KM v Police [2013] NZHC 395 (5 March 2013)

Last Updated: 15 March 2013

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF APPLICANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000087 [2013] NZHC 395

BETWEEN KM Applicant

AND NEW ZEALAND POLICE Respondent

Judgment (on the papers): 5 March 2013

_{JUDGMENT OF COLLINS J}

Introduction

[1] On 19 November 2012 I dismissed Ms M’s appeal against conviction but allowed her appeal against sentence. Ms M had appealed her conviction for breaching a protection order.[1]

[2] The events leading to Ms M being charged arose out of the breakup of Ms M’s relationship with Mr L. The circumstances surrounding the breakup of that relationship led to a protection order being issued in favour of Mr L on 24 April

2008. On 14 May 2010 the protection order was extended to include Mr L’s new

_partner.

KM V NEW ZEALAND POLICE HC WN CRI-2012-485-000087 [5 March 2013]

[3] On 3 July 2012 Ms M went to the home occupied by Mr L and his new partner at about 10.30pm. Initially Ms M put identification at issue at the District Court hearing. However, during the course of the hearing it emerged that identity was not an issue. The key issue was whether Ms M had a lawful excuse for being at the address of her former partner. It was Ms M’s case that she went to Mr L’s home to serve Family Court documents and that her intention to serve those documents provided her with a lawful excuse to be at the address.

[4] I summarised the relevant evidence in [4]-[8] of my 19 November 2012 judgment. It is not necessary for me to repeat that evidence. Suffice to note:

(1) Ms M did not leave documents at the address;

(2) Ms M accepted she could have served the papers in question on Mr L’s lawyers. However, she said they had apparently refused to accept service.

Application for leave to appeal

[5] On 24 December 2012 Ms M filed an application for leave to appeal my judgment. No grounds of appeal were explained in the application.

[6] On 8 February 2013 I issued a Minute in which I explained that leave could only be granted:

(1) on a question of law, which

(2) by reason of its general and public importance, or for any other reason, ought to be submitted to the Court of Appeal for decision.

I invited Ms M to file a memorandum explaining her proposed grounds of appeal and advised that I would in due course issue a decision on the papers.

[7] Ms M filed a comprehensive memorandum on 13 February 2013 in which she identified the following two possible questions for the Court of Appeal:

(1) “Under what circumstances does a ‘Protected Person’ under Section 2 and/or s 16(2) of the Domestic Violence Act 1995, actions or inactions (as the case may be) over[r]ide lack of ‘express consent’ under the standard conditions of a Protection Order, enabling the Respondent under ‘Statutory Authority’ defence, and ‘common law doctrine of necessity’ and the fundamental principles of natural justice, and the provisions of the New Zealand Bill of Rights [Act]

1990, allow the Respondent to enter onto land or property provide a

‘reasonable case’ in circumstances that would ordinarily amount to a trespass either under tort or in criminal law ‘but for’ the ‘implied licence’ that sanctions the alleged trespass”.

[8] Ms M suggests this issue raises a question of general and public importance because it impacts upon issues concerning access to the Family Court.

[9] The second proposed question for the Court of Appeal is expressed in the following way:

(2) “Another question of law is the visual [identification] evidence of Police Constable Whittaker at the Defended Hearing in light of s 45(1) and (2) of the Evidence Act 2006, [and] s 45(4)(d), and I rely in particular on the case of Harney v Police SC 64/2010, [2011] NZSC 107; The Police Constable’s evidence is unreliable evidence even if it is taken as ‘opinion evidence’ as per s 24 of the Evidence Act 2006.”

First proposed question for the Court of Appeal

[10] The distinction between questions of law and fact are often difficult to identify. In R v Gwaze[2] the Supreme Court held that a majority of the Court of Appeal had mischaracterised a trial Judge’s rulings as errors of fact when, as the

_{Supreme Court unanimously ruled, the errors in question were questions of law.}

[11] In the present case Ms M has made a valiant effort to cast her first proposed question for the Court of Appeal as a question of law. There are, however, two reasons why I have concluded that, despite her efforts, Ms M has not satisfied the criteria for leave to appeal.

Lack of “reasonable excuse”

[12] When deciding that Ms M’s appeal against conviction must fail, I focused upon whether or not she had a “reasonable excuse” for being at her former partner’s address at 10.30pm. My reason for focusing on this issue is that s 49(2) of the Domestic Violence Act 1995 provides that having a “reasonable excuse” for breaching a protection order is a defence to breaching a protection order.

[13] In Ms M’s case I concluded she did not have a reasonable excuse for being at Mr L’s address at 10.30pm at night because there were a number of ways that her former partner could be served with Family Court documents. For example, Ms M could have arranged for another person to serve the documents. This was a finding of fact.

[14] In my assessment, Ms M’s first proposed question for the Court of Appeal is

fact specific and cannot be disguised as a question of law.

No general and public importance

[15] Furthermore, I am far from satisfied that the first proposed question to the

Court of Appeal is of general or public importance.

[16] I appreciate that access to the Courts is a very significant issue, but it does not arise in the present case because Ms M was not being denied access to the Family Court. The effect of the protection order was that she needed to find other ways to serve Court documents on her former partner that did not involve her going to his address.

[17] Thus, because the first proposed question for the Court of Appeal does not raise a question of law, and, is not of general and public importance I find that the first proposed question of law does not satisfy the criteria for leave to appeal to the Court of Appeal.

Second proposed question for the Court of Appeal

[18] The identification evidence given by Constable Whittaker was not relied upon by the District Court Judge when he convicted Ms M. The evidence of the constable was immaterial to the final determination of Ms M’s guilt. Therefore, any question of either fact or law relating to this evidence is entirely moot and does not therefore constitute a question of public or general importance.

Conclusion

[19] For the reasons set out above, the application for leave to appeal to the Court of Appeal is dismissed.

_{D B Collins J}

Solicitors:

Crown Solicitor, Wellington for Respondent

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[1] _{Domestic Violence Act 1994, s 49(1).}

[2] R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734.