The Queen v Reihana [2001] NZCA 261; [2002] 1 NZLR 525; [2002] NZFLR 219; (2001) 21 FRNZ 293 (14 November 2001)

Last Updated: 10 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA225/01 CA329/01

THE QUEEN

V

TONI COLIN REIHANA

Hearing:	1 November 2001
Coram:	Richardson P Tipping J McGrath J
Appearances:	S P France for Appellant H F Croft as Amicus Curiae Respondent in person
Judgment:	14 November 2001

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Introduction

[1] On 6 April 2001 William Young J allowed an appeal by the present respondent, Mr Reihana, from a conviction entered against him in the District Court at Christchurch. The conviction was for breaching a restraining order made under s87 of the Children Young Persons and Their Families Act 1989 (the Act). There were other convictions, appeals against which were also allowed. They have later relevance but need not be further mentioned here.
[2] In reaching his conclusion on what can be called the molestation issue, the Judge disagreed with the decision of Heron J in Coghill v Police (1994) 12 FRNZ 347. Hence there are conflicting decisions in the High Court on the point in issue. The Judge therefore appropriately gave the Crown leave to appeal to this Court from his decision.
[3] The issue concerns the correct construction of s87 of the Act and in particular the effect of the restraint envisaged by subsection (1)(c) from contacting the child or young person in any way. A restraining order of the kind in question restrains the person concerned from “molesting the child or young person by ... contacting the child or young person in any way”. The question is whether this means that the person the subject of the order is restrained from deliberately contacting the child or young person in any way at all or is only restrained from making contact in a “molesting” way. As Mr France put it for the Crown, the question is whether any deliberate contact by the restrained person is of itself a breach of the order or must the contact be molesting in nature.
[4] William Young J’s view was that the relevant contact had to have a molesting connotation, whereas in Coghill Heron J construed s87(1)(c) as forbidding any deliberate contact. Heron J observed that to impose a test which could have regard to the outcome of the contact would defeat the purpose of the section. It is unnecessary to discuss the circumstances which led to Mr Reihana’s conviction. The issue of construction does not depend on particular instances. It is sufficient to say that in the light of his construction William Young J considered that the charge against Mr Reihana had not been established because of the innocent nature of the contact. In coming to that conclusion the Judge was influenced by the decision of Tipping J in Newlands v Police (1990) 7 FRNZ 147, a case which had been decided under s16 of the Domestic Protection Act 1982. Heron J also considered Newlands and we will therefore consider the terms of s16 as well as the relevant provisions of the Children Young Persons and Their Families Act.

The relevant legislation

[5] Section 14 of the Act defines when a child or young person is in need of care or protection in these terms.

Definition of child or young person in need of care or protection

(1) A child or young person is in need of care or protection within the meaning of this Part of this Act if—

(a) The child or young person is being, or is likely to be, harmed (whether physically or emotionally or sexually), ill-treated, abused, or seriously deprived; or

(b) The child’s or young person’s development or physical or mental or emotional wellbeing is being, or is likely to be, impaired or neglected, and that impairment or neglect is, or is likely to be, serious and avoidable; or

(c) Serious differences exist between the child or young person and the parents or guardians or other persons having the care of the child or young person to such an extent that the physical or mental or emotional wellbeing of the child or young person is being seriously impaired; or

(d) The child or young person has behaved, or is behaving, in a manner that—

(i) Is, or is likely to be, harmful to the physical or mental or emotional wellbeing of the child or young person or to others; and

(ii) The child’s or young person’s parents or guardians, or the persons having the care of the child or young person, are unable or unwilling to control; or

(e) In the case of a child of or over the age of 10 years and under 14 years, the child has committed an offence or offences the number, nature, or magnitude of which is such as to give serious concern for the wellbeing of the child; or

(f) The parents or guardians or other persons having the care of the child or young person are unwilling or unable to care for the child or young person; or

(g) The parents or guardians or other persons having the care of the child or young person have abandoned the child or young person; or

(h) Serious differences exist between a parent, guardian, or other person having the care of the child or young person and any other parent, guardian, or other person having the care of the child or young person to such an extent that the physical or mental or emotional wellbeing of the child or young person is being seriously impaired; or

(i) The ability of the child or young person to form a significant psychological attachment to the person or persons having the care of the child or young person is being, or is likely to be, seriously impaired because of the number of occasions on which the child or young person has been in the care or charge of a person (not being a person specified in subsection (2) of this section) for the purposes of maintaining the child or young person apart from the child’s or young person’s parents or guardians.

[6] The consistent theme which runs through the statutory circumstances when a child or young person is in need of care or protection is that there is something which seriously threatens the child or young person’s safety or wellbeing. This relatively high threshold for intervention is of later relevance.
[7] Section 67 of the Act states that:

67 Grounds for declaration that child or young person is in need of care or protection

A Court may, on application, where it is satisfied on any of the grounds specified in section 14(1) of this Act that a child or young person is in need of care or protection, make a declaration that the child or young person is in need of care or protection.

[8] Section 87 of which subsection 1(c) is the immediately relevant provision deals with restraining orders in these terms:

87 Restraining orders

(1) Where the Court makes a declaration under section 67 of this Act in relation to a child or young person, it may, on or at any time after making that declaration, make an order restraining any person named in the order from doing all or any of the following things:

(a) Residing with the child or young person:

(b) Using or threatening violence or causing or threatening to cause physical harm to the child or young person:

(c) Molesting the child or young person by watching or besetting the child’s or young person’s place of residence, work, or education, or by following or waylaying the child or young person in any public place within the meaning of section 2 of the Summary Offences Act 1981, or by contacting the child or young person in any way:

(d) Molesting any person with whom the child or young person is residing by watching or besetting that person’s place of residence, work, or education, or by following or waylaying that person in any public place within the meaning of section 2 of the Summary Offences Act 1981, or by contacting that person in any way.

(2) Subject to any rules made under this Act empowering the Court to make an order under this section on an ex parte application, the Court shall not make an order under this section restraining the conduct of any person unless that person has been informed by the Court of the proposal to make the order and has been given an opportunity to make representations to the Court.

[9] It is clear from these provisions that their focus is on the welfare of the child or young person. Restraining orders under s87 can be made only if the child or young person has already been found to be in need of care and protection for which the relatively high threshold has already been noted. The lettered paragraphs of s87(1) are all directed to protecting the child or young person. Thus, although paragraph (d) has as its first concern the person with whom the child or young person is residing, the protection given to that person is designed to give protection to the child or young person. This overall focus is reinforced by s90 which says that where an order is made under s87 “in relation to a child or young person” it ceases to have effect when the child or young person attains the age of 20 or sooner marries. By contrast protection orders made under the Domestic Violence Act 1995 have as their primary focus the protection of an adult, albeit children of an applicant’s family and a person with whom the applicant has a domestic relationship have the benefit of the order too: s16 of that Act.
[10] The Domestic Protection Act 1982 was the relevant statutory provision in terms of which Newlands was decided. It was repealed as from 1 July 1996. Section 16 of that Act provided:

16. Effect of Non-Molestation Order

Where a non-molestation order is in force, the person against whom it was made—

(a) Shall not enter or remain on any land or building which is in the occupation of the applicant or in which the applicant or any child of the applicant’s family dwells or is present—

(i) Without the consent (express or implied) of the applicant in any case where an occupation order or an order made under section 27(1) of the Matrimonial Property Act 1976 is in force, in the applicant’s favour, in respect of the land or building; or

(ii) Without the consent (express or implied) of the applicant in any case where a tenancy order or an order under section 28(1) of the Matrimonial Property Act 1976 is in force, in the applicant’s favour, in respect of the land or building; or

(iii) Without the consent (express or implied) of the applicant in any case where the applicant is in occupation of the land or building and there is a separation order or separation agreement in force between the parties; or

(iv) In any case, in circumstances which constitute a trespass; and

(b) Shall not molest the applicant by watching or besetting the applicant’s dwellinghouse or place of business, employment, or residence, or by following or waylaying the applicant in any public place within the meaning of section 2 of the Summary Offences Act 1981, or by making persistent telephone calls to the applicant at the applicant’s dwellinghouse or place of business, employment, or residence; and

(c) Shall not molest any child of the applicant’s family by watching or besetting the child’s place of residence or education, or by following or waylaying the child in any such public place, or by making persistent telephone calls to the child at the child’s place of residence or any other place.

[11] The first contrast between s16 of the Domestic Protection Act 1982 and s87 of the Act is that s16 had provision for consent whereas s87 does not. The second contrast is that s87(1)(c) is directed to the child or young person whereas s16(b) was directed, in a case where a child or children were involved, to the parent, usually the mother, rather than specifically to the child or children. The third contrast is between 16(b) and s87(1)(c), the latter having had deliberately added to it the words “or by contacting the child or young person in any way”. The addition of these words to a provision which commenced with the concept of molesting and was followed by apparent examples of molestation reinforces the view that the examples were and are in reality definitions of what the statute regards as constituting molestation.

The Newlands case

[12] In Newlands the issue concerned the proper meaning of the word “waylay” in s16(b) of the Domestic Protection Act. At 149 Tipping J said:

Mr Mill for the Crown was not able to point to any authority in this Court on the word “waylaying” in s16(b) and my own researches have not been able to discover any such authority either. There is however the helpful discussion of Judge Harvey in Police v Lindsay [1989] DCR 389 mentioned by Mr Mill. When first considering the present case it was my impression that the word “waylay” had connotations of lying in wait for; however Mr Mill submitted that in its context the word “waylaying” should be construed as meaning “impeding the progress of” or “hindering the progress of”. It should not be overlooked that the composite expression is “molest by waylaying”. One does not molest simply by lying in wait for someone. My initial impression as to the primary meaning of the word “waylay” is in fact supported by the definition of the word in the Concise Oxford Dictionary as follows: “lie in wait for, wait about for to rob or interview”. However the Shorter Oxford Dictionary definition is “to wait for and accost a person in the way; to stop a person in order to converse with him. To impede or intercept”.

The question is whether it is necessary for someone to lie in wait for someone else in order for it to be said that they have waylaid that other person. Some assistance can be gained from the fact that in a public place what is prohibited is the following or the waylaying of the complainant. The word “following” has no difficulties and it seems to me to be permissible to take the view that the word “waylaying” takes some colour from its association with the word “following”. “Following” implies going behind whereas “waylaying” implies standing or moving in front of someone so as to interrupt or divert them from their intended course of travel or conduct. That is consistent with the second Shorter Oxford definition. While the primary meaning may have connotations of lying in wait it is perfectly permissible to use the word “waylay” in the sense of stopping a person in order to converse with them, which is exactly what Mr Newlands did. He also impeded Mrs Walker’s progress and intercepted her.

It is my view that the prohibition against waylaying has to do with the applicant’s freedom of movement or conduct. I do not consider that it is necessary for the prosecution to prove that the defendant lay in wait for the applicant. A charge of this kind will be established if the prosecution proves that the defendant has intentionally interfered with the complainant’s freedom of movement or conduct by stopping, impeding, or intercepting her. To introduce as a mandatory consideration the concept of lying in wait would seem to me unreasonably to restrict the ambit of the word “waylaying” in a way which Parliament is unlikely to have intended. It is after all not the lying in wait per se which is important but what further action the defendant actually takes that can reasonably be described as molestation by waylaying.

[13] The correctness of that approach under the now repealed section is not in issue, albeit both Mr France for the Crown and Ms Croft who appeared as Amicus suggested that the approach was correct in terms of the legislation then in force. Mr France also suggested that there was no conflict between the approach taken in Newlands, when properly understood, and that which should be taken in the present case.

Coghill’s case

[14] Heron J discussed Newlands in Coghill at 351 in these terms:

Tipping J said he thought in the context of s16(b) the word “molest” was important, and in considering that case he examined the actions of the party and found that the appellant there was waylaid in respects which amounted to an unreasonable intrusion into the life or affairs of the complaint. However, the overriding meaning of words such as “molest” cannot in my view take away from the category of molestation which is defined in this case “by contacting the child or young person in any way”. The words “in any way” seem to me to suggest that contact is forbidden without more and that the only defence is where the contact was accidental and where there would be the absence of the necessary mens rea to constitute the offence. Obviously accidental contact would not be enough. But I am not prepared to say that in the context of protection of children or young persons there was to be some additional evidence of vexation, annoyance, or inconvenience to the child. That might be appropriate under the Domestic Protection Act when one is presumably dealing with adults. But that is not the case here. I would not read down the word “contacting” by applying a test which had some regard to the impact on the child concerned. It seems to me the Legislature has defined the categories of molestation, and deliberate contact is forbidden. Otherwise the words “in any way” have little impact. The Legislature was obviously concerned to enable orders to be made which prevented contact in any way. To impose a test which could have regard to the outcome of that contact would in my view defeat the purpose of the section.

William Young J’s decision in this case

[15] The Judge commenced by observing that the language of s87 was “borrowed, at least in part” from s16(b). He went on to say that although s16(b) was not expressed in “exactly” the same words as s87 now is, the structure of the section was similar in that there was a prohibition on molesting “by certain types of conduct”. William Young J then referred to Newlands as deciding that the listed conduct only amounted to a breach of the non molestation order if it amounted to an unreasonable intrusion into the life or affairs of the complainant. The Judge obviously saw that approach to s16 as suggesting that the concept of molestation governed the conduct, as opposed to the conduct being definitional of molestation. The crucial points are first whether the Judge was right in viewing Newlands in that way, and, if he was, whether he was right to adopt that view of s16 for the purpose of construing s87, despite the latter’s expanded language and its significantly different legislative environment and focus.
[16] The Judge next referred to Coghill as demonstrating a view different from his own that the Newlands approach should be applied to s87. He said he had difficulty with Heron J’s view in Coghill for reasons which he expressed in this way:

1. Although s87 was not lifted completely from s16 of the Domestic Protection Act 1982, the statutory structure is similar. Both sections provide for a prohibition on molesting by certain categories of conduct. I find it difficult to see how a section so structured can be construed when it appears in the Domestic Protection Act 1982 as prohibiting the specified conduct only when of a molesting nature but that s87, Children Young Persons and Their Families Act, which is similarly structured, can be construed as an absolute prohibition on the specified conduct, at least in relation to children.
2. The Judge in Coghill construed s87, Children Young Persons and Their Families Act as if the words “molesting the children or young person by...” did not appear. On the approach in Coghill, those words are purely surplusage. To construe a statutory provision as if words which appear in it are not there is a robust approach to statutory interpretation.
3. Because the statutory wording is carried through into the order which is actually served on the person who is the subject of a restraining order, that person can be expected to look primarily to the order for guidance as to what he or she may or may not do. So, a non-literal construction, particularly one which expands the categories of prohibited contact beyond what is apparent from a literal and grammatical reading of the order should be avoided. To put it in more specific terms, the appellant here could be expected to study the order closely with a view to deciding what he could or could not do. It would be unrealistic to expect him to have taken into account the policy factors referred to in Coghill, let alone have been aware of that judgment.
4. Finally, I do not see any inconsistency between my preferred approach and the phrase “in any way” on which reliance is placed in Coghill. I see the key wording as being “molesting the child or young person ... by contacting the child or young person in any way” as involving a composite concept which can be satisfied by any form of contact provided it is of a molesting nature.

[17] For those reasons the Judge indicated he was unable to agree with the conclusion reached in Coghill. Accordingly as there was in his view no evidence that the contact between Mr Reihana and his son was of a “molesting nature”, if anything to the contrary, the Judge found that the charge should not have succeeded and the appeal should therefore be allowed on this and indeed on another ground of no present relevance.

Discussion

[18] William Young J’s first difficulty with Coghill was that he saw the statutory structure of s87 as being similar to that of s16 in the previous legislation. They both prohibited molesting by certain categories of conduct. That way of putting the matter misses the point that in the case of s87, as was the position with s16, the types of conduct listed are effectively definitions of what constitutes molesting. In Newlands the Court looked to the word molesting not as controlling the meaning of the individual types of conduct listed but rather as assisting in interpreting the nature of that conduct when its precise compass was not immediately apparent. The concept of waylaying which the statute intended to be a type of molesting, required interpretation. It was interpreted by reference to the concept of which it was a defined subset. But in the case of the concept of contact in s87 there is no interpretational difficulty. Provided the contact is deliberate it is deemed to be a type of molesting which the section prohibits. Thus any deliberate contact amounts to molesting for the purpose of s87.
[19] The Judge’s second difficulty with Coghill was that if deliberate contact in itself was enough he saw the words “molesting the child or young person by” as redundant. This is not necessarily so. As Mr France submitted, the drafting is not ideal but it can be viewed in the following way. Molestation is the conduct which is prohibited. The use of the word “by” indicates that molestation is being given a statutory definition. The types of conduct then set out represent definitions of molestation. All the words thus have a part to play. In any event, any infelicity in the drafting should not be taken to control what appears to us to be the clear purpose of the provision in its statutory context. The same can be said of the Judge’s next point relating to the lay reader.
[20] His final point relates to the words “in any way”. The significance of these words is that they emphasise that the contact which a restraining order prohibits is contact of any kind. With respect to the Judge, we consider that the words “in any way” were intended to underline the fact that the type of contact which is prohibited is not limited or controlled by the concept of molestation.
[21] In his submissions Mr Reihana emphasised that if Coghill were correct s87(1)(c) would be apt to catch what he called completely innocent behaviour. We consider this argument misses the essential purpose of the provision which is to prohibit, in the interests of the child or young person, all forms of contact so that there can be no argument about the motives of the person making contact or the effect of that contact on the child or young person. A bright line prohibition may be capable in some cases of working hardship; but it can be expected that prosecutorial discretion will avoid that hardship in most if not all such cases. Bearing in mind that an order under s87(1)(c) can be made only if the child or young person is in need of care or protection, and then only if the Court considers a no contact order is necessary in the child’s interests, it is clear that Parliament must have intended that no contact should for present purposes mean no contact at all. The position is thereby fully controlled with no room for argument about motive or effect, matters which are apt to cause, particularly in this field, significant difficulty. If some contact is to be allowed it can always be made a term of the order or arranged with the advance approval of the appropriate authorities.
[22] There is force in Mr France’s submission based on the Shorter Oxford English Dictionary definition of molest, which was noted in Newlands as being “to cause trouble to, to vex, to annoy, put to inconvenience; to meddle with injuriously or with hostile intent”. As Mr France said, a common feature of much of the definition is that molestation is measured by the effect of the conduct on the person concerned. If s87(1)(c) was correctly construed by William Young J, it might be necessary to have evidence from the child or young person concerned and Parliament can hardly have intended that. If one uses as an example conduct such as “following” and the prosecution had to prove that the following was a molesting type of following it would seem inevitable that the child or young person followed would need to be called to show that they were aware of it. As Heron J held in Coghill, it must be enough to show that the restrained person was deliberately following the child. Accidental or unintentional following or contact would obviously not be caught.

Conclusion

[23] For the reasons given we consider that William Young J erred in his approach to s87(1)(c). An order made thereunder in relation to contact prohibits contact of any kind, not just contact of a so-called molesting kind. Deliberate contact is deemed to be molesting. We agree with the submissions of the Crown and of Ms Croft to this effect.
[24] The Crown’s appeal is therefore allowed in the sense of answering the question of law raised in this way. The Judge set aside the conviction which had been entered against Mr Reihana. In ordinary circumstances we would direct that the conviction be reinstated but in view of the delays which have occurred and the nature of the contact which was in issue we do not consider it necessary to do so, nor to reinstate the fine of $250 which should remain quashed. Mr Reihana has been caused significant expense in seeking to defend William Young J’s decision and we consider it would in all the circumstances be unjust if the conviction and fine were to be reinstated.
[25] There will be no order for costs on the Crown’s appeal or on Mr Reihana’s applications to which we now turn.

Mr Reihana’s cross applications

[26] Mr Reihana sought special leave to appeal from the Judge’s determinations in relation to three other charges which were unrelated to the molestation matter. The Judge allowed Mr Reihana’s appeals in those cases but directed a rehearing. It was essentially the rehearing order which Mr Reihana sought to challenge. There is, however, no legitimate basis upon which we can give leave to appeal from that decision. It raises no point of law of general or public importance in terms of s144 of the Summary Proceedings Act 1957; indeed no identifiable point of law at all. Mr Reihana’s application is therefore dismissed.
[27] He also challenged the Judge’s decision in relation to costs. That issue is academic in the light of the result of the Crown’s appeal. In any event, as a litigant in person, Mr Reihana was entitled at best only to out of pocket expenses. His application in relation to costs is also dismissed.

Solicitors
Crown Law Office, Wellington