Farquhar v Solicitor-General

• Jurisdiction: New Zealand
• Judge: Mallon J
• Judgment Date: 17 October 2019
• Neutral Citation: [2019] NZCA 501
• Court: Court of Appeal
• Docket Number: CA185/2019
• Date: 17 October 2019

Between

Daniel John Farquhar

Appellant

and

Solicitor-General

Respondent

[2019] NZCA 501

Court:

French, Mallon and Moore JJ

CA185/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal — appeal against conviction — meaning of “found” in s29 Summary Offences Act 1981 (being found on property without reasonable excuse) — whether being seen on CCTV footage at a later date equated to being “found”

Counsel:

D J Matthews and E V F Nicol for Appellant

A J Ewing for Respondent

• A Leave to appeal is granted.

• B The appeal is dismissed.

• C The case is remitted to the District Court in accordance with the High Court's order.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Mallon J )

Introduction

1 This appeal concerns the meaning of “found” in s 29 of the Summary Offences Act 1981 (the Act). This section creates an offence when a person is “found” in an enclosed yard without reasonable excuse. The issue is whether “found” includes situations where a person's presence in the enclosed yard is discovered only from viewing camera footage which has captured their presence in the yard at an earlier time.

2 This issue arises because Daniel Farquhar (the appellant) was charged with an offence under s 29 in such circumstances. The charge proceeded to a defended hearing in the Christchurch District Court before Judge O'Driscoll. The Judge considered that, for Mr Farquhar to have been found in an enclosed yard, it was necessary for a person to have perceived, come across or otherwise met Mr Farquhar in the yard at the time of the offence. As that had not occurred, he acquitted Mr Farquhar. 1

3 In the High Court, Gendall J, allowed the Solicitor-General's appeal from that decision. 2 The Judge considered the contemporaneous capture on camera of a person in a yard and the later viewing of that footage constituted being “found”. The Judge reasoned that the viewer of the footage became aware of Mr Farquhar's presence in the yard through that viewing, and therefore had found them in the yard through that viewing.

4 Mr Farquhar applies for leave to bring a second appeal on a question of law, contending the High Court was wrong to hold that a person is found in a yard through a non-contemporaneous viewing of camera footage capturing their presence in the yard at an earlier time. The Solicitor-General accepts the appeal involves a matter of general or public importance and that leave is appropriate. We agree. Leave is accordingly granted, and we turn to consider the substantive appeal. 3

The facts

5 In April 2018, the complainant came home in the early hours of the morning and found her bedroom window was wide open. She was concerned someone had entered her house through an unlocked sliding door at the back of the house.

For the next few weeks she made sure the outside security light was turned on at night. She noticed the light would come on a couple of times per week

6 The complainant had a friend install a security camera on her back fence, overlooking her gate. The camera was activated by motion. On 7 May 2018 the complainant checked the camera and found it had captured images of a person leaning over the back gate located up her driveway at 11.09 pm on 5 May 2018. The images showed the person leaving her property after he had tried the gate. Mr Farquhar was identified as the person in the images.

7 In explanation, Mr Farquhar said that he was having a few drinks at home by himself and wanted to go and introduce himself to his neighbours. The complainant's flat was 10 or so houses down from Mr Farquhar's. He said he had seen those neighbours walking down the street and, being new to the area, wanted to get to know them. Mr Farquhar was charged with being found in an enclosed yard, without reasonable excuse, on 5 May 2018.

The statutory provision

8 Section 29 of the Act provides:

29 Being found on property, etc, without reasonable excuse

(1) Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who is found without reasonable excuse–

• (a) in or on any building; or

• (b) in any enclosed yard or other such area; or

• (c) in or on board any aircraft, hovercraft, or ship or ferry or other vessel, train, or vehicle.

(2) It is not necessary in a prosecution under this section for the prosecutor to prove that the defendant had an intention to commit any other offence, but it is a defence if the defendant satisfies the court that he had no such intention.

(3) If any constable finds a person in any place referred to in subsection (1), without reasonable excuse but in circumstances that do not cause the constable to suspect an intention to commit any other offence, the constable may, instead of arresting him for an offence against subsection (1), warn that person to leave that place and, if the person refuses or fails to do so, he is liable to a fine not exceeding $500.

9 The section is one of three provisions found under the heading “Loitering and trespass” in the Act that create offences when a person is “found” in certain circumstances. 4 The other two are:

• (a) Section 28, which creates an offence when a person “is found in any public place behaving in a manner from which it can reasonably be inferred that he is preparing to commit an imprisonable offence”.

• (b) Section 30, which creates an offence when a person “is found by night without reasonable excuse … peeping or peering into a dwellinghouse; or … loitering on any land on which a dwellinghouse is situated”.

10 The purpose of these provisions, as explained in Palmer-Brown v Police, is as follows: 5

Sections such as these are instruments by which the legislature makes punishable undesirable conduct which otherwise falls outside the ambit of the criminal law the thrust of which is directed at crimes falling squarely within specific statutory prohibitions and attempts to commit those very crimes. Mere preparation to commit a crime is not enough. One who sets out to commit a crime may fail for a number of reasons. He may, for one, change his mind before committing an act sufficient to amount to an attempt. So an intention to commit a crime which does not mature into the crime itself or falls short of an attempt to commit it is not punishable. In some areas, however, by resort to such provisions as ss 28, 29 and 30 of the Summary Offences Act, Parliament has moved to prevent the occurrence of crime before it has reached the stage of an attempt, much less its actual consummation. Such measures as these are used to control and prevent potential crime. Their place and use in the maintenance of public order is discussed by Radzinowicz, A History of English Criminal Law (1956) vol 2, § 4, p 18.

Case law

11 It is established that proof of presence in a place does not equate to proof that a person has been “found” in the yard. So, it is not enough that a person admits to having been in the place after the fact. An example is Braxton v Sugrue where a defendant was charged with being found on unlicensed premises used for the consumption of alcohol contrary to s 37 of the Licensing Amendment Act 1910 (now repealed). 6 When the police arrived to enforce the licensing laws the defendant was not at the premises, but he later admitted he had been there on the date in question. The Judge, Sim J, held that, to be found in a particular place, it was necessary for some person to have in fact found him in that place. 7

12 It is not necessary for a person to be apprehended in the place to have been found there. As was accepted in R v Goodwin, and endorsed in McKenzie v Police, there may be many cases in which a person is found upon the premises, although he is not apprehended until after he has left the premises. 8 A person can be found at a place, although he or she has later left, if another person perceived them there. In McKenzie, the Judge, Henry J, held that a person is found at a place if “some viewer, unconnected with and not accompanying the person, perceives the person in the particular place”. 9 The Judge referred to dictionary definitions (to come across, fall in with, light upon, detect, discover) “all of which imply that by means of some sense a person has become aware of something”. 10

13 In R v Otten (Mahon J) it was held that a person who used an enclosed yard merely as a means of access from one place to another had not been “found” in the that

yard even though they may have been seen in the yard. 11 The Judge considered the authorities established there was a distinction between “being seen” and “being “found””. 12 The Judge held that mere presence, though clearly proved, was not sufficient to found liability. The defendant “may have been there, but he was not “found” there”. 13 This was because “found” was to be read with “without lawful excuse” and this gave found an “amplified meaning of discovery in circumstances suggesting a premeditated intrusion for some criminal purpose”. 14

14 In reaching this view the Judge followed Police v Carpenter which had held that the defendant must have been found in circumstances “that can be described as a rogue and vagabond situation”. 15 This interpretation was rejected by this Court in Police v Carter. 16 In doing so the Court said that “a rogue and vagabond situation” was an odd phrase that eluded any pinning down. 17 The Court regarded a person's motives for being in a place were important to the other limbs of the offence but not to whether they had been found in that place.

15 The Court in Carter held “found” was to be given its ordinary meaning rather than an unusual one. It said: 18

It is often...