T v Police HC Wellington CRI 2008-485-101

[2009] NZHC 332

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-485-101

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 March 2009

Counsel:         Appellant in Person

J M Webber for Respondent

Judgment:      18 March 2009

JUDGMENT OF RONALD YOUNG J (Appeal against conviction and sentence)

Introduction

[1]      Miss T    appeals  against  two  convictions  for  trespass  and  the consequent sentence of twelve months’ supervision plus a non-association order with respect to the complainant.

[2]      The appellant’s case challenged the validity of the trespass notice, claims she had a licence to enter the relevant property, alleges the prosecution was occasioned

T V NEW ZEALAND POLICE HC WN CRI 2008-485-101 18 March 2009

by malice;  that  there  was  a  breach  of  s 25  of  the  New Zealand  Bill  of  Rights

Act 1990 and other breaches relating to freedom of expression.

[3]      As to sentence the appellant says that the sentencing Judge breached s 19 of the New Zealand Bill of Rights Act and should have given her a discharge without conviction.

Background facts

[4]      On 21 April 2007 Constable Hawkin served the appellant with a trespass notice prohibiting her from entering into s 29A Grass Street, Wellington.

[5]      On 2 May 2007 the appellant entered this property and on being told to leave refused to do so for some time.

[6]      On 6 May 2007 she again entered the property and was again told to leave by the complainant’s landlord.  She refused and remained on the property for a period of time.

Grounds of appeal

[7]      The appellant filed extensive grounds of appeal and extensive submissions. Counsel for the respondent helpfully rearranged these into a useful format which enabled the Court to deal with those that were relevant.  The appellant also made a broad ranging attack on the general fairness of the way in which the District Court had dealt with her case.  She also raised issues such as freedom of expression and freedom of movement and general allegations of impropriety against the Police.  She also made allegations relating to her arrest on these and other charges, which could not have affected her criminal culpability.  I do not deal with all of the issues raised by Miss T  , many of which have nothing to do with this case.

[8]      The first ground of appeal attacked the validity of the trespass notice.  The appellant attacked the notice in several ways.

[9]      Firstly, the appellant said that the trespass notice was invalid because she was served with a copy and not the original of the notice.  Constable Hawkin confirmed that he served a copy of the trespass notice on Miss T  .  The appellant could not provide any authority, which supported her claim that the original trespass notice had to be served before it became a valid notice.

[10]     Pursuant to the Trespass Act 1980 a person can become a trespasser if they are warned to leave or stay off a property by someone authorised to do so but they enter or stay on the property (s 3, 4 Trespass Act 1980).  The warning can be oral or written (s 5).  No particular form of written notice need be given as long as it is clear who it is addressed to and what premises it relates to and a warning is given to stay off the premises (s 4).  In this case there can be no doubt that the trespass notice was addressed to the appellant and related to the premises at 29A Grass Street.  There is no obligation in law for the notice to be an original or a copy.   It does not matter which.

[11]     Secondly, the appellant complained that the “proof of service” pre-printed section on the back of the trespass notice given to her was not completed.  It need not be.  Ultimately for a successful prosecution the Police must prove that the trespass notice was served on the appellant (s 5).  They did so by having Constable Hawkin give evidence to establish that he had served the appellant.  Whether or not the proof of service section on the back of the trespass notice was or was not filled out on the appellant’s copy is irrelevant to a prosecution for trespass.

[12]     The third ground of attack relating to the trespass notice is a complaint that there was a delay between the completion of the notice by the complainant and service by the Police.  Section 4(1) of the Trespass Act provides as follows:

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.

[13]     In his case the complainant gave evidence of numerous trespasses by the appellant on his premises including those immediately prior to 6 April 2007, the date on which he provided the signed trespass notice to the Police for service on the appellant.

[14]     The Police served the notice on the appellant on 21 April 2007.  The Police in evidence explained the delay.  I am satisfied, therefore, that there was no error in the conclusion by the District Court Judge that the written warning was given to the appellant within a reasonable time after the trespasses.

Warning

[15]     The appellant says when she entered 29A Grass Street on 2 May and 6 May she was warned to leave by the owner and landlord of the premises.  She says when warned she left.  She argues that a landlord does not have right to warn anyone to leave premises he has rented and in any event no trespass occurred because she left when requested.

[16]     The appellant has confused sections 3 and 4 of the Act.  She was prosecuted pursuant to s 4 of the Act.   The allegation was that often having been warned in writing to stay off 29 Grass Street she went onto the property on the two occasions. The offence is committed upon her entry onto the property assuming, as here, a valid trespass notice.  No warning when she is on the premises need be given.

[17]     This ground of appeal must, therefore, fail.

[18]     The appellant claimed she had an implied licence to go to the complainant’s residence because his residence was also his business address, which effectively invited entry from members of the public.  In addition, the appellant claimed that she was entitled to go to anyone’s premises and knock on their door and that she had an implied licence to do so.

[19]     Any implied licence the appellant had was obviously revoked by the trespass notice served on her.  In any event there was no evidence from the appellant that she had any legitimate business with the complainant to invoke any implied licence.

Statutory defence

[20]     The appellant claimed she had a defence pursuant to s 4(5)(b) in that it was necessary for her to go to 29A Grass Street and explain to the complainant his trespass notice was invalid.

[21]     Section 4(5)(b) provides:

4        Trespass after warning to stay off

…

(5)It shall be a defence to a charge under subsection (4) of this section if the defendant proves that—

…

(b)       It was necessary for the defendant to commit the trespass for his  own  protection  or  for  the  protection  of  some  other person,  or  because  of   some   emergency  involving  his property or the property of some other person.

[22]     The appellant’s reason for entering the property do not come within s 4(5)(b). She was not trespassing to protect herself or anyone else or because of any emergency.

[23]     The appellant claimed that the prosecution and the approach of the Police was actuated by malice towards her.  There is no evidence to support that allegation.

Arrest

[24]     The   appellant   complained   about   the   circumstances   of   her   arrest   on

22 May 2007.  As I have previously observed, whatever the rights and wrongs of that arrest,  they  are  irrelevant  to  whether  or  not  the  prosecution  proved  beyond reasonable doubt the two charges of trespass.  In any event, as I understand it, the arrest on 22 May 2007 did not relate to the offences, which are the subject of this appeal.

[25]     I have considered and reject all grounds of appeal against conviction.   The appeal against conviction is therefore dismissed.

Sentence

[26]     The appellant submitted she should have been discharged without conviction. The appellant accepted that she had not sought a discharge without conviction before the District Court Judge.   She said she was not aware that a Judge had power to discharge her without conviction.   Now she understood its availability she sought such a discharge.  She said the consequences of a conviction would be that people would think that she may come into their houses or break into their houses and steal items.  She said, therefore, people would think badly of her.  There is no rationale basis for considering that that could be a consequence of her conviction.

[27]     In any event as to the gravity of the offending that must be seen with the background information provided by the complainant.   It seems that the appellant has been harassing the complainant for a number of years.  In those circumstances the gravity of this offending was relatively high.   I am satisfied that the appellant could not possibly have convinced the District Court Judge that the consequences of

conviction were out of all proportion to the gravity of the offending.  The appellant has not established the statutory test (s 106, 107 Sentencing Act 2000).

[28]     The District Court Judge very sensibly imposed a sentence of supervision designed to assist the appellant given the understandable serious concerns about her mental health.   In addition, an order which prevented her from continuing her harassment of the complainant was appropriate.

[29]     The appellant has not convinced me that the sentence imposed was either manifestly excessive or somehow wrong in principle.  The appeal against sentence

will also be dismissed.

Ronald Young J

Solicitors:

E T  , 123B Martin Street, Walliceville, Upper Hutt

J M Webber, Luke Cunningham & Clere, PO Box 10357, Wellington, email: [email protected]