IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000308
CRI-2012-404-000310 [2013] NZHC 108

RAE MICHELLE MORGAN
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing:	5 February 2013

Counsel:	Y Lee for the Appellant
B Hamlin for the Respondent

Judgment:	5 February 2013

JUDGMENT OF WOOLFORD J

Solicitors/Counsel:

Mr Y Lees, Barrister, PO Box 33 718, Takapuna, Auckland. Crown Solicitor, Auckland.

MORGAN V POLICE HC AK CRI-2012-404-000308 [5 February 2013]

Background

[1]	On 9 August 2012 in the Auckland District Court, Rae Michelle Morgan (“the appellant”) was convicted and sentenced on the following charges:1

Offence	Section / Act	Maximum penalty

Assault on Police	Summary Offences Act 1981, s 10.

6  months’  imprisonment
or  a  fine  not  exceeding
$4,000.

Wilful damage	Summary Offences Act 1981, s 11(1)(a).

3  months’  imprisonment
or  a  fine  not  exceeding
$2,000.

Resisting Police	Summary Offences Act 1981, s 23(a).

2  months’  imprisonment
or  a  fine  not  exceeding
$2,000.

Failing to provide name and other particulars

Trespass Act 1980, s 9(3).	Fine not exceeding $500.

[2]       The appellant was sentenced to 80 hours community work on the assault, wilful damage and resisting Police charges.  She was also ordered to pay $102.57 in reparation on the wilful damage charge.   On the charge of failing to provide her name and other particulars, the appellant was convicted and discharged.

Grounds of appeal

[3]       The appellant appeals against her convictions and sentence but neither the grounds of appeal nor the submissions from the appellant deal with sentence.

[4]       With respect, the grounds of appeal and the submissions depart significantly from each other.   It appears that the appellant now challenges all four of her convictions by submitting that her arrest by the Police under s 9 of the Trespass Act
1980 was unlawful on the following grounds:

(a)       The tavern manager failed to comply with the requirements of ss 3 and 4 of the Trespass Act 1980;

(b)       The  appellant  was  not  trespassing  when  sitting  in  a  garden  area adjacent to the door of the tavern, as by placing her there, the security guard had given her an implied license to remain;

(c)       The appellant was not trespassing because the Richardson Tavern is owned by the Portage Licensing Trust on behalf of the public, and the appellant was accordingly entitled to be there;

(d)       The appellant was not trespassing because ss 188–189 of the Sale of Liquor Act 1962 codified the powers of publicans to eject patrons from licensed premises.

[5]       In relation to the other charges faced by the appellant, she submits that should any of the above submissions succeed:

All the other charges followed on after Ms Morgan was arrested for trespassing. If the appeal is allowed, the other three charges cannot stand because they were caused by the intervening event that was unlawful.

Factual background

[6]       On 10 December 2011 at about 8:00 pm, the appellant was seen entering the Richardson  Tavern,  Mt  Roskill,  by  the  bar  manager,  Ms  June  Margaret  Tane. Ms Tane  gave  evidence  that,  according  to  her  observations,  the  appellant  was intoxicated and began helping herself to patrons’ drinks and using foul language.

[7]       The appellant was, apparently, asked to leave by Ms Tane, to which she replied “What fucking right do you have to say that I have to leave?”  The appellant continued to refuse to leave.  Ms Tane subsequently called the Police, and wrote up a trespass notice for the appellant.   Ms Tane gave evidence that she explained the
notice to the appellant by saying:2

On issuing her the trespass notice I said because she has been issued with this trespass notice she would have to leave, and if she did not leave, then I would have to go a step further and call the police for assistance.

[8]       The appellant tore up the trespass notice and threw it on the ground.  She then confronted Ms Tane, who in response instructed a security guard to remove the appellant from the tavern by carrying her out.   Ms Tane gave evidence that the appellant remained on the tavern premises, 1.5 metres from the tavern door, until the Police arrived.

[9]       Constable John Paul Belt and Constable Wenli Lui arrived at the tavern at

8:17 pm.  Sergeant Chris Scott arrived shortly after.  Constable Belt addressed the appellant, who became agitated when refused entry back into the tavern.   He then asked her for her name and address, so that she could be issued with another trespass notice.  The appellant refused.  The constable told the appellant that if she did not provide her particulars, she may be arrested.  The appellant continued to refuse, and the constable then notified her that she was under arrest under s 9 of the Trespass Act
1980.

[10]     The constable then took the appellant by the arm and began walking her towards the police car.  She began to struggle and resist.  Constable Belt was assisted by Constable Lui. As they approached the car, the appellant grabbed the aerial of the car and bent it forward.

[11]     Handcuffs were then applied to the appellant.  As she was being placed in the police car she began spitting at all three officers.  Constable Lui was spat on.  The police officers decided to apply a ‘spit hood’ to the appellant.  This required another police car to attend the scene.  During the wait, the appellant continued to verbally abuse the police officers, including repeated threats to kill them and their family members.  She was advised of her rights under the New Zealand Bill of Rights Act after being placed in the car.

[12]     Having obtained the spit hood, it was placed on the appellant by the police officers.   She and the three police officers then began driving to the Auckland Central Police Station.   During the drive, the car was forced to stop in order to

prevent the appellant from manipulating off her spit hood.   When the vehicle was stopped, the appellant managed to lodge her leg in the door, forcing it open, while the police officers attempted to re-position her arm. As a result she was struck on the leg by Constable Lui.   The appellant was subsequently taken to Auckland Central Police Station and placed in a cell.  Constable Belt estimated that the incident lasted
20–30 minutes from arrival at the tavern to arrival at the Station.

Appellant’s submissions

[13]     As best as I am able to ascertain, the appellant makes four submissions, focusing on the legality of her arrest after being ejected from the tavern by the security guard.

[14]     First, the appellant submits that the tavern manager failed to comply with the requirements of ss 3 and 4 of the Trespass Act 1980 concerning warnings.

[15]     Secondly, she submits that the arrest was unreasonable because when the security guard left her outside the tavern, he had allowed her to stay there.   The appellant  submits  that  this  means  she  had  an  implied  license to  remain  on  the property.

[16]     Thirdly, the appellant submits that the Richardson Tavern is a public place because it is owned by Portage Licensing Trust on behalf of the public.  Therefore, she submits, she was entitled to be present on the premises.  I note that no evidence to this effect was adduced in the District Court and there has been no copy of any relevant trust deed or document provided.

[17]     Fourthly, she submits that the Trespass Act 1980 does not apply to public taverns, because of the operation of ss 187–188 of the Sale of Liquor Act 1962.

Respondent’s submissions

[18]     The respondent submits that the evidence establishes that the appellant was trespassing.  It submits that the appellant was asked to leave and refused.  She was

subsequently issued a trespass notice and asked to leave but she continued to refuse and became threatening.  She was then removed from the interior of the Richardson Tavern.

[19]     Concerning the second submission of the appellant, the respondent simply denies that an implied license to remain was given,3 and that s 9 should not be read as requiring “that the trespass is ongoing before a constable can request particulars of a trespasser”.4

[20]     The  respondent  responds  to  the  appellant’s  submission  concerning  the interplay between the Trespass Act 1980 and the Sale of Liquor Act 1962 by noting that the Sale of Liquor Act 1962 was repealed 24 years ago by the Sale of Liquor Act
1989.  It submits that the decision cited by the appellant was specifically the target of an amendment to the old Act.  It accordingly submits that the decision is no longer good law.

Appeal against conviction

[21]     As to the approach to an appeal, an appeal against conviction shall be by way of rehearing. Section 121(2) of the Summary Proceedings Act 1957 allows the High Court to confirm the conviction, set it aside, or amend it.

[22]     According to Elias CJ in Austin, Nichols & Co Ltd v Stichting Lodestar:5

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances, it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

3	Respondent’s submissions at [3.3](d).
4	At [3.3](e).
5	Austin, Nichols & Co Ltd v Stichting Lodestar [2008] 2 NZLR 141 at [16].

[23]     According to O’Neill v Police,6  in coming to its own judgment, the appeal court should pay appropriate deference to findings made by a Judge who had the advantage  of  hearing  the  witnesses  on  questions  of  credibility,  but  it  must nevertheless review the evidential basis for factual findings carefully.

Law

Trespass Act 1980

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....

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.

(2)        Where an occupier of any place has reasonable cause to suspect that any person is likely to trespass on that place, he may warn that person to stay off that place.

(3)        Where  any  person  is  convicted  of  an  offence  against  this  Act committed on or in respect of any place, the Court may warn that person to stay off that place.

(4)   Subject  to  subsection  (5)  of  this  section,  every  person  commits  an offence against this Act who, being a person who has been warned under this section to stay off any place, wilfully trespasses on that place within 2 years after the giving of the warning.

9	Obligation to give name and other particulars

(1)        An occupier of any private land upon which any person is found trespassing, or any constable, may require that person to—

(a)	Give particulars of his name and place of abode ...

(2)        If any such person fails or refuses to comply with a requirement made under subsection (1) of this section, any constable may caution him and,  if  he  persists in his  failure  or  refusal,  may arrest  him without warrant.

(3)        Every person commits an offence against this Act who, in response to a requirement under subsection (1) of this section,—

(a)	Fails or refuses to comply with that requirement ...

Summary Offences Act 1981

10        Assault on Police, prison, or traffic officer

Every person is liable to imprisonment for a term not exceeding 6 months or a  fine  not  exceeding  $4,000  who  assaults  any  constable,  or  any  prison officer, or any traffic officer, acting in the execution of his duty.

11         Wilful damage

(1)        Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who intentionally—

(a)	Damages any property; or

(b)	Sets on fire any tree or other vegetation.

(2)        For the purposes of subsection (1) of this section, a person does an act intentionally if he does it intentionally or recklessly, and without lawful justification or excuse or claim of right.

23        Resisting Police, prison, or traffic officer

Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who resists or intentionally obstructs, or incites or encourages any other person to resist or obstruct,—

(a)        Any  constable,  or  any  authorised  officer,  or  any  prison officer, or any traffic officer, acting in the execution of his duty ...

Analysis

Ground one — did the tavern manager comply with the requirements of the Act?

[24]     The appellant submits that the tavern manager failed to comply with the requirements set out under ss 3–4 of the Act, as interpreted by Tipping J in Wilcox v Police.7  There, his Honour held:

There are three elements to the offence created by s 3(1) of the Act. Each element  must  of  course  be  proved  beyond  reasonable  doubt  by  the

prosecutor before a conviction can be entered. First, it must be proved that the person charged was trespassing on the relevant place; secondly, that the person charged was warned to leave that place by an occupier; and thirdly that he or she neglected or refused to do so.8

...

If there is entry on to the land of another with authority, it is necessary for that authority to be revoked before the person concerned can become a trespasser. That means, as Mr Neave correctly pointed out, that a person entering with authority may have to be given two requests or warnings to leave. The first request will revoke the authority to be there, thus creating the person concerned a trespasser if he does not withdraw within a reasonable time. If there is still a failure to withdraw, the person concerned can then be given the warning to leave of which s 3(1) speaks.9

[25]     I agree with the respondent that the evidence establishes that this is, in fact, what happened.  The appellant was first asked to leave, and refused.10   At this time, her implied license was revoked and she became a trespasser to whom a warning could be issued under s 3.  The appellant was issued with a trespass notice, and again asked to leave.11     This was the statutory warning to leave.   The appellant again
refused to leave the premises, having torn up the trespass notice.12   At this time, she

committed an offence against s 3.  I agree with the Crown that the tavern manager followed  the  statutory  requirements  accurately,  and  that  the  appellant  was  a trespasser under s 3, and for the purpose of her arrest under s 9.

Ground  two  —  by leaving  the appellant  outside of  the Tavern,  but  still  on  the property, did the security guard give her an implied license to remain?

[26]     The appellant submits that because the security guard allowed her to stay on the property of the Tavern, “she had an implied license to occupy”.13    No authority has been provided by either appellant or respondent for the proposition that an express and forceful revocation of an implied license to enter and remain can be overwhelmed by another, separate implied license.  I have also been unable to find
any such authority.

8	At 246.
9	At 247.
10	Notes of evidence at p 2 l 31.
11	Notes of evidence at p 4, l 14.
12	At p 4, l 20.
13	Appellant’s submissions at [5.3].

[27]     However, the proposition by the appellant would essentially place a duty on occupiers to ensure that trespassers leave their property, or risk accidently granting an implied license.  In my view, the Act itself is contrary to that submission: the duty under ss 3–4 is for trespassers to leave, or otherwise commit an offence.  The fact that the security guard did not complete the appellant’s removal from the property on her behalf does not alter her continuing status as a trespasser.

[28]     Further, I would suggest that the security guard’s actions in assisting the appellant to leave the property was inconsistent with the granting of an implied license.

Ground three — is the Richardson Tavern a public place?

[29]     The  appellant  also  submits  that  the  Richardson Tavern  is  owned  by  the Portage Licensing Trust on behalf of the public and because of this fact, she submits that she was entitled to be there.

[30]     There is no evidence that the Richardson Tavern is owned by the Portage Licensing Trust.   No evidence was produced to that effect in the District Court. Even if the appellant wished to now produce evidence of the ownership of the Richardson Tavern, I would decline to hear or receive evidence of such, given that there is nothing to suggest that that evidence could not, in the circumstances, have
reasonably been adduced at the hearing.14    In any event, I am not persuaded that

ownership by the Portage Licensing Trust would make any difference at all to the appeal.

Ground four — does the Trespass Act 1980 apply in public taverns?

[31]     Finally, the appellant submits on the basis of  Kanuta v Police15  that the
Trespass Act 1980 does not apply in public taverns, because of the operation of ss 188–189 of the Sale of Liquor Act 1962.

14	Summary Proceedings Act 1957, s 119(3).
15	Kanuta v Police [1987] 1 NZLR 629 (HC).

[32]     I note that the Sale of Liquor Act 1962 was repealed 24 years ago, by the Sale of Liquor Act 1989, which contains no equivalent sections.  I also note that even if the original Act was still in force, s 12A of the Trespass Act 1980 reads:

12A	Application of Act to public bars

Notwithstanding anything in sections 187 and 188 of the Sale of Liquor Act
1962 or in section 13 of this Act, this Act shall apply in respect of public bars on—

(a)        Any premises in respect of which any hotel premises licence or tavern premises licence is in force under and within the meaning of the Sale of Liquor Act 1962; or

(b)        Any premises conducted as a hotel or tavern by any licensing trust pursuant to any of the provisions of the Licensing Trusts Act 1949, the Masterton Licensing Trust Act 1947, and the Invercargill Licensing Trust at 1950.

Conclusion

[33]     I have reached the view that each of the grounds of appeal has failed and the appeal is accordingly dismissed.

……………………………….

Woolford J