Baird v New Zealand Police HC Wellington AP 108/01

[2001] NZHC 448

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY AP 108/01

BETWEEN MICHAEL LAWRENCE BAIRD
Appellant

AND NEW ZEALAND POLICE
Respondent

Hearing: 6 June 2001

Appearances: R Y Gardner for appellant
A M McClintock for respondent

Judgment: 6 June 2001

JUDGMENT OF DOOGUE J

[1] This is an appeal against conviction and an order to pay certain witnesses’ expenses. The appellant was convicted of a breach of s 19(2)(b) Domestic Violence Act 1995 in that while a protection order was in force against him he accosted a protected person, namely his son [J]. The offence was said to have occurred at Kawerau on 3 May 2000.

[2] The hearing in respect of the offence took place in October 2000 and March of this year, with the appellant ultimately being sentenced on 9 March 2001. He was ordered to come up for sentence if called upon within 12 months. In addition, he was ordered to pay witnesses’ expenses totalling $709.83 but was not required to pay anything else either in respect of costs or otherwise, the Judge taking into account his means.

[3] The Judge accepted that on 2 May 2000 an appointment had been arranged at the Family Court for the appellant, [J], his mother and his mother’s then partner, a Mr Huizing, to have psychological assessments in relation to Family Court proceedings which were to take place the following week. The appellant chose not to attend the assessment but instead went to Kawerau where on the evening of 2 May 2000 he was stopped by a police officer and he gave the explanation that he “had come from Wellington to check Kawerau out”. In fact, the appellant went to the property next door to where Mr Huizing was living. [J] spent a considerable time there. Mr Huizing described himself as having a support role for the mother and [J]. He and the mother did not live together but there was considerable connection between them. The Judge found that in practical terms it was clear that the appellant knew that [J] was at Mr Huizing’s property. The Judge found that a possible first physical proximity between the appellant and [J] did not constitute an offence. However, the Judge found that during second physical proximity between the appellant and [J], which on the evidence was approximately 15 feet, the appellant told [J] to “hop into” his car but [J] did not do so. The appellant subsequently told a police officer, when asked about the incident, that he only wanted to say “hello” to his son.

[4] The Judge found the appellant’s approach to the Family Court proceedings and to his son extraordinary. It appeared on the evidence that the appellant had had access to his son only once in the preceding 14 months, and that in an earlier psychological assessment. He found it strange that the appellant did not attend the subsequent assessment process to see his son there. He found it more extraordinary that the appellant went to Kawerau to “check it out” The Judge was of the view that once the appellant was aware that [J] was at Mr Huizing’s house he should have disappeared from the scene but that instead he stayed and engaged in the conversation which he found occurred with [J]. The Judge accepted Mr Huizing’s version of events and rejected those of the appellant. The Judge also accepted the evidence of the constable already noted which the appellant denied.

[5] The Judge addressed certain of the law referred to him, to which I will return. Applying that law, he accepted that on the second occasion, when the appellant did address conversation to [J], there was accosting. He took into account that it was clear that the appellant had lingered for the very purpose of having further conversation with [J] and he took into account the appellant’s explanation to the constable that he wished to have conversation with [J]. Thus he found that the requisite intent to have conversation with [J] was present and that the addressing of conversation to [J] constituted accosting.

[6] The appeal against conviction turns on the relatively narrow point of what the term “accost” means in s 19(2)(b) of the Domestic Violence Act 1995 (“the Act”). That provision states:

“19. Standard conditions of protection order

(2) Without limiting subsection (1) of this section, but subject to section 20 of this Act, it is a condition of every protection order that at any time other than when the protected person and the respondent are, with the express consent of the protected person, living in the same dwellinghouse, the respondent must not,

(a) . . .

(b) Follow the protected person about or stop or accost the protected person in any place;”

[7] The term “accost” has of recent times been considered by our courts on three occasions. The first decision to which the District Court Judge and I were referred is that of Judge Keane in Police v Adams [1997] DCR 282, 284-285. There the Judge noted at 284:

““Accost” is defined in the Shorter Oxford English Dictionary in a variety of ways. Three meanings are: “To approach for any purpose, to face, to make up to”; secondly, “to address”; and, thirdly, “to solicit in the street for an improper purpose”. There is no authority of which I am aware in New Zealand, or the Commonwealth, which gives a more precise meaning. In the United States it has received consideration. In Garners Dictionary of Modern Legal Usage (Oxford 1995), it is given the meaning “to approach and usually to speak to in an abrupt or challenging manner”. It is given a much wider range of meanings in West’s Legal Thesaurus and Dictionary. The meanings there range from “to approach someone in an offensive way”, “to annoy”, “bother”, “nab”, “button hole”, or even “greet”, “address”, “salute”.”

[8] After addressing counsel’s submissions that the word “accost” should be equated with the word “waylay”, the Judge rejected such submissions and held at 285:

“I conclude that the full spectrum of meanings given “accost” in West’s Legal Thesaurus and Dictionary, which correspond with the three in the Shorter Oxford English Dictionary, must apply.

[9] Hammond J was faced with the same issue, namely the meaning of the word “accost” in s 19(2)(b) of the Act, in an appeal C v Police (1997) 16 FRNZ 25, 27-28. Hammond J said this:

“There is no definition of the word “accosting” in s 2 of the Domestic Violence Act 1995. The Concise Oxford Dictionary gives its meaning as being “make up to and address, open conversation with . . .”. The word must clearly be given its natural and ordinary meaning. I would have thought that extends to physical actions as well as conversations; we do, after all, in ordinary everyday language sometimes use the word “accost” to describe one person physically touching or arresting the passage of another person.”

[10] The facts in those cases bore no resemblance to the present.

[11] In Pennington v Police [2000] NZAR 634, Young J was faced with the meaning of the word “accost” in the different context of s 21 of the Summary Offences Act 1981. He expressed his views on the meaning of the word in this way:

“[8] The word “accost” is defined in the Shorter Oxford English Dictionary in, inter alia, the following ways:

To approach for any purpose, to face, to make up to; to address; to solicit in the street for an improper purpose.

The expression has also been considered in various cases associated with domestic violence in particular, Police v Adams [1997] DCR 282 and Campbell v Police [1997] NZFLR 817. Those cases arose in a context broadly similar to that of the present case.

[9] I think that the word “accost” involves two features: first, physical proximity and, secondly, some element of interaction. . . .”

[12] It may be helpful to refer in more detail to dictionary definitions than the cases cited do.

[13] The definition given in the Shorter Oxford English Dictionary (3rd edn) is as follows:

Accost

1. To lie alongside; to border on; to go alongside of, to

2. To accost oneself with, keep beside (rare); to draw near to

3. To approach for any purpose; to face; to make up to, arch.

4. To address

5. To solicit in the street for an improper purpose

[14] The definition given in the New Shorter Oxford Dictionary (1993) is as follows:

Accost

A 1. Lie alongside, border (on)

2. Go alongside of

3. Approach for any purpose; assail, face. arch.

4. Approach and speak to, esp. boldly; address.

Of a prostitute: solicit in the street

B. An address, a salutation.

[15] The definition given in Collins English Dictionary (3rd edn) is as follows:

Accost

1. To approach, stop, and speak to (a person), as to ask a question, confront with a crime, solicit sexually, etc.

2. Rare. a greeting

[16] The definition given in Websters New International Dictionary (2nd edn) is as follows:

Accost Address; greeting

[17] Despite the relatively archaic nature of the word, it is not the subject-matter of any reference in any of the commonly consulted law dictionaries and, as noted by Judge Keane, does not appear to have been the subject-matter of comment in cases in other parts of the Commonwealth.

[18] While the appellant’s submissions accept that the addressing of language to [J] could in certain circumstances constitute an accosting, it is submitted that it could not in the circumstances of the present case, where [J] had voluntarily come towards the appellant, in circumstances where the appellant was unintentionally within the vicinity and where the appellant stood passively even although later speaking.

[19] However, it is clear both from the dictionary meanings of the word “accost” and the judicial observations in respect of the meaning of the word that it is, as the District Court Judge in the present case found, unnecessary for the appellant to have deliberately put himself in the physical proximity of [J]. Approaching the matter in the way that Young J helpfully did in Pennington v Police, there was physical proximity between the appellant and his son and there was an element of interaction in that the appellant addressed his son. In those circumstances it was open to the District Court Judge to find as he did that the appellant did accost his son when he addressed him when in close proximity to him.

[20] It is perhaps pertinent to point out that in the context of the section with which the District Court Judge was concerned there is deliberate recognition of the other situations of following a protected person about or stopping a protected person in any place. Thus the word “accost” does not require in context any physical interaction with the protected person. The word “accost” is used in the context of “in any place”. It falls within the dictionary meanings of the word “accost” that the accosting may occur when the protected person and the person to whom the protection order applies are in any place and the person to whom the protection order applies addresses the protected person. It should be noted the section as a whole is addressed to preventing contact with the protected person.

[21] Thus I am satisfied that it was open to the District Court Judge to find as he did on the facts of this case that the appellant did accost his son [J] and that the offence was made out.

[22] So far as the appeal against the order to pay witnesses’ expenses is concerned, that is put forward solely with reference to the appellant’s means. It appears that apart from what the Judge has said in respect of means there was nothing before either the District Court or this Court in respect of means. The Judge clearly took means into account to the extent to which he did not order the appellant to pay either court costs or the customary order to pay an amount towards the solicitor’s costs on the prosecution. The only order made by him of a monetary nature related to the witnesses’ expenses.

[23] For this Court to interfere with such an order there would have to be clear evidence before it that the order was not justified and that the appellant had no means to meet it. When there is no evidence of the appellant’s means before this Court at all, this Court could not possibly uphold that appeal.

[24] The result is that both the appeal against conviction and the appeal against the order for payment of witnesses’ expenses are dismissed.