Flavell v New Zealand Police Hc Wn

JurisdictionNew Zealand
CourtHigh Court
JudgeRonald Young J
Judgment Date13 Mar 2013
Neutral Citation[2013] NZHC 481
Docket NumberCRI 2012-485-110

[2013] NZHC 481


CRI 2012-485-110

Takurua Pomare Flavell
New Zealand Police

S J Iorns for Appellant

A J Ewing for Respondent

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.


The test for construing provisions involving “excuse” was whether the act described in s29(1) was itself innocent, or whether prima facie an offence made innocent by the exception ( R v Gorrie). The first part of s29(1) simply required evidence that a defendant had been found in a building. Being found in a building was an ordinary event. It is not prima facie a crime. It became a crime when there was no reasonable excuse for being in the building. This analysis pointed strongly to the onus being on the prosecution. Other factors supported this. The “defence” in s29(2) SOA explicitly identified that the onus was on the defendant to establish the defence. There was no equivalent provision in s29(1). Further the predecessor to s29(2) had explicitly placed the onus of excuse on the defendant. The onus in s29(1) was therefore on the prosecution.

To prove an offence under s29(1), the prosecution had to first establish that a defendant had been “found in a building”. This would require the observation of another person. The second element to be established was that the defendant had no reasonable excuse for being in that building. In cases where the defendant did not give evidence that he had a reasonable excuse, then proof of lack of reasonable excuse required the person in charge of the building to give evidence that the defendant did not have authority to be in the building. Where the defendant offered a reason for his presence at the building then the prosecution would need to establish beyond reasonable doubt that the reason was either not true or not a “reasonable excuse”. In this case, the prosecution had established beyond doubt that F had no reasonable excuse for being in the property on the basis of the evidence F himself had given.

Once the judge amended the information, F ought to have been explicitly offered the chance to give and call evidence relating to the s29(2) statutory defence. No such opportunity was given. The judge did not make a clear finding that no crime was intended by F but said that there was ground for suspicion about F's explanation. In those circumstances, it could not be concluded that the judge would have found that F had established the s29(2) defence. The conviction would have to be quashed and remitted for rehearing.

F's submissions that the prosecution could not prove intent given evidence of intoxication and confusion when “found” in the house equated an intent to be in the building with an intention to enter the building. F's example was that of a person who through intoxication “entered the wrong house”. Offending in s29(1) was not concerned with entry into a building. An offence under s29(1) could be committed by a defendant who lawfully entered a house. The concern under s29(1) was that when a defendant was “found” in the house, he or she had no reasonable excuse for being there. A genuine mistake by a defendant as to entitlement to be in a building would likely be a reasonable excuse.

However, F's submissions focussed on a situation where, by virtue of drugs or alcohol, a defendant was found in a building and was effectively incapable of forming any intent because of intoxication. This situation was more akin to the concept of automatism than illustrating the need to identify an appropriate mens rea in s29(1). In this case, the obligation on the prosecution to disprove reasonable excuse provided the necessary protection for a defendant akin to intention. Unless the prosecution could prove beyond reasonable doubt the defendant did not have a reasonable excuse for being in the building when found, the defendant would be entitled to be acquitted even where he was found in the building. Although “found in the building”, such a defendant would be entitled to an acquittal because there was a reasonable possibility that he had a reasonable excuse for being in the building. The fact a defendant could not have meant to be in the building, might be sufficient to create a reasonable doubt about the absence of a reasonable excuse. Section 29 could not be seen as a strict liability offence. To be found in a building alone was not sufficient to constitute the crime. It had to be without reasonable excuse.

Finally, the SOA itself was not concerned with serious crime. The penalties were at the low end of criminal offending. The prosecution did not have to prove any form of specific intent in s29(1) related to being present in the house. This was because such an intent was essentially gathered up by the obligation on the prosecution to prove that a defendant did not have a reasonable excuse for being in the property.

Conviction quashed; matter referred to District Court for rehearing.

JUDGMENT OF Ronald Young J

Ronald Young J

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.


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.


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.


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

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.


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.

Onus in s 29(1)

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 ].


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...

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