KING v NEW ZEALAND POLICE [2022] NZHC 3043

KING v NEW ZEALAND POLICE [2022] NZHC 3043 [21 November 2022]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECRI-2022-442-12[2022] NZHC 3043BETWEEN LUKE FABIAN KINGAppellantAND NEW ZEALAND POLICERespondentHearing: 2 November 2022Appearances: Appellant in PersonA R Goodison for RespondentJudgment: 21 November 2022JUDGMENT OF McQUEEN J[1] In the early hours of 13 July 2020, a horse was struck by a motorist on the statehighway outside of Mr King and Ms Polaschek's property. The horse had come froma paddock on the property. The horse died as a result of the collision.[2] Mr King and Ms Polaschek were convicted following a judge-alone trial onone charge of committing criminal nuisance by omitting to discharge a legal duty,namely maintaining adequate boundary fencing.1 Mr King now appeals hisconviction.21 Police v King [2022] NZDC 17168.2 The notice of appeal filed in relation to this proceeding names only Mr King as the appellant. Nonotice of appeal has been filed in respect of Ms Polaschek's conviction.District Court decision[3] It was accepted that the defendants had a legal duty to maintain an adequateboundary fence.3 The Judge acknowledged that the Police were then required to provethat the defendants had omitted to discharge that legal duty; that is, omitted toadequately maintain the boundary fence.4 The Judge set out the definition of"adequate fence" as provided in the Fencing Act 1978, being "a fence that, as to itsnature, condition, and state of repair, is reasonably satisfactory for the purpose that itserves or is intended to serve".5[4] The Judge noted that Mr King acknowledged in his evidence that:6(a) having a fence adjacent to a public highway meant that there had to bemore caution exercised in regard to ensuring adequate fencing; and(b) there could be an extreme risk to the public if stock got onto roadsbecause of inadequate fencing.[5] The Judge recorded Mr King's evidence that it had been the plan, whenpurchasing the property, for the fences to be replaced. However, the defendants ranout of funds to do so. Mr King stated that he regularly checked the fencing every dayand that both he and Ms Polaschek had been trying to fix the fencing.7 The Judgeobserved that it was clear that both Mr King and Ms Polaschek wanted the fences tobe adequate to ensure their stock would not escape into any public area where theymay be a danger to the public.8[6] However, turning to the state of the perimeter fence at the time of the horseincident, the Judge found:9It is clear to me from Mr King's evidence that the situation he found himselfin in winter 2020, shortly before the incident with the horse on 13 July 2020,was one that perhaps he had not anticipated and that weather conditions had3 Police v King, above n 1, at [14]–[15].4 At [17].5 At [14]. See also Fencing Act 1978, s 2.6 At [28].7 At [29]–[30].8 At [35].9 At [36].significantly adversely affected the quality of the perimeter fence adjacent tothe state highway. During his evidence today he described holding the fencewires in one hand and being able to pull posts out of the ground. He describedthem as 60-year-old posts.[7] Upon looking at photographs provided to the Court, the Judge concluded thatthe fences were lacking in quality, some appearing "extremely aged" and that many ofthe palings were missing or inadequate. The Judge also observed that there was "aTaranaki gate in place instead of a more modern strong gate".10 The Judge also notedthat following the horse incident, an electric fence was installed inside the perimeterof the boundary fence.11[8] The Judge also referred to an incident approximately one week prior to thehorse fatality where a calf had got out of the property and was involved in an accidenton the road. She recorded that she was unsure whether Mr King accepted the incidentoccurred, but he did accept that the Police contacted him and returned the calf to hisproperty.12[9] Upon assessing the evidence, the Judge found that there was an omission byMr King and Ms Polaschek to discharge their legal duty to maintain the fencing to anadequate standard to keep their stock within their paddocks:[39] I must remark at this stage that I think that Mr King was very honestin his evidence about the state of the fencing at the relevant time and that bothhe and Ms Polaschek were well-meaning farmers who were trying their verybest in very difficult financial circumstances to run what is clearly a very largefarm that borders a state highway.[40] However, being well-meaning does not absolve a person of their legalresponsibilities to adequately maintain fences, particularly when large farmanimals are grazing in a paddock adjacent to the road. On the evidence, theanimals belonging to Mr King and Ms Polaschek were never moved out ofthis paddock with inadequate fencing adjacent to the road which is a statehighway. [44] what the evidence demonstrates to me is that the animals weregrazing close to the boundary fence, and that Mr King and Ms Polaschek,living there, and regularly perusing their property by walking around andworking on the fencing, were aware of that fact. Being aware of that fact leads10 At [37].11 At [38].12 At [34].to me finding that each of them had knowledge that their animals were closeto the fences, which I have already found Mr King and Ms Polaschek knewwere inadequate fences, to ensure that the stock remained inside the perimeterof their property.[45] I consider that each defendant knew that because they were being toldthat by police, they saw it and they were doing their best to rectify the problemeven though their efforts were insufficient. Also, there were other types ofstock that had got out of their property and they were aware of that occurring.The stock were getting either through or over the fence. The photographsdepict that the fencing near where the horse was found dead was inadequate.[10] The Judge then turned to consider whether the omission of each defendantpresented an obvious risk that stock could escape from the property and cause a safetyrisk to members of the public.13[11] A key piece of evidence advanced to support Mr King's position there was nosuch obvious risk was the hearsay statement of a person, Mr Arrowsmith (deceased atthe time of trial) who Mr King said had told him that the Taranaki gate where the horsehad been previously seen was open. While acknowledging this to be an importantpoint for Mr King, the Judge noted that no hearsay application was made and that thatnarrative was not put to any of the police witnesses who gave evidence.14 The Judgefound that she was unable to take the hearsay evidence into account.15[12] The Judge held that there was no reliable evidence before the Court that theTaranaki gate was either opened to deliberately let out stock or inadvertently left openallowing stock to escape.16 In reaching this conclusion she relied on evidence that thegate was wide and that it would have been obvious if it was left open for a period oftime, to those regularly driving that piece of road who also gave evidence, and toMr King, whose evidence was that he regularly checked the fences.17 Further, giventhe evidence that the fences were checked often, the Judge did not imagine eitherdefendant would have left the gate open when their animals were grazing.1813 At [47]. The Judge had already concluded at [46] that the inference could be drawn that each ofthe defendants knew that any omission in regard to their legal duty to maintain adequate fencingwould endanger the lives of members of the public.14 At [48]–[49].15 At [50].16 At [52].17 At [51].18 At [51].[13] Finally, the Judge addressed the evidence provided by a Constable at thehearing that there was an area of fence that he considered he could have stepped over.19Mr King contested this evidence, saying that the difference in ground level height oneach side of the fence meant that any animal inside the fence would need a higherreach to get over it than someone standing outside the fence moving over towards theinside perimeter of the fence.20[14] The Judge considered that having heard evidence about the size of the horse,including its height, and evidence as to the height of the fence—that at its lowest pointit was approximately 80 cm high—an inference could be drawn that the horse got overthe fence, either by walking or jumping over. The Judge considered this was "the mostlikely scenario and the only available inference".21[15] Ultimately the Judge concluded:[56] That evidence satisfies me to the high standard of proof of beyondreasonable doubt that the failure to maintain the adequate boundary fencingdid lead to the horse escaping from the property that Mr King andMs Polaschek own, and that being such a large animal, it did endanger thelives of members of the public once it was on public land, and thatMs Polaschek and Mr King either knew, or were reckless, as to whether or nottheir stock could escape from the property due to their inadequate boundaryfences. Accordingly, I find each defendant guilty on the charge they face.Approach to appeal[16] Appeals against conviction are brought under s 232 of the Criminal ProcedureAct 2011 (the Act). This Court must allow the appeal if satisfied that the Judge erredin his or her assessment of the evidence to such an extent that a miscarriage of justicehas occurred or that a miscarriage of justice has occurred for any reason.22 Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected or hasresulted in an unfair trial.2319 At [53].20 At [54].21 At [55].22 Criminal Procedure Act 2011, s 232(2)(b) and (c).23 Section 232(4).[17] The Supreme Court in Sena v Police have confirmed that the approach adoptedin Austin, Nichols & Co Inc v Stichting Lodestar in respect of civil appeals isapplicable to conviction appeals.24 The appeal is to proceed by way of rehearing.25The appellant is entitled to judgment in accordance with the opinion of the appellatecourt.26 If an appellate court comes to a different view on the evidence, the trial judgenecessarily will have erred, and the appeal must be allowed. However, in assessingwhether there has been an error, the appellant court must take into account anyadvantages a trial judge may have had.27 Where the appellant is challenging credibilityfindings based on contested oral evidence, an appellate court will exercise "customarycaution".28 This is partly because what a witness means may be conveyed, at least inpart, by gesture or intonation, something which will not be apparent on the writtenrecord.29Mr King's submissions[18] Several grounds of appeal are identified by Mr King in his notice of appeal andattached email. I note that unfortunately, Mr King had been confused about the correcthearing date for his appeal and in his rush to get to Court he left his notes at home.[19] First, and most fundamentally, Mr King submits that the Judge incorrectlyfound that the horse got over the fence either by walking over the fence or jumpingover it. Mr King submits that this finding ignored the fact that there were multiplehorses out of their paddock on the morning in question. He says that the presence ofseveral horses out of their paddock demonstrates that the horses could not all have gotover the fence and instead it is most likely that the horses walked through an open gate(the Taranaki gate referred to in evidence), as:(a) multiple horses will not jump over a fence with barbed wire withoutdamage being done to their coats, belly, legs or hocks; and24 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32]; and Austin, Nichols & Co Inc vStichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.25 Sena v Police, above n 24, at [32].26 Austin, Nichols & Co Inc v Stichting Lodestar, above n 24, at [16].27 Sena v Police, above n 24, at [38].28 At [38].29 At [40].(b) "the only reason horses would jump a fence is from predation orexclusion from the heard [sic] or fretting".[20] As a result, Mr King submits that the fence was not the reason the horseescaped.[21] Mr King argues that the prosecution needs to prove that all the horses jumpedover the fence to find him guilty of the criminal nuisance charge. He says that thereshould have been evidence about what footprints there were from the horses andevidence about whether there was injury to the dead horse's belly from allegedly goingover the barbed wire on the fence.30[22] The remaining matters raised by Mr King are more peripheral to the appeal.[23] First, Mr King appears to challenge the motorist responsible for hitting thehorse. He challenges the motorist's honesty and suggests the Police should investigatehim. Mr King did not pursue this this point before me.[24] Second, Mr King submits he was "unlawfully convicted in absentee". Thisappears to relate to a prior appearance in the District Court on this charge, where aguilty plea was entered by counsel then acting for Mr King, in Mr King's absence.The guilty plea was subsequently vacated at a further appearance. A trial then tookplace before District Court Judge Rielly, who made the decision now under appeal.[25] Third, Mr King says that:There is strong reason to believe the many situations during this case areunlawful and in some cases illegal including the use of lethal force authorizedby AOS without cause and directly breaching the Bill of Rights.[26] This is explained further in the notice of appeal. Mr King says that there wasa dawn raid of his property on 15 September 2022, and that the Armed OffendersSquad (AOS):30 The notice of appeal mentions calling witnesses at the appeal hearing but Mr King did not pursuethis at the hearing. breached a trespass as agents under the 1835 He Whakaputunga [sic]document with a cost of $10,000.00 per agent. To reinforce the trespass noticethe AOS team breached a trespass noticed gate with guns drawn and loadedwith a round in the chamber.[27] Mr King goes on to say that "the official reason" for the use of this violentforce was because he had "adopted a sovereign Maori movement". Mr King informedme that he is facing charges arising from this incident. Ms Goodison for the Policeconfirmed that the charges relate to Mr King's alleged conduct towards attendingpolice officers during the execution of a warrant for his arrest and the matter isproceeding to trial.[28] A final matter is raised in the notice of appeal. This was that a police prosecutoron audio video link (AVL) made personal jokes about Mr King after the Judge hadretired, "with "any and all people in the courtroom". He says that this is a "grossmisconduct", a breach of trust in the judicial system, and "blurs the lines that are meantto hold police and the court system independent of each other". Ms Goodisoninformed me that following the alleged issue with the police prosecutor, a differentprosecutor appeared when the proceeding reconvened.31Police submissions[29] The Police say that the Judge made no error in reaching the factual findingsthat she did. Regarding whether the gate was open on the morning in question, thePolice note that the narrative provided by Mr King is "somewhat confusing", given itis premised on observations made by his associates some weeks prior to the horseincident. In any case, the Police submit that particularly given the unusualcircumstances of this case, the District Court Judge was best placed to assessMr King's evidence.[30] As to the evidence of the motorist, the Police note that he was not cross-examined on the basis that he was a liar or otherwise at fault. This can only be revisitedon appeal if counsel error is alleged.31 The trial was conducted on two dates, being 8 April and 17 August 2022.[31] Ultimately, the Police submit that there was no error in the Judge's assessmentof the evidence that creates a real risk the outcome of the trial was affected.[32] The Police also submit that there is no miscarriage of justice for any of theother reasons advanced by Mr King. It is submitted that there is no evidence that anyof those matters had any bearing on the District Court Judge's assessment of theevidence at trial and therefore do not amount to a miscarriage of justice in the contextof his conviction appeal.Discussion[33] I deal first with the matters raised by Mr King which are more peripheral to hisappeal.[34] Mr King has found his recent experiences with the Police, Police prosecutors,duty solicitors and public defenders to be concerning.32 He says that he has been liedto and manipulated. He advised me that he has made multiple complaints (includingto the New Zealand Law Society, the Ombudsman and the Independent PoliceComplaints Authority) but from his perspective there has been no satisfactoryoutcome. He submits that the conviction for criminal nuisance has destroyed hisability to earn a living. He says his life has been threatened. He has written tonumerous state agencies raising concerns about how he has been treated (I believe inrelation to the dawn raid on 15 September 2022 referred to above) and is concernedthat there is no help for someone like him to work through the system to review whathappened.[35] Mr King did not make any specific submission to me about the impact of thesematters on his trial and in particular whether he contended they resulted in amiscarriage of justice. I accept Ms Goodison's submission that there is no evidencethat these events had any bearing on the District Court Judge's assessment of theevidence in the trial. I explained to Mr King that these matters were not relevant to32 I include in this Mr King's concerns about whether the motorist who hit the horse had beenappropriately investigated for his part in the event and any matters relating to the dawn raid atMr King's property on 15 September 2022.my consideration of his appeal and noted that he seemed to be raising his concernswith the appropriate authorities.[36] I turn then to Mr King's submission that the Judge incorrectly found that thehorse got over the fence either by walking over the fence or jumping over it and hadignored the fact that there were multiple horses out of their paddock that morning.Mr King says the dead horse was only noticed when the other horses were beingwalked back through the Taranaki gate into the paddock.[37] I asked Mr King if he could point me to passages in the notes of evidence fromthe trial that support his position that there were multiple horses on the road on themorning in question. Mr King informed me that due to him not having his notes withhim, he was unable to do this. Ms Goodison was able to assist in that she pointed meto the only reference she was aware of referring to multiple horses on the road on themorning the horse died.33 However she submits that there is a difficulty with thisevidence as it is found in the context of Mr King's related evidence that his friendMr Arrowsmith was present on the morning that the horse died, which has beenestablished to be mistaken.[38] Mr Arrowsmith died in circumstances which Mr King has found distressing.The evidence at trial confirmed that Mr Arrowsmith died about two months before theincident when the horse died.34 For this reason, Mr King's evidence that on the daythe horse died the Taranaki gate was not standing in the usual way (was almost on theground) because Mr Arrowsmith had left the gate open following an attempt to fix"the hole in the fence" is problematic.35 Ms Goodison submits that Mr King'srecollections about Mr Arrowsmith's involvement raise a potential credibility issueabout what Mr King remembers about the relevant events. Ms Goodison also submitsthat the Judge concluded that there was no reliable evidence that the Taranaki gate waseither opened deliberately or inadvertently. Ms Goodison also says that, in any event,the Court does not have to be sure how many horses were on the road on the morningin question. I observe that during cross examination of Constable Young, he was asked33 Notes of Evidence [NOE] 17 August 2022 at 26.34 At 32 and 41–42.35 At 25–26. As I have noted, the District Court Judge did not allow hearsay evidence from Mr Kingthat Mr Arrowsmith had seen the Taranaki gate open: see Police v King, above n 1, at [48]–[50].whether he remembered seeing other horses in the paddock on the morning the horsewas found (and he did not specifically recall this) but no evidence was elicited fromhim about other horses being on the road.36[39] Rather Ms Goodison focuses on the fence, emphasising that Constable Young'sevidence is that he was able to step over part of the fence, which was at his hip height,which supports the Judge's conclusion that she may infer from the evidence that thehorse was able to get over the fence.37 The Judge was not persuaded by Mr King'ssuggestion that a lower ground level on the paddock side of the fence would preventthe horse from getting over the fence.[40] The focus of the prosecution was on Mr King's failure to adequately maintainthe boundary fence and I accept Ms Goodison's submission that the Judge hadconsiderable evidence available to her to conclude that this was made out.[41] I conclude that the District Court Judge made no error in her assessment of theevidence that created a real risk of affecting the outcome of the trial or resulted in anunfair trial. I have not formed a different view on the evidence as a result of Mr King'ssubmissions. Mr King appears to be confused in his recollection of the events on theday the dead horse was found. He has not been able to establish on the evidence attrial that there were multiple horses on the road that morning and even if that had beenestablished, I do not consider that this of itself would mean the Judge erred in findingthat Mr King had failed to adequately maintain the boundary fence, resulting in thehorse that died being able to get out of the paddock over the fence.[42] I also observe that if the Police thought it did not need evidence at the trialrelating to hoofprints or barbed wire injury to the dead horse, that was a matter for thePolice. I confirm that even without such evidence I consider there is sufficientevidence to support the District Court Judge's finding that the horse that was founddead had got out of the paddock over the fence. If Mr King had thought other evidenceshould have been called at the trial in his defence, whether relating to that matter or,36 NOE 8 April 2022 at 96–97.37 The Constable also gave evidence that the barbed wire in this part of the fence was loose andhanging a section lower than the top of the fence. See NOE 8 April 2022 at 79–80.as he also raised, from an animal behaviourist, he could have taken that step at thetime.[43] The complexity of the evidence in this matter means that the District CourtJudge had a clear advantage in hearing the witnesses.[44] In all the circumstances, I find that no miscarriage of justice has occurred.Result[45] The appeal is dismissed.McQueen JSolicitors:Crown Solicitor, Nelson for Respondent