T v Police HC Wellington CRI-2005-485-120
[2005] NZHC 85
•4 October 2005
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2005-485-120
T
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 26 September 2005
Appearances: Appellant in person
M A O’Donoghue for Respondent
Judgment: 4 October 2005
JUDGMENT OF GODDARD J
The Facts
[1] On 13 August 2004, the acting Service Centre Manager of the Upper Hutt branch of Work and Income New Zealand (“WINZ”) authorised a police officer to issue the appellant with a trespass notice, under s 4(1) of the Trespass Act 1980 (“the Act”). The appellant is a beneficiary who is said to have a history of regular outbursts while dealing with staff of WINZ. A similar trespass notice had been
issued by WINZ in 2003.
T V POLICE HC WN CRI-2005-485-120 4 October 2005
[2] On 22 August 2004 the police officer duly served the appellant with the trespass notice, warning her not to enter any premises of WINZ for a period of two years.
[3] On 8 August 2005 the appellant telephoned a WINZ call centre, seeking an emergency appointment. She wished to urgently apply for a grant for the purchase of tyres for her car, which were necessary for its Warrant of Fitness. She apparently had received a quote for new tyres but the quote was available at that price for one day only. The call centre employee reminded the appellant of the trespass notice, and stated that in any case, her situation did not constitute an ‘emergency’. He gave evidence that emergency appointments are reserved for situations where a client does not have access to essentials, such as food, shelter or electricity.
[4] Later that same day, the appellant arrived at the Upper Hutt branch of WINZ. Her case manager approached her in the reception area, reminded her of the trespass notice and asked her to leave. The appellant refused to do so, and remained in the reception area. The police were called and when they arrived, she apparently became increasingly uncooperative and eventually violent.
[5] After a 10 minute struggle, police officers succeeded in handcuffing the appellant. She initially denied knowledge of the trespass notice, on the basis that she was confused and thought the police were acting on an earlier trespass notice, served in 2003, which was (in the appellant’s view) invalid because her name was misspelt on it.
[6] In the District Court, Judge Thomas identified the issues raised by the appellant at trial as including: the validity of the 2003 trespass notice; whether the
2004 trespass notice was validly served; whether the appellant’s actions constituted “trespass” under the Act; the circumstances of the appellant’s arrest; and whether the appellant had a defence.
[7] The Judge found that there was no need to go behind the 2003 notice and that if the appellant believed that notice had not been validly served on her she could take that matter up with WINZ. She further found that the 2004 notice had been served
validly on 8 March, noting that the appellant had accepted in cross-examination that on that day a police officer had visited and discussed the notice with her.
[8] She noted that s 4 of the Act requires that a trespass be ‘wilful’. She found that although the appellant professed to have no recollection of the 2004 notice, she had been reminded of the existence of the notice on the day of the offence on two separate occasions: during her conversation with the call centre employee, and when she arrived at WINZ and was spoken to by the manager.
[9] The Judge considered also the defence created by s 4(5) of the Act, which applies where a trespass is necessary for the protection of a person, or because of an emergency involving a person’s property. On the evidence, the Judge found that the circumstances did not establish either of these situations.
[10] In finding the charge proven, the Judge also found that the appellant’s arrest was valid, and that the police had given adequate NZBORA advice. She noted the appellant’s objections to the issue of the trespass notices by WINZ, but held that their issue was neither unreasonable nor in breach of the Bill of Rights.
[11] The Judge sentenced the appellant to pay $300 in witness costs, noting that the actual cost of bringing the five witnesses to Court was $829.
Grounds of Appeal
[12] The appellant’s main grounds of appeal against conviction in summary form are: apparent bias on the part of the Judge; the alleged invalidity of the trespass notices; breaches of NZBORA and Human Rights Act; and late disclosure by the prosecution.
[13] On appeal, the appellant reiterated her arguments that she did not know of the trespass notices; and that her need to purchase tyres that day amounted to an
‘emergency’ for the purposes of s 4(5) of the Trespass Act.
[14] In relation to the order that the appellant pay $300 towards the costs of the prosecution, that appellant submitted that she was not given pre-trial disclosure in the form of proposed witness briefs until the morning of trial and thus was not aware until then that five witnesses were to be called.
Appellant’s argument
[15] The appellant emphasised with feeling the fact that her name was misspelt on documentation relating to the trespass notices: one document was addressed to “Mr T”, whereas another referred to “Ms E T ”. The appellant also pointed to spelling errors made by the Police in documentation relating to her arrest and prosecution. In her view, this continuous misspelling of her name by both agencies amounts to racial discrimination and in her view deliberately so. She submitted that the deliberate affront of continuous misspelling of her name has had a harmful psychological effect on her and incited her to take the action that she did. She does not accept that the continuous misspelling of her name simply occurred through ignorance on the part of any person.
[16] The ground of apparent bias on the part of the trial Judge was asserted on the basis that Judge Thomas demonstrated apparent bias by directing the appellant to accept an apparent apology from the Police regarding their misspelling of her name. The appellant thought this direction indicated favouritism on the part of the Judge and malicious prosecution. A further factor put forward by her as demonstrating apparent bias were some of the Judge’s factual findings; for example, that the arrest was valid, that NZBORA advice was given and that the issue of trespass notices was reasonable.
[17] In relation to the trespass notices, the appellant suggested that the 2003 trespass notice was invalid, and contended that the outburst on which it was based (at a WINZ staff member) on 15 August 2003 was justified in the circumstances, and fell within the ambit of free expression guaranteed by s 14 NZBORA.
[18] The mistakes in spelling the appellant’s name in the related documentation were also pointed to as diminishing the authenticity and reliability of the notices, and were said to introduce a reasonable doubt as to guilt.
[19] On the basis of these factors, the appellant submitted that her conviction was
‘ultra vires’ and that a rehearing as to the validity (of the notices) should be granted.
[20] In relation to the alleged breaches of NZBORA and Human Rights Act, the appellant asserted that her conviction breached the following provisions of NZBORA:
• the right not to be subjected to cruel treatment (s 9);
• freedom of expression (s 14) and of peaceful assembly (s 16);
• freedom from racial discrimination (s 19).
[21] The appellant further submitted that the Trespass Act must be interpreted consistently with s 5 NZBORA, citing Police v Beggs [1999] 3 NZLR 615, a case in which it was held that the Speaker of the House’s power to warn off trespassers had to be exercised consistently with the Bill of Rights.
[22] The appellant invoked s 42(1) Human Rights Act 1993 (“HRA”) as guaranteeing a right of access to public places, such as WINZ.
[23] The appellant referred to and relied on the doctrine of generalia specialibus non derogant (general words in an enactment do not repeal earlier statutes dealing with a special subject). Effectively, she suggested that the HRA prevents the Trespass Act from applying, citing Police v Kanuta [1987] 1 NZLR 629, in which the Court held that the provisions of the Trespass Act do not apply to the public bar of a hotel, during the hours when the public bar is required to be open under s 188 of the Sale of Liquor Act 1962. As Mr O’Donoghue pointed out however the decision in Kanuta has been rendered redundant by the addition of s 12A to the Trespass Act
1980 on 10 July 1987. He and the appellant were in any case agreed that Kanuta is distinguishable from her case on its particular facts.
[24] In relation to late disclosure by prosecution, the appellant said that before the trial she was informed in writing of only one prosecution witness. She said that the briefs of evidence of the remaining four witnesses were not disclosed until 6 July
2005 (the morning of the hearing). However, it seems that the police did attempt to serve her with copies of these documents on 3 July 2005 (a Sunday), but that the appellant refused to accept them as her name was spelled incorrectly.
Discussion
Apparent bias
[25] On appeal, the onus is on the appellant to satisfy the Court that the decision below was wrong and that the appeal should be allowed: Westpark Marina Ltd v Auckland Regional Water Board (1989) 5 CRNZ 18. On the basis of the guiding principles in the authorities, I accept Mr O’Donoghue’s submission that the appellant’s criticisms do not come anywhere near laying a foundation for the serious allegation of bias against a judicial officer. I therefore find against the appellant on this issue and I completely disregard the allegations and put them to one side.
Invalidity of Trespass Notices
[26] As the District Court Judge suggested, the 2003 trespass order is irrelevant to the present proceedings. Provided the 2004 notice was valid, the offence under s 4 can be established.
[27] Section 4(1) 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.
[28] A minor error in the written trespass notice does not invalidate it as a “warning” under s 4(1). Section 5 of the Act provides that such warnings may be given orally or in writing. The appellant acknowledged in cross-examination that the police officer serving the notice had told her of its legal significance (page 38 of the transcript of evidence). The appellant has not advanced any credible basis for a finding that the Trespass Notice dated 13 August 2004 was invalid and not in force as at 8 April 2005. There is nothing in the Trespass Act 1980 preventing the issue of a further trespass notice. That would seem to be particularly so where the first notice does not correctly describe or name the appellant.
[29] As Mr O’Donoghue submitted, the decision in Police v Beggs [1999]
3 NZLR 615 cited by the appellant, is the most relevant case although distinguishable on its particular facts. Beggs was a s 3 case under the Trespass Act
1980, involving a protest assembly on Parliament’s grounds, whereas the appellant’s case is a “warning off” case under s 4 of the Trespass Act 1980. The relevance of the decision in Beggs is that it held that a public occupier can apply the provisions of the Trespass Act 1980 consistent with the principles under the NZBORA if it acts reasonably. Mr O’Donoghue submitted that in the present case WINZ had acted reasonably on 8 April 2005 in enforcing the written trespass notice previously served on 22 August 2004. I accept this submission.
Breaches of NZBORA and Human Rights Act
[30] It must be remembered that the rights guaranteed by NZBORA are not absolute. They are overridden by “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (s 5), including the Trespass Act (s 4). The provisions of the Human Rights Act are also subject to s 5
NZBORA: see s 20L HRA. Clearly, neither statute can be invoked to justify criminal acts.
[31] Further, s 42 HRA would not have been infringed on the facts. Even assuming the offices of WINZ could be regarded as a ‘public place’, WINZ as occupier has a discretion to request that a person leave their premises and to seek and serve a trespass order on specified grounds. In any case WINZ’s refusal to permit
the appellant entry was based on her own conduct rather than on any prohibited ground of discrimination.
[32] The maxim generalia specialibus non derogant is equally inapplicable. Firstly, the Trespass Act is the earlier of the two statutes, and the Human Rights Act is arguably equally specific in its effect. Secondly, the provisions referred to are not inconsistent with each other. One makes access to land unlawful after a warning; the other makes it unlawful to refuse access to public land on the grounds of discrimination. The only potential overlap is where a person is warned off public land for discriminatory reasons. That is not the case here.
[33] In relation to the spelling errors in the documentation relating to the Trespass Notices and in Police documentation, I do not accept that these errors were based on anything other than mistake or carelessness. However such errors should not occur and are an affront to the person whose name is misspelt.
Late Disclosure by Prosecution
[34] In relation to the issue of late disclosure by the prosecution, the common law, and s 24(d) NZBORA, requires the Crown to make “full and timely” disclosure of the evidence that it plans to present: R v Griffin [2001] 3 NZLR 577 (CA), para [106]. This includes briefs of evidence, notes of interview and witness statements (Police v Nimmo [1999] 3 NZLR 343, 351).
[35] However, not every breach of this obligation will result in a miscarriage of justice. Where an appeal against conviction is based on an alleged deficiency in the procedures that led to the conviction (such as lack of disclosure), the appellant must show:
(i)a nexus between the alleged procedural deficiency and the conviction, and
(ii) that the alleged deficiency raises a real risk that the appellant was wrongly convicted.
[36] In both cases the ultimate focus is the conviction: Herewini v Police [1992]
3 NZLR 482, 491.
[37] On the facts, neither of these requirements can be satisfied. Firstly, this was not a case of non-disclosure; the police attempted to disclose the relevant briefs some
3 days prior to the hearing of the charge.
[38] Secondly, the conviction cannot be regarded as unsafe. The prosecution evidence clearly establishes that the appellant’s actions were in breach of s 4. The appellant did not significantly dispute the witnesses’ evidence, and admitted the trespass notice had been served (pages 38, 41 of transcript).
[39] Thirdly, the appellant was not significantly prejudiced by not having the witness briefs. The defence was predominantly based on the existence of an
‘emergency’ (under s 4(5)), to which the prosecution evidence was of little relevance.
[40] However, the lateness of the disclosure and the appellant’s explanation to this Court as to why she did not accept the service of all the briefs at the time and therefore did not realise the number of witnesses or the nature of their evidence (although not strictly relevant to the issue of costs) can be taken into account by me in determining whether the award of costs to the prosecution ought to be remitted. Overall, I think there is little point in continuing this order and that it is in the wider interests of justice to accord the appellant this leniency.
Conclusion
[41] The appeal against conviction is dismissed but the appeal against the award of costs in the sum of $300 is allowed and that order is quashed.
Solicitors:
Luke, Cunningham & Clere, Wellington, for Respondent
Delivered at 4.30pm on Tuesday 4 October 2005.
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