The Queen v Easton [2004] NZCA 43; [2004] NZFLR 683 (1 April 2004)

Court of Appeal of New Zealand

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The Queen v Easton [2004] NZCA 43 (1 April 2004); [2004] NZFLR 683

Last Updated: 18 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA265/03THE QUEEN

v

BENJAMIN MORLAND EASTON

Hearing: 15 March 2004

Coram: McGrath J William Young J O'Regan J

Appearances: Appellant in person
M F Laracy for Crown

Judgment: 1 April 2004

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1] This is an application for special leave to appeal to this Court against a decision of a High Court Judge dismissing Mr Easton’s appeal against his conviction in the District Court.

Background

[2] On 6 March 2001 an application was made to the District Court at Waitakere on an ex parte basis for a protection order against Mr Easton under the Domestic Violence Act 1995. The application was considered by a Judge who determined that it was not appropriate to make the order on an ex parte basis. He directed that the application and supporting affidavit be served on Mr Easton and that the matter be called again on 12 March 2001.
[3] On 12 March 2001 Mr Easton did not attend the hearing for the determination of the application for a protection order. The matter was therefore unopposed and the District Court Judge made a protection order under s14 of the Domestic Violence Act. The Judge also made an order under s32 of the same Act. Section 32(1) says that, on making a protection order, the Court must direct the person against whom the order is made to attend a specified programme unless the Court considers there is good reason for not making such a direction. In this case Mr Easton was directed to attend a Living Without Violence programme at Man Alive, Henderson, the first session of which was on 6 April 2001 at 5pm. Mr Easton was notified that this order had been made against him, but he decided not to attend the programme and notified Man Alive that he would not be doing so.
[4] Mr Easton was then prosecuted under s49(1)(c) of the Violence Domestic Act. That provision makes it an offence to fail to comply with a direction made under s32 of the Act to attend a programme on such occasions as are specified under s33. That matter came before Judge C J Field in the District Court at Waitakere on 22 February 2002. Mr Easton represented himself at the hearing. He accepted that he had been served with notice of the order made under s32 and that he had not attended the session of the Living Without Violence programme on 6 April 2001 as he had been directed to do. He indicated to the Judge that he did not think the order to attend the programme should have been made against him because it was a programme which dealt with violence and he said he had not been violent to his partner or to his son and daughter, and that the programme was not therefore appropriate for him. However, he accepted that he was aware of the obligation to attend the programme, that he had not been excused from attending, and that he chose not to attend. He also accepted that he had been summoned before the Family Court on 22 May 2001 and given a warning about his non-attendance but that he had decided, notwithstanding that warning, not to attend the programme. He also accepted that he had not objected to the direction to attend the programme.
[5] Judge Field found that the elements of the offence had been proven by the Crown – indeed they had been admitted by Mr Easton. The Judge noted that Mr Easton had said that his reason for failing to comply was his unwillingness to become involved in a system which he considered would not serve him or his children. The Judge noted that Mr Easton had said that the affidavit filed in support of the application for the protection order did not make any allegation of physical violence. The Judge pointed out that the term “domestic violence” is considerably broader in scope and covers behaviour other than physical violence. The Judge accepted that Mr Easton’s beliefs were honestly held but said that his holding those beliefs could not provide a defence to the charge.
[6] Having found that the ingredients of the charge had been proved, the Judge entered a conviction against Mr Easton. He then turned to the question of penalty and, having considered the alternatives open to him, determined that it was appropriate to record a conviction and discharge. He convicted and discharged Mr Easton accordingly.
[7] Mr Easton appealed against the conviction to the High Court. The matter was heard by Harrison J on 16 August 2002. The appeal against conviction was based on a number of grounds including error of fact and law, missing evidence, lack of due process, failure to make the interests of the appellant’s children paramount, invalidity of the Domestic Violence Act 1995 by reason of the New Zealand Bill of Rights Act 1990, and breaches of the Human Rights Act 1993, the Family Proceedings Act 1980, the Mental Health Act 1969 and the Crimes of Torture Act 1989.
[8] Harrison J emphasised that he had no jurisdiction to question or review the existence or validity of the protection order, or any other related orders made in the District or Family Courts. He concluded that Mr Easton’s conscious decision to defy the direction made on 12 March 2001 to attend the Living Without Violence programme at Man Alive, Henderson precluded any grounds for arguing that he had a reasonable excuse for failing to comply. He therefore dismissed the appeal.
[9] Mr Easton then sought leave in the High Court to appeal to this Court under s144 of the Summary Proceedings Act 1957. That application was heard by Laurenson J on 20 September 2002. Laurenson J outlined the test for the granting of leave in s144(1) and (2), particularly noting the basic requirement that the appeal to this Court against a determination of the High Court is on a question of law only. Laurenson J noted that Mr Easton had addressed him on the distress he felt in relation to the situation that had developed between him and his children, and Mr Easton’s concerns that New Zealand law did not properly recognise the needs of fathers. He accepted that these views of Mr Easton’s were sincerely held but noted that the application had to be dealt with within the terms of s144. He found that there was no question of law arising out of the appeal proceedings before Harrison J, and therefore found that there was no basis on which he could grant leave to appeal to this Court. He therefore dismissed the application.

Mr Easton’s application to this Court

[10] Mr Easton now seeks special leave from this Court to appeal against the High Court decision under s144(3) of the Summary Proceedings Act. That section says:

(3) Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[11] The grounds put forward by Mr Easton in support of his application were very wide-ranging. Many of them had been traversed in the District Court and High Court proceedings. In particular, he argued:

• (a) The definition of “domestic violence” in the Domestic Violence Act needs to be reconsidered to preclude it from being abused;
• (b) Under any description of violence, especially the specific definition of domestic violence in the Domestic Violence Act, Mr Easton has hurt no-one and is not a wrongdoer;
• (c) Children are important taonga, and any views about how children should be cared for must be measured against their best interests;
• (d) Accordingly, Mr Easton’s children should not be denied their rights because he is unwilling to work within the Family Court system;
• (e) Mr Easton’s conviction is inconsistent with the rights of his children to development in terms of international human rights instruments, s17 of the New Zealand Bill of Rights Act, and the Care of Children Bill 2003;
• (f) Mr Easton’s conviction should be quashed because there was no evidence to support the issuing of the protection order in the first place; and
• (g) A family group conference for Mr Easton’s separated family should be ordered under the Children, Young Persons and Their Families Act 1989.

[12] Mr Easton questions the validity of the original protection order and the direction made in the District Court on 12 March 2001 that he attend the Living Without Violence programme. It is clear that he has very strong views about the Family Court system and that he has declined to take part in any Family Court processes because of those strong views. That is a stance he has chosen to take but it does not excuse his failure to abide by an order lawfully made by the Family Court. His opportunity to inform the Family Court Judge about his views on the need for a domestic protection order and/or the need for an order to attend a programme was at the hearing in the Family Court of which he was notified, and which took place on 12 March 2001.
[13] Mr Easton asks the Court to undertake a wide-ranging review of family law and other relevant laws but the matter before the Court has a very narrow scope. The only issue which the Court can properly decide in the present proceedings is whether there is a question of law involved in the appeal which, by reason of its general public importance or any other reason, ought to be submitted to this Court for decision. In fact the issues of law involved in the original prosecution and in the High Court appeal were straightforward. The police had to prove that the order to attend the Living Without Violence programme had been made and that Mr Easton had failed to comply with it without reasonable excuse. The District Court Judge found that the elements of the offence had been proved as he had to do on the evidence before him, which largely consisted of admissions on Mr Easton’s part. For the same reasons the High Court Judge was obliged to dismiss the appeal. As there is no question of law relating to the prosecution which requires determination in this Court, Mr Easton’s application must be dismissed.
[14] We therefore dismiss the application. We make no order as to costs.

Solicitors:
Crown Law Office, Wellington