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Glover v Police [2020] NZHC 2121 (21 August 2020)

Last Updated: 31 August 2020

JUDGMENT OF COOKE J

• [1] Mr Glover appeals against the decision of the Porirua District Court convicting him of two charges of wilful damage and one of trespassing.¹ He was sentenced to eighty hours of community work and reparations of $170.²

Background

• [2] Mr Glover has had a long dispute with the Kapiti District Council in relation to the use of a piece of reserve land that provided a shortcut between Waikanae Beach and Otaihanga, adjacent to the Waikanae River. The piece of land backs onto a number of private residences.

¹ Police v Glover [2020] NZDC 16167.

² Police v Glover [2020] NZDC 13824.

GLOVER v NEW ZEALAND POLICE [2020] NZHC 2121 [21 August 2020]

• [3] In 2016, the Council planted native plants on part of the public land, which inhibited passage through the area. The owners of one of the neighbouring properties then installed security lights at the back of his house overlooking the planted area as a security measure following repeated damage to the plants. On 30 October 2016, Mr Glover went onto the homeowner’s property and damaged the light fittings. He did this again on 6 November 2016, also cutting open part of the safety fence around the planted area and cutting and removing some plants before throwing them in the river. He was then charged with, and pleaded guilty to, a charge of wilful damage and a charge of unlawfully being in an enclosed yard. He was sentenced in July 2017 to come up if called upon and to pay reparation of $212.24.

• [4] Between the 2016 offending and August 2019, the Police received numerous complaints about damage to plants in the same embankment area. The Council employed a private investigator to do surveillance on the property by way of cameras.

• [5] This lead to the further charges. The first charge of wilful damage was that on 5 August 2019 the appellant went to the reserve area and cut down a number of plants to stubs and pulled others out of the ground. The plants were a mix of flaxes and smaller native plants and were the Council’s property. The second charge was that on 10 August 2019 the appellant returned and cut a number of additional plants to stubs and pulled more from the ground. He also sprayed a number with a spray bottle. On 15 August 2019, the appellant was arrested and given a trespass notice warning him to stay away from the area. The notice was explained to him. He was then photographed at the reserve area on 8 October 2019.

District Court decision

• [6] The reasons of the District Court Judge for conviction were not available when I heard this appeal. As I explained in my minute dated 5 August 2020, I raised with Mr Glover and counsel for the Police the approach that the Court should adopt in those circumstances. There were two potential ways forward, one was simply to adjourn the appeal until the reasons for conviction were available from the District Court, and the second was for the Court to issue a minute seeking the reasons, following which I

would consider the arguments Mr Glover advanced on his appeal, and the response in light of the reasons subsequently provided.

• [7] I allowed Mr Glover a brief adjournment to indicate which way forward he would prefer. After that adjournment he indicated he preferred that I hear his arguments, and that I consider them in light of the reasons of the District Court when I subsequently received them. I duly heard the arguments of Mr Glover and counsel for the Police on that basis.

• [8] The oral judgment of the District Court has now been transcribed and provided.³ I have decided that there is no need to hear further from the parties. The oral judgment was relatively brief, but it makes the central findings on the evidence required to establish the elements of the charges. In particular, the Judge considered the photographic evidence and concluded that it was Mr Glover in the photographs, and that he was responsible for the damage. He also found that it was highly unlikely to be any other person in the area doing these things after the trespass notice had been served. He concluded:

[5] ... Mr Glover plainly has a rigid set of views about what he described as being corrupt and other allegations of what has occurred over this piece of land which he insists should rightfully be left open as an accessway, a walking shortcut in the area. He may be entitled to those views, but it does not entitle him to cause damage to property which is not his.

• [9] The Judge concluded that both the wilful damage and trespass charges were proved.

Approach to appeal

• [10] This appeal is brought under ss 232 and 250 of the Criminal Procedure Act 2011.

• [11] Section 232(2)(b) of the Criminal Procedure Act 2011 provides that the High Court must allow an appeal if the Court is satisfied, in the case of a Judge-alone trial, that the Judge erred in his or her assessment of the evidence to such an extent that a

³ Police v Glover, above n 1.

miscarriage of justice has occurred. Section 232(c) states that the High Court must allow an appeal if the Court is satisfied that a “miscarriage of justice has occurred for any reason”.

• [12] In Sena v Police, the Supreme Court held that the function of the appellate court extends to full reconsideration of the case.⁴ The appellate court should re- evaluate the evidence and an appellant is entitled to the appeal court’s determination of whether the first instance judge was substantively right or wrong on the outcome. On this approach, if the appellate court comes to a different view on the evidence, the trial judge necessarily will have erred in their assessment.⁵ The Court said that this approach did not mean the role of the appellate court was to consider the issues de novo as if there had been no hearing at first instance. Since it was an appeal, it was for the appellant to show that an error had been made, and in assessing whether there had been an error, an appellate court must take into account any advantages a trial judge may have had.⁶ Where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “customary caution”.⁷

• [13] The notice of appeal includes an appeal against sentence. This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011. The Court must allow the appeal if there is an error in the sentence imposed and the Court is satisfied a different sentence should be imposed.⁸ A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court re- exercise the discretion.⁹ The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.¹⁰

⁴ Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].

⁵ At [38].

⁶ Green v Green [2016] NZCA 486; [2017] 2 NZLR 321 at [30]- [31].

7. At [38]. See also Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

⁸ Criminal Procedure Act 2011, s 250.

⁹ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482; B v R [2011] NZCA 331 at [9]; and

Lawrence v R [2011] NZCA 272 at [11].

¹⁰ Ripia v R [2011] NZCA 101 at [15].

Submissions

• [14] The appellant says he only intended to protest — to keep open and safe a path that had been in use for many years, not to cause damage. He claims his protest gave rise to a “lawful justification or excuse of claim of right”. He said Police would not normally charge you if you cut branches overhanging a public concrete footpath because it is clear it is a path and you would probably have a justification or excuse.

• [15] He claims the trespass notice was not valid because it was not a demonstrably justified limitation on his right to peaceful protest. He says trespass notices cannot be used to prevent peaceful assembly.

• [16] He claims that the Judge did not look at the photos and maps he provided of the path, stile and area. He says these prove the existence and use of the pathway. He notes the stile was removed and a higher fence built by the Council without public consultation and that the land is still public on both sides of the fence.

• [17] The Crown submit that the Court can be satisfied that the charges are proved. The evidence amply supports them and there was no real evidence which contested the prosecution case. Accordingly, it argues that the appeal against conviction should be dismissed.

• [18] The Crown says the prosecution case was almost entirely unchallenged. It argues that it was uncontested that:

(a) The appellant’s dispute with the Council in relation to the area had been ongoing since 2012;

(b) The appellant was convicted of the 2016 offences described above;

(c) On 5 August 2019 the plants in the reserve area were damaged — a covert camera captured an image and the uncontested evidence showed it was the appellant;

(d) On 9 August 2019, a Parks Officer with the Council received a message from the appellant complaining about bright lights shining from a residential property by the reserve and that the flax in the area made it hard to get past;

(e) On the night of 10 August 2019, further damage was done to plants in the same area — a covert camera captured an image and the uncontested evidence showed the appellant;

(f) On 15 August, Constable Polglase arrested the appellant on two charges of wilful damage and issued him with a trespass notice (having discussed with the Council their desire to trespass him from the area). The notice included a map with the trespass area shaded in red and it was explained to the appellant.

(g) A bail condition was imposed that the appellant was not to go to one of the private properties adjoining the reserve — the appellant called Constable Polglase and indicated he took this to mean he could go back to the reserve area and “had no intention of abiding by the trespass notice”. He was warned he may be arrested if he did breach it.

(h) On 8 October 2019, covert camera captured an image of a person in the reserve area and the uncontested evidence showed it was the appellant.

• [19] The Crown submits that on the basis of the evidence it is inescapable that the person in the photographs was the appellant, that he damaged the plants, and that he was given a trespass notice and returned there anyway. Only one prosecution witness was cross-examined and on a matter of no consequence to this appeal. The Crown also submits a collateral intention to protest does not displace the intention to do the damage to the plants.

• [20] In Police v Beggs, the High Court held that the land being public was no barrier to the issue of a trespass notice, and the appropriateness of issuing a notice is subject

to a test of reasonableness.¹¹ The Crown says that the appellant’s history of offending against the Council and neighbours meant it was reasonable to trespass him. There were legitimate protest measures available to the appellant but he decided to damage the plants. It is no defence that the appellant says he was breaching the notice by way of protest.

Analysis

• [21] I have considered the District Court Judge’s reasons for Mr Glover’s convictions in light of the transcript of evidence. Although the reasons are brief, they capture the essential findings necessary to find the charges proved. There is “... enough to show [the Judge] has considered the main issues raised at the trial and to make clear in simple terms why [the Judge] finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt”.¹² In advancing his appeal Mr Glover did not seriously suggest otherwise. I also accept that the factual findings of the District Court were correct.

• [22] The primary focus of Mr Glover’s submissions on appeal concerned the right to protest, and his contention was that all he was doing was protesting against the Council’s actions in inappropriately closing a public walkway. This matter was only addressed in passing by the District Court, although I am not sure that this point was pressed by Mr Glover’s counsel in the District Court.

• [23] The reasons why they would not have been pressed are apparent. First, as the District Court Judge essentially found, the right to protest is not a defence to the wilful damage offence. It does not matter what motivation a defendant may have had in conducting wilful damage. The elements of the charge are still satisfied by establishing that the defendant did wilfully engage in the damage as alleged. It is possible that motivation might be relevant to sentence, but they do not provide a defence to the charge.

¹¹ Police v Beggs [1999] 3 NZLR 615 (HC) at 622-623.

12. Cooke J in R v Connell [1985] NZCA 34; [1985] 2 NZLR 233 (CA), cited with approval in Sena v Police, above n 4, at [17].

• [24] It is possible for protest motivations to be relevant to a defence to a charge of trespass. This was explored by the decision of a full court of the High Court in Police v Beggs, which involved a prosecution for trespass of students protesting at Parliament who failed to comply with a direction to leave given under the Trespass Act 1980.¹³ The Court accepted that the right to protest was relevant, in particular in relation to the decision to exercise powers under that Act to give a notice that the protestors should leave Parliament grounds. The Court held that the Bill of Rights Act 1990 was engaged. The Court held:

3 The test of reasonableness

(a) ... People permitted access to a public “place”, such as Parliament grounds, must be able to exercise their freedom of assembly, with or without “freedom of expression” rights. Yet those rights are not absolute. If a protest assembly is unlawful or individuals behave in a disorderly manner, or breach or threaten to breach the peace, or unreasonably infringe the rights of others, or create a civil nuisance, then the Speaker could not be said to be acting unreasonably in requiring their departure. In our view the rights of others must include the rights of the occupier, to enable preservation of the occupier’s property and reasonable limitation upon its use. Should or can there be a precise formula to govern the test of reasonableness? We think not: the factual situations that might arise are infinite. Any attempted formula will rapidly become an inconvenient shackle.

• [25] The Court had earlier rejected an argument that the Trespass Act could have no application at all to a public place like Parliament.¹⁴ Ultimately in that case the High Court allowed the appeal, observing that the charges against the protestors should not proceed further.¹⁵

• [26] Here there is no dispute that the area of land was controlled by the Council, and that it had decided it should no longer be used as a walkway. This was the very matter that Mr Glover was resisting. The elements of the charge were proved. He was given the notice, but then re-entered the land. To have a defence, he would need to show that the notice was not lawfully issued, which in essence means that he would need to show that the Council acted unreasonably in issuing it. In effect, this involves

¹³ Police v Beggs, above n 11, at 627.

¹⁴ At 622–625.

¹⁵ At 633.

a collateral challenge to the lawfulness of the notice. As the District Court Judge said, the fact that Mr Glover strongly disagrees with the Council’s stance does not mean he was free to ignore the notice. The Council is ultimately the body charged with administering this land. It was entitled to decide that the land in question should no longer be used as a public accessway. The notice was then given because of a concern arising from Mr Glover’s further arrest for conducting wilful damage in this area, following on from earlier convictions for wilful damage. Those were legitimate reasons for giving such a notice.

• [27] I also do not accept Mr Glover’s argument that he was simply engaging in peaceful assembly. As the Judge found, he was again engaging in acts of wilful damage. As I have already said, conducting wilful damage cannot be justified by acts of protest.

• [28] It is also relevant that the underlying issue is a limited one. Mr Glover asserts that an area of land that had previously been used as a shortcut between Otaihanga and Waikanae Beach should continue to be used as that, notwithstanding the Council’s decision otherwise. But as the District Court Judge said, the fact that Mr Glover disagrees with that decision does not provide a justification for him to refuse to accept the authority of the Council to make the decision about the land. It provides no excuse for conducting wilful damage, or for trespassing.

• [29] For these reasons there is no basis to say that the Council acted unreasonably in issuing a trespass notice. I am also satisfied that the Judge correctly found the elements of this charge were proved. The Judge was accordingly also correct to enter a conviction for that offence.

Sentence

• [30] Mr Glover included an appeal against sentence in his written materials. At the hearing he did not focus on this, and explained the emphasis was on his conviction appeal.

• [31] The offending occurred on two occasions, the appellant had a history of engaging and being convicted for the same behaviour and he had been warned of the

consequences of continuing. The Court had jurisdiction to order between 40 and 400 hours’ community work. The end sentence was not manifestly excessive, and I consider the sentence appeal should also be dismissed.

• [32] For these reasons the appeals against conviction and sentence are dismissed.

Cooke J

Solicitors:

Crown Law, Wellington for the Respondent cc: Mr Glover