A v Police HC Whangarei CRI-2006-488-43
[2007] NZHC 168
•19 March 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2006-488-43
A
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 13 December 2006
Counsel: G R Anson for Appellant
P J Magee for Crown
Judgment: 19 March 2007 at 10 am
JUDGMENT OF BARAGWANATH J
This judgment was delivered by Justice Baragwanath on 19 March 2007 at 10 am pursuant to Rule 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:………………………
Solicitors:
Crown Solicitor, Whangarei
Counsel:
Mr G R Anson, Kerikeri
A V NEW ZEALAND POLICE HC WHA CRI-2006-488-43 19 March 2007
[1] This appeal is against conviction for breach of s 49(1)(a) of the Domestic Violence Act 1995 which makes it an offence without reasonable excuse to do any act in contravention of a protection order (s 13).
[2] The grounds are that the appellant honestly, although wrongly, believed that the order had expired; and alternatively, although inconsistently, he claims to have forgotten about the order and in either event, because he lacked mens rea, no offence was committed. It is necessary to consider both grounds. For the reasons that follow each fails.
The without notice temporary protection order
[3] The police prosecutor produced under rule 16 of the Domestic Violence Rules 1996 a certificate by the District Court bailiff that on 28 August 1997 he served on the appellant a without notice application for protection order and a temporary protection order dated 27 August 1997. No copy of that order was produced but in the absence of challenge it may be inferred that it was in the form DV16 prescribed by the Domestic Violence Rules. That form is headed:
TEMPORARY PROTECTION ORDER
Section 14, Domestic Violence Act 1995
Upon application without notice the Court made a temporary protection order against [Full name] the respondent….
Person/s protected by the order (protected person/s)
This order protects the following person/s: [Full name of applicant]
[Full name of each child of the applicant’s family]
It is a condition of this order that –
1. The respondent… must not – …
(d)Engage… in… behaviour… which amounts to psychological abuse of any protected person.
[4] The form contains on a subsequent page:
IMPORTANT INFORMATION FOR RESPONDENT…
Effect of temporary protection order
The applicant has made an application to the Court for a protection order, and this order has been made without notice first being given to you. A copy of this application and related papers –
(a) Accompany this order; or
(b) Will be served on your shortly; or
(c)May be obtained from (*the Court that made the order) (*[Specify place]).
This order is a temporary order.
(*If you do nothing after being served, this order will automatically become a final order 3 months after the date on which it was made. If you wish to dispute this order, you must notify the Court as soon as possible.)
(*The Court has directed that a hearing be held in relation to (*the whole of this order) (*specified parts of this order).
This hearing will take place whether or not you wish to appear. If you wish to dispute any part of the order, you must notify the Court as soon as possible.
If you do nothing, (*the Court may make a final order in your absence). (*the parts of the order in relation to which a hearing is not required will become final 3 months after the date on which this order was made and the Court may confirm the other parts of the order at the hearing.))
…
Prohibition on contact with a protected person
The effect of this order is to prohibit you from having contact with any protected person in any of the ways set out in the order. This order may also contain special conditions relating to contact between you and a protected
person. You should read the terms of the order very carefully to find out what contact you may or may not have with any protected person.
…
Consequences of a breach of this order
If, without reasonable excuse, you –
(a) Contravene this order; or
(b) Fail to comply with any condition of this order;…
you commit an offence. The maximum penalty for this offence is 6 months’
imprisonment or a $5,000 fine, or both…
The legislation
[5] Section 14 to which the form refers authorises the Court to make a protection order. Section 19 stipulates standard conditions of protection order and states:
(1) It is a condition of every protection order that the respondent does not –…
(d) engage… in… behaviour… which amounts to psychological abuse of the protected person;…
[6] Section 13 provides that a protection order may be made on an application without notice if the Court is satisfied that the delay that would be caused by proceeding on notice would or might entail a risk of harm or undue hardship to the applicant or to a child of the applicant’s family or both. Section 13(3) provides:
A protection order made on an application without notice is a temporary order that [unless the respondent notifies an intention to appear or the Court so directs or it is discharged] becomes final by operation of law three months after the date on which it is made.
[7] By s 77 no temporary order becomes final unless the respondent has been served with a copy of the order no less than ten clear days before the expiration of three months after the date on which it is made. By s 45 a final protection order continues in force until it is discharged.
[8] The prosecutor produced a sealed “protection order” in form DV17 which includes the statement:
Upon application the Court makes a protection order against SIONE SIALE ALOFAKI, the respondent.
Upon application without notice the Court made a temporary protection order against SIONE SIALE ALOFAKI, the respondent on 27 August 1997, which order is now final in whole without modifications
[the italicised words were added in hand-writing].
[9] The order recited the standard conditions including the prohibition on psychological abuse of a protected person and recorded that the Court had directed the respondent to attend a programme Living without Violence and was to attend for the first time on 14 October 1997 at 7 pm at Community Corrections, Centre, Station Road, Kaikohe. The document contains a note:
IMPORTANT INFORMATION FOR RESPONDENT…
Effect of protection order
This order is a final protection order that lasts indefinitely…
[10] The document recited the consequences of breach including a potential sentence of imprisonment of up to six months, a $5000 fine or both.
No service of final order
[11] There is however no evidence that the “protection order”, which may be taken to be the final order, was ever served. Neither the Act nor the regulations requires such service.
[12] While rule 43 requires the Registrar to serve applications and confers a discretion to serve or cause to be serve “any other document required for the purpose of any proceedings under the Act” there is no express requirement for service of the final order. Yet regulation 61 provides that on the making of a temporary order or a
final order the Registrar must ensure that a copy is made available without delay to the District Commander at the appropriate police district headquarters.
[13] I was not informed whether it is the normal practice of the Registrar to serve or cause to be served a final order on the respondent and whether the absence of proof of any such service is simply an oversight in the present case. It is necessary to deal with the appeal on the basis that the final order was never served.
The evidence
[14] The appellant was interviewed by a constable on 26 March 2006. The statement included the following passages:
Q. You know your wife has a protection order against you, correct?
A.It’s only a curfew. I thought it was only bail conditions. I have received no protection orders.
Q. Has your wife ever had a protection order against you? A. Yes.
Q. How long ago was that? A. I can’t remember.
Q. Are you aware that protection order still stands?
A.I didn’t know the protection order still stands. As I said I thought it was just bail conditions…
Q.Do you understand the protection order doesn’t permit you to go near [the complainant]?
A.Yeah I understand protection orders but I didn’t know it was still valid. I do understand protection orders just didn’t know how long they last.
[15] The appellant gave evidence. He was asked in chief:
I want to finally draw your attention particularly to what you said in your statement to Constable Syddall regarding your protection order, whether it was still in force or still current. Do you remember what you said to the Police about that?… Certainly.
Is what you said to the police correct or incorrect?… That’s correct. When they sent the protection orders in 1997 my English wasn’t that… good level of understanding, some of vocabulary, so I, it’s just that, and I didn’t read much about the whole thing, I can’t understand how it valids, how it lasts the whole thing, the whole protection orders. So… my recall at the time is the same thing that I explained to my wife, I didn’t know there was any protection orders still valid. I didn’t know how the protection orders stand or last, a lifetime or I don’t know, I couldn’t understand… A trespassing order is two years and I thought the standard of protection orders is the same, is quite similar but I didn’t know…
[16] Cross-examined by the prosecutor he said:
I said to [the constable] that night “I don’t know anything about protection orders” but she shows me a copy for me to verify I have protection orders due on me but my answer that night I said I didn’t know anything about protection orders still valid.
The judgment of the District Court
[17] In an oral judgment Judge McDonald stated:
[2] A final protection order was made against the defendant on
29 November 1997. An earlier temporary protection order made without notice was made by the Court on 27 August 1997. It contained the standard
conditions which included that the respondent, that is the defendant, not
engage or threaten to engage in any other behaviour, including intimidation or harassment, which amounts to psychological abuse of any protected person.
[3] The first issue therefore to be decided is whether the defendant knew of the existence of the order. When he was spoken to by Constable Syddall on 26 March 2006 he was asked “has your wife ever had a protection order against you” to which he answered “Yes”. Further at page four he is asked a question “Do you understand that the protection order doesn’t permit you to go near Tania”, he answered “Yeah, I understand protection orders but I didn’t know it was still valid. I do understand protection orders, just didn’t know how long they last.” On that evidence alone I would have found it proved beyond reasonable doubt that he was aware of the order. He, however, has given evidence and the effect of his evidence was that he knew that there was an order that had been made but wrongly considered that it only was valid for two years, the same as a trespass notice that is served on a person.
[4] So I find it proved beyond reasonable doubt that he was aware that a final protection order had been made against him and that he knew the effect of such order. A final protection order, as a matter of law, remains in force until it is discharged or the respondent dies. Every citizen is presumed to know the law. Therefore it is not a defence to a charge, such as this, for a defendant to say that he wrongly understood the length of time for which a protection order was to remain in force.
[5] The only mens rea elements that the informant needs to establish is that he was aware of the existence of a protection order and that he was aware that he was engaging in the conduct that he was on the day in question. He need not even know on the day in question that his conduct was in fact breaching the protection order. I refer to A v Police [1999] 2 NZLR
501. I am also helped by that decision as to the purpose behind protection orders generally where Justice Baragwanath quotes an earlier judgment of
his own in Wai v Wai HC AK 122/97 (Baragwanath J, 27 February 1998).
Therefore on the evidence I find it proved beyond reasonable doubt that as
I say he was aware of the order. It is not a defence that he 1 [1999] 2 NZLR
501 2 HC Auckland 122/97 (Baragwanath J, 27 February 1998) may have wrongly assumed that it went for a specified period of time which had
elapsed by 25 March 2006…
Submissions
[18] Mr Anson challenged the statement in A v Police at 505-6:
Since no element of intent is required to qualify for subjection to a s 14 order, the overall system of protection would be deficient if pursuit of the same conduct did not constitute breach of the order. It follows that no mental element is required to be established beyond awareness of the existence of the protection order and the knowledge of engaging in conduct, which distinguishes the case from one of automatism…
It therefore becomes necessary to consider the meaning of “reasonable excuse” which Parliament has stipulated by way of protection for a defendant. I respectfully adopt the formulation of Randerson J in Hargrave v Police (1998) 17 FRNZ 124 at p 132 where he stated:
“In my judgment, the scheme of the Act, including in particular s 49, is that the prosecution need only prove the act of contravention of the order and knowledge by the defendant of the order and its terms (refer MOT v Millar [1986] 1 NZLR 660 in the context of the offence of driving while disqualified). It is then for the defendant to prove the existence of ‘reasonable excuse’ on the balance of probabilities (s 67(8) of the Summary Proceedings Act 1957 and Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680, 684 –
685 per Williamson J).”
[19] The focus of A v Police was conduct which the defendant claimed believed to be reasonable and which it was held was to be measured by the objective test of what an ordinary New Zealander would consider would be reasonable in the circumstances.
[20] Mr Anson submits that the appellant had an honest belief in the existence of a fact (the expiration of the protection order) which if true would make his actions
innocent; that alternatively he had no continuing knowledge of the order and therefore he lacked mens rea. He cited the formulation in Millar of the presumption as to mens rea which the Court will make in the absence of a clear indication of legislative intent or overriding judicial history (per Cooke P at p 668).
[21] To the Crown argument that the case falls within s 25 of the Crimes Act:
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.
the appellant responds that knowledge of the protection order is an element of the offence: not a defence to it. The appellant submits that s 25 has no application because there has been no finding of the mens rea element which, it is submitted, must be proved: R v Christiansen (2001) 19 CRNZ 256 at [19]. He cites Durey v Police (1984) 1 CRNZ 392 at 396 per Barker J:
Where a person acts under a mistake of law which precludes him from having the requisite mental element for a particular offence, he cannot be guilty of that offence. This is so long as the mistake was honestly entertained whether or not it was reasonable to have made it.
Discussion
[22] The issue is whether the appellant’s ignorance, mistake or forgotten knowledge negates a mens rea element of the offence. There is no doubt in point of law that the temporary protection order, duly served on the appellant on 28 August
1997, contained the condition that the appellant must not engage in behaviour amounting to psychological abuse of the protected person. There has been no finding contrary to the appellant’s evidence that he was either unaware of the duration of the order beyond two years or that he has forgotten about it. The question is of legal significance of that evidence.
[23] Mr Anson puts at the forefront of his argument the statement by Cooke P in
Millar v Ministry of Transport at p 669:
The reasons why Taylor v Kenyon [1952] 2 All ER 726] and cases following it have imposed absolute liability for driving while disqualified have never been fully articulated. In so far as they may reflect a sense that the
defendant has flouted an order of the Court they are out of harmony with the ordinary rule that a person is not punished for contempt of Court, as by disobeying an injunction, unless he has proper notice of its terms. See 9
Halsbury’s Laws of England (4th ed), paras 66, 67 and 75. The wilful blindness rule, carefully applied, should be a major safeguard against spurious claims of lack of knowledge.
…mens rea, in the sense of guilty knowledge, should be understood to be an ingredient of the offence. But, on proof that a disqualification order still in force was duly made against the defendant, his knowledge of the disqualification is naturally to be assumed in the absence of evidence suggesting otherwise. If there is such evidence, the prosecution must affirmatively prove knowledge beyond reasonable doubt.
(Emphasis added)
[24] In Hargrave v Police Randerson J said at 132:
In my judgment, the scheme of the Act, including in particular s 49, is that the prosecution need only prove the act of contravention of the order and knowledge by the defendant of the order and its terms (refer Ministry of Transport v Millar [1986] 1 NZLR 660 in the context of the offence of driving while disqualified).
At 131 Randerson J emphasised that:
While the Act places proper emphasis on the protection of the complainant, the rights of the person against whom a protection order is made are not to be disregarded, particularly where a breach of the order may result in exposure to criminal conviction and potentially serious penalties. Such a person is entitled to know the precise scope of the terms of the order so as to ensure that he or she does not breach the order.
(Emphasis added)
[25] Other judges have preferred the approach that those aware of the making of protection orders are treated as knowing their terms. Skelton v Police [1998] NZFLR
102 concerned a breach of a “deemed” protection order (originally a non-molestation order under the Domestic Protection Act 1982, which the Domestic Violence Act then deemed to be a protection order). Chisholm J said at 105:
Persons required to observe protection orders are deemed to have notice of
[their] contents, including the standard conditions specified in s 19.
[26] Walker v Police HC AK CRI-2004-404-362 1 August 2005 is to like effect. Potter J held at [34] that:
If the appellant knew of the protection order then he is deemed to know of the standard statutory conditions of that protection order…
Potter J cited the passage from Skelton in support. She continued at [36]:
Being aware that a protection order was in force against him for the protection of the complainant, as was clear on the evidence accepted by the District Court Judge, the appellant cannot then claim that he did not know the terms and conditions of the order which are statutorily imposed, including the provision in s 19(2)(c) cited above.
[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.
Decision
[29] The appeal is dismissed. If the Crown seeks costs it may file a memorandum within seven days to which the appellant may respond within a further seven days.
W D Baragwanath J
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