MOUNTIER V NEW ZEALAND POLICE SC 97/2009
Leave to appeal dismissed because the applicant had been acquitted leaving no live issue for this Court to resolve and the facts found at first instance were insufficient to establish the legal principle sought; the exceptional course in R v Gordon-Smith was therefore inappropriate.
Source-derived case information.
- Citation
- SC 97/2009
- Parties
- Applicant: Frances Mountier; Respondent: New Zealand Police
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 16 December 2009
- Procedural Posture
- Criminal Appeal / Leave Application to Supreme Court
- Outcome
- Application for leave to appeal dismissed
- Legal Topics
- Trespass Act 1980, Local Government Act 1974, Occupier Status, Leave to Appeal, Reasonableness of Police Action
Source-derived case record
Summary, issues, holding and outcome
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Parties
Frances Mountier
Applicant
New Zealand Police
Respondent
Procedural Posture
Criminal Appeal / Leave Application to Supreme Court
Legal Issues
- 1 Whether the local authority (Council) was an occupier under the Trespass Act 1980
- 2 Whether the police's invocation of the Trespass Act in relation to the protest was reasonable
- 3 Whether leave to appeal should be granted given the applicant's acquittal and insufficiency of established facts
Ratio Decidendi
Leave to appeal dismissed because the applicant had been acquitted leaving no live issue for this Court to resolve and the facts found at first instance were insufficient to establish the legal principle sought; the exceptional course in R v Gordon-Smith was therefore inappropriate.
Court Disposition
Application for leave to appeal dismissed
Orders
- Application for leave to appeal dismissed
Full Case Text
Judgment text and source record
1 paragraphs
MOUNTIER V NEW ZEALAND POLICE SC 97/2009 16 December 2009IN THE SUPREME COURT OF NEW ZEALAND SC 97/2009 [2009] NZSC 132BETWEEN FRANCES MOUNTIER Applicant AND NEW ZEALAND POLICE Respondent Court: Elias CJ, McGrath and Wilson JJ Counsel: M J Knowles for Applicant J C Pike for Respondent Judgment: 16 December 2009JUDGMENT OF THE COURTThe application for leave to appeal is dismissed. REASONS[1] The applicant seeks leave to appeal against a judgment of the Court of Appeal concerning the powers of a local authority to invoke the Trespass Act 1980. The case relates to a protest within a fenced off area of a public road where construction works were under way. The applicant was convicted of trespass in the District Court. The conviction was set aside by the High Court, which held that provisions in the Local Government Act 1974 that empowered the Council to fence off the site did not give it rights of occupation enabling the Council to invoke the Trespass Act. The Court of Appeal disagreed with the High Court on that point. [2] There had, however, been limited evidence advanced in the District Court on whether the invocation of the Trespass Act by the police in relation to the protest was reasonable. For that reason the District Court Judge understandably did notdirectly address that question. In those circumstances, the Court of Appeal felt unable to determine the issue and it declined to remit it back for further consideration. In those circumstances, the appeal by the Police was dismissed. [3] The applicant seeks leave to appeal to this Court in order to challenge the Court of Appeal's finding that the Council was an occupier in terms of the Trespass Act. [4] As the applicant has been acquitted, there is no longer a live issue in relation to the outcome of the case which the appeal would resolve. As well, the facts established at the District Court's hearing do not provide a sufficient foundation for the issue of principle which the applicant wishes to raise in this Court. For these reasons alone, the exceptional course adopted by the Court in R v Gordon-Smith1 is plainly not appropriate. [5] The application for leave to appeal is accordingly dismissed.Solicitors: Crown Law Office, Wellington1 [2009] 1 NZLR 721.