W v Police HC Rotorua CRI-2008-463-23

[2008] NZHC 1242

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2008-463-23

W

W

S

R

M
H
W

N
N
N

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 June 2008 and by subsequent memoranda

Appearances: Appellants in person

Ms A Gordon and Mr R Maze for Crown

Judgment:      6 August 2008 at 2.30 pm

JUDGMENT OF LANG J

[on appeals against conviction and sentence]

This judgment was delivered by me on 6 August 2008 at 2.30 pm, pursuant to Rule

540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Crown Solicitor, Rotorua

Copy to: Appellants

W AND ORS V NZ POLICE HC ROT CRI-2008-463-23  6 August 2008

[1]      On  3  September  2007  His  Honour  Judge  McGuire  commenced  hearing charges laid under the Trespass Act 1980 against each of the appellants.   That hearing lasted the best part of two days, and undoubtedly amounted to a difficult exercise for the Judge.

[2]      None of the appellants was legally represented, and it is clear that most held strong views  regarding the events  that  had  led  to  the charges  being laid.    The appellants were also supported in the courtroom by a large contingent of people who held equally strong views regarding those events.   As the transcript shows, those present in the courtroom were not afraid to make their views known to the Judge throughout the hearing.

[3]      In an oral decision that the Judge delivered at the conclusion of the hearing he found each charge proved.  He discharged one of the appellants, namely Doreen N  , without conviction.  He dealt with the remaining appellants by convicting them and ordering them to come up for sentence within the next 12 months if called upon to do so.

[4]      Everybody, including Doreen N  , subsequently appealed to this Court against the Judge’s decision.

[5]      I heard submissions in support of the appeals in Rotorua on 13 June 2008.  I then adjourned the appeals part-heard in order to enable the appellants to file written submissions in reply to those presented on behalf of the Police at the hearing.  Part of the delay in issuing this judgment has been caused by the need to read and digest the voluminous materials that Mr H   filed following the hearing.

[6]      The starting point must obviously be the factual matrix that surrounds the appeals.    In  order  to  understand  how  the  appellants  came  to  be  charged,  it  is necessary to set that out.

Factual background

[7]      The Proprietors of Hiruharama - Ponui Block own 337.74 hectares of Maori freehold land in the Acacia Bay area near Taupo.  The owners of the land are also shareholders in Proprietors of Hiruhama Ponui Block Incorporated.   This was incorporated under s 21 of the Mäori Purposes Act 1975, and it administers the land on behalf of the Mäori owners.  The day-to-day operations of the Incorporation are in turn managed by a committee of management.  The members of the committee have sometimes been referred to in these proceedings as trustees.

[8]      In March 2001 the Incorporation asked its members to consider proposals for the lease and sale of part of its land.  The purpose of the proposals was to decide how the land could be used in the future for the financial benefit of the members of the Incorporation.   The members rejected a proposal that the land should be sold, but they supported a resolution that the Incorporation should enter into a long-term lease of part of the land for commercial gain.

[9]      The resolution that members voted on was in the following terms:

That the committee be authorised to negotiate leases of those parts of the Incorporation’s lands shown in L 1 and L 2 on the plan annexed.    Such leases to be for terms of up to 80 years and otherwise upon commercial terms to be agreed with prospective tenants.

[10]     Voting took place after the committee had undertaken a consultation process with the members of the Incorporation and after the Mäori Land Court had ratified the proposal.

[11]     The  vote  demonstrated  that  members  who  supported  the  resolution  were clearly in the majority.  Members cast a total of 173,570 votes in favour of it, whilst votes in opposition numbered just 9,068.

[12]     In preparation for the proposed development the Incorporation entered into a skeleton lease of the land to a wholly owned subsidiary called The Trustees of Hiruhama Limited.   The lease was registered against the title to the land on 20

August 2001.  The lease was for a period of 80 years from1 October 2002.

[13]     Negotiations with a property developer called the Symphony Group began shortly after the resolution was passed.   These resulted in the Incorporation and Symphony entering into a conditional agreement on 6 November 2002.   Once the agreement became unconditional, The Trustees of Hiruhama Limited transferred its interest as lessee under the skeleton lease to a company called Symphony Properties Parawera Limited (“Symphony”).   The terms of the lease were varied at the same time to reflect the commercial arrangement that the parties had reached.

[14]     Symphony proposes to develop a gated residential community on the leased site.  It intends to do so by issuing unit titles to those who wish to acquire sections in the development.  In order to achieve this objective Symphony has now entered into numerous registered subleases of parts of the land to itself.  Each of the sub-leases is timed to expire just before the expiry of the head lease.  These will be transferred to purchasers once the development has been completed.     Symphony has now completed the construction of roading, drainage and the installation of many other amenities within the development.

[15]     Symphony needed to carry out substantial excavation works on the leased land.  This raised a significant issue, because ancient burial grounds were known to exist in the vicinity of the leased land.  To deal with this issue the Incorporation and Symphony agreed upon a protocol to take effect if Symphony discovered koiwi, or human remains, on the site.   The Taupo District Council and the Historic Places Trust were also parties to the protocol.  The protocol required Symphony to cease all works immediately and to notify the Incorporation of its discovery.  Symphony was also required to notify the police, the District Council, and the Historic Places Trust. Thereafter Symphony could not resume work on the site until such time as the Incorporation gave it written approval to do so.

[16]     On 24 May 2007 contractors working on the site unearthed some koiwi.  In accordance with the agreed protocol they immediately stopped work and complied with their obligation to notify the parties referred to above.  Within a few days, and after observing the appropriate customs and protocols of tikanga, the committee removed the koiwi and interred them at another location.

[17]     Shortly after the koiwi were discovered, however, a group of people began to occupy the site.  They erected several structures inside the main entrance and also moved a caravan and horse float onto the site.  These people, most if not all of whom were members of the Incorporation, were aggrieved that they had not been advised that koiwi had been found.  They also considered that they had been excluded from the ceremonies that followed the discovery of the koiwi.

[18]     During June 2007 the development manager for Symphony, Mr Dan Hakaria, met with the occupiers on three occasions.  He sought in these meetings to address the issues that the occupiers raised, and to explain Symphony’s position, rights and intentions.   When these meetings failed to resolve the situation, Mr Hakaria took formal steps to remove the occupiers from the site.

[19]     At about 7am on the morning of 27 June 2007 Mr Hakaraia went to the site and affixed formal warnings under the Trespass Act 1980 to the structures that the occupiers had erected.  He also arranged for a formal warning under the Act to be served on the only person who was present at the site when he visited it.  That person then left the site.

[20]     Mr Hakaraia remained at the site until 10am, by which stage about 20 people had turned up.     After  giving those who were present the opportunity to leave peacefully, Mr Hakaria arranged for the police to attend.   In the presence of the police Mr Hakaraia asked those present to leave the site.  Some of them elected to do so but others, including the appellants, remained.   The police then arrested and charged the appellants with trespass.

The Judge’s decision

[21]     The Judge delivered a lengthy oral decision.   Many of the topics that he covered in that decision were not, strictly speaking, relevant to the issues that he was required to decide.  He mentioned them, no doubt, in order to assure those who were present in Court that he understood their respective positions.  It is also clear from his remarks that the Judge was urging the members of the Incorporation, regardless of their views, to find a way to work together in the future.  He encouraged them to

address issues in the future in a way that avoided confrontation of the type that had led to the charges that he was required to determine.

[22]     As the Judge noted, the appellants were charged under s 3(1) of the Act.   It provides as follows:

3         Trespass after warning to leave

(1)Every person commits an offence against this Act who trespasses on any place and, after being warned to leave that place by an occupier of that place, neglects or refuses to do so.

[23]     The critical issue that the Judge was required to determine was whether the appellants were trespassing after they refused to leave the site on 27 June 2007.  This required the prosecution to prove beyond reasonable doubt that Mr Hakaraia had the necessary authority from the legal occupier of the land to give the appellants a warning under s 3 of the Act on that date.   It was also required to prove that Mr Hakaraia gave them that warning and that they refused or neglected to leave the site after receiving the warning.

[24]     If the Judge determined those issues in favour of the prosecution, he needed to consider whether the appellants had established a defence under s 3(2) of the Act. This provides as follows:

(2)It shall be a defence to a charge under subsection (1) of this section if the defendant proves that it was necessary for him to remain in or on the place concerned for his own protection or the protection of some other person, or because of some emergency involving his property or the property of some other person.

[25]     Given the circumstances of the present case, the appellants could realistically only rely on s 3(2) if they were able to prove that it was more likely than not that they acted because of some emergency involving their property or that of some other person.

[26]     The Judge determined these issues in the following way:

[33]      Now given that I have to find that the lease is a lawful one, that leaves the lessee, Symphony Properties Parawera Limited, standing in the shoes of the owners for 80 years.   So, if you like, they have the first right, they have the first right to say what happens on the land for 80 years in terms

of the Trespass Act.    I have looked carefully at what Mr Hakaria did that day, on behalf of the lessee, I have looked carefully at what the Police did that day, what they were asked to do by the owner.  I cannot find fault with what they did in terms of the Trespass Act.

[34]     That is not to say that what they did may have caused offence and grievance in terms of tikanga of the hapu.   I am simply not able to make any conclusion about that.   And I emphasise again, in saying what I am saying, I am not  dishonouring  those  members  of  the  hapu,  that  went  about  their business in the respectful way and gave notice of what they wanted to do following the discovery of koiwi on the site.

[35]     But as I say, what I am here today is to decide what is within the purview of the Trespass Act.   Subsection (2) says it shall be a defence to a charge under subsection (1) that if the defendant proves that it was necessary for him to remain in or on the place concerned for his own protection or for the protection of some other person or because of some urgency involving his property or the property of some other person.

[36]     Now what I understand this to be, at the end of the day, is the proposition that there was some urgency involving the property of some other person, and that is to say the koiwi.   Now that is what we call in law a shifting onus.    The onus of proving that shifts from the prosecution to the defence, and has to be proved on the balance of probabilities.

[37]      There was discussion, as I have indicated, at least three times, about koiwi after 27 May and before 27 June.   On 27 June, some people left the site when asked to do so; others did not.

[38]      I am not satisfied on the balance of probabilities that this was a real emergency  because  I  have  not  heard  evidence  that  satisfies  me  on  the balance of probabilities that further discussions could not have taken place, that the protocols agreed with, rightly or wrongly, between the Incorporation and Symphony regarding the discovery of bones was not being adhered to. That has not been proved to me on the balance of probabilities.    So that defence fails.    It follows therefore, that I find the charges proved beyond reasonable doubt.

[27]     It is clear from these passages  that  the  Judge  accepted  that  the  lease  to Symphony was lawful, and that Mr Hakaraia had the necessary authority to act on behalf of Symphony on 27 June 2007.  He also accepted that Mr Hakaraia had acted in accordance with the provisions of the Act, and that the appellants had failed to establish a defence under s 3(2) of the Act.

The approach to be taken on appeal

[28]     The appeal to this Court proceeds by way of re-hearing.  This does not mean that the Court hears all of the evidence again.  Rather, it proceeds on the basis of the

evidence that was given in the District Court.  If this Court considers, on the basis of the evidence given in the District Court, that the decision in that Court is wrong, it may substitute its own view.

The issue on appeal

[29]     At the hearing before me the appellants adduced a great deal of material, much of which is unlikely to have been before the Judge in the District Court.  In particular, they provided me with photographs of the construction work that has been undertaken on the site to date.  They also provided me with a videotape of events that occurred at the site. In addition, they explained to me, at length and in detail, why they consider that the present proceedings raise very important issues of principle.  I accept the genuineness of these submissions without reservation.  As I endeavoured to explain during the hearing, however, the issue that I am required to determine is a very narrow one.

[30]     It is no part of my function to launch an inquiry into the lawfulness or appropriateness of the Incorporation’s decision to lease the land to Symphony.  I do not have any power, either, to direct that such an inquiry is to be undertaken by any other body.  Neither is it part of my function to consider whether the committee of the Incorporation may have acted without due regard to the interests of members as a whole.  That is an issue that has already occupied the attention of the Maori Land Court and the Maori Appellate Court.   The focus of my enquiry must instead relate solely to the issue that the Judge in the District Court was required to determine. That issue is whether, on the evidence adduced, the prosecution could prove the charges beyond reasonable doubt.

[31]     In reaching my decision I also reject any suggestion that the courts of New Zealand have no jurisdiction to deal with the appellants.  That suggestion was not advanced with any real force during the hearing, but submissions to that effect can be found in the written materials that the appellants filed in support of their appeals.

[32]    The courts have repeatedly stated that Parliament is empowered to pass legislation, and that that legislation binds all persons in this country regardless of

their race or any other distinguishing characteristic.  The provisions of the Trespass Act 1980 are no exception.  They apply to every New Zealander regardless of race or creed.

[33]     It is not helpful, either, for the appellants to focus on legislation such as the Native District Regulations Act 1958 and the Native Circuit Courts Act 1858.   That legislation was repealed in 1891, and can play no part in determining these appeals

[34]     I also reject any suggestion that the Judge may have conducted the hearing in an inappropriate manner or that he failed to pay due regard to matters of protocol or tikanga.    The transcript demonstrates that he faced a difficult task in maintaining order and focus during the very lengthy hearing that he presided over.  I consider that he showed admirable patience and restraint throughout the hearing.   He gave the appellants free reign in relation to the evidence they were permitted to call and the questions that they were permitted to ask.   He also listened courteously to that evidence notwithstanding the fact that very little of it was directly relevant to the issues that he was required to determine.

Decision

[35]     There is no dispute that the Incorporation acts on behalf of the owners of the land with which these proceedings are concerned.  The appellants accept that fact.

[36]     Furthermore, there can be no challenge to the power of the Incorporation to deal with the land on behalf of its members.   The present dispute does not arise because the appellants contend that the Incorporation did not have the power to deal with the land.  Rather, it arises because of the way in which, through the actions of the committee, it used that power.  I accept that the appellants genuinely believe that the committee should not have leased the land to Symphony.   The fact remains, however, that the Incorporation had the necessary power to enter into the lease and the committee elected to exercise that power.  It did so in accordance with what it believed  to  be  the  wishes  of  the  vast  majority  of  the  members.    As  a  result, Symphony now has a lease of the land for a period of 80 years from 1 October 2002.

[37]     There can be no dispute, either, that Symphony was the registered proprietor of its leasehold interest in the land as at 27 June 2007.  Registration of that interest means that the interest is indefeasible.  As a result, the interest cannot be attacked unless it can be shown that Symphony obtained its interest through fraud.   In this context fraud must involve actual dishonesty on Symphony’s part.  That could not be established on the evidence adduced in the District Court, because the evidence was to the effect that the Incorporation, through the committee, willingly agreed to lease the land to Symphony.

[38]     As a result of the lease Symphony became entitled to occupy and use the land for its own purposes.  It also became the occupier of the land for the purposes of the Trespass Act 1980.  The Act defines an “occupier”, in relation to any place or land, as being “any person in lawful occupation of that place or land”.  The definition of “occupier” also includes “any employee or other person acting under the authority of any person in lawful occupation of that place or land”.   Mr Hakaraia was therefore an occupier of the land in terms of the Act.

[39]     Once  it  became  the  lessee  of  the  land  Symphony  alone  was  entitled  to determine who could enter and remain upon the land.  Subject to any rights that the lease may have expressly reserved to the lessor, Symphony was even entitled to prevent the owners of the land from having access to it.  Symphony was also entitled to give warnings to people under the provisions of the Trespass Act 1980.  All of these consequences flowed from Symphony’s status as lessee of the land.

[40]     The evidence also established that Mr Hakaraia was acting with Symphony’s authority on 27 June 2007 when he asked the appellants to leave the site.  When they refused to comply with that request, the appellants committed an offence under s

3(1) of the Act.  They did so because they refused to leave the land after having been warned to do so by Symphony’s duly authorised agent.

[41]     I also agree with the Judge that the statutory defence under s 3(2) of the Act was not available in the circumstances that existed as at 27 June 2007.  The koiwi that had been discovered on 24 May 2007 had been removed to another site.  There is  no  suggestion  that  any  further  similar  discovery  was  imminent.    There  was

therefore no reason why the appellants’ concerns could not have been addressed through further discussions with Symphony and other interested parties.  There was no pressing need, or emergency, that required them to remain on the land after Mr Hakaraia had asked them to leave on 27 June 2007.

[42]     For these reasons I am satisfied that the prosecution established the essential ingredients of the charge that each of the appellants faced.  The Judge was therefore entitled, in my view, to conclude that the charges had been proved.   His decision has not been shown to be incorrect.

Result

[43]     It follows that the appeals against conviction cannot succeed and must be dismissed.

[44]     The appeals against sentence cannot realistically be challenged either.  The Judge chose to deal with the appellants in a manner that  balanced  the  need  to recognise the fact that an offence had been committed against the genuineness of the motives that prompted the offending.  An order requiring the appellants to come up for sentence if called upon to do so within 12 months was, in my respectful view, an entirely appropriate and proportionate penalty in the unusual circumstances of the present case. The appeals against sentence are accordingly dismissed as well.

Lang J