Flavell v New Zealand Police Hc Wn

• Jurisdiction: New Zealand
• Judge: Ronald Young J
• Judgment Date: 13 March 2013
• Neutral Citation: [2013] NZHC 481
• Docket Number: CRI 2012-485-110
• Court: High Court
• Date: 13 March 2013

Takurua Pomare Flavell

Appellant

and

New Zealand Police

Respondent

[2013] NZHC 481

CRI 2012-485-110

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Appeal against conviction for being found in house without reasonable excuse — appellant initially faced burglary charge but trial judge concluded burglary could not be proved beyond reasonable doubt and amended the information to a charge under s29(1)(a) Summary Offences Act 1981 (“SOA”) (found without reasonable excuse in or on any building) — whether the onus of establishing reasonable excuse in s29(1) SOA was on the prosecution — whether the judge failed to consider the statutory defence in s29(2) SOA (defendant satisfies the Court that he had no intention to commit any other offence) — whether the prosecution was required to prove the specific intent or mens rea in s29(1) SOA.

Counsel:

S J Iorns for Appellant

A J Ewing for Respondent

JUDGMENT OF Ronald Young J

Ronald Young J

1 On 17 March 2012 the owner of a house in Trentham arrived home. The back door of his house had been left unlocked. As he arrived he saw a man trying to open a window from inside his house. He shouted at the man and shortly afterwards called the Police. He saw the man leave the house and jump over a fence. The property owner gave chase. A police dog handler arrived and tracked and located the appellant at a nearby property. The appellant ran off but was caught by the police dog.

2 At his trial Mr Flavell initially faced a charge of burglary contrary to s 231(1)(a) of the Crimes Act 1961. He admitted he had been in the house. The Judge concluded, however, that he could not be satisfied beyond reasonable doubt that when Mr Flavell entered the house he intended to commit a crime inside. And so the Judge amended the information to s 29(1)(a) of the Summary Offences Act 1981 that Mr Flavell was found in the house without reasonable excuse. The Judge convicted the appellant.

3 The appellant's case on appeal is that the Judge failed to consider whether the appellant had proved the defence available in s 29(2) that he had no intention to commit any other crime. This, the appellant emphasised, was especially important because the Judge had already concluded that the prosecution could not prove (in the charge of burglary) that when the appellant entered the house he was intending to commit a crime.

4 Two other grounds of appeal were raised; that the Judge failed to recognise the onus of establishing reasonable excuse was on the appellant; the prosecution failed to prove the necessary mens rea required by s 29(1).

District Court Judgment

5 Although property had been stolen from the house sometime that evening, there was nothing to link the appellant with this crime. Given the Judge in the District Court said that he could not be satisfied beyond reasonable doubt that when the appellant entered the house he intended to commit a crime, an essential element of the charge of burglary could not be established.

6 After the Judge amended the burglary charge to one pursuant to s 29 of the Summary Offences Act 1981, he concluded that the effect of the appellant's evidence was that he had no reason to be at the house. Thus, the Judge said the appellant had no reasonable excuse for his presence in the house. He, therefore, convicted the appellant.

Discussion

Onus in s 29(1)

7 Section 29 of the Summary Offences Act 1981 provides as follows:

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) of this section, 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) of this section, 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 ].

8 The appellant says that the Judge did not expressly consider where the onus of establishing reasonable excuse 1 lay and therefore the standard of proof required. Both the appellant and the Crown in their supplementary submissions say that the onus of establishing reasonable excuse in s 29(1) is on the defendant. The Crown observed that given the Judge concluded that on the appellant's own evidence, he did not have a reasonable excuse, then irrespective of where the onus fell (prosecution or defendant) there was no reasonable excuse in this case.

9 Because I disagree with counsel's conclusions as to the onus with respect to “reasonable excuse”, and because there appears to be conflicting High Court decisions on this issue, I wish to add some brief comments to this debate. However, I agree with the Crown that in this case it does not matter on whom the onus falls or what standard of proof is required. The appellant clearly had no reasonable excuse and this was established by his own evidence.

10 The essence of the parties' submissions that the onus to establish reasonable excuse is on the appellant is based on the application of s 67(8) of the Summary Proceedings Act 1957. That provides as follows:

67 Conduct of hearing

…

(8) Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the offence in the enactment creating the offence, may be proved by the defendant, but, subject to the provisions of section 17 of this Act, need not be negatived in the information, and, whether or not it is so negatived, no proof in relation to the matter shall be required on the part of the informant.

11 The parties say reasonable “excuse” in s 29(1) is an “excuse” within s 67(8) and, therefore, must be proved by the defendant.

12 In R v Gorrie 2 the Court of Appeal reaffirmed the appropriate approach to the construction of such provisions was, as undertaken, in R (Sheahan) v Justices of County Cork where the Court said: 3

The test, or dividing line, appears to be this: Does the statute make the act described an offence subject to particular exceptions, qualifications, etc, which, where applicable, make the prima facie offence an innocent act? Or does the statute make an act prima facie innocent, an offence when done under certain conditions? In the former case the exception need not be negative; in the latter, words of exception may constitute the gist of the offence.

13 I, therefore, adopt this analysis to test whether the act described in s 29(1) is itself innocent, or whether prima facie an offence made innocent by the exception. Here, the act of being “found … in a building” (s 29(1)) is not prima facie an offence. This offence is often referred to as an offence alleging that a defendant has been “unlawfully” found in a building. Indeed, the information in this case when amended by the Judge used the words “unlawfully”. But “unlawfully” is not a word that is used in s 29(1). The first part of s 29(1) simply requires evidence that a defendant has been...