T v Police HC Greymouth CRI 2006 418 9

[2007] NZHC 474

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI 2006 418 000009

BETWEEN  T

Appellant

AND  THE POLICE Respondent

Hearing:         20 April 2007

Counsel:        Appellant in Person

A M Toohey for Respondent

Judgment:      11 May 2007

JUDGMENT OF PANCKHURST J

A conviction for trespass

[1]      Mr T   was convicted of an offence against the Trespass Act 1980, in that, having been warned to leave the Greymouth courthouse, he failed to do so.   In appearing for himself, Mr T   raised numerous grounds in support of this appeal, most of them of a factual nature.

[2]      But the case also raises an issue of some general importance.  This is whether a person in the precincts of the Court has a right of presence, a right to be there, such that a requirement for them to leave must be reasonable in all the circumstances.

[3]      Courtrooms,  and  the  designated  areas  which  surround  them,  are  public places.  Indeed, freedom of access to courtrooms is generally guaranteed, being an aspect  of the  public  administration  of  justice.    Hence,  as  Mr  T    effectively

asserted at the time, may members of the public only be told to leave a courthouse

T V THE POLICE HC GRY CRI 2006 418 000009  11 May 2007

where it is reasonable to require them to go?  As will become apparent, this is the ground of appeal of central relevance in the present case.

Some further background

[4]      On  22  February  2006  the  appellant  attended  a  call  over  hearing  in  the Greymouth District Court.  After his case had been called, and remanded to another date, Mr T   left the courtroom and went to the public office of the Court.

[5]      A Mr Weepu was in discussion with a member of the Court staff concerning payment of outstanding fines.   In particular, periodic payment of the fines by deduction from Mr Weepu’s wages was under consideration.   Mr T   involved himself in the discussion.   He suggested that Mr Weepu should take legal advice before agreeing to deductions being made from his wages.

[6]      Judge Couch, who heard the trespass charge at a hearing in September 2006, described events in these terms:

[8]       The conversation in the public office became prolonged and, to some extent, heated.  There were raised voices.

[9]       Mrs Buchanan, the Court Victims Advisor came into the office while this discussion was in progress.   Her perception was that the staff member dealing with Mr Weepu was becoming flustered as a result of Mr T  ’s intervention in the discussion.  She went to the Court and took instructions from the Registrar who gave her authority to ask Mr T   to leave.   Mrs Buchanan went back to the public office and did just that.   She asked Mr T   to leave the office.  It appears she asked him more than once and on the final occasion she said that if he did not leave the police would be called.

[10]     It is common ground that upon being asked, and certainly after the final time he was asked by Mrs Buchanan to leave the Court office, Mr T   did so and it is not suggested by the prosecution that what occurred in the Court office forms any part of the offence.

[7]      Upon leaving the Court office Mr T   went to the main foyer of the then courthouse.   This was an area directly accessible from the street, from which the public could gain entrance to the courtroom itself, and to the Court office.  Mr T   sat down and became engaged in conversation with two men who were seated there.

[8]      At about this point another senior member of the Court staff was advised of what had occurred in the Court office.   She called the police.   A sergeant and a constable went to the courthouse.

[9]      On arrival, Sergeant Cross had a discussion with the senior staff member who had made the call to the police station.   She asked Sergeant Cross to persuade Mr T   to  leave and,  if he did  not, to  take  further  appropriate  action.    The  two policemen then spoke to Mr T   in the foyer.  Sergeant Cross asked him to leave. He indicated that he had authority to make that request.  Mr T   said that he would not leave and added that he “owned the Court”.   Judge Couch’s description of the event continued:

[14]      … Sergeant Cross then asked Mr T   again to leave.  At this point Mr T   has  stood up.   His  demeanour  at  this  point  was  described  as confrontational  but  nothing  particularly  turns  on  that  in  relation  to  this charge.

[15]     After a brief period Mr T   sat down again and said that he was talking to his friends.   Sergeant Cross asked him to take the conversation outside.  After another brief period Sergeant Cross said to Mr T   that he had had a reasonable time to leave and that if he did not leave he would be arrested.  Mr T   then said “What are you going to do then?”  At that point Sergeant Cross arrested Mr T   and took him to the police station where he was charged with trespass.

[10]     Mr T   defended himself at the September hearing.   He gave evidence in his own defence and called two witnesses.   The Judge found that Mr T  ’s own evidence was essentially consistent with that of the prosecution witnesses.  He said that to the extent there were inconsistencies they were minor and of no significance in relation to the elements of the charge.

[11]     In the end result Mr T   was convicted and was immediately sentenced by the imposition of a fine of $300.

The grounds of appeal

[12]     Although  Mr  T  ’s  written  submission  suggested  numerous  points  of appeal, I think that effectively three main grounds were advanced.

[13]     The first was that, because he was on bail in relation to the matter for which he appeared on 22 February 2006, Mr T   was not free to leave the Court until a fresh bail bond had been completed and signed.   However, three members of the Court staff gave evidence relevant to this question, including one  who was called by Mr T  .

[14]     The Judge approached the matter on the basis whether there was scope for Mr

T   to entertain an honest belief of the need for him to remain.  He concluded:

But, on the facts, I have found that he could not have maintained an honest belief to that effect because of what Mrs Buchanan told him in the Court office.

Having reviewed the evidence in light of Mr T  ’s submission, I can find no basis to differ from the conclusion reached by Judge Couch on this point.   Accordingly, this ground of appeal fails.

[15]     As I understood it, the second ground of appeal was to the effect that Mr T   was denied the opportunity to adequately defend himself because he did not have access to legal materials relevant to the charge he faced under the Trespass Act. The notes of evidence show that at the start of the hearing Judge Couch arranged for Mr T   to be provided with copies of the two most relevant sections of the Act, it having been pointed out to him that there was not a community law centre on the West Coast.

[16]     Although Mr T   did not express it in these terms, the gist of his argument under this head was that he had not had adequate time and facilities to prepare a defence: s 24(d), New Zealand Bill of Rights Act 1990.

[17]     To  my  mind,  an  argument  of  this  kind  falls  to  be  assessed  upon  a consideration of the record of the hearing as a whole.   On the basis of the cross examinations he conducted, the evidence he led, and the contentions he advanced to Judge Couch, I am satisfied that Mr T   was in a position to adequately present his defence.   In particular, he demonstrated an understanding of the elements of the offence, including an appreciation that a distinction may need to be drawn between a

courthouse and other public places to which citizens may have a right of access, but not a statutory entitlement of presence.

[18]     This brings me to the third, and substantial, ground of appeal.  Before me Mr T   argued that the conviction challenged his right to “free speech in the Court’s debating chamber”.  Before Judge Couch an argument expressed in different words, but to similar effect, was apparently put.

Was the warning to leave reasonable in the circumstances?

[19]     The value which Mr T   sought to articulate achieves expression through a requirement that a warning to  leave a courthouse must  be reasonable  in  all the circumstances.  In my view, this need is demonstrated by some previous authorities to which I shall refer shortly.  Was that requirement recognised in the District Court?

The District Court decision

[20]     Judge Couch dealt with this aspect as follows:

[28]     In his final submissions Mr T   put to me the proposition that the Court buildings in Greymouth “belong to the people,” to use the words that Mr T   used.  He drew an analogy with another circumstance concerning Parliament and referred me to the 1688 Bill of Rights Act for the proposition that Parliament belongs to the people.

[29]     This really raises a question of constitutional or public law in that while at a fundamental level it may be said that Parliament belongs to the people I do not accept the analogy that the Courts, and more particularly, the buildings in which the Courts are housed and operate belong to the people in the sense that every citizen of New Zealand  has  a right  to be on those premises at any time for any purpose.

[30]      For  the  purposes  of  the  Trespass  Act  I  find  that  the  Court premises are in no different position to any other building or place to which the public are usually permitted to have access.  The fact that the public are usually permitted to have access does not of itself create a right of access which cannot be withdrawn by the occupier of the premises.  Just as the operator of a shop may permit the public to have access to that shop from time to time without specific permission but may withdraw permission in respect of any individual and require them to leave so the same situation applies to the Court premises.

[31]     It would have been a different matter, in my view, had Mr T   genuinely believed that he was required to remain on the Court premises. That would have provided a defence to this charge … (Emphasis added).

[21]     As can be seen, the Judge equated Court premises to other premises to which the  public  are  permitted  access.     He  did  not  consider  that  the  occupiers  of courthouses were subject to any different obligation in relation to requiring members of the public to leave the premises.

[22]     Having responsibly referred me to the decision in Bright & Ethell v Police (HC Auckland CRI 2006 404 133–134, 27 October 2006), a decision of Lang J, Ms Toohey felt unable to support Judge Couch’s analysis at [29] and [30] regarding the status of Court premises.  However, she argued that in the context of a general appeal conducted by way of rehearing on the notes of evidence, it was appropriate to reassess the evidence in light of the further requirement that an occupier must act reasonably in requesting someone to leave a courthouse.   Once this was done, Ms Toohey submitted, it was apparent that the requirement to leave was reasonable in this case.

Some previous authorities

[23]    Two cases concerning trespass in the grounds of Parliament provide an appropriate starting point for a consideration of the reasonableness requirement.  In Police  v  Walker  [1977] 1 NZLR 355 (CA), it was affirmed that, although the grounds of Parliament were open to and commonly used by the public, the right of protestors to remain there could, in appropriate circumstances, be revoked and the Trespass Act invoked. But this case centred upon who may decide that the continued presence of protestors in the grounds was inappropriate, such that they may be required to leave.

[24]     However,  in  Police  v  Beggs  (1999)  16  CRNZ  654  (HC),  a  Full  Court decision, the issue of reasonableness was at the heart of the appeal.   A group of students  protested  in  the  grounds  of Parliament.    They were  required  to  leave, refused to do so and charges of trespass were laid against them.  The charges were dismissed in the District Court, but the police appealed by case stated on questions of

law.  The gist of one question was whether the speaker, or his delegate, may only invoke the Trespass Act if protestors acted in a manner such as to interfere with the rights and freedoms of others.

[25]     This  question  was  answered  against  the  background  of  the  freedoms  of speech, assembly and movement, confirmed in the Bill of Rights Act.   The Court concluded  that,  in  order  to  invest  those  freedoms  with  meaning  in  the  present context, it was necessary to limit the power to require persons to leave the grounds of Parliament by imposing a reasonableness test.   Gendall and Wild JJ adopted observations  of  Hugessen  J  in  the  United  States  Supreme  Court  in  Hague  v Committee for Industrial Organisation (1939) 307 US 496, at 509 – 510:

The government is not in the same position as a private owner in this respect, as it owns its property not for its own benefit but for that of the citizen. Clearly the government has a right, even an obligation, to devote certain property for certain purposes and to manage ‘its’ property for the public good. The exercise of this right and the performance of this obligation may, depending on the circumstances, legitimize the imposition of certain limitations on fundamental freedoms. Of course the government may limit public access to certain places; of course it may also act to maintain law and order; but it cannot make its ownership right a justification for action the only purpose and effect of which is to impede the exercise of a fundamental freedom.

[26]     The Full Court concluded at 668:

Our view is that the exercise by the Speaker of the power under s 3 of the Trespass Act must be reasonable, both in the manner of its exercise and in the prevailing circumstances. What is reasonable is not to be determined only by an analysis of that “which is disorderly, unlawful or interferes with others in the exercise of their rights and freedoms” (the Judge’s words). We consider that the test of reasonableness goes beyond those considerations.

[27]     Without  seeking to  define a  formula  for  reasonableness,  various relevant considerations were identified; including whether the assembly was unreasonably prolonged, its size, whether it caused interference to others, and the subject matter of the protest (whether it entailed hatred, racism, intolerance or obscenity).

[28]     The case even closer in point to the present appeal is Bright.   A group of protestors were charged with trespass after they were arrested for refusing to leave the foyer of the District Court.   The charges failed when the prosecution accepted there was no evidence to establish cause to require the defendants to leave the foyer,

or put another way, no evidence that the requirement to leave was reasonable in the circumstances.  Despite this outcome, the defendants were not awarded costs in the District Court.

[29]     Lang J determined an appeal in relation to the costs decision.  In confronting the  question  whether  the  informant  ever  had  sufficient  evidence  to  support  the charges, the Judge considered the circumstances in  which a Court  manager  had required the group to leave the foyer of the courtroom.  Lang J’s analysis began with s 138(1) of the Criminal Justice Act 1985:

… every sitting of any Court dealing with any proceedings in respect of an offence shall be open to the public

Openness, is, of course, subject to certain familiar exceptions where the Court is cleared in the interests of particular witnesses (e.g. complainants of sexual abuse) or in the interests of security.

[30]     The  Judge  then  emphasised  that  the  right  of  citizens  to  be  present  in courtrooms was a value not to be under estimated.  The openness of court hearings provides an assurance of the due administration of justice through public scrutiny of the Court’s processes.  Consistent with the right contained in s138(1), is the right to freedom of expression, which includes freedom to seek and receive information of any kind and in any form:  s 14 of the Bill of Rights Act.

[31]     After reference to Police v Beggs, Lang J continued:

[41]     Applying the same reasoning, I consider that the appellants in the present case had a right, not only to be present within the courthouse itself, but also to enter the courtroom in order to observe the criminal proceedings that were to be called in that courtroom. If their right to be present in that courtroom was to be curtailed, that could only occur in circumstances where the occupier of the courthouse acted in a manner that was reasonable.

Since the Court manager had sought to eject the group on account of a concern that they might be disruptive, when in fact they had not been, Lang J characterised the requirement to leave as “pre-emptive”, rather than reasonable.

[32]     I am in agreement with this analysis.  I note there is a distinction between the factual situation in Bright as compared to this case, in that Mr T   was not in the

foyer area of the Court  in anticipation of attending a hearing.    He had already appeared, been remanded to a later date and there is nothing in the evidence to indicate his continued presence was for the purpose of observing a Court in sitting.

Referring to the facts of this case

[33]     I accept Ms Toohey’s submission that in the context of a general appeal it is appropriate to  revisit  the  facts  established  in  the  District  Court,  and  to  inquire whether  they  satisfy  the  reasonableness  requirement.    To  my  mind  there  is  a difficulty in relation to this exercise, in that Judge Couch appears in his oral decision to have treated the events in the Court office, and the events in the foyer, as separate and distinct.  Moreover, at [10] of the decision the Judge said:

… it is not suggested by the prosecution that what occurred in the Court office forms any part of the offence.

It is not clear to me why this should be so.  I can only assume that Judge Couch was conscious of the fact that the Victims Advisor told Mr T   to leave the office. Eventually he did so.  It seems, therefore, the Judge treated the events in the foyer as separate in the sense that  it  was a different  place,  in relation to  which  a  fresh requirement to leave was necessary.

[34]     Yet,  it  is  clear  from  the  evidence  that  the  assistance  of  the  police  was requested on the basis of what had occurred in the office.   Following Mr T   leaving the office a senior staff member was informed of what had already occurred. On the basis of this information she called the police.   On arrival the two police officers had a discussion with the senior staff member.  She gave them authority to require Mr T   to leave and, if necessary, to remove him.  Hence, it is apparent that the earlier events in the office provided the effective basis for any requirement to leave.

[35]     I have considered the evidence of the two police officers.  It contains nothing to suggest that Mr T  ’s behaviour in the foyer gave cause for concern, so as to provide cause to require him to leave.  In cross-examination of the police Mr T   asked:

Q.  So I was just sitting in the foyer talking to a friend and do I not have the right to do that as a citizen of New Zealand.

A.   If you have been asked to leave then you must leave.

[36]     It seems to me that when the Victims Advisor required Mr T   to leave the office it was anticipated he would leave the court precincts.  When he did not, a fresh requirement to leave was communicated to him in reliance upon what had earlier occurred.   For the reasons I have already  mentioned,  whether  the events which occurred in the office area provided just cause for the subsequent requirement to leave was an issue which Judge Couch saw no need to confront.

[37]     My impression is that the earlier events may well have provided a reasonable basis for the subsequent requirement to leave.  However, there is no finding to that effect.   And, the events in the foyer area upon re-evaluation, provide no basis to found a reasonable requirement to leave.  Mr T   was simply in conversation with other members of the public.  He was there for only a short time.  Nothing untoward occurred up to the point  the requirement  to  leave was communicated.    Matters deteriorated from that moment, but only on account of Mr T  ’s assertion that the requirement was of itself unjust.  It follows, I think, that even on re-evaluation the evidence is not sufficiently clear to enable me to conclude that the reasonableness test is met.

Disposition of the appeal

[38]     For  these  reasons  I  conclude  that  the  appeal  must  be  allowed  and  the conviction quashed.    Should  a  rehearing  be ordered  so  that  the  charge  may  be reconsidered in light of this decision?

[39]     I do not think so.  Over 14 months has now passed since the relevant events occurred.  As indicated by the fine imposed by Judge Couch, the case was not the most serious of its kind.  I am satisfied it would be inappropriate to order a rehearing.

[40]     That said, it is not a case for an award of costs in favour of the appellant. Mr T   may well be fortunate that the decision in Bright was delivered about a month after the hearing before Judge Couch.   Had the reasoning in Bright been available to the Judge, the outcome of this prosecution may well have been different.

Solicitors:

Appellant – Mr R F T  , Tawhai Straight, Highway 69, Reefton
Raymond Donnelly & Co, Christchurch for Respondent