PATERSON v NEW ZEALAND POLICE [2019] NZHC 1796

PATERSON v NEW ZEALAND POLICE [2019] NZHC 1796 [29 July 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-418-000004[2019] NZHC 1796BETWEEN PHILIP PATERSONAppellantAND NEW ZEALAND POLICERespondentHearing: 25 July 2019Appearances: Appellant in personJ H Whitcombe for RespondentJudgment: 29 July 2019JUDGMENT OF DUNNINGHAM JIntroduction[1] Mr Paterson appeals his conviction for wilful trespass. Mr Paterson pleadedguilty to that charge in the District Court and was subsequently convicted and orderedto appear for sentence if called upon within nine months. Mr Paterson now takes issuewith his conviction on the grounds that he was not on the property in question, butrather on adjacent Crown land. He was found at the site of the water tank for theHari Hari water supply. He now argues that information supplied by the WestlandCouncil mapping system places the tank outside the farm property in question so heshould not have been convicted.[2] The issue on appeal thus, is whether the water tank Mr Paterson was found tobe near, is on the rural property in question, or whether it is on adjacent Crown land.Background[3] There is some history to these proceedings. On 28 March 2019, Osborne Jissued a minute following a telephone conference that day. He noted that the evidencefiled by the police had left the question of the location of the water tank unclear,particularly because the aerial photos attached to that evidence did not clearly containthe marks which counsel for the police said they did in his memorandum. Anopportunity was given for the filing of any further affidavit evidence and memorandaof submissions by both Mr Paterson and police. After some delays, both Mr Patersonand the police have filed further affidavit evidence.Facts[4] The police Summary of Facts alleges that on 25 August 2018 Mr Paterson,together with Daniel Hunt, entered the Wilberg Farm property located at 4093State Highway 6, Westland. They were seen on camera walking around a water supplytank located on the property.[5] Mr Paterson had previously been served with a trespass notice warning him tostay off the property. Included with the notice was a map of the area, showing theboundaries of the property.[6] In his explanation to police, Mr Paterson stated he did not think the water tankwas on the property; that the map given with the trespass notice was not clear; and thereason for his being at the water tank was to ensure no 1080 pellets had got into thewater supply.Principles on appeal[7] Section 232 of the Criminal Procedure Act 2011 provides that the High Courtmay only allow an appeal against conviction if satisfied that the trial judge "erred inhis 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." 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.1 In this section, a trial includes a proceeding in which theappellant pleaded guilty.2Affidavit evidenceFor the appellant[8] Mr Paterson filed a document entitled "Submission on points of appeal" dated9 May 2019. Attached to this at "A" are documents originally filed in the EnvironmentCourt. Also attached to "A" is "ATTACHMENT 1" which is labelled "Hari Hari –Whataroa Aerial Control (8126 – 8021)". This is a colour aerial map produced by theWest Coast Regional Council for the purposes of bovine tuberculosis. The map legenddescribes the red triangle placed on the map as "Whataroa Hari Hari Water Supplies",presumably marking the location of the water supply tank. There is a pink line thatappears to define the edge of an area which the map legend describes as "Re-Sown(373.449 ha)". It is unclear what this actually relates to but it does not depict theboundary of the property nor is there any detail on the map which does.[9] He also filed a document labelled "Final Submission on point of appeal" dated14 May 2019. Attached to this at "A", are documents originally filed in theEnvironment Court, including an aerial map labelled "Water Sample LocationsHarihari". This aerial map marks two points described as: "Downstream sample"; and"Upstream sample at water tank". It includes the advice underneath that the"Downstream samples have not got GPS readings" but goes on to say that the exactlocation for the Upstream reading is at GPS .E2314732: N5780589. It alsocross-references to a photograph which, presumably, is the photograph on the previouspage showing water sampling being taken at a tank on 26 January 2006. The aerialmap does not show any land boundaries.For the respondent[10] For the police Mr Whitcombe has first filed an affidavit ofConstable Callan Mark Nikora, a police constable stationed at Franz Josef in the1 Section 232(4).2 Section 232(5).Police Safety Team. Constable Nikora deposes that he attended the Wilberg Farmproperty at around 9 am on 30 August 2018. He says he spoke with the farm owner,Jon Sullivan and his farm manager, Laurens Foulger. He then went with Mr Foulgerto the farm water intake on the property. When they arrived, he says he took a videoand several photos on his iPhone of the area and the tank.[11] Constable Nikora deposes further that he began collecting water samples fromthe farm at about 1.19 pm. As part of this, he returned to the water tank accompaniedby Kerry Gordon from CRL Energy Ltd, who took several samples for his ownexamination. Mr Gordon had a GPS with him and used it to take the GPS co-ordinateswhile they were at the water tank site. Constable Nikora says he took a photograph ofthe GPS screen depicting the co-ordinates at the tank site, "NZTM E1405180N5218606".[12] Mr Whitcombe has also filed an affidavit of Constable Reuben DavidMcCormack, a senior constable working in the Criminal Justice Support Unit inNelson during January 2019. His role involved preparing prosecution files forJudge-alone trials in Nelson and Greymouth. One of the files he prepared was theprosecution of Mr Paterson. The Constable prepared a map of the scene using theco-ordinates from the photograph of the GPS unit on the file. The co-ordinates heinitially used were "NZTM E1405160 N5218606". He deposes that he nowunderstands that these numbers were incorrect and were mistakenly read from thephoto where one of the numbers was unclear, and that the correct numbers are in fact"NZTM E1405180 N5218606". He says that in any event, both sets of co-ordinatesrelate to locations that are on the property of Jon Sullivan. The Constable says hesince produced another map using the correct co-ordinates which is annexed to hisaffidavit. This map shows the location of the water tank, marked by a red dot, andshows that location as within the boundary of Wilberg Farm, the boundary beingmarked by a yellow line.[13] This is consistent with the statement obtained for the prosecution fromMr Sullivan, one of the owners of the property in question, Wiberg Farm, who saysthat the water tank is "well within my boundary".SubmissionsAppellant's submissions[14] Mr Paterson places considerable weight on the documents he refers to (beingthe colour map filed in the Environment Court showing the location of the water tankand water samples being taken), and the GPS co-ordinate of the "Upstream sampletaken at the water tank". He says that evidence "is as relevant now as it was in 2006,the water tank being in the same place". He also says "the evidence was gatheredscientifically by Landcare Research". In short, he says this evidence displaces thepolice evidence from Constable Nikora and Senior Constable McCormack, and theevidence of the owner of the property.Respondent's submissions[15] The respondent submits that the evidence it has filed "conclusively proves thatthe water tank is located on the Wilberg Farm". Constable Nikora visited the watertank site and obtained GPS co-ordinates there on 30 August 2018. Those co-ordinateswere entered by Constable McCormack into the police mapping system. He overlaidthe map with the property boundary markings according to Housing New Zealandproperty details and that map places the water tank squarely within the boundary ofWilberg Farm, land that the appellant had been trespassed from.[16] The respondent queries the relevance of much of the material filed by theappellant on appeal, saying much of it fails the test for being credible or fresh.3 Therespondent points out that the maps are hearsay evidence as there is no evidenceshowing how the maps were created, how the co-ordinates were obtained and howthey were marked on the map. Furthermore, the maps do not have land boundariesmarked on them so they do not show one way or another whether the tank is locatedon the farm. In any event, the onus is on the appellant to show there has been amiscarriage of justice. None of the evidence the appellant relies on proves that thewater tank is not on Wilberg Farm, and so he has failed to satisfy the Court that therehas been a miscarriage of justice.3 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].Discussion[17] I accept that the evidence filed by Mr Paterson is not fresh, nor has he said whyhe could not raise these issues in the District Court before he pleaded guilty to thecharge. However, I am minded to extend some latitude to him as a litigant in person,particularly when there were difficulties identifying the exact location of the watertanks from the respondent's original affidavit evidence, and latitude was extended tothe respondent to file more explicit evidence.[18] That said, I consider that large tranches of the further evidence Mr Patersonhas sought to file are entirely irrelevant. They deal with Mr Paterson applying for anenforcement order against certain parties in relation to the discharge of 1080 poisonon the land, and I take no account of that evidence.[19] While evidence as to the exact location of the tank is relevant, I do not find themaps and related evidence filed by Mr Paterson assists on that issue as neither mapshows the location of the boundary of the Wilberg Farm property. In contrast, theevidence filed by the police does show the boundary of the farm and that the watertank is located within that boundary.[20] Furthermore, the maps adduced by Mr Paterson are technically hearsayevidence. There is no evidence as to their genesis or creation. It is not clear why acompletely different set of GPS co-ordinates is given for the water supply tanks fromthat given by the respondent's witnesses. In any event, on their face, it is not clear thatthey show the tank in a position which is outside the Wilberg Farm property.[21] In the absence of cogent evidence to suggest the respondent's evidence isincorrect or unreliable, Mr Paterson has been unable to show that there has been amiscarriage of justice in the entering of the convictions against him. Accordingly, hisappeal is dismissed.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To: Appellant and Respondent