Hutton v Police - [2017] NZHC 1752

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hutton v Police

Details

AGLC: Hutton v Police [2017] NZHC 1752
Case: [2017] NZHC 1752
Decision Date: 27 July 2017

CaseChat Overview and Summary

In Hutton v Police, the appellant, Mr Hutton, appealed against a conviction for breaching a restraining order. The order contained a special condition prohibiting Mr Hutton from using photographs of LG, a child he believes to be his son, on social media. Mr Hutton argued that the condition should be narrowly interpreted to only apply to conduct directed at the named protected persons, Mr and Mrs G, LG's parents. He pleaded guilty to breaching the order by posting a photograph of LG on Facebook, but later appealed the conviction, contending that the pre-trial ruling on the interpretation of the special condition was in error and induced his guilty plea.

The court had to decide whether the special condition should be narrowly construed to only apply to conduct directed at the protected persons or whether it should be broadly interpreted to include any posting of photographs of LG on social media. The court found that the special condition's plain meaning was broad enough to cover the posting of the photograph on Facebook. The court also noted that the definition of "harassment" under the relevant Act was wide enough to include the posting of the photograph as conduct directed at LG's parents.

The court held that the special condition did not need to be narrowly interpreted to only capture conduct directed at the protected persons. The posting of photographs on Facebook, where it was likely to be seen by or brought to the attention of LG or his parents, was capable of constituting harassment of LG's parents. The court concluded that there was no need to interpret the condition narrowly to only capture conduct more directly aimed at the protected person. The court also noted that the issues raised in the appeal may require careful consideration of the scope of the special condition at the time of renewal. However, on the issues before the court, it was satisfied that the Judge did not err in declining to "read down" the special condition. The appeal against conviction was dismissed.

In conclusion, the court found that the Judge did not err in interpreting the special condition, and Mr Hutton's guilty plea was not induced by an erroneous pre-trial ruling. The appeal against conviction was dismissed, and the conviction stood.

Orders