Hutton v Police [2017] NZHC 1752 (27 July 2017)

Last Updated: 8 June 2019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000134 [2017] NZHC 1752

IN THE MATTER OF	an appeal against pre-trial ruling
BETWEEN	JOHN DANNY HUTTON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	26 June 2017
Counsel:	M J Utting for the Appellant K H Lawson-Bradford for the Respondent
Judgment:	27 July 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 27 July 2017 at 10.00 am, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Utting Law, Auckland

Meredith Connell, Auckland

HUTTON v POLICE [2017] NZHC 1752 [27 July 2017]

Introduction

[1] In a pre-trial ruling dated 22 March 2017, Judge Down ruled that a special condition in a restraining order applied to Mr Hutton.¹ That special condition provides:

John Hutton ceases using photos oh [sic] [LG] on any form of Social Media or his personal use as [LG] is not his child.

[2] “LG” is a 14 year old boy whom Mr Hutton believes to be his biological son.² LG’s parents, Mr and Mrs G, were the named “protected person[s]” in the restraining order, but LG was not.

[3] Following the pre-trial ruling, Mr Hutton immediately pleaded guilty to the charge of breaching the restraining order by placing a photograph of LG on his Facebook page.³ He was sentenced to come up for sentence if called upon.⁴ Mr Hutton now appeals his conviction on the grounds that the pre-trial ruling was in error and induced his guilty plea.

[4] The sole issue on appeal is the interpretation of the special condition. Mr Hutton says the Judge erred by ruling that the special condition should not be “read down” to suggest that it could only refer to specific or intended contact with named persons.

The offending

[5] Mr Hutton was a neighbour of the G family and was living next to the family when LG was born. Mr Hutton has held a belief that he is the biological father of LG for a number of years, since at least 2009. Mr and Mrs G categorically deny that there is any basis for such a belief.

[6] In August 2014, Mr and Mrs G applied for, and were granted, a restraining order against Mr Hutton. That restraining order identified LG’s parents as the

¹ New Zealand Police v Hutton [2017] NZDC 7688.

² Initials for both LG and his parents are used so as to protect the identity of LG.

³ Harassment Act 1997, s 25(1)(a).

⁴ Sentencing Act 2002, s 110.

protected persons. LG was not included as a protected person under the restraining order.

[7] There is a deeply unsatisfactory procedural history relating to the issuing of that restraining order, and its subsequent service. In brief, there appear to have been two orders issued by the Court, one which included the special condition at issue in this appeal, and one which did not.

[8] In the pre-trial ruling the subject of this appeal, Judge Down ruled that the order containing the special condition applied, and there is no appeal from that finding. The restraining order has been extended on subsequent occasions and will expire on 28 August 2017 unless renewed earlier.

[9] In December 2015, Mr Hutton was arrested for breaching the restraining order and for criminal harassment. Those charges relate to Facebook friend requests sent by Mr Hutton to LG, and LG’s friend. An issue was raised about Mr Hutton’s fitness to plead at the trial of those charges. He was bailed to the Mason Clinic and was subsequently made subject to a compulsory treatment order.

[10] While taking an unsupervised break from the Mason Clinic, Mr Hutton disappeared for approximately three weeks. During this time, on 8 November 2016, Mr Hutton posted a photograph of LG on his Facebook page. Mrs G filed a police statement in which she says she became aware that the photograph had been posted but she does not say how she became aware. She subsequently asked LG to log onto Facebook, and when he did so, he was able to see the photograph that Mr Hutton had posted.

[11] Mr Hutton was subsequently charged with breaching the restraining order. He pleaded not guilty to the charge and a Judge alone trial was scheduled for 22 March 2017. The previous charges were either withdrawn or dismissed, leaving the 8 November 2016 charge the only one for consideration at trial.

[12] Prior to the trial commencing on 22 March 2017, counsel for the prosecution and defence sought a pre-trial ruling in relation to three questions, namely:

• (a) Which restraining order was valid;

(b) If the special condition applied, how it should be interpreted; and

(c) Whether posting a photograph on Facebook constituted contact for the purposes of the restraining order.

[13] Judge Down gave an oral judgment on the pre-trial application following argument. Mr Hutton immediately sought a sentence indication, pleaded guilty to the charge, and was sentenced to come up for sentence if called upon within one year.

Judgment under appeal

[14] In relation to the three questions posed above, the Judge held:

(a) The second restraining order and the special condition applied; and

(b) The special condition should not be “read down” as only referring to specific or intended contact with the named protected persons; and

(c) The posting of the photograph on Facebook constituted contact for the purposes of the restraining order.

[15] The appeal only proceeds on the second of those three findings. It concerns the interpretation of the special condition. The Judge’s key reasons for that finding are set out as follows:

[21] Secondly, I conclude that the special conditions on page 2 of the second version of the restraining order do, and did, bind Mr Hutton and should not be read down by suggesting that the restraining order could refer only to specific contact or intended contact with the named persons, as potentially suggested on the third page of the document.

[22] It seems to me that Mr Hutton was subject to those special conditions which were very specific and related to aspects of Mr Hutton’s conduct which had previously caused real distress to the protected persons and indeed to [LG]. He could have been in no doubt that he was not allowed to post the images on 8 November. The fine legal arguments around whether that should be read down, given the purpose of a restraining order, could not have occurred to him and do not in any event save him from responsibility for breaching that special condition.
[23] I conclude that, given the previous correspondence, some of which I accept of course are denied by Mr Hutton, he must have realised and known that posting images of [LG] on his Facebook page, to which [L] had previously had access as a result of an invitation from Mr Hutton (although that is disputed) would, in the circumstances of this particular case and all of the previous dealings between the parties, get back to the protected persons and cause them distress.

Parties’ submissions

Appellant

[16] Mr Utting submits that Judge Down erred in ruling that the special condition “should not be read down by suggesting that the restraining order could refer only to specific contact or intended contact with named persons”.

[17] He submits that the special condition should be interpreted so as to only relate to contact with the protected persons, rather than applying broadly in any context. The question which Mr Utting says should be asked is this: “by using photographs of [LG] on social media or for his personal use, was he contacting or attempting to contact the protected persons?”

[18] Mr Utting accepts that there would be a breach if Mr Hutton had sent images to Mr and Mrs G via Facebook or some other social network, and drawn them specifically to their attention. However, in this case he submits that simply posting the photographs could not constitute a breach, unless there was intended to be contact with Mr and Mrs G.

Crown

[19] Ms Lawson-Bradford submits that the special condition should not be read narrowly, but should be construed to cover circumstances where the appellant is aware that it is likely that his Facebook post will be brought to the attention of the protected person.

[20] The object of the Harassment Act 1997 (Act), and the definition of “specified act” in s 4, are referred to in support of that submission. Ms Lawson-Bradford also
relies on the decision of Brown v Sperling.⁵ In that case, Judge Harvey said that the posting of a blog in circumstances where the poster was aware that the applicants for a restraining order were accessing her blog, and that the posts would accordingly come to their attention, was capable of constituting harassment.

[21] Finally, Ms Lawson-Bradford submits that the act of posting the Facebook photograph was an act that affected LG’s parents, as well as LG, and that this conduct was therefore within the scope of the special condition.

Approach on appeal

[22] The appeal is against conviction under s 229 of the Criminal Procedure Act 2011. Section 232(2)(b) and (c) provide that the Judge can only allow an appeal if he or she is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that “a miscarriage of justice has occurred for any reason”.

[23] A miscarriage of justice means any error, irregularity or occurrence in relation to or affecting the trial that created a real risk that the outcome was affected or resulted in an unfair trial or a trial that was a nullity.⁶ A “real risk” is a reasonable possibility that a not guilty or more favourable verdict would have been delivered if nothing had gone wrong.⁷

[24] Section 232(5) states that the word ‘trial’ includes a proceeding in which the appellant pleaded guilty (as was the case here). However, it is only in exceptional circumstances that an appeal against conviction will be entertained following the entry of a guilty plea.⁸ Where an appellant has fully appreciated the merits of his or her position, and made an informed decision to plead guilty, the conviction cannot be impugned.⁹

⁵ Brown v Sperling [2012] DCR 753 (DC) at [230]–[231].

⁶ Section 232(4).

⁷ Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

⁸ R v Merrilees [2009] NZCA 59 at [33]; R v Proctor [2007] NZCA 289 at [4]; and R v Le Page

[2005] NZCA 67; [2005] 2 NZLR 845 (CA) at [16].

⁹ R v Proctor, above n 8, at [7].

[25] As the Crown accepts, this case falls within the third category identified by the Court of Appeal in R v Le Page.¹⁰ That category covers cases where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law.¹¹

Did the Judge err in interpreting the special condition?

[26] The issue on appeal has been framed as one of interpretation of the special condition. Mr Hutton says that the condition should be “read down” so as to only capture conduct which is directed towards the protected person.

[27] The starting point is the plain meaning of the words. I accept that the terms of the special condition could be better drafted. It may be appropriate to address that at the renewal stage. However, I agree with Judge Down that the meaning of the condition is plain. It clearly captures the posting of the photograph of LG on Facebook.

[28] There is nothing in the condition itself which invites a distinction to be drawn between the posting of photographs in some circumstances, and the posting of photographs in others. To construe it in that way would inject a level of uncertainty as to what circumstances would constitute a breach, and what circumstances would not. That would undermine the very purpose of a special condition to a restraining order which provides clarity for both the protected person and the restrained person as to the nature of the prohibited conduct. There is no basis to interpret the special condition to introduce an ambiguity as to its scope.

[29] Underpinning Mr Hutton’s submissions is the contention that the posting of a photograph of LG on social media is not capable of constituting harassment of LG’s parents, being the protected persons under the restraining order. However, the provisions of the Harassment Act capture all sorts of conduct directed towards persons and their families, and are wide enough to capture the posting of the photograph in this case.

¹⁰ R v Le Page, above n 8.

¹¹ At [17]–[19].

[30] “Harassment” is broadly defined under the Act.¹² Relevantly, for this case, it includes a “specified act” which in turn is defined to include:¹³

giving offensive material to a person by placing the material in any electronic media where it is likely that it will be seen by, or brought to the attention of, that person ...

(emphasis added)

[31] Furthermore, conduct which is directed towards a protected person is also defined to include conduct directed towards that person’s family members, if the doing of the act is due wholly or partly to that family relationship.¹⁴ In the circumstances of this case, conduct which is directed at LG would appear to be conduct directed at Mr and Mrs G, because it directly challenges their family relationship, namely their parentage of LG.

[32] Accordingly, the posting of photographs on Facebook in circumstances where “it is likely to be seen by, or brought to the attention of” LG or his parents is capable of constituting harassment of LG’s parents, in my view. Judge Down found that the posting of the photograph on Facebook constituted contact for the purposes of the restraining order.¹⁵ He also found that Mr Hutton must have realised and known that posting images of LG on his Facebook page would get back to the protected persons, and cause them distress.¹⁶ There is no challenge to those findings on appeal.

[33] Therefore, there is no need to interpret the condition narrowly so as to only capture conduct which is more directly aimed at the protected person (such as the sending of the photograph to LG’s parents by email or other electronic communication). The conduct prohibited by the special condition is capable of constituting harassment of LG’s parents, as is made clear by the provisions of the Harassment Act.

¹² Section 3.

¹³ Section 4(1)(ea).

¹⁴ Section 5.

¹⁵ At [23].

¹⁶ At [23].

[34] In any respect, whether or not the prohibited conduct described in the special condition is capable of constituting harassment is an enquiry which is relevant at the time the condition is imposed, rather than at the time it is enforced. In other words, it is an enquiry which relates to the power of a Judge to impose a special condition, rather than the meaning of that condition at the time of breach.

[35] The Judge who imposed the special condition in this case expressed some initial reservations about his jurisdiction to do so, but subsequently granted the restraining order subject to that condition. There was no challenge to the Judge’s power to grant that condition at the time it was imposed, and there has been no challenge since. The validity of the condition is therefore not in issue in this appeal.

[36] Nevertheless, the issues raised in this appeal may require the scope of the special condition to be carefully considered at the time of renewal. An order represents a significant restriction on the rights of an individual to freedom of expression. Such a restriction is only justified if it is “reasonably necessary” to protect the applicant from further harassment.¹⁷ If special conditions are to be imposed, they must be carefully tailored to meet that objective. There is no power to impose a blanket ban on all conduct to which a protected person takes offence.

[37] Further, careful consideration should be given to the person to be protected from the harassment. It is preferable that all those who are to be protected from the harassment should be specifically named as a protected person. And, if a child under the age of 16 years is to be protected, then consideration should be given to an application in their name under s 11 of the Act.

[38] However, on the issues in the appeal before me, I am satisfied that the Judge did not err in declining to “read down” the special condition. Accordingly, Mr Hutton’s guilty plea was not induced by an erroneous pre-trial ruling, and there has been no miscarriage of justice. The appeal against conviction must be accordingly dismissed.

¹⁷ Section 20(1). See also Beadle v Allen [2000] NZFLR 639 (HC) at [58].

Result

[39] The appeal is dismissed.










Edwards J