The Queen v Hapi [2008] NZCA 527 (4 December 2008)

Last Updated: 10 December 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA595/2008

[2008] NZCA 527

THE QUEEN

v

ROGER HAPI

Hearing: 27 November 2008

Court: O'Regan, Hugh Williams and Harrison JJ

Counsel: W C Pyke for Appellant
M E Ball for Crown

Judgment: 4 December 2008 12.30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Hugh Williams J)

Introduction

[1] Just prior to the commencement of a re-trial in the Hamilton District Court the appellant, Mr Hapi, pleaded guilty to one count of breaching a protection order on 2 May 2007 at Hamilton. He was discharged under s 347 of the Crimes Act 1961 on two other counts including a further count of breaching a protection order.
[2] Notwithstanding his plea, he appealed to this Court against conviction on the basis that the final protection order served on him was invalid because it did not include the prescribed form of “Important Information” for which Form DV17 of the Domestic Violence Rules 1996 provides.
[3] The protection order was made as long ago as 30 April 1997 in the Putaruru District Court and, perhaps understandably, the Crown at Mr Hapi’s first trial and again on appeal had difficulty in obtaining evidence as to exactly what documents were served on Mr Hapi once the temporary protection order against him became final. It was only on the day before the hearing of the appeal that the relevant certificate of service required under r 60 of the Domestic Violence Rules was obtained. It showed that Mr Hapi was served with a number of documents on 17 July 1997. They included the required notice.
[4] As a result, Mr Pyke for Mr Hapi – though not instructed to abandon the appeal – responsibly accepted it had no chance of success.

Comment

[5] That notwithstanding, a brief explanation is warranted.
[6] A temporary order was obtained against Mr Hapi by his former partner on 30 January 1997. Mr Hapi was served with the order and the prescribed notices on 2 February 1997. The documents served on him complied with Form DV16 of the Domestic Violence Rules.
[7] Mr Hapi took no step to challenge the temporary protection order and as a result it became a final order by operation of law under ss 45 and 77 of the Domestic Violence Act 1995.
[8] Once a temporary order becomes final by operation of law under s 77, the Registrar of the Family Court is required by R 34 of the Domestic Violence Rules to “issue a final order in the appropriate prescribed form”. The order is accordingly valid on being issued. Perhaps curiously, there is no requirement either under the Rules or the Act for service of a final protection order on the person to whom it is addressed. Accordingly, there was no requirement for service of the order on Mr Hapi – even though the service of the order and the prescribed notice occurred in this case.
[9] Even had service of the prescribed notice not occurred, r 9(4) makes it unnecessary to comply strictly with the forms: substantial compliance is sufficient.
[10] Further, even had the prescribed notice attached to the final order not been served on Mr Hapi, there is force in the observations of Baragwanath J in Alofaki v Police [2007] NZHC 168; (2007) 26 FRNZ 676:

[27] The answer to this appeal is that the relevant characteristic of the temporary protection order, that it becomes a final order, is a legal result. Knowledge by the defendant of the fact that a temporary order has been made imputes to that person a knowledge of those legal consequences because of the stipulation by s 25 of the Crimes Act that ignorance of the law is no excuse. Since he knew of the fact of the temporary order he is deemed to know its legal consequences.

[28] Such consequence is one of well-settled public policy. Since it is the function of the Court to apply the law it would be inappropriate as well as unnecessary to lengthen this judgment by an exposition of why Parliament has adopted that policy.

[11] In light of all of the above, Mr Pyke was right to concede that Mr Hapi’s appeal had no prospect of success.
[12] The appeal against conviction is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington