The Queen v Raj [2005] NZCA 8; (2005) 25 FRNZ 218 (17 February 2005)

Last Updated: 20 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA255/04THE QUEEN

v

DEO RAJ

Hearing: 14 February 2005

Court: McGrath, William Young and O'Regan JJ

Counsel: A G V Rogers for Applicant
M F Laracy for Crown

Judgment: 17 February 2005

JUDGMENT OF THE COURT

The application for special leave to appeal against the judgment of the High Court is dismissed.

REASONS

(Given by McGrath J)

Introduction

[1] This is an application for special leave to appeal against a judgment of Randerson J delivered in the High Court at Auckland on 30 April 2004 dismissing an appeal against conviction in the District Court. The applicant had been convicted by Judge Bouchier in the District Court of breaching a protection order contrary to s 49 of the Domestic Violence Act 1995. He was fined $600 with court costs of $130 and witnesses fees of $25.
[2] The judgment which is the subject of the application for special leave to appeal against conviction was delivered in the High Court at Auckland on 30 April 2004. Randerson J dismissed the applicant’s appeal against both conviction and sentence.

Background facts

[3] On 8 January 2003 a Family Court Judge made a temporary protection order against the applicant in favour of his wife and two children. The order was made without notice to the applicant under s 13 of the Domestic Violence Act. It was served on the applicant on 3 February 2003. He promptly filed an objection to the requirement in the order that he attend an anger management programme. On 14 February a solicitor then acting for the applicant filed a notice of his intention to appear before the Family Court to be heard on whether a final protection order should be substituted for the temporary order under s 76 of the Act and r32 of the Domestic Violence Rules. Those provisions gave the applicant the right to be heard before the final order was made. Section 76 also required the Registrar to assign a date for the hearing as soon as possible.
[4] On 25 March 2003 a final protection order was made by a Judge in Chambers. The applicant had not been notified of the hearing on that day and did not appear. On 2 July 2003 the applicant made a telephone call to his wife the result of which was that he was charged with a breach of a protection order in force.

High Court judgment

[5] At the hearing of the applicant’s appeal to the High Court against conviction and sentence it was accepted by the Crown that the consequence of the failure by the Family Court to hear the applicant, before making the temporary protection order final, was that the final order was invalid. Randerson J agreed that was so, given that the applicant had not been allowed the right to be heard, to which he was entitled. The High Court then considered whether the temporary protection order continued in effect notwithstanding the events which subsequently occurred and the invalidity of the final order. The Court considered that s 45(1) of the Act governed the position:

45. Duration of protection order-

(1) A temporary protection order continues in force until-

(a) The order becomes a final order in accordance with section

77(1) of this Act; or

(b) The order lapses pursuant to s 77(4) of this Act; or

(c) The order is discharged pursuant to section 80 of this Act.

(2) A final protection order continues in force until it is discharged pursuant to section 47 of this Act.

[6] None of the circumstances provided for in s 45(1) had occurred in the present case. The temporary order had not become a final order under s 77(1), because of the failure to allow the applicant the right to be heard. Nor did it lapse for the lack of service under s 77(4). Finally the order had not been discharged following a hearing under s 80. Randerson J accordingly concluded that, applying s 45(1), the temporary protection order had not come to an end at the time of the applicant’s telephone call to the complainant and his subsequent prosecution. He said:

The scheme of the Act is clear that a protection order only comes to an end if one of the three matters contained in s 45(1)(a), (b), or (c) occurs. None of those events occurred in this case. The solution to the quandary in which a person may be placed by failure of the Family Court to provide a prompt hearing is to apply for a discharge of the temporary order under ss 13(4)(d) and 47. No such application was made by the appellant either in respect of the temporary order or the final order.

[7] Nearly three months had elapsed between the making of the temporary order on 8 January and the final order. There was a further lengthy period between the making of the final order and the telephone call on 2 July 2003 giving rise to the charge against the applicant. The applicant had not applied for a discharge of the temporary order during a total period of nearly six months leading up to the events resulting in the charge against him. The District Court Judge was of the view that, in those circumstances, the Court could rely on either the final order, or the continuing force of the temporary order, to found the conviction of the appellant for breach. Randerson J appeared to agree with that approach. The appeal against conviction was dismissed as was the appeal against sentence.

Submissions on application

[8] In this Court Mr Rogers for the applicant seeks special leave to bring a further appeal against his conviction on the following question:

Does a temporary protection order made under s 13 of the Domestic Violence Act 1995 continue to exist in circumstances where a respondent gives notice of intention to appear pursuant to s 76 of the Domestic Violence Act and a Court purports to make a final order without first giving the respondent a hearing as required by s 76.

[9] The effect of the argument Mr Rogers seeks to advance is that the failure of the Family Court to give the applicant a hearing was a procedural defect which has brought the temporary protection order, as well as the final order, to an end. He would submit that in providing in s 45 for what he described as “the ordinary circumstances in which a temporary order comes to an end”, the Act does not exclude that from being the consequence of a jurisdictional error by the Family Court. He also takes issue with Randerson J’s conclusion that it was open to the District Court Judge to accept that the prosecution could rely either on the final order or the continuing force of the temporary order contending that the final order was a nullity and that as well the temporary order was an end.
[10] Mr Rogers submitted to us that the question he has posed is one of general or public importance in law enforcement, and that it is also of a different nature to the argument addressed in the lower courts, or at least takes a more refined form such that, under the Court’s general discretion, it should permit a second appeal to proceed.
[11] The applicant also applies to have new evidence admitted at the hearing of the appeal. An affidavit has been submitted from a solicitor who first took instructions from the applicant on 13 March 2003, when he discussed with him the protection order proceeding. On 8 April 2004, following a grant of legal aid, the solicitor advised the applicant to complete an anger management counselling course before applying to discharge the final protection order. After he had done that the application for discharge of the temporary order was filed in November 2003. The phone call giving rise to the charges had by then taken place on 2 July 2003. Mr Rogers wishes to submit that this course of events provides an answer to the Judge’s criticisms of the tardiness of the applicant in bringing his opposition to the protection order on for hearing.
[12] Mr Rogers finally signals his intention to rely on the interpretative provisions of the New Zealand Bill of Rights Act 1990, and in particular s 6 which requires that enactments be given a meaning consistent with protected rights if such a meaning is available. He referred us to the recent decision of the House of Lords in Ghaidan v Mendoza [2004] 3 All ER 411 on s 3 of the Human Rights Act 1998 (UK). On the basis of that judgment he argued that in its application to the New Zealand Act the House of Lords decision indicates an ability in the Court to modify the meaning, and hence the effect, of legislation.
[13] Ms Laracy for the Crown relied on the reasoning of Randerson J and drew our attention to the decision of the High Court in Cook v Cook [1998] NZFLR 991 (Eichelbaum CJ and Wild J). That judgment is to similar effect to that which is the subject of the application.
[14] The Crown said in written submissions that the judgment from which it is sought to appeal is consistent with the scheme of the Act, whereby the temporary order will remain in force until brought to an end by one or other of the means specified in s 45. The High Court Judge was right to conclude that the wording of s 45 was clear, unambiguous and exhaustive in its effect and that it was not possible to accommodate the applicant’s theory.

Decision

[15] Mr Rogers faces a major problem in persuading us that he can raise a credible argument, with some prospect of success, if the applicant is permitted to appeal to this Court. It is not enough for him to show that s 45 does not preclude the invalidation of a temporary order as a consequence of irregularity. That proposition in itself is not controversial. To be successful, however, Mr Rogers’ argument must go on to persuade the Court that irregularities in relation to the making of a final protection order can provide the basis for the Court to invalidate the earlier temporary protection order. We are of the view that this proposition is not capable of serious argument. First it is contradictory of the statutory scheme whereby a temporary protection order is to remain in full effect until one of the events specified in s 45 occurs, or a valid final order is made. Secondly under administrative law principles, any invalidation of the outcome of the exercise of a statutory power has to be consequent on irregularities in relation to the decision or order concerned.
[16] The new evidence that the applicant would wish to call on appeal does not assist the applicant. It does no more than show that for tactical reasons the applicant was advised to, and did, defer making an application to discharge the order until completing the anger management course. Nor in any event did it meet the requirements of freshness.
[17] We would add that we see no inconsistency between the provisions in the Domestic Violence Act, for making a temporary protection order ex parte, and its continuing in effect until substituted or revoked on the one hand, and provisions in the Bill of Rights on the other. The Domestic Violence Act has its own mechanism for bringing the temporary restraints to an end, which may be initiated and brought on for prompt hearing by a person affected. That did not happen in this case.
[18] In all the circumstances, there being no question of law capable of serious argument on appeal, we conclude that, in terms of s 144 of the Summary Proceedings Act, no question of law of public importance arises or which for any other reason should be permitted to be the subject of a second appeal to this Court. The application is dismissed. There will be no order for costs.

Solicitors:
Crown Law Office, Wellington