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Wilson v Police [2015] NZHC 1428 (23 June 2015)

Last Updated: 15 December 2015

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-488-12 [2015] NZHC 1428

_{JUDGMENT OF KEANE J}

This judgment was delivered by me on Tuesday, 23 June 2015 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Whangarei.

WILSON v NZ POLICE [2015] NZHC 1428 [23 June 2015]

[1] On 23 February 2015, after a hearing in the District Court, Kaikohe, at which Michael Wilson represented himself, Judge D J McDonald found him guilty of assaulting Peter Martin, a building inspector with the Far North District Council, on

12 February 2014 at the Kerikeri house he was building for himself, which

Mr Martin was there to inspect.

[2] At the hearing Mr Wilson accepted that he had ejected Mr Martin from his house. He contended that he had been justified in the force he used. Mr Martin, he said, had become a trespasser after refusing to leave and he had used no more than reasonable force to eject him. In finding the offence proved the Judge held that the force Mr Wilson had used was both unjustifiable and unreasonable.

[3] On 18 March 2015 the Judge declined Mr Wilson’s application for discharge without conviction. He held that the direct and indirect consequences of a conviction were not out of all proportion to the gravity of Mr Wilson’s offence. He convicted Mr Wilson and fined him $1,000. Mr Wilson appeals his conviction and sentence.

[4] This appeal was first called on 6 May 2014. Asher J adjourned the appeal because counsel for the police had not received the District Court evidence transcript. Since then, as directed, further submissions have been filed on both sides as to the effect of the evidence as a whole.

Appeal grounds

[5] In appealing his conviction Mr Wilson contends first that the Judge predetermined his guilt by accepting from the outset the prosecution fact summary and by unfairly preventing him from advancing his defence, particularly when he was leading the evidence of his own witness, Brian Luke.

[6] Secondly, Mr Wilson contends, the evidence does not support the Judge’s conclusion that he ejected Mr Martin from his property unjustifiably and unreasonably. It demonstrates rather that he ejected Mr Martin only after Mr Martin had become a trespasser and that he used no more than reasonable force.

[7] Thirdly, he contends, the Judge was wrong to rule out as inadmissible hearsay evidence documents material to his defence, most especially an email from his engineer, dated 5 June 2014, in the week before the inspection, in which his engineer found the timber framing to be code compliant. That made it unnecessary, he contends, for the inspectors to make the framing inspection they made. It entitled him, as he had requested, to a pre-lining inspection.

[8] Fourthly, he contends, in denying his application for a discharge without conviction, the Judge made a further error. His conviction was altogether disproportionate to his offence, if any. It might jeopardise his licences as a commercial launch master, a coastal master and a diesel trawler engineer, and prevent him entering Hong Kong to see his brother and family.

Appeal principles

[9] This appeal as it relates firstly to the Judge’s primary decision, on which his later decision to convict Mr Wilson hinged, and then as it relates to that later decision itself, is to be resolved as an appeal against conviction brought under s 229 of the Criminal Procedure Act 2011.

[10] The primary question then arises under s 232 is whether “the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”; or that for any other reason there has been such a miscarriage.¹ A

miscarriage of justice means:²

Any error, irregularity, or occurrence in or in relation to or affecting the trial that –

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

[11] The first related issue is whether Mr Wilson’s trial was “unfair” and for that reason alone resulted in a miscarriage of justice. The right to a fair trial is absolute.³

¹ _{Criminal Procedure Act 2011, s 232(2).}

² _{Section 232(4).}

³ NZBORA 1990, s 25(a); Condon v R [2006] NZSC 62, [2007] 1 NZLR 300, (2006) 22 CRNZ

755 at [77].

This calls for an overall assessment. As the Supreme Court said in Condon “it is not every departure from good practice which renders a trial unfair”. It must be a departure which is “so gross or so persistent, or so prejudicial, or so irremediable, that the trial must have been unfair”.⁴ In this assessment the Judge’s conduct must be assessed from the perspective of a reasonable observer.⁵

[12] The second related issue is whether the Judge’s assessment of the evidence is consistent with the legal principles applying and is founded on findings of fact fairly open on the evidence, and reasonable inferences, consistent with the presumption of innocence and the burden and standard of proof.⁶

[13] The third issue concerns the Judge’s second decision to refuse Mr Wilson a discharge without conviction.⁷ That too, must be an appeal against conviction under s 229(1) of the Criminal Procedure Act. Even a conviction entered after a discharge has been refused, is not a sentence able to be appealed under s 244. A discharge decision is only able to be appealed “as if the order appealed against were a sentence”, insofar as it relates to any related “order for costs, restitution of property or compensation”.⁸

[14] The Judge’s second decision, however, does stand distinctly in this sense. It is an appeal against an exercise of discretion. Mr Wilson must show that the Judge erred in principle or failed to take into account relevant matters or took into account irrelevant matters or was plainly wrong.⁹

Primary decision

[15] To assess whether the Judge accorded Mr Wilson a fair hearing and whether his primary decision had a sufficient basis in the evidence, I will first set out the issue of law on which Mr Wilson’s conviction hinged, under s 56 of the Crimes Act

_{1961. I will then set out the evidence and the Judge’s decision.}

⁴ _{Condon v R at [77].}

⁵ _{R v Fotu [1995] 3 NZLR 129, (1995) 13 CRNZ 177 (CA).}

⁶ _{R v Slavich [2009] NZCA 188 at [28]–[35].}

⁷ _{Section Act 2000, s 106.}

⁸ _{Section 311.}

⁹ May v May [1982] 1 NZFLR 16, Harris v McIntosh [2001] 3 NZLR 721 (CA); Rutherford v

Papakura District Council HC Auckland CRI-2005-404-162, 20 September 2005 at [19].

Section 56 defence

[16] The principal issue at the hearing, and on this appeal, was whether the force that Mr Wilson admitted that he did use eject Mr Martin was excused by s 56 of the Crimes Act 1961, which says:

Everyone in peaceful possession of any land or buildings and everyone lawfully assisting him or acting by his authority is justified in using reasonable force to prevent any person from trespassing on the land or to remove him there from if he does not strike or do bodily harm to that person.

[17] The issue whether it was reasonable to use force at all is, as the Supreme Court said in Taueki v R, intimately linked to whether the person ejected had by then become a trespasser:¹⁰

In order for the use of any force to be reasonable, it will normally be necessary that the person seeking to rely on the s 56 defence has first given the trespasser both notice that he or she is trespassing and a reasonable opportunity to leave ... as s 56 only permits force directed at preventing a trespass or removing a trespasser.

[18] So too in Nicholls v New Zealand Police, in a passage on which the Judge relied, Gendall J said that a person with an implied licence does not become a trespasser, without more, immediately that licence is revoked:¹¹

It is not sufficient for an occupier of property to simply proclaim that someone is a trespasser ... the person who is on the property is entitled to a reasonable period in the circumstances to enable him or her to leave ... Obviously, if the licence ... is suddenly revoked a visitor cannot disappear ... and there must be a reasonable time to withdraw.

[19] Whether the force then used was reasonable in itself is a further issue highly relevant to whether the force used was capable of being excused on a s 56 claim.

[20] The Judge accepted that Mr Wilson had an evidential basis for invoking s 56. The issue he had to resolve was whether, in setting out to prove that Mr Wilson had assaulted Mr Martin, the prosecution had excluded beyond reasonable doubt

_{Mr Wilson’s entitlement to rely on s 56.}

¹⁰ _{Taueki v R [2013] NZSC 146 at [69].}

¹¹ Nicholls v New Zealand Police HC Nelson CRI-2010-442-444427, 5 July 2011.

Evidence

[21] On 12 June 2014, according to the undisputed evidence, the FNDC inspectors, Peter Martin and a more senior inspector, David Currie, went to Mr Wilson’s Kerikeri address to inspect the house he was building there. They arrived at about midday.

[22] Mr Wilson had asked for an inspection to be made; and his evidence was that he had requested a pre-lining inspection. He had also recently asked the FNDC to approve amendments to his plans, one effect of which was to allow him to substitute a pitched for a flat roof. The Council had approved the amendments and the inspectors had the amended plans for him.

[23] It was unusual, they said, for two inspectors to carry out an inspection. In this instance one reason was that the FNDC was unclear to what extent Mr Wilson had complied with the plans it had consented to and with anything required of him on any earlier inspection, the most recent of which had been made by Mr Martin. The second was that other inspectors had experienced difficulty with Mr Wilson.

[24] The inspectors spent as much as an hour and half with Mr Wilson reviewing the timber framing; an inspection Mr Wilson considered to be unnecessary. In an email dated 5 June 2014 his engineer had said that with minor exceptions the framing complied with the New Zealand Building Code. He had attached to his email photographs of the framing to support his conclusion. He had ended his email by saying that he hoped “everyone was on the same page now and internal lining can begin”. That is why Mr Wilson wanted a pre-lining inspection.

[25] There was some question in evidence as to the extent to which the inspectors took the engineer’s email into account. Mr Wilson relied on it in a quite literally. But they considered they had still to inspect the framing for themselves; and that gave rise to a further issue as to the extent to which such an inspection remained possible.

[26] Mr Wilson, and his assistant Mr Luke, had begun to line and insulate the walls and Mr Martin said that made their inspection difficult. Mr Currie appears to have been less concerned. Mr Wilson contested Mr Martin’s evidence. He said that the walls had been lined on one side only, leaving the framing exposed. But what is clear is that, to inspect the framing, the inspectors had to pull some insulation out, and that too became an issue.

[27] By the end of their inspection, if not before, the inspectors and Mr Wilson had reached an impasse. They told him that there were aspects of the framing that that needed to be completed or corrected, though it appears that Mr Currie agreed with Mr Wilson’s engineer that these were relatively minor. Of larger concern was that the inspectors were not then willing to complete a pre-lining inspection as well.

[28] They explained to Mr Wilson that their framing inspection had taken longer than scheduled and that they had other fixed appointments to make inspections elsewhere. Mr Martin hoped they would be back within the next week, but told Mr Wilson to stop work until then. Mr Wilson feared they might not be back for several days and that left him extremely frustrated.

[29] Mr Wilson said that he had experienced difficulty with Mr Martin in the past and that on the inspection before this one Mr Martin had also required him to stop work. Mr Wilson considered, furthermore, that the framing inspection was not merely unnecessary, it had taken an abnormal length of time.

[30] Mr Wilson said that a normal inspection should take 15 to 30 minutes but that Mr Martin and Mr Currie had “ransacked” his house for over an hour and a half. They had pulled out insulation from the walls and ceilings to look at fastenings his engineer had already confirmed were acceptable. As he followed them around he had replaced insulation and completed some of the work they wanted.

[31] There is no dispute that Mr Wilson then required the inspectors to leave. The issue was whether he allowed them, as they say, an unreasonably short period to do so and ejected Mr Martin using undue force; or whether, as Mr Wilson said, he

allowed them more than enough time and they chose not to leave, and the force he used was reasonable. As to this the evidence was sharply in dispute.

[32] Mr Martin accepted that Mr Wilson told him several times, once counting to

10, that he wanted him off the property. But, he said, while he was attempting to comply and had begun to complete his report as to their inspection, Mr Wilson ejected him.

[33] Mr Martin’s evidence then was that he found himself taken from behind by Mr Wilson and marched out of the lounge into the area of the garage, which was on a lower level without any intervening steps. As that happened, his evidence also was, he came up hard against the framing, and as a result suffered breathing difficulties. A doctor later placed him for a short time on light duties.

[34] Mr Currie’s evidence was consistent. He said that Mr Wilson had taken hold of Mr Martin within a very short time after telling him to leave and had pushed him out of the building. He said that he himself was “a bit taken aback and couldn’t believe what was happening”.

[35] Mr Wilson’s evidence was that he gave them “plenty of time” to leave and told them repeatedly to do so. It was not a matter of seconds, as Mr Currie had said. It was “minutes, quite long minutes too. It was a substantial period of time”. He said that he did become angry and as well as telling the inspectors to leave, said he would be calling their superior.

[36] According to Mr Wilson, Mr Martin then became angry himself and refused to leave. Mr Wilson said that he held up his hands and counted to three on his fingers and told Mr Martin he had now told him to leave three times. Mr Martin, he said, responded that he could not do so, but he could have left through a number of doors.

[37] It was only then, Mr Wilson said, that he took Mr Martin by the shirt front and dragged him out through the garage. He denied pushing Mr Martin into the

framing, deliberately or inadvertently. He was intent only on getting him out. Once he had accomplished that he went back and told Mr Currie to leave.

[38] Brian Luke, Mr Wilson’s co-worker, who had been downstairs when the inspection ended and did not witness the argument, also considered that Mr Martin had refused to leave after being asked to do so four or five times and had been given “quite a long period”; five minutes reduced to “a minute or two” to allow for the time it had taken him to come upstairs.

Judge’s decision

[39] The Judge began his decision by saying that Mr Wilson conceded, using force to eject Mr Martin, and that at the beginning of the hearing he gave him a copy of s 56 of the Crimes Act 1961 to assist him in his defence.

[40] The Judge then found beyond reasonable doubt that from the time Mr Wilson revoked Mr Martin’s licence, to the time he ejected him, was “extremely short”. Time estimates given by witnesses, he said, are notoriously difficult. He founded his conclusion on the evidence. He said this:¹²

I find that Mr Wilson did become angry and aggressive towards, particularly Mr Martin. He did so because he was not getting his way ... From that point, I find he very quickly spoke to Mr Martin revoking his right to be there and then gave Mr Martin no time at all to comply, that is, reasonable time to get off the property. Mr Martin was entitled to gather up his property before leaving. He was unable to do so, I find.

[41] The Judge said that on this basis alone Mr Wilson could not rely on the s 56 defence. Mr Martin was not a trespasser at the time he was assaulted. The Judge was equally satisfied to the requisite standard that Mr Wilson used unreasonable force to evict Mr Martin:¹³

I accept the evidence of Mr Martin and Mr Currie, that Mr Martin was grabbed from behind and frog marched, as it were, off the property and on the way contact was made with parts of the building causing bruising to Mr Martin’s ribs.

¹² _{New Zealand Police v Wilson [2015] NZDC 4985 at [15].}

¹³ At [19].

[42] The Judge added that in finding the assault proved, he had held to be inadmissible the email from Mr Wilson’s engineer as a self-serving statement prohibited by s 35 of the Evidence Act 2006. He had also held to be irrelevant a FNDC report, dated 17 November 2014, well after the incident, as to which there is no issue.

Conclusions

[43] On my own review of the evidence and of the Judge’s decision I am satisfied firstly, that he did accord Mr Wilson a fair hearing. Mr Wilson’s first complaint, that the Judge predetermined his guilt, rested on a misunderstanding.

[44] To the extent that the Judge may have said during the hearing that Mr Wilson had assaulted Mr Martin, I am satisfied, that was only because Mr Wilson himself had conceded from the outset that he had used force to eject Mr Martin. The issue which the Judge identified from the outset was whether Mr Wilson was entitled to invoke the s 56 defence.

[45] Also, although the Judge did intervene actively throughout the hearing, he did so, I find, to ensure that he understood the evidence, or to limit Mr Wilson to the facts relevant to the issues he had to resolve, or to rule out evidence he considered inadmissible. That involved no unfairness.

[46] Mr Wilson’s particular concern was that the Judge had limited him when he attempted to lead the evidence of his witness Mr Luke. But the Judge intervened because Mr Wilson was leading Mr Luke. Furthermore, when the Judge himself questioned Mr Luke, Mr Wilson accepted that he had “got the truth out of him”. Mr Wilson did not consider that to be unfair.

[47] As to the issue whether the Judge erred in his ultimate conclusion, I need only say that with one confined exception he made no error of law, and that his findings of primary fact were open to him, and his inferences were reasonable. He was entitled to prefer the evidence of the inspectors in the face of that of Mr Martin and Mr Luke, and his reasons for doing so, which I have set out, were open on the evidence.

[48] The confined exception to which I have just referred was the engineer’s email. It was not a previous consistent statement by Mr Wilson inadmissible under s 35 of the Evidence Act. It was hearsay as to the state of the framing at the time of the inspection, unless the engineer was called as a witness.

[49] The email was, nevertheless, relevant in itself. The fact that Mr Wilson had it and relied on it when inviting the inspectors to make a pre-lining inspection was relevant to his decision to require them to leave. I have taken it into account myself in that way. Even if the Judge had taken it into account, however, I am satisfied that his decision was still open to him.

Second decision

[50] Once Judge McDonald found the charge proved the issue then became whether he should enter a conviction or discharge Mr Wilson under s 106 of the Sentencing Act 2002.

[51] He entered a conviction because he was satisfied that to do so would not be out of all proportion to the gravity of Mr Wilson’s offence. Here too he made no error, I find, in stating the issues he had to decide in the exercise of his two phase discretion. The issue is rather whether he weighed without error, and reasonably, the factors that discretion engaged.

[52] The Judge was entitled to find that Mr Wilson’s assault on Mr Martin was “serious offending of its type” and for the reason he gave required a deterrent sentence. It was, as he said:

.. an assault on a public official going out his official business. Mr Martin was there to carry out important building inspecting work which he was required to do under the relevant legislation. The need to deter and denounce such behaviour towards public officials is paramount.

[53] The issue then is whether the Judge wrongly discounted, or underrated, the direct or indirect consequence of a conviction as it concerned Mr Wilson’s fitness to hold a commercial launch master’s licence, a New Zealand coastal master’s licence, and a licence as a second class diesel trawler engineer. Here, too, I find that he made no error.

[54] Maritime New Zealand is charged under s 41 of the Maritime Transport Act with ensuring that licence holders are fit and proper according to s 50 of that Act and relevant to that issue is whether they have ‘any conviction for any offence involving violence, or causing danger to any person, or criminal damage’.

[55] The Judge, after referring to two letters from Maritime New Zealand, the more recent dated 5 March 2015, held that it was for Maritime New Zealand to decide in the light of Mr Wilson’s offence, whether he remained a fit and proper person to hold the licences he has. It was not for the Court to deny Maritime New Zealand that right by entering a discharge. I need only say that I agree.

[56] In this, furthermore, the Judge was entitled to take into account Mr Wilson’s earlier discharge on 12 May 2014 for a similar assault on a Work Safe officer, who had entered his property to ensure that he was complying with safe building practices. Mr Wilson challenges that earlier decision and its relevance, but I am satisfied the Judge was entitled to rely on it. Mr Wilson, as he said, was not entitled to rely on a second s 106 discharge.

[57] Finally, as the Judge said, he had no evidence as to whether a conviction would prevent Mr Wilson from entering Hong Kong if he disclosed his conviction. Mr Wilson was not able to advance that issue any further on the appeal.

Result

[58] In the result, I conclude that the Judge accorded Mr Wilson a fair hearing and made no significant error of law, or any error as to fact, in convicting Mr Wilson of assaulting Mr Martin. I find also that the fine he imposed was not excessive. I dismiss Mr Wilson’s appeal against conviction and sentence.

...................................

Keane J