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High Court of New Zealand Decisions |
Last Updated: 11 March 2020
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
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CRI-2019-485-57
[2020] NZHC 411
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BETWEEN
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REGAN JOEL RIZVI
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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26 February 2020
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Counsel:
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L A Caris for Appellant
K L Kensington for Respondent
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Judgment:
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6 March 2020
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JUDGMENT OF THOMAS J
[1] Regan Rizvi pleaded guilty in the District Court to a number of charges, including burglary, relating to an incident where he, while being subject to a protection order, entered his former partner’s home and assaulted her. He was sentenced to 12 months’ intensive supervision. Mr Rizvi appeals the burglary conviction on the grounds that a miscarriage of justice occurred because the admitted facts do not amount to a burglary.
[2] The central issue is whether, as a matter of law, on the admitted facts, a properly directed fact-finder could reasonably conclude that the appellant possessed the intention to commit an imprisonable offence when he entered the house without authority.1
1 As required in the circumstances of this case for a conviction of burglary.
RIZVI v NEW ZEALAND POLICE [2020] NZHC 411 [6 March 2020]
Factual background
[3] On 10 September 2017, a final protection order was issued against Mr Rizvi with his former partner, the victim, named as the protected person.
[4] The summary of facts to which Mr Rizvi pleaded guilty records that, at
12.12 am on Thursday 28 March 2019, Mr Rizvi cycled to the victim’s address. He knocked on her bedroom window and called out her name. She told him to go away. Mr Rizvi then gained access to the house through the dining room window. The victim found him in the hallway of her house and again asked him to leave. He demanded to know who had been in the house.
[5] Mr Rizvi then grabbed the victim with two hands and tried to drag her out of the house through the front door. The victim’s 10 year old son woke up, saw what was happening and shouted at Mr Rizvi to leave. Mr Rizvi then left.
[6] The victim did not give Mr Rizvi permission to enter her property or her house.
Procedural history
[7] Mr Rizvi was charged with burglary,2 assault on a person in a family relationship,3 contravention of a protection order by trespass4 and breach of release conditions.5
[8] Mr Rizvi applied to the District Court for dismissal of the burglary charge pursuant to s 147 of the Criminal Procedure Act 2011. Burglary requires the defendant to have had the “intent to commit an imprisonable offence in the building”.6 It was argued there was insufficient evidence to infer an intent to commit an imprisonable offence when Mr Rizvi entered the victim’s house. The charging document did not
2 Crimes Act 1961, s 231(a), maximum penalty 10 years’ imprisonment.
3 Section 194A, maximum penalty two years’ imprisonment.
5 Sentencing Act 2002, s 96, maximum penalty one year’s imprisonment or $2,000 fine.
6 Crimes Act 1961, s 231(1)(a).
particularise the imprisonable offence that Mr Rizvi allegedly intended to commit when he entered the house.
[9] Counsel for Mr Rizvi, Ms Caris, also appeared for him in the District Court. There, she submitted that Mr Rizvi had trespassed in breach of the protection order as soon as he entered the property and before he entered the house. Therefore it could not be said that he intended to commit an offence upon entry into the house, as he had already committed it.
[10] Judge Hastings dismissed the s 147 application.7 He observed that, while Mr Rizvi had been charged with breach of a protection order by trespass, that charge did not “control what intention the person must have on entry with respect to the burglary charge. They are separate charges containing different elements”.8 The Judge also rejected Ms Caris’ argument that Mr Rizvi would face double jeopardy, saying:
[17] Defendants who assault a protected person in breach of a protection order will often be charged with assault and with breach of the protection order notwithstanding both charges arise from the same set of facts. Each charge requires different elements to be satisfied from those facts for a defendant to be found guilty...That all three charges arise from the same incident is something the sentencing judge is able to take into account at sentencing...
[footnotes omitted]
[11] Mr Rizvi subsequently pleaded guilty to all charges.
Relevant law
[12] The appeal is on the grounds that a miscarriage of justice has occurred.9
[13] An appeal against conviction following a guilty plea will only be entertained in exceptional circumstances.10 Those circumstances include where, on the admitted facts, the appellant could not have been guilty of the offence charged.11
7 New Zealand Police v Rizvi [2019] NZDC 16036.
8 At [13].
9 Criminal Procedure Act 2011, s 232.
11 Le Page, above n 9, at [18] and McIntyre, above n 9, at [3].
[14] Turning to protection orders and their conditions, the Domestic Violence Act 1995 (the Act) specifies the standard conditions of a protection order:12
19 Standard conditions of protection order
(1) It is a condition of every protection order that the respondent must not—
(a) physically or sexually abuse the protected person; or
(b) threaten to physically or sexually abuse the protected person; or
(c) damage, or threaten to damage, property of the protected person; or
(d) engage, or threaten to engage, in other behaviour, including intimidation or harassment, which amounts to psychological abuse of the protected person; or
(e) encourage any person to engage in behaviour against a protected person, where the behaviour, if engaged in by the respondent, would be prohibited by the order.
(2) Without limiting subsection (1), but subject to section 20, it is a condition of every protection order that at any time other than when the protected person and the respondent are, with the express consent of the protected person, living in the same dwellinghouse, the respondent must not,—
(a) watch, loiter near, or prevent or hinder access to or from, the protected person’s place of residence, business, employment, educational institution, or any other place that the protected person visits often; or
(b) follow the protected person about or stop or accost the protected person in any place; or
(c) without the protected person’s express consent, enter or remain on any land or building occupied by the protected person; or
(d) where the protected person is present on any land or building, enter or remain on that land or building in circumstances that constitute a trespass; or
(e) make any other contact with the protected person (whether by telephone, electronic message, correspondence, or otherwise), except such contact—
12 Domestic Violence Act 1995 (since repealed). The Court may also impose special conditions: Domestic Violence Act 1995, s 27. There was no evidence of any special conditions of the protection order to which Mr Rizvi was subject.
(i) as is reasonably necessary in any emergency; or
(ii) as is permitted under any order or written agreement relating to the role of providing day-to-day care for, or contact with, or custody of any minor; or
(iii) as is permitted under any special condition of the protection order; or
(iv) as is necessary for the purposes of attending a family group conference within the meaning of section 2 of the Oranga Tamariki Act 1989; or
(v) as is necessary for the purposes of attending a settlement conference convened under section 46Q of the Care of Children Act 2004.
Analysis
[15] Ms Caris framed her submissions around the following issues:
(a) what was the imprisonable offence Mr Rizvi intended to commit in the house?
(b) if the imprisonable offence was a breach of s 19(2)(e) of the Act – a breach of a protection order by making contact – whether the prosecution could prove that Mr Rizvi had the intention to contact the protected person within the meaning of s 19(2)(e);
(c) if the imprisonable offence was a breach of s 19(2)(d) of the Act – a breach of a protection order by trespass – whether the prosecution could prove Mr Rizvi had the requisite intention when he entered the house given the trespass had already occurred; and
(d) whether a burglary charge should have been laid.
[16] The charging document alleging burglary did not specify what “imprisonable offence” Mr Rizvi intended to commit when he entered the house. Prior to the District Court hearing, the police indicated to the appellant that the alleged imprisonable offence was a breach of the protection order.
[17] It is not necessary for the charge to particularise the crime alleged. More specificity is required at the stage the allegation goes to the fact-finder. The Judge has a discretion to grant leave to the prosecution to amend the particulars at a later stage, should the interests of justice so require.13 In the present case, the appellant pleaded guilty after his unsuccessful s 147 application.
[18] Therefore, it was sufficient for the prosecution to advise the appellant that the alleged imprisonable offence was breach of the protection order. Further particulars identifying which particular condition it was alleged Mr Rizvi intended to breach might have assisted but were not essential. As I will now discuss, the fact-finder could have reasonably concluded that Mr Rizvi intended to breach a number of conditions of the protection order.
[19] Ms Kensington for the respondent submitted that “[m]ost simply, [Mr Rizvi] intended to make contact with the protected person”. Ms Kensington pointed out that, once he entered the house, Mr Rizvi immediately confronted the victim, demanding to know who was in the house.
[20] Ms Caris’ central argument was that Mr Rizvi’s contact with the victim did not fall within the type of “contact” covered by s 19(2)(e). She submitted that the statutory wording precluded a finding that direct contact amounts to a breach of s 19(2)(e). She reasoned that the wording “other contact” is distinct from any contact which arises from s 19(2)(a)-(d). Furthermore, in her submission, the examples of the type of contact set out in s 19(2)(e) (whether by telephone, electronic message, correspondence, or otherwise) should be read consistently with the ejusdem generis maxim so that the “otherwise” involves indirect contact only.
[21] Contact is defined in the Act as “all forms of direct and indirect interaction”.14 Ms Kensington was clearly correct in her submission that s 19(2)(e) acts as a catch-all provision to prohibit all types of contact that is not a permitted exception15 and that it
13 Kirby v R [2013] NZCA 451 at [40].
14 Domestic Violence Act 1995, s 2 definition of “contact”.
15 Domestic Violence Act 1995, s 19(2)(e)(i)-(v).
is unlikely the legislature intended s 19(2)(e) to refer to indirect contact only.16 Were that not the case, it would lead to an absurd situation whereby indirect contact would be a breach of the protection order but direct contact which did not fall within s 19(2)(a) and (b) would not.
[22] In any event, the exceptions listed in s 19(2)(e)(i)–(v) demonstrate that s 19(2)(e) is not limited to indirect contact – for example subss (iv) and (v) allow contact for the purposes of attending a family group conference and settlement conference respectively. Ms Caris suggested that the words “for the purpose of” could be read as meaning subss (iv) and (v) apply to indirect contact for the purposes of arranging any such attendance. Were that the case, the subsections would have said so.
[23] Ms Caris advocated a purposive approach to interpreting s 19. The object of the Act is:
5 Object
(1) The object of this Act is to reduce and prevent violence in domestic relationships by—
(a) recognising that domestic violence, in all its forms, is unacceptable behaviour; and
(b) ensuring that, where domestic violence occurs, there is effective legal protection for its victims.
(2) This Act aims to achieve its object by—
(a) empowering the court to make certain orders to protect victims of domestic violence:
(b) ensuring that access to the court is as speedy, inexpensive, and simple as is consistent with justice:
(c) providing, for persons who are victims of domestic violence, appropriate safety programmes:
(d) requiring respondents and associated respondents to attend non-violence programmes that have the primary objective of stopping or preventing domestic violence:
(e) providing more effective sanctions and enforcement in the event that a protection order is breached.
16 Austin v Police (2000) 19 FRNZ 373 (HC) at 376-377.
(3) Any court which, or any person who, exercises any power conferred by or under this Act must be guided in the exercise of that power by the object specified in subsection (1).
[24] Given the object of the Act, it would be strange indeed if the circumstances of this case, where Mr Rizvi broke into the protected person’s house at midnight despite being told to leave the property, was not the type of behaviour intended to be captured by s 19.
[25] The summary of facts provides an evidential foundation for the intended imprisonable offence of breach of a protection order by making contact with the protected person. Mr Rizvi knocked on the victim’s bedroom window and called her name prior to breaking into the house. Once in the house, he confronted her. Mr Rizvi clearly intended to make contact with the protected person.
[26] Ms Caris then submitted that Mr Rizvi had committed the breach of s 19(2)(d) (trespass) before entering the house and therefore it could not be said that his intention on entering the house was to breach the protection order by trespass because the trespass was already complete.
[27] There is nothing in this point.
[28] The fact a defendant is charged with breaching a protection order by one act does not preclude their being charged with burglary by intending to breach a protection order by another act.
[29] Furthermore, s 19(2)(c) specifies that the respondent must not, without the protected person’s express consent, enter or remain on any land or building occupied by the protected person. This provision could also have been relied on for the intended breach of protection order. I am not convinced of the distinction Ms Caris tried to draw between s 19(2)(c) and (d). She maintained that subs (d) applies when the protected person is present and subs (c) applies when the protected person is not present. Section 19(2)(c) is not, however, limited in terms to circumstances when the protected person is not present. To my mind, the distinction is more that s 19(2)(c)
applies to any land or building occupied by the protected person, whereas subs (d) applies when the protected person is present on any land or building.
[30] Ms Caris also referred to the definition of psychological abuse in the Family Violence Act 2018,17 which includes being present on, entering or remaining on or in land or a building which constitutes a trespass, as an example of intimidation or harassment. In her submission, this confirms that intimidation or harassment should be interpreted in the context of a trespass rather than a burglary.
[31] The reference to trespass is one of three examples given of intimidating or harassing behaviour. The fact that the examples do not include more serious offending, such as burglary of the protected person’s home, does not prevent the latter behaviour constituting intimidation or harassment and therefore being a breach of a protection order. The changes made by the Family Violence Act do not assist the interpretation of s 19 of the Act.
Should a burglary charge have been laid?
[32] Ms Caris cited three cases where a defendant charged with breaching a protection order by trespass was not also convicted of burglary:
(a) Duckett v Police,18 where Mr Duckett was convicted of breach of a protection order, two charges of assault with intent to injure and one charge of threatening to kill. Although Mr Duckett entered the protected person’s home through a window, he was not convicted of burglary.19
(b) Lutu v Police,20 where Mr Lutu was convicted of breaches of a protection order, wilful damage and an unrelated charge of theft under
$500. Although Mr Lutu repeatedly returned to the protected person’s
17 Family Violence Act 2018, s 11(1).
18 Duckett v Police [2019] NZHC 274.
19 In each of the three cases, it is not clear whether a charge of burglary was laid.
20 Lutu v Police [2018] NZHC 2037.
home and entered it without permission, he was not convicted of burglary.
(c) Palmer v Police,21 where Mr Palmer was convicted of beaches of a protection order and physical abuse. Although Mr Palmer was staying at the protected person’s house, he refused to leave when asked, and was not convicted of burglary.
[33] These cases do not preclude a finding of burglary in the present case in addition to a breach of the protection order by trespass. What charges are laid against a defendant is a matter of prosecutorial discretion. The Judge was entirely correct when he observed that there is nothing to preclude the prosecution laying different charges requiring proof of different elements arising from the same set of facts. This is a common occurrence. That all three charges arise from the same incident is something to be taken into account at sentencing.
[34] When one considers this case, the reason for the prosecutorial decision is obvious. Not only did Mr Rizvi trespass on the protected person’s property, he broke into her house at 12.00 am, despite her instruction that he go away.
[35] Ms Caris then submitted that Mr Rizvi’s behaviour did not reach the same level as that in Mitchell v R,22 where Ms Mitchell was convicted of burglary and breaching a protection order when entering the protected person’s yard and attempting to open the rear door of his house. The “imprisonable offence” was the intention to “annoy, intimate or threaten the occupants, to damage their property, or to assault the protected person”.23 Ms Caris pointed to Ms Mitchell’s surreptitious entry late at night, with no attempt to knock and announce her presence, among other factors.
[36] The Mitchell case is analogous to the present case, although notably Ms Mitchell did not gain access to the house. Given the propensity evidence in that case, there was ample evidence to infer an intention to commit an imprisonable
21 Palmer v Police [2015] NZHC 143.
22 Mitchell v R [2019] NZHC 3264 (“Mitchell”).
23 At [8].
offence.24 However, even without propensity evidence, the same could be said in the present case.
[37] When the facts of Mr Rizvi’s behaviour are considered, it is plain that there was an evidential foundation for the burglary charge, with the intended imprisonable offence being breach of the protection order. Mr Rizvi, being subject to a protection order, went to the protected person’s house after midnight and, after being told to go away, he instead climbed through a window and entered the house. He then confronted the victim. That behaviour clearly provided an evidential foundation for an intended breach of the s 19(2)(c) and/or (e) conditions of the protection order. It also provided an evidential foundation for a breach by engaging in behaviour, including intimidation or harassment, which amounted to psychological abuse of the protected person under s 19(1)(d). To contend that, in these circumstances, there was no case to answer on a burglary charge is ill-founded.
[38] There is no doubt that, on the basis of the agreed summary of facts, a properly directed fact-finder could reasonably find Mr Rizvi broke into the victim’s house intending to commit a breach of the protection order and was therefore guilty of burglary.
Result
[39] For the reasons given, the appeal is dismissed.
Thomas J
Crown Solicitor’s Office, Wellington
24 Mitchell, above n 23, at [24].
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