At [83]–[86].
25 Criminal Procedure Act 2011 (CPA), s 232(2).
26 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
27 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [39] adopted by the Supreme Court in Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [50].
28 Wiley v R, at [35].
29 At [41].
instance.30 The threshold for allowing an appeal is high and not every error will amount to a miscarriage of justice.31
Leave to appeal
[27] Section 231(2) of the CPA requires a notice of appeal against conviction to be filed within 20 working days after the date of sentence for the conviction appealed against. In the present case, the 20 working day period expired on 25 February 2025. Mr Zindel, for the appellant, filed the notice of appeal on 4 June 2025, three months late. He seeks leave to proceed out of time.32 The key question is whether it is in the interests of justice to grant the extension, taking into account all relevant circumstances,33 particularly the reasons for the delay and the merits of the proposed appeal.34
[28] Mr Zindel cites difficulties with obtaining instructions from the appellant while in Christchurch Women’s Prison, particularly with the remote instruction facilities at the Nelson Courthouse being unavailable for three months while the building underwent earthquake strengthening. He also refers to delays with his client’s legal aid application.
[29] I accept Ms Goodison’s submission, for the respondent, that this is an inadequate explanation to warrant an extension of time to file this appeal. As counsel notes, the Nelson Courthouse closed on 24 February 2025, only one day before the expiry of the 20 working day period to file the appeal. The courthouse closure is unlikely therefore to have had a material impact on the appellant’s ability to instruct Mr Zindel, who was also her counsel in the District Court, to file an appeal.
30 Sena v Police [2019] NZSC, [2019] 1 NZLR 575 at [38] citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2018] 2 NZLR 141 at [13].
31 Otis v Police [2019] NZCA 231 at [4] citing McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].
32 The Court can extend the time allowed for filing a notice of appeal at any time under s 231(3) of the CPA.
33 Smith v R [2020] NZCA 221 at [3]–[4], citing R v Lee [2006] 3 NZLR 42 (CA) at [96]–[99]; and
R v Knight [1998] 1 NZLR 583 (CA); and R v Lee [2006] 3 NZLR 42 (CA) at [96].
34 Mathew Downs (ed) Adams on Criminal Law – Criminal Procedure (online ed, Thomson Reuters) at [CPA231.02(2)] citing Mikus v R [2011] NZCA 298 at [26]; and R v Slavich [2008] NZCA 116 at [14].
[30] Ms Goodison also says that, since her sentencing on 24 January 2025, the appellant has been charged with 17 charges of breaching the protection order, assaulting police, resisting police, and breaching release conditions. She says that the alleged offending involves incessantly contacting L. Ms Goodison submits that the current appeal may be an attempt to undermine the protection order imposed at sentencing, and therefore the numerous charges laid since for breaching it.
[31] I am not fully persuaded by the reasons that have been advanced for the delay. However, I accept Mr Zindel had difficulty obtaining instructions. For that reason, to determine the appeal without considering the merits would not be in the interests of justice.
[32] Accordingly, I intend to grant leave for a late appeal and will proceed to consider the merits of the appeal.
First ground of appeal: validity of trespass notice
Appellant’s submissions
[33] Mr Zindel submits that the Judge erred in finding that the appellant was not in lawful occupation of the Address when the trespass notice was issued. He submits:
(a)no notice or cause was provided to the appellant;35
(b)the surrender of the existing tenancy was unilateral and not jointly agreed;36
(c)it is unclear on the evidence whether the landlord had agreed to the change in the absence of his signature; and
(d)the appellant did not give written notice of an intention not to continue with the tenancy or agree to the changes.37
35 Residential Tenancies Act, s 50(1)(a).
36 Section 50(1)(d).
37 Sections 60A(2)(c) and 13B.
[34] Mr Zindel also submits that Judge Snell erred in finding that the appellant impliedly agreed to the changes to the tenancy agreement. He contends that the appellant left the Address for the United States under the impression that her family would join her. She returned upon discovering her family would not be relocating. He says that the appellant made numerous attempts to return to the Address, but these were prevented by L and the parenting order. Her acquiring and paying for alternative accommodation was out of necessity and not choice. Mr Zindel further says that rent was never paid from the appellant’s separate account during the relationship. L’s payment of the rent was part of his contribution to the relationship. L shut down the appellant’s later attempts to contribute to rent and other domestic obligations.
[35] Mr Zindel submits that, as Judge Snell erred in finding that the variation of the tenancy agreement was valid, the appellant remained a joint tenant and lawful occupier, and the trespass notice had no effect on her.
My assessment
[36] It is a criminal offence for a trespasser who has been warned by an occupier to stay off any place wilfully to trespass on that place within two years after the giving of the warning.38 Under the Trespass Act, there is a defence that the person on whose behalf the warning was given is no longer an occupier, as well as a limited defence of necessity.39
[37] Neither of these statutory defences applies in the present case. It was not argued that L was not, at any material time, an occupier, or that it was necessary for the appellant to commit the trespass for her or another person’s protection, or because of an emergency.
[38] An honest belief that one is legally entitled to remain on the premises provides a defence under the general law.40
38 Trespass Act, s 4(4).
39 Section 4(5).
40 Stephen Todd (ed) Todd on Torts (online ed, Thomson Reuters) at [8.2] citing Albert v Police HC Whangarei AP04/03, 25 March 2003.
[39] The Judge’s conclusion that the elements of the trespass charges were proven beyond reasonable doubt was based on his conclusions that:
(a)The appellant was no longer a lawful occupier of the Address from March 2024 onwards when the tenancy agreement was varied.
(b)The appellant could not have lawfully occupied the Address while her husband and children were living there once the interim parenting order had been made in January 2024, because she would have been breaching the parenting order and would not have been lawfully on the property while in breach of the parenting order.
[40] In relation to the variation of the tenancy agreement, the strict requirements of s 13B of the Residential Tenancies Act do not appear to have been met. That section provides:
13B Variations and renewals of tenancy agreements
(1)Every variation of a tenancy agreement, and every renewal of a tenancy agreement, shall be in writing and signed by both the landlord and the tenant.
(2)The landlord shall, before the date on which the variation or renewal of the tenancy is to take effect, provide the tenant with a copy of the variation or renewal.
[41]The Judge accepted L’s evidence that:
(a)He discussed with the landlord rolling over the tenancy agreement into another fixed term for which he would be the sole tenant on the basis that he had separated from the appellant, and that she was no longer living at the Address.
(b)On 12 March 2024 he signed a renewal of the tenancy agreement for the Address as sole tenant for a further 12 months and returned it to the landlord.
[42] It was unknown whether the landlord signed the varied agreement or whether the appellant was asked to sign the variation. However, despite these possible omissions, the variation to the tenancy agreement was not automatically unenforceable.41
[43] Under cross-examination at the trial, the appellant accepted that she knew that she and L had separated prior to her departure, stating that “we needed some time apart” and “given we had split up I can understand maybe why he didn’t want to [come with her to the United States]”.42 She then said it came as “a surprise” when he did not want to come to the United States and she came back quickly.
[44] I consider it is unlikely the appellant genuinely expected L would move to the United States to live with her. Her departure to another country to find employment post-separation was inconsistent with an intention to remain as a tenant at the Address.
[45] At the time the tenancy was renewed, the appellant had not been physically occupying the Address for more than one year. Given these circumstances, as discussed above and in the Judgment under appeal, I consider the Judge was entitled to conclude that:
(a)the appellant had impliedly surrendered her tenancy from March 2024 onwards, based on her actions since her first trip to the United States; and
(b)the landlord had impliedly agreed to the surrender by way of a variation to the tenancy, in which L became the sole tenant.
[46] Even if these conclusions were wrong, because the tenancy agreement had not been correctly varied, the interim parenting order prevented the appellant from lawfully occupying the Address as a tenant. As the Judge noted, it is difficult to see how the appellant could ever have occupied the Address when there was a parenting
41 Residential Tenancies Act, s 13C.
42 Notes of evidence at 58, lines 22–29.
order in place only allowing her supervised visits with her children, with the supervisor being a provider from which she was required to seek access to the children.43
[47] Therefore, even if the appellant thought that she remained a tenant at the Address, she could not have honestly believed she was legally entitled to be there. To have such a belief would be incompatible with the interim parenting order, which the appellant knew was in place and which she understood. Therefore, any such belief could not have been an honest belief.
[48] Moreover, after the first trespass on 20 July 2024, the appellant was subject to bail conditions preventing her from going to the Address. This is a further reason why it is inarguable that the appellant honestly believed she was lawfully entitled to be at the Address.
[49]It follows that the Judge did not err in concluding that:
(a)the appellant was not a lawful occupier of the Address; and
(b)the elements of the trespass charges were proven beyond reasonable doubt.
Second ground of appeal: whether appellant’s actions caused L to reasonably fear for his safety and that of his children
Appellant’s submissions
[50] Mr Zindel submits that the appellant’s actions were not sufficient to have caused L to reasonably fear for his and the children’s safety. Mr Zindel submits that the appellant’s repeatedly coming to the Address did not pose a physical or mental safety risk to anyone and that, prior to bail conditions being imposed, her presence was justified as she was a tenant and the trespass notice was invalid.
[51] Mr Zindel says that the appellant’s messages to L were focused on the care of her children and although there was “some brief discussion on the sanctity of marriage
43 Judgment under appeal, above n 3, at [23] and [73].
and divorce”, none of her communications were malicious. He says that her visits to the Address were to discuss care of the children and the family’s future. These visits were, in the appellant’s view, necessitated by L’s refusal to respond to her messages. He says that L knew what she wished to discuss, and his refusal to engage frustrated the appellant.
[52] Counsel submits that L had nothing to fear. Rather, he chose not to engage with the appellant in the knowledge that this would complicate the situation, despite having a statutory duty to maintain the children’s relationship with their mother.44
My assessment
[53] As the Judge found, the definition of safety under the Harassment Act is broader than mere physical safety.45 The Judge found that L:46
… locked himself or remained in the bathroom on some episodes, that he would immediately call the police, and indeed on one occasion removed the children on the advice of the police and waited with them shielded in the car at the end of the driveway for the police to come and remove [the appellant] from the house, where she had simply walked in, locked the doors and refused to leave.
[54] The appellant repeatedly returned to the Address many times in 2024, even when she was required not to do so by the trespass notice, the interim parenting order and her progressively stricter bail conditions. She may have been motivated by a desire to care for her children and lacking a malicious intent. The fact that some of her visits included bringing presents for the children supports that view. But the appellant would have known that she was breaching her bail conditions in doing so. She received several “final warnings” not to breach her bail, but she wilfully breached her conditions not to contact L or attend the Address and was remanded into custody at least twice. The most recent of her seven trespasses was on 27 December 2024. At that time her bail conditions prevented her from entering the area at all.47 I consider that in blatantly disregarding a trespass order, parenting order and bail conditions to
44 Care of Children Act 2004, s 5(e).
45 Harassment Act, s 2; and Judgment under appeal, above n 3, at [81].
46 At [82].
47 At [22].
that extent, the appellant knew her harassment was likely to cause L to reasonably fear for his and his children’s safety.
[55] Mr Zindel says that L’s actions breached his obligation under the Care of Children Act to maintain the children’s relationship with their mother. But I accept Ms Goodison’s submission that this overlooks the appellant’s wilful and consistent breaches of the parenting order and the bail conditions as well as her erratic behaviour. Moreover, the focus of the trial was to determine whether the police had proved the charge of criminal harassment beyond reasonable doubt, not to determine the care arrangements for the children. Whether or not L’s actions breached any of his obligations under the Care of Children Act, it was open to the Judge to find that the appellant knew her actions were likely to cause L to reasonably fear for his and his children’s safety.
[56] The Judge was entitled to accept L’s evidence that he had safety concerns arising from the appellant’s actions. The Judge did not err in his conclusions on this ground.
Result
[57] The Judge did not err in his assessment of the evidence or in his conclusions as to the law. No miscarriage of justice has occurred.
[58]Leave to appeal is allowed but the appeal is dismissed.
[59]The appellant’s convictions are upheld.
McHerron J
Solicitors:
Zindels, Nelson for Appellant
Crown Solicitors, Nelson for Respondent
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