IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE	
CRI-2022-442-12
[2022] NZHC 3043	

BETWEEN	LUKE FABIAN KING
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	2 November 2022	
Appearances:	Appellant in Person
A R Goodison for Respondent	
Judgment:	21 November 2022	

JUDGMENT OF McQUEEN J

[1]	In the early hours of 13 July 2020, a horse was struck by a motorist on the state highway outside of Mr King and Ms Polaschek’s property. The horse had come from a paddock on the property. The horse died as a result of the collision.

[2]	Mr King and Ms Polaschek were convicted following a judge-alone trial on one charge of committing criminal nuisance by omitting to discharge a legal duty, namely maintaining adequate boundary fencing.1 Mr King now appeals his conviction.2

1	Police v King [2022] NZDC 17168.
2	The notice of appeal filed in relation to this proceeding names only Mr King as the appellant. No notice of appeal has been filed in respect of Ms Polaschek’s conviction.

KING v NEW ZEALAND POLICE [2022] NZHC 3043 [21 November 2022]

District Court decision

[3]	It was accepted that the defendants had a legal duty to maintain an adequate boundary fence.3 The Judge acknowledged that the Police were then required to prove that the defendants had omitted to discharge that legal duty; that is, omitted to adequately maintain the boundary fence.4 The Judge set out the definition of “adequate fence” as provided in the Fencing Act 1978, being “a fence that, as to its nature, condition, and state of repair, is reasonably satisfactory for the purpose that it serves or is intended to serve”.5

[4]	The Judge noted that Mr King acknowledged in his evidence that:6

(a)	having a fence adjacent to a public highway meant that there had to be more caution exercised in regard to ensuring adequate fencing; and
(b)	there could be an extreme risk to the public if stock got onto roads because of inadequate fencing.

[5]	The Judge recorded Mr King’s evidence that it had been the plan, when purchasing the property, for the fences to be replaced. However, the defendants ran out of funds to do so. Mr King stated that he regularly checked the fencing every day and that both he and Ms Polaschek had been trying to fix the fencing.7 The Judge observed that it was clear that both Mr King and Ms Polaschek wanted the fences to be adequate to ensure their stock would not escape into any public area where they may be a danger to the public.8

[6]	However, turning to the state of the perimeter fence at the time of the horse incident, the Judge found:9
It is clear to me from Mr King’s evidence that the situation he found himself in in winter 2020, shortly before the incident with the horse on 13 July 2020, was one that perhaps he had not anticipated and that weather conditions had

3	Police v King, above n 1, at [14]–[15].
4	At [17].
5	At [14]. See also Fencing Act 1978, s 2.
6	At [28].
7	At [29]–[30].
8	At [35].
9	At [36].

significantly adversely affected the quality of the perimeter fence adjacent to the state highway. During his evidence today he described holding the fence wires in one hand and being able to pull posts out of the ground. He described them as 60-year-old posts.

[7]	Upon looking at photographs provided to the Court, the Judge concluded that the fences were lacking in quality, some appearing “extremely aged” and that many of the palings were missing or inadequate. The Judge also observed that there was “a Taranaki gate in place instead of a more modern strong gate”.10 The Judge also noted that following the horse incident, an electric fence was installed inside the perimeter of the boundary fence.11

[8]	The Judge also referred to an incident approximately one week prior to the horse fatality where a calf had got out of the property and was involved in an accident on the road. She recorded that she was unsure whether Mr King accepted the incident occurred, but he did accept that the Police contacted him and returned the calf to his property.12

[9]	Upon assessing the evidence, the Judge found that there was an omission by Mr King and Ms Polaschek to discharge their legal duty to maintain the fencing to an adequate standard to keep their stock within their paddocks:

[39]	I must remark at this stage that I think that Mr King was very honest in his evidence about the state of the fencing at the relevant time and that both he and Ms Polaschek were well-meaning farmers who were trying their very best in very difficult financial circumstances to run what is clearly a very large farm that borders a state highway.

[40]	However, being well-meaning does not absolve a person of their legal responsibilities to adequately maintain fences, particularly when large farm animals are grazing in a paddock adjacent to the road. On the evidence, the animals belonging to Mr King and Ms Polaschek were never moved out of this paddock with inadequate fencing adjacent to the road which is a state highway. …

…

[44]	… what the evidence demonstrates to me is that the animals were grazing close to the boundary fence, and that Mr King and Ms Polaschek, living there, and regularly perusing their property by walking around and working on the fencing, were aware of that fact. Being aware of that fact leads

10	At [37].
11	At [38].
12	At [34].

to me finding that each of them had knowledge that their animals were close to the fences, which I have already found Mr King and Ms Polaschek knew were inadequate fences, to ensure that the stock remained inside the perimeter of their property.

[45]	I consider that each defendant knew that because they were being told that by police, they saw it and they were doing their best to rectify the problem even though their efforts were insufficient. Also, there were other types of stock that had got out of their property and they were aware of that occurring. The stock were getting either through or over the fence. The photographs depict that the fencing near where the horse was found dead was inadequate.

[10]	The Judge then turned to consider whether the omission of each defendant presented an obvious risk that stock could escape from the property and cause a safety risk to members of the public.13

[11]	A key piece of evidence advanced to support Mr King’s position there was no such obvious risk was the hearsay statement of a person, Mr Arrowsmith (deceased at the time of trial) who Mr King said had told him that the Taranaki gate where the horse had been previously seen was open. While acknowledging this to be an important point for Mr King, the Judge noted that no hearsay application was made and that that narrative was not put to any of the police witnesses who gave evidence.14 The Judge found that she was unable to take the hearsay evidence into account.15

[12]	The Judge held that there was no reliable evidence before the Court that the Taranaki gate was either opened to deliberately let out stock or inadvertently left open allowing stock to escape.16 In reaching this conclusion she relied on evidence that the gate was wide and that it would have been obvious if it was left open for a period of time, to those regularly driving that piece of road who also gave evidence, and to   Mr King, whose evidence was that he regularly checked the fences.17 Further, given the evidence that the fences were checked often, the Judge did not imagine either defendant would have left the gate open when their animals were grazing.18

13  At [47].  The Judge had already concluded at [46] that the inference could be drawn that each of  the defendants knew that any omission in regard to their legal duty to maintain adequate fencing would endanger the lives of members of the public.
14	At [48]–[49].
15	At [50].
16	At [52].
17	At [51].
18	At [51].

[13]	Finally, the Judge addressed the evidence provided by a Constable at the hearing that there was an area of fence that he considered he could have stepped over.19 Mr King contested this evidence, saying that the difference in ground level height on each side of the fence meant that any animal inside the fence would need a higher reach to get over it than someone standing outside the fence moving over towards the inside perimeter of the fence.20

[14]	The Judge considered that having heard evidence about the size of the horse, including its height, and evidence as to the height of the fence—that at its lowest point it was approximately 80 cm high—an inference could be drawn that the horse got over the fence, either by walking or jumping over. The Judge considered this was “the most likely scenario and the only available inference”.21

[15]	Ultimately the Judge concluded:

[56] That evidence satisfies me to the high standard of proof of beyond reasonable doubt that the failure to maintain the adequate boundary fencing did  lead  to  the  horse  escaping  from  the  property  that  Mr King  and   Ms Polaschek own, and that being such a large animal, it did endanger the lives of members  of  the  public  once  it  was  on  public  land,  and  that  Ms Polaschek and Mr King either knew, or were reckless, as to whether or not their stock could escape from the property due to their inadequate boundary fences. Accordingly, I find each defendant guilty on the charge they face.

Approach to appeal

[16]	Appeals against conviction are brought under s 232 of the Criminal Procedure Act 2011 (the Act). This Court must allow the appeal if satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred or that a miscarriage of justice has occurred for any reason.22 A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.23

19	At [53].
20	At [54].
21	At [55].
22	Criminal Procedure Act 2011, s 232(2)(b) and (c).
23	Section 232(4).

[17]	The Supreme Court in Sena v Police have confirmed that the approach adopted in Austin, Nichols & Co Inc v Stichting Lodestar in respect of civil appeals is applicable to conviction appeals.24 The appeal is to proceed by way of rehearing.25 The appellant is entitled to judgment in accordance with the opinion of the appellate court.26 If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred, and the appeal must be allowed. However, in assessing whether there has been an error, the appellant court must take into account any advantages a trial judge may have had.27 Where the appellant is challenging credibility findings based on contested oral evidence, an appellate court will exercise “customary caution”.28 This is partly because what a witness means may be conveyed, at least in part, by gesture or intonation, something which will not be apparent on the written record.29

Mr King’s submissions

[18]	Several grounds of appeal are identified by Mr King in his notice of appeal and attached email. I note that unfortunately, Mr King had been confused about the correct hearing date for his appeal and in his rush to get to Court he left his notes at home.

[19]	First, and most fundamentally, Mr King submits that the Judge incorrectly found that the horse got over the fence either by walking over the fence or jumping over it. Mr King submits that this finding ignored the fact that there were multiple horses out of their paddock on the morning in question. He says that the presence of several horses out of their paddock demonstrates that the horses could not all have got over the fence and instead it is most likely that the horses walked through an open gate (the Taranaki gate referred to in evidence), as:

(a)	multiple horses will not jump over a fence with barbed wire without damage being done to their coats, belly, legs or hocks; and

24	Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
25	Sena v Police, above n 24, at [32].
26	Austin, Nichols & Co Inc v Stichting Lodestar, above n 24, at [16].
27	Sena v Police, above n 24, at [38].
28	At [38].
29	At [40].

(b)	“the only reason horses would jump a fence is from predation or exclusion from the heard [sic] or fretting”.

[20]	As a result, Mr King submits that the fence was not the reason the horse escaped.

[21]	Mr King argues that the prosecution needs to prove that all the horses jumped over the fence to find him guilty of the criminal nuisance charge. He says that there should have been evidence about what footprints there were from the horses and evidence about whether there was injury to the dead horse’s belly from allegedly going over the barbed wire on the fence.30

[22]	The remaining matters raised by Mr King are more peripheral to the appeal.

[23]	First, Mr King appears to challenge the motorist responsible for hitting the horse. He challenges the motorist’s honesty and suggests the Police should investigate him. Mr King did not pursue this this point before me.

[24]	Second, Mr King submits he was “unlawfully convicted in absentee”. This appears to relate to a prior appearance in the District Court on this charge, where a guilty plea was entered by counsel then acting for Mr King, in Mr King’s absence. The guilty plea was subsequently vacated at a further appearance. A trial then took place before District Court Judge Rielly, who made the decision now under appeal.

[25]	Third, Mr King says that:

There is strong reason to believe the many situations during this case are unlawful and in some cases illegal including the use of lethal force authorized by AOS without cause and directly breaching the Bill of Rights.

[26]	This is explained further in the notice of appeal. Mr King says that there was a dawn raid of his property on 15 September 2022, and that the Armed Offenders Squad (AOS):

30	The notice of appeal mentions calling witnesses at the appeal hearing but Mr King did not pursue this at the hearing.

… breached a trespass as agents under the 1835 He Whakaputunga [sic] document with a cost of $10,000.00 per agent. To reinforce the trespass notice the AOS team breached a trespass noticed gate with guns drawn and loaded with a round in the chamber.

[27]	Mr King goes on to say that “the official reason” for the use of this violent force was because he had “adopted a sovereign Maori movement”. Mr King informed me that he is facing charges arising from this incident. Ms Goodison for the Police confirmed that the charges relate to Mr King’s alleged conduct towards attending police officers during the execution of a warrant for his arrest and the matter is proceeding to trial.

[28]	A final matter is raised in the notice of appeal. This was that a police prosecutor on audio video link (AVL) made personal jokes about Mr King after the Judge had retired, “with “any and all people in the courtroom”. He says that this is a “gross misconduct”, a breach of trust in the judicial system, and “blurs the lines that are meant to hold police and the court system independent of each other”. Ms Goodison informed me that following the alleged issue with the police prosecutor, a different prosecutor appeared when the proceeding reconvened.31

Police submissions

[29]	The Police say that the Judge made no error in reaching the factual findings that she did. Regarding whether the gate was open on the morning in question, the Police note that the narrative provided by Mr King is “somewhat confusing”, given it is premised on observations made by his associates some weeks prior to the horse incident. In any case, the Police submit that particularly given the unusual circumstances of this case, the District  Court  Judge  was  best  placed  to  assess  Mr King’s evidence.

[30]	As to the evidence of the motorist, the Police note that he was not cross- examined on the basis that he was a liar or otherwise at fault. This can only be revisited on appeal if counsel error is alleged.

31	The trial was conducted on two dates, being 8 April and 17 August 2022.

[31]	Ultimately, the Police submit that there was no error in the Judge’s assessment of the evidence that creates a real risk the outcome of the trial was affected.

[32]	The Police also submit that there is no miscarriage of justice for any of the other reasons advanced by Mr King. It is submitted that there is no evidence that any of those matters had any bearing on the District Court Judge’s assessment of the evidence at trial and therefore do not amount to a miscarriage of justice in the context of his conviction appeal.

Discussion

[33]	I deal first with the matters raised by Mr King which are more peripheral to his appeal.

[34]	Mr King has found his recent experiences with the Police, Police prosecutors, duty solicitors and public defenders to be concerning.32 He says that he has been lied to and manipulated. He advised me that he has made multiple complaints (including to the New Zealand Law Society, the Ombudsman and the Independent Police Complaints Authority) but from his perspective there has been no satisfactory outcome. He submits that the conviction for criminal nuisance has destroyed his ability to earn a living. He says his life has been threatened. He has written to numerous state agencies raising concerns about how he has been treated (I believe in relation to the dawn raid on 15 September 2022 referred to above) and is concerned that there is no help for someone like him to work through the system to review what happened.

[35]	Mr King did not make any specific submission to me about the impact of these matters on his trial and in particular whether he contended they resulted in a miscarriage of justice. I accept Ms Goodison’s submission that there is no evidence that these events had any bearing on the District Court Judge’s assessment of the evidence in the trial. I explained to Mr King that these matters were not relevant to

32 I include in this Mr King’s concerns about whether the motorist who hit the horse had been appropriately investigated for his part in the event and any matters relating to the dawn raid at Mr King’s property on 15 September 2022.

my consideration of his appeal and noted that he seemed to be raising his concerns with the appropriate authorities.

[36]	I turn then to Mr King’s submission that the Judge incorrectly found that the horse got over the fence either by walking over the fence or jumping over it and had ignored the fact that there were multiple horses out of their paddock that morning. Mr King says the dead horse was only noticed when the other horses were being walked back through the Taranaki gate into the paddock.

[37]	I asked Mr King if he could point me to passages in the notes of evidence from the trial that support his position that there were multiple horses on the road on the morning in question. Mr King informed me that due to him not having his notes with him, he was unable to do this. Ms Goodison was able to assist in that she pointed me to the only reference she was aware of referring to multiple horses on the road on the morning the horse died.33 However she submits that there is a difficulty with this evidence as it is found in the context of Mr King’s related evidence that his friend  Mr Arrowsmith was present on the morning that the horse died, which has been established to be mistaken.

[38]	Mr Arrowsmith died in circumstances which Mr King has found distressing. The evidence at trial confirmed that Mr Arrowsmith died about two months before the incident when the horse died.34 For this reason, Mr King’s evidence that on the day the horse died the Taranaki gate was not standing in the usual way (was almost on the ground) because Mr Arrowsmith had left the gate open following an attempt to fix “the hole in the fence” is problematic.35 Ms Goodison submits that Mr King’s recollections about Mr Arrowsmith’s involvement raise a potential credibility issue about what Mr King remembers about the relevant events. Ms Goodison also submits that the Judge concluded that there was no reliable evidence that the Taranaki gate was either opened deliberately or inadvertently. Ms Goodison also says that, in any event, the Court does not have to be sure how many horses were on the road on the morning in question. I observe that during cross examination of Constable Young, he was asked

33	Notes of Evidence [NOE] 17 August 2022 at 26.
34	At 32 and 41–42.
35	At 25–26. As I have noted, the District Court Judge did not allow hearsay evidence from Mr King that Mr Arrowsmith had seen the Taranaki gate open: see Police v King, above n 1, at [48]–[50].

whether he remembered seeing other horses in the paddock on the morning the horse was found (and he did not specifically recall this) but no evidence was elicited from him about other horses being on the road.36

[39]	Rather Ms Goodison focuses on the fence, emphasising that Constable Young’s evidence is that he was able to step over part of the fence, which was at his hip height, which supports the Judge’s conclusion that she may infer from the evidence that the horse was able to get over the fence.37 The Judge was not persuaded by Mr King’s suggestion that a lower ground level on the paddock side of the fence would prevent the horse from getting over the fence.

[40]	The focus of the prosecution was on Mr King’s failure to adequately maintain the boundary fence and I accept Ms Goodison’s submission that the Judge had considerable evidence available to her to conclude that this was made out.

[41]	I conclude that the District Court Judge made no error in her assessment of the evidence that created a real risk of affecting the outcome of the trial or resulted in an unfair trial. I have not formed a different view on the evidence as a result of Mr King’s submissions. Mr King appears to be confused in his recollection of the events on the day the dead horse was found. He has not been able to establish on the evidence at trial that there were multiple horses on the road that morning and even if that had been established, I do not consider that this of itself would mean the Judge erred in finding that Mr King had failed to adequately maintain the boundary fence, resulting in the horse that died being able to get out of the paddock over the fence.

[42]	I also observe that if the Police thought it did not need evidence at the trial relating to hoofprints or barbed wire injury to the dead horse, that was a matter for the Police. I confirm that even without such evidence I consider there is sufficient evidence to support the District Court Judge’s finding that the horse that was found dead had got out of the paddock over the fence. If Mr King had thought other evidence should have been called at the trial in his defence, whether relating to that matter or,

36	NOE 8 April 2022 at 96–97.
37	The Constable also gave evidence that the barbed wire in this part of the fence was loose and hanging a section lower than the top of the fence. See NOE 8 April 2022 at 79–80.

as he also raised, from an animal behaviourist, he could have taken that step at the time.

[43]	The complexity of the evidence in this matter means that the District Court Judge had a clear advantage in hearing the witnesses.

[44]	In all the circumstances, I find that no miscarriage of justice has occurred.

Result

[45]	The appeal is dismissed.

McQueen J

Solicitors:
Crown Solicitor, Nelson for Respondent