Holloway v Police

[2014] NZHC 1626

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-000007 [2014] NZHC 1626

BETWEEN  JAMES HOLLOWAY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   3 July 2014

Counsel:                  W Hawkins for Appellant

MJM Mitchell for Respondent

Judgment:                11 July 2014

JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 11 July 2014 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Public Defence Service, Hawke’s Bay.

Crown Solicitor, Napier.

HOLLOWAY v NZ POLICE [2014] NZHC 1626 [11 July 2014]

Introduction

[1]      On 17 June 2013 the appellant, James Holloway, became involved in a heated argument with his former partner in the lounge of her home.  He became angry and grabbed the television that was on the cabinet in the room and threw it on the ground, smashing it.  When he was apprehended by the Police he explained that he smashed the television because he was angry.

[2]      Mr Holloway appeared in the Hastings District Court on 18 June 2013 before Judge Gittos.  He pleaded guilty and deposed that he would replace the television. He was sentenced to a fine of $250 with Court costs of $132.89, and by consent a protection  order  was  made  in  favour  of  the  complainant  under  s 123B  of  the Sentencing Act 2002. A special condition of that order was that Mr Holloway attend a counselling programme.

[3]      The counselling programme was what is known as the Dove programme. Mr Holloway decided he did not want to be part of this programme and refused to attend.   As  a  result  he  was  charged  with  failing to  attend  a  domestic violence programme.  He entered a plea of not guilty to that charge.  He did so on the basis that a protection order should not have been made against him in the first place.  He also at that point, on 5 February 2014, filed a notice of appeal out of time against his sentence and the protection order under s 116 of the Summary Proceedings Act 1957.

[4]      As the appeal was out of time Mr Holloway required an extension of time to appeal  under  s  123  of  the  Summary  Proceedings Act.    His  application  for  an extension of time to appeal and the appeal came before Katz J for hearing on 4 June

2014.

[5]      There  had  been  a  change  of  counsel.     A  barrister  had  appeared  for Mr Holloway at the initial hearing.   After the initial hearing, the Public Defence Service had then been briefed and it had filed the notice of appeal and pursued the application for an extension of time.  Before Katz J an issue arose at the outset of the hearing whether Mr Hawkins of the Public Defence Service was entitled to appear, and whether the Court had jurisdiction to determine the appeal as a criminal appeal.

[6]      This preliminary issue was raised because Mr Hawkins had become aware of the decision of Essel v Police.1   As a consequence of that decision the question arose whether an appeal from a protection order made in the circumstances of a criminal sentence should  follow  the  usual  appeal  process  for criminal  appeals  under the Sentencing Act, or whether instead the correct procedure was to treat the protection order as a decision made under the Domestic Violence Act 1995 which would mean

that a civil appeal was the correct mode of challenge.  If the latter was the correct procedure Mr Hawkins and the Public Defence Service could not appear, as the duties of the Public Defence Service are limited to criminal matters.   Further, it would mean that the form of notice of appeal was incorrect.  Katz J adjourned the appeal to enable the parties to prepare submissions.

[7]      Thus, before the merits of the challenge to Judge Gittos’ decision to impose a protection order by consent can be determined, it is necessary to consider a preliminary jurisdictional point.

[8]      Mr Hawkins submits that the appropriate mode of appeal against a protection order made in sentencing is by a criminal appeal.  The position of Ms Mitchell for the Crown was ultimately neutral.  She focused on the merits of the appeal.

Civil appeal or criminal appeal?

The relevant sections

[9]      The section giving jurisdiction to the District Court to make a protection order in the course of sentencing is s 123B of the Sentencing Act, inserted by s 4 of the Sentencing Amendment Act (No 2) 2009, which commenced on 1 July 2010. Section 123B follows the definition section and provides:

123B Protection order

(1)   This section applies if—

(a)   an offender is convicted of a domestic violence offence; and

(b)   there  is  not  currently  in  force  a  protection  order  against  the offender made under the Domestic Violence Act 1995 for the protection of the victim of the offence.

(2)   The court may make a protection order against the offender if—

(a)   it is satisfied that the making of the order is necessary for the protection of the victim of the offence; and

(b)   the victim of the offence does not object to the making of the order. (3)   A  protection  order  may  be  made  under  this  section  in  addition  to

imposing a sentence or making any other order.

(4)   An order may be made under subsection (2) even though domestic violence  proceedings  have  been  filed  by  the  victim  of  the  offence against the offender, and those proceedings have not yet been determined.

(5)   If an order is made under subsection (2) in the circumstances described in subsection (4), the domestic violence proceedings, in so far as they relate to an application for a protection order against the offender, end.

(emphasis added)

[10]     It can be seen that under s 123B(3) the protection order is “in addition” to the

imposition of a sentence or making any other order.

[11]     These amendments were inserted into the principle Act as part of a package of reforms that were designed to strengthen the protection offered to victims by the Sentencing Act, the Domestic Violence Act and related legislation.2    Section 123C provides  that  various  provisions  in  the  Domestic  Violence Act  apply  so  far  as applicable to a protection order made under s 123B.  There is provision at s 123D for the explanation of a protection order, and s 123E provides for the issue and service of the order.  Under s 123F the protection order is to be sent to the Family Court and it is thereafter treated under s 123G as if made by the Family Court.  Section 123G

provides:

123G Protection order treated as if made by Family Court

As soon as an order has been entered in the records of the Family Court under section 123F(2),—

(a)   the order is to be treated as if it were a final protection order made by that court under the Domestic Violence Act 1995; and

(b)   sections, 22(2)(b) and (6), 23, 29 to 31, 34, 35, 38 to 44, 45(2), 46(1),

47(1), 48 to 50, 82, and 88 to 95 of the Domestic Violence Act 1995 apply to the order accordingly.

(emphasis added)

[12]     The information was filed on 18 June 2013 under the Summary Proceedings Act, approximately two weeks before the Criminal Procedure Act 2011 came into force in relation to this type of offending.

[13]     The relevant appeal provision that applied to an appeal was s 115 of the

Summary Proceedings Act.  Section 115 provides:

115 Defendant's general right of appeal to High Court

(1)   Except as expressly provided by this Act or by any other enactment, where a District Court determines any information or complaint, and—

(a)   Convicts any defendant; or

(b)   Makes any order, including—

(i)    An order for the payment for costs; or

(ii)  An order declining an application for the payment for such costs; or

(iii) An order for the estreat of a bond,—

the  person  convicted  or  against  whom  the  order  is  made  may appeal to the High Court.

(2)   In the case of a conviction, the appeal may be against the conviction and the sentence passed on the conviction, or against the conviction only, or against the sentence only; and, in the case of an order for the payment of money, the appeal may be against the order and the amount of the sum ordered to be paid, or only against the amount of the sum ordered to be paid.

(3)   No appeal against conviction shall be brought until the person convicted has been sentenced or otherwise dealt with.

(4)   Every appeal  under  this  section,  or  under  any of  sections  115A to

115DA, is a general appeal.

[14]     The question is whether the protection order is part of the sentence passed on conviction and can be appealed under s 115.  It is relevant that s 115A, dealing with an informant’s right of appeal against sentence, defines sentence as including “any method of disposing of a case following conviction”.   The same meaning should

apply to “sentence” under s 115.   This protection order was made as part of the Judge’s determination of the criminal informations that had been filed and can be seen as part of the method of disposing of the case.  This interpretation is supported by s 379 of the Crimes Act 1961 which defined “sentence” as including any order of the Court made on conviction; and the power of the Court of Appeal to pass a sentence includes a power to make any such order of the Court.

[15]     Moreover, s 244 of the Criminal Procedure Act gives the right to any person convicted to appeal against the “sentence” imposed for the offence, and “sentence" is defined in s 212, the interpretation section for Part 6 which deals with appeals, as including “… any method of disposing of a case following conviction”.  There are certain specific exclusions, but a protection order is not one of them.  So this section which replaced s 115 is also consistent with a broad  interpretation of the word “sentence”.

[16]     Section  123B  of  the  Sentencing  Act  appears  to  distinguish  between  a protection order and sentence in that such an order is expressed to be “in addition to” imposing a sentence or making any other order.   However, “in addition to” would appear to mean “as well as”, and the words do not preclude an interpretation of the word “sentence” to include a protection order made on conviction.   Such an interpretation is consistent with the broad meaning of “sentence” in the Summary Proceedings Act, the Crimes Act and the Criminal Procedure Act set out earlier.

Essel v Police

[17]     In my view s 115(1)(a) provides the usual criminal appeal path for protection orders made on conviction under the Sentencing Act.  I agree with Ronald Young J in Essel v Police that the making of a protection order is on its face an order made on conviction under s 115(1)(a).3

[18]     This straight forward appeal path is complicated by the provisions of ss 123B and 123G of the Sentencing Act which have the effect of treating the protection order as an order made under the Domestic Violence Act.  Under s 123G of the Sentencing

Act, s 91 of the Domestic Violence Act applies to an order made under s 123B. Section 91 of the Domestic Violence Act provides:

91   Appeals to High Court

(1AA)  This subsection applies to a decision of a Court, in proceedings under this Act, to—

(a)   make or refuse to make an order; or

(b)   dismiss the proceedings; or

(c)   otherwise finally determine the proceedings.

(1)   A party to proceedings in which there is made a decision to which subsection (1AA) applies, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision.

(2)   The High Court Rules and sections 74 to 78 of the District Courts Act

1947,  with  all  necessary  modifications,  apply  to  an  appeal  under subsection (1) as if it were an appeal under section 72 of that Act.

…

(4)   Subject to section 93 of this Act, the decision of the High Court on an appeal to that Court under this section is final.

(emphasis added)

[19]     In Essel v Police Ronald Young J decided that s 123G of the Sentencing Act had created an exception to the general criminal appeal provision in s 115 of the Summary  Proceedings Act.4      The  appeal  was  a  civil  appeal  under  s 91  of  the Domestic Violence Act.   He concluded that he was bound to reach this decision because of the words of s 123G(b) and its direction that s 91 of the Domestic Violence Act applies to protection orders made under s 123B of the Sentencing Act.

[20]     Ronald  Young  J   acknowledged   that   two   separate   appeal   routes   had “awkward” consequences.   How would an informant appeal a refusal to grant a protection order?  Under s 115A of the Summary Proceedings Act an informant may appeal any sentence, and under s 115A(4) a sentence “shall include any method of disposing of a case following conviction”.  He considered that it was probable that an informant could, with the Solicitor-General’s consent, appeal a Judge’s refusal to grant a protection order as a criminal appeal.  He was satisfied that ss 123C, 123F

and 123G of the Sentencing Act should be read as including the application of s 91 of the Domestic Violence Act not only where a protection order is made, but also where it is applied for and refused in the District Court.5     The informant in that situation would not require the Solicitor-General’s approval to bring such an appeal. He considered that the intention was that s 91 would override s 115A and create an exception to that section.

[21]     There was a problem as to the identity of the respondent, given that in the criminal appeal the respondent is typically the Police.  In Ronald Young J’s view the answer had to be that the victim of the violence would remain uninvolved and that the respondent would be the Police, although it was a civil appeal.

Analysis

[22]     I agreed with Ronald Young J that there is an orthodox appeal route open to appeal protection orders under s 115.   The issue is whether there is a particular appeal route under s 91 of the Domestic Violence Act, and whether that should prevail as Ronald Young J concluded it should.

[23]     There are difficulties that follow from the s 91 route applying.   That route means that there will be a split of the appeal into two different paths.  There will be appeal against that part of the  disposal of the case which does not involve the protection order, and the other part which does.

[24]     There is a further difficulty.  As Mr Hawkins submits, if the Public Defence Service cannot appear on the protection order because it is a civil matter, this is likely to mean that there would have to be a separate grant of legal aid to counsel to complete the civil appeal.  There is then the potential of two lawyers acting for one client and the chance of conflicting instructions.  There is also the prospect that legal aid for a criminal appeal might be granted to a defendant, while civil legal aid was declined.  An appellant in Mr Holloway’s position could be represented for some purposes and not for others.

[25]     It is also significant that if s 91 is the appeal route, s 91(4) appears to assume that appeals will only be to the High Court and that those decisions will be final, and s 93 limits appeals to the Court of Appeal to being by leave and on a question of law. The effect of an interpretation that makes s 91 apply will be if a decision is made by the High Court to make a protection order on sentence, there is no specific provision under the Domestic Violence Act under which an appeal against that order could be

brought.6     It is very unlikely that the legislature would have intended there to be

stipulated rights of appeal in relation to a protection order made on sentence in the District Court, but no stipulated right in relation to a decision made on sentence in the High Court.

[26]     Another consequence would be that while the sentence (here a fine) would be considered under appellate sentencing principles, the protection order appeal if it was under s 91 would involve a different approach, it being a re-hearing.7

[27]     In my view these problems make it unlikely that it was the intention of the legislature to direct a separate mode of appeal in relation to domestic violence orders made under the Sentencing Act in the course of dealing with a defendant following conviction.

[28]     Further, I consider that it is not clear that s 91 can apply to a protection order made in the course of sentencing, as was assumed in Essel v Police.  This is because s 91(1A) applies only to:

… a decision of a Court, in proceedings under this Act. (emphasis added)

[29]     If an  order is  made in “proceedings” that  are not “under” the Domestic Violence Act, then s 91 will have no application to it.  This is in fact the case when a protection order is made in a post-conviction process.  The applicable Act will be the

6      “Court” is defined in s 2 of the Domestic Violence Act as the Family Court or the District Court, but “Court” is defined in s 4 of the Sentencing Act as any Court exercising criminal jurisdiction in criminal cases, and s 123B(2) of that Act gives “the Court” the power to make a protection order.

7      Domestic Violence Act 1995, s 91(2) and s 75 of the District Courts Act 1957.  The approach is set out in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3]–[5].

Crimes Act,  the  Summary  Proceedings Act  or  the  Criminal  Procedure Act  and s 123B of the Sentencing Act will apply.  While under s 123G of the Sentencing Act the order is to be treated “as if it were” a final protection order made by the Family Court  and  the  various  provisions  applying  to  protection  orders  under  that Act, s 123G does not provide that the order is to be treated as if made in proceedings “under” the Domestic Violence Act.  It was made in proceedings brought “under” the relevant criminal Act, here the Summary Proceedings Act.

[30]     In my view it is necessary to twist the words of s 91(1AA) to make them imply that protection orders made following conviction in criminal proceedings that were  brought  under  the  Summary Proceedings Act  were  in  fact  civil  Domestic Violence Act proceedings.  If that was intended, s 123G could be expected to contain the words “… and the proceedings in which the orders were made will be deemed to be proceedings under the Domestic Violence Act 1995”.  There are no such words. Therefore, while the order is treated as an order made under the Domestic Violence Act, the proceedings in which they were made remain criminal proceedings and s 91 does not apply.

[31]     The interpretation I have placed on the words “in proceedings under this Act

…” is also not without difficulties.  Section 123G could be construed as impliedly requiring the criminal proceedings to be treated as falling under s 91.   To not so construe it leaves the reference in s 123G to s 91 with no work to do.  But when two awkward interpretations are available, the one that would appear to best reconcile with a practical working procedure is to be preferred, as the presumed purpose of the legislature.8

[32]     For these reasons I am driven to a conclusion different from that of Ronald Young J in Essel v Police.  In my view s 91 of the Domestic Violence Act does not apply as the protection order has not been made in proceedings under the Domestic Violence Act.  It has been made as part of the sentence in proceedings brought under the Summary Proceedings Act, and the defendant’s general right of appeal under

s 115 of the Summary Proceedings Act is the applicable pathway.

8      Bennion on Statutory Interpretation (6th ed, LexisNexis, London, 2013) at 871–872.

[33]     I note that there have been  decisions subsequent to Essel v Police where appeals against protection orders made in the course of sentence were treated as appeals against sentence.9  The point was not argued in those cases.

[34]     I conclude that this appeal has been properly brought under the Summary Proceedings Act.  It follows that Mr Hawkins can appear in support and I will now proceed to consider the substantive issues raised on appeal.

First  ground  of  appeal  –  no  consideration  of  whether  a  protection  order

“necessary”

[35]     Before a protection order can be made under s 123B of the Sentencing Act the Court is required to undertake a four-step process:10

(a)      The Court must determine whether the offender has been convicted of a domestic violence offence.

(b)The  Court  must  determine  that  there  is  not  currently  in  force  a protection order against the offender for the protection of the victim of the offence.

(c)      The Court must be satisfied that the making of the order is necessary for the protection of the victim of the offence.

(d)      The victim of the offence must not object to the order.

[36]     Mr Hawkins argues that it was not shown that the making of the order was necessary for the protection of the victim of the offence.  He points out that this is not a matter referred to by the Judge in his decision.  He relies on Surrey v Surrey for the proposition that necessity must be assessed against the seriousness of past domestic violence.11    He also referred to s 14 of the Domestic Violence Act which provided that one of the two requirements for the making of a protection order was

that it was necessary for the protection of the applicant or a child of the applicant’s

9      Broderick v Police [2014] NZHC 133 and Te Kani v Police [2014] NZHC 82.

10     Sentencing Act 2002, s 123B(1) and (2).

11     Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at [41].

family or both.  He submitted that the word “necessary” had the same meaning in

both s 14 of the Domestic Violence Act and s 123B of the Sentencing Act.

[37]     Mr Hawkins  submitted that  the Judge failed  to  make any  assessment  of whether the protection order was necessary, and that given that the smashing of the television was of a low scale of seriousness, no order should have been made.

[38]     The short answer to Mr Hawkins’ complaint about the absence of any explicit consideration of whether the order was “necessary” is that the order was by consent. Judge Gittos was not required to give a reasoned decision.  I have no doubt that he turned his mind to the issue of whether the order was necessary and concluded that it was.  It is easy to see why he might have done so.  Although the act of violence was not violence against a person, but rather of violence to a chattel, the damage to the television could not be described as trivial.   Damage to property is a recognised

category of psychological abuse.12   There was it seems on the Police file evidence of

a similar pattern of past violence where Mr Holloway had damaged the victim’s property during arguments.  There was evidence that the victim was scared of the appellant, which was understandable.   In my view there was sufficient material before the Judge for him to be able to accept that the protection order was necessary and to make that order.

No jurisdiction to make interim order

[39]    Mr Hawkins argued that there was no jurisdiction to make a temporary protection order, and this would be inconsistent with s 123C of the Sentencing Act, which refers to the Court making a “final protection order”.

[40]     It is not necessary to consider whether there was jurisdiction to make an interim protection order.  It is quite clear that Judge Gittos did not make an interim

order.  He made a final order. This is what he stated in his decision:13

12     Sentencing Act 2002, s 123A, incorporating the definition of “violence” in s 3(2)(c) of the Domestic Violence Act 1995 in relation to the grant of protection orders under s 123B of the Sentencing Act 2002.

13     Police v Holloway DC Hastings CRI-2013-020-1713, 18 June 2013 at [2].

You will be convicted and fined … and by consent, a protection order will be made in favour of the complainant under the provisions of s 123B of the Sentencing Amendment Act.

[41]   Mr Hawkins bases his submission on a stamp that he observed on the information sheet.   That is a standard stamp which has the words on it “Temporary/Final Protection Order Made”.   The words “Final Protection Order” have a line through them. The crossing out of the stamp is initialled by the Judge.

[42]     The  logic  of  this  is  that  the  stamp  reads  “Temporary/Made”.    Such  a statement does not make sense.   In my opinion no weight can be placed on the deleted words in the stamp of “Final Protection Order”.  The contents of the stamp must take second place to the actual terms of the Judge’s order.  It is also significant that  the same  information  sheet  relied  on  by Mr Hawkins  contains  these words written by the Judge:

By consent protection order made in favour of complainant.  Section 123B Sentencing Act. To attend Dove.

[43]     Thus in his handwritten summary of the order there was no reference to it being interim.

[44]     I conclude that there was no interim order made and that this argument has no merit. The order made was a final protection order.

Result

[45]     Extension of time to appeal is granted. The appeal is dismissed.

……………………………..

Asher J