BROWN v NEW ZEALAND POLICE [2017] NZCA 71

BROWN v NEW ZEALAND POLICE [2017] NZCA 71 [23 March 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA519/2016CA651/2016[2017] NZCA 71BETWEEN MATTHEW RICHARD BROWNApplicantAND NEW ZEALAND POLICERespondentHearing: 9 March 2017Court: Kós P, Brown and Williams JJCounsel: Applicant in personF G Biggs for RespondentJudgment: 23 March 2017 at 10.00amJUDGMENT OF THE COURTThe applications for leave to bring second appeals are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Mr Brown brings two applications for leave to advance second appeals against conviction and sentence for trespass.Background[2] The first trespass incident occurred within the executive wing of the parliamentary complex in Wellington. After protest action there Mr Brown was issued a trespass notice effective for two years. Four months later he returned andadvised security that he was there in breach of the trespass notice. He refused to go and was arrested. Before trial he sought the issue of witness summonses for 35 people including the Prime Minister, health professionals, police officers, lawyers, members of the Human Rights Commission and its staff, and the Registrar of this Court. The District Court refused to issue the summonses. Mr Brown did not appear at trial. He was convicted and ordered to come up for sentence if called upon within six months.1 An appeal against conviction and sentence in the High Court was dismissed by Clark J.2[3] The second conviction was for trespass at a Dunedin New World supermarket. As in the other incident, a trespass notice had been issued against him. Six months later he deliberately violated it. He then went to the police station, advised them of the breach and asked to be arrested. The police obliged him. Multiple witness summons were sought but again refused. Mr Brown was convicted in the District Court and fined $500 together with Court costs of $130.3 An appeal against conviction and sentence was dismissed by Mander J.4Discussion[4] Leave for a second appeal against conviction and sentence may not be granted unless this Court is satisfied that the appeal involves a matter of general or public importance or that a miscarriage of justice has occurred or will occur unless the appeal is heard.5[5] Mr Brown did not file written submissions. His oral submissions focussed on the Dunedin incident. The essential point advanced was that the original trespass notice was invalid because no unlawful act preceded it. That was the very issue with which Mander J concerned himself in the primary appeal. The supermarket premises were privately owned. The general public was invited to enter, but within limits, of course. The public could not enter if the premises were closed. And a member of the public could not enter if a valid trespass notice had been issued against him or1 Police v Brown [2016] NZDC 7644.2 Brown v Police [2016] NZHC 2359.3 Police v Brown [2016] NZDC 17000.4 Brown v Police [2016] NZHC 2884.5 Criminal Procedure Act 2011, s 253(3).her. The trespass notice in this case was issued by an authorised representative of the private landowner. The New Zealand Bill of Rights Act 1990 is not engaged in these circumstances.6 A defendant may of course challenge the validity of the trespass notice itself.7 But Mr Brown's premise that a valid trespass notice must be preceded by, and be a response to, an unlawful act is unsound.8 These matters were addressed carefully and patiently by Mander J. We see no error in his judgment, or any matter of public or general importance in the circumstances requiring a second appeal.[6] The same may be said of the second issue dealt with by Mander J. That waswhether Mr Brown's fair trial rights had been denied because of the refusal to issuethe witness summonses. This issue did not loom large in Mr Brown's oralsubmissions. We have nothing useful to add to the analysis of Mander J in the primary appeal.9 We see no matter raised here justifying a second appeal.[7] This analysis largely disposes of the other application concerning the incident at Parliament. The fact that that trespass notice was issued by a parliamentary security officer does potentially engage consideration under the New Zealand Bill of Rights Act. That goes to the validity of the trespass notice.10 However we heard no argument on this point, despite allowing Mr Brown twice the allocated time for the delivery of oral submissions in order to explain the matters troubling him. Most of these, in fairness, lay beyond the limited scope of these two applications. And his submissions really focused on the Dunedin incident. There is no evidential basis for inferring an improper or unreasonable exercise of the power to issue the parliamentary trespass notice. We see no issue of public or general importance arising. Nor any actual or potential miscarriage of justice.6 New Zealand Bill of Rights Act 1990, s 3(b). See for example Clarke v Police HC Wellington CRI-2003-485-28, 18 November 2003 at [28]; and Ross v Police [2002] 6 HRNZ 734 (HC) at [51].7 See for example Polly v Police [1985] 1 NZLR 443 (CA).8 See for example Police v Beggs [1999] 3 NZLR 615 (HC) at 632 where a negative answer was given to the question "Can the Speaker or his delegate only invoke the powers under theTrespass Act 1980 if the persons exercising their right to protest on Parliament grounds do so ina manner which is unlawful, disorderly or unduly interferes with the exercise of the rights andfreedoms of other persons?"9 Brown v Police, above n 4, at [29]–[38].10 See for example Police v Beggs, above n 8, at 626 albeit relying there on s 3(b) and Bright v Police [2009] NZCA 187.[8] No submissions were offered on sentence. The sentences imposed were not excessive. No reason to grant leave to appeal further on sentence exists.[9] We are therefore unable to oblige Mr Brown on this occasion. The two decisions of the High Court must stand.Result[10] The applications for leave to bring second appeals are dismissed.Solicitors:Crown Law Office, Wellington for Respondent