IN THE COURT OF APPEAL OF NEW ZEALAND
CA519/2016
CA651/2016
[2017] NZCA 71
BETWEEN
MATTHEW RICHARD BROWN
Applicant
AND
NEW ZEALAND POLICE
Respondent
Hearing:
9 March 2017
Court:
Kós P, Brown and Williams JJ
Counsel:
Applicant in person
F G Biggs for Respondent
Judgment:
23 March 2017 at 10.00am
JUDGMENT OF THE COURT
The 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 and
BROWN v NEW ZEALAND POLICE [2017] NZCA 71 [23 March 2017]
advised 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.4
Discussion
[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 or
1
2
3
4
5
Police v Brown [2016] NZDC 7644.
Brown v Police [2016] NZHC 2359.
Police v Brown [2016] NZDC 17000.
Brown v Police [2016] NZHC 2884.
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 was
whether Mr Brown’s fair trial rights had been denied because of the refusal to issue
the witness summonses.
This issue did not loom large in Mr Brown’s oral
submissions. 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
7
8
9
10
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].
See for example Polly v Police [1985] 1 NZLR 443 (CA).
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 the
Trespass Act 1980 if the persons exercising their right to protest on Parliament grounds do so in
a manner which is unlawful, disorderly or unduly interferes with the exercise of the rights and
freedoms of other persons?”
Brown v Police, above n 4, at [29]–[38].
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