K v Police HC Hamilton CRI 2007-419-90
[2008] NZHC 708
•16 May 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2007-419-90
BETWEEN K
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 16 May 2008
Appearances: Alex Hope and Mania Hope for Appellant
Ann-Marie Beveridge for Respondent
Judgment: 16 May 2008
JUDGMENT OF HARRISON J
SOLICITORS
Till Henderson (Hamilton) for Appellant
Almao Douch (Hamilton) for Respondent
K V POLICE HC HAM CRI 2007-419-90 16 May 2008
Introduction
[1] Mr K appeals against his conviction in the District Court at Hamilton on two charges of breaching a protection order (s 49 Domestic Violence Act 1995) and one of theft of property worth less than $500 (s 223 Crimes Act
1961). He does not appeal against his sentence of 40 hours community work.
[2] The stated grounds of Mr K ’s appeal are that (1) there was no evidence of proper service of the protection order on him; (2) in any event he had reasonable grounds for visiting the complainant’s premises on both occasions; and (3) he did not act dishonestly in taking property in that he did not intend to deprive the owner of the goods permanently.
District Court
[3] Judge Philip Connell convicted Mr K on all three charges following a summary trial on 29 June 2007. He contemporaneously imposed the sentence of community work. He did not, however, give written reasons for his decision for at least another eight months until 13 March 2008. Mr Hope complains about the delay. He says that he was forced to prepare and file a notice of appeal in this Court on 13 July 2007 and give particulars of grounds, but that in the absence of a reasoned decision he was forced to correspond with the Registrar of the District Court on a number of occasions in order to obtain a formal decision.
[4] I agree with Mr Hope’s concerns. A delay of such magnitude is unacceptable, especially because it suspended indefinitely Mr K ’s ability to progress his rights of appeal. The delay is also regrettable because it inevitably taints what is an otherwise comprehensive and carefully reasoned decision particularly on credibility.
[5] Mr K and the complainant, his wife, Florence, are Congolese nationals. They lived together in New Zealand from 2001 until separation in 2002. Mrs K obtained a temporary protection order in the Family Court at Hamilton on 15 August 2002. That instrument became permanent on 16 November 2002. The
parties have continued to live in Hamilton since then, Mrs K having custody of her son from a previous relationship.
[6] Mrs K has subsequently entered into a new relationship with Mr Charlie Obeira. Both were living together in Hamilton when Mr K and others entered their residence on two separate occasions. The first occurred at
3.30 am on 23 February 2007. A little earlier Mrs K received a telephone call from a young boy she knew. Within minutes he arrived on the doorstep of the house. Mrs K was concerned about his wellbeing. She left him in the lounge while she went to her bedroom to dress.
[7] Upon returning a few minutes later Mrs K found that the young visitor had allowed Mr K and two companions to enter. The three went immediately to the bedroom occupied by Mrs K and Mr Obeira (he was then asleep). They entered and a fracas followed. At one stage Mr K filmed the room and articles of clothing. They departed when Mr Obeira phoned the police.
[8] On the second occasion Mr K entered Mrs K ’s property at about
9 am on 25 February 2007. Again he was accompanied by two others. However, Mrs K ’s son answered the door and refused to allow Mr K and the others entry. The police were called and Mr K was arrested.
[9] Mrs K and Mr Obeira gave evidence for the prosecution as did Ms Amanda Broom, a court officer. Mr K gave evidence in his own defence together with another Congolese national, Ms Julienne Ngoma. She was present on the first entry.
[10] The witnesses accounts of events were markedly divergent. In clearly expressed terms Judge Connell explained the reasons for his preference for the evidence of Mrs K and Mr Obeira. He did not believe the accounts given by Mr K and Ms Ngoma. After a comprehensive examination of the evidence he concluded that the prosecution had proven all four elements of the charges of breach of a protection order – namely that (1) on each occasion Mrs K was subject to a protection order; (2) Mr K was aware of the order; (3) Mr K breached
the order; and (4) he did so without reasonable excuse – and of the charge of theft. He dismissed one charge of assault.
[11] Against this summary I will now address the arguments raised today by
Mr Hope on appeal.
Issues
(1) Knowledge
[12] It is common ground that the police carried the burden of proving Mr K ’s knowledge of the order and its terms. On appeal Mr Hope mounts essentially the same argument he ran in the District Court. He submits there was no or insufficient evidence of Mr K ’s knowledge of the order and its terms. He relies principally on what he says are deficiencies in proof of service and on Mr K ’s denial of knowledge.
[13] Mr Hope has developed a detailed technical argument. I note, though, that his written synopsis acknowledges that proof ‘is required in the absence of other evidence that [Mr K ] knew …’ of the order. R46 Domestic Violence Rules
1996 provides that ‘service may be effected’ personally or at an address for service. R60 provides for proof of service as follows:
(1) Where any bailiff or other officer of a Court or any member of the Police serves any document, service may be proved by showing the fact and the date and mode of service—
(a)In an endorsement on the original document or a copy of it, which endorsement must be signed by the person who served the document; or
(b)In a certificate attached to the original document or a copy of it, which certificate must be signed by the person who served the document.
(2)Without limiting subclause (1), where a document has been personally served, service may be proved—
(a) On oath before the Court; or
(b) By an affidavit of service in Form D.V. 14. [Emphasis added]
[14] It is notable that both provisions are permissive (e.g. ‘may be proved’). Neither is exclusive. They do not eliminate the prosecution’s ability to prove knowledge of a protection order by other means.
[15] The police proved service by Ms Broom’s production of a certificate signed by Ms Sherrilyn Wall, a Deputy Registrar, who noted on the original Court copy of the order as follows:
I certify that I served [Mr K ] with the above-mentioned documents on
25 July 2003 at 1430 hours, Family Court counter, Hamilton.
[16] Mr Hope accepts that proof of service by production of such a certificate is permissible under r 60(1)(b). However, he says the certificate is itself defective in that it does not show the ‘mode of service’ as required by statute. He says the rule must be construed strictly and requires absolute compliance given that it enables the prosecution to dispense with evidence of service on oath.
[17] Judge Connell was in no doubt that the certificate complied with r 60(1)(b), and neither am I. I do not accept Mr Hope’s argument that the certificate was invalid unless it specified personal service. He raises various hypotheses. He inquires rhetorically whether service could have been on an agent or on somebody passing themselves off as Mr K . In my judgment it must be implicit in the words ‘I served the respondent’, coupled with an express reference to the time and place, that Ms Wall effected service personally. No other construction is logically available.
[18] In any event proof of service in this way is not necessarily decisive of the element of knowledge. It is a question of weight for the trial Judge where the prosecution relies on a certificate rather than adopting the alternative course of tendering an affidavit of service. Judge Connell found corroboration of Mr K ’s knowledge of the existence of the order and its terms because:
(1)Mr K acknowledged attendance at a 10 week course which he described as therapy. The order noted that he was directed to attend a
programme directed in the temporary order on 15 August 2002 to commence on 2 October 2002. Mr K must have known of this direction from reading the temporary document;
(2)Mr K acknowledged that on 16 August 2002, the day after the interim temporary order, a Court bailiff served him with copies of papers at his address.
[19] The Judge was entitled to conclude that his denial of knowledge of the contents of the documents was itself evasive and untruthful and strengthened the prosecution case.
[20] I am satisfied that Judge Connell had a proper evidential basis for finding that Mr K knew of the existence of the protection order and its terms when he entered Mrs K ’s property on 23 February and 25 February 2007. This ground of appeal must fail.
(2) Reasonable Excuse
[21] Second or alternatively Mr Hope submits that Judge Connell failed to properly consider the reasonableness of Mr K ’s excuse for entering the premises on the first occasion. He accepts, though, that this ground is unavailable as a defence to the second charge which means that that appeal is hereby dismissed.
[22] Mr Hope says that Mr K discharged his evidential burden by proving on the balance of probabilities that he had a reasonable excuse for entering Mrs K ’s property in pursuit of his purpose of securing evidence necessary to obtain a dissolution of his marriage in a Congolese Court. He says it was objectively reasonable for a man of Mr K ’s background to engage in this activity. He says Mr K ’s conduct must be viewed through the lens of an ordinary New Zealander who takes account of its multi ethnic and multi racial constitution. Mr Hope points to the nature of the breach. He says it was at the lower end of the scale and reasonably relatively controlled. Mr K and his associates filmed clothing and other items before removing them and departing.
[23] Mr K carries a heavy burden in the context of this prosecution. A protection order is made for a specific purpose. Its terms are absolute and prohibitory. It leaves no scope for uncertainty or ambiguity. Its rationale lies in the Court’s satisfaction that Mr K was using or had used domestic violence against Mrs K and that the making of an order was necessary for her protection: s 14(1).
[24] A Court when considering a defence of reasonable excuse must make a three- stage inquiry: first, it must examine and identify the excuse tendered by Mr K ; second, it must determine whether the excuse is genuine; and, third, it must assess if the excuse is objectively reasonable: see Mark v Henshaw (1998) 85 FCR 555 at
557-558 (applied in Oosterman v Police [2007] NZAR 147 at [38]-[44] – an application for leave to appeal to the Court of Appeal and this point was dismissed: R v Oosterman [2007] NZCA 118):
… the critical issue in determining whether the appellants entered upon the premises … with reasonable excuse is not the appellants’ beliefs or their state of mind. Whilst those factors are relevant and may afford some assistance to the trier of fact, the final answer will always come from an objective assessment of the particular facts of each case; that assessment requires a consideration of not merely the trespassers’ beliefs and state of mind: it requires the application of community standards. In particular, it requires the trier of fact to determine whether the trespassers’ conduct is acceptable to the community.
[25] In my judgment Mr Hope’s argument fails at each of the three stages. First, Mr K advances the excuse that he entered for the purpose of gathering evidence for use in divorce proceedings in the Congo. I had the impression during argument that Mr Hope’s primary proposition was that Mr K ’s belief was determinative. But a view held by a respondent that he is justified by the law of his country of origin (I note that he has not lived in the Congo for many years) could never excuse breaching an order made by a New Zealand Court for the purpose of protecting the very person whose premises he has entered. Mr K was doing no more nor less than taking the law into his own hands.
[26] Second, I am not satisfied that the excuse is genuine. Perhaps inadvertently Mr Hope during argument this morning has emphasised that Mr K removed not just Mr Obeira’s property and clothing but also his wallet and bank cards. As
Judge Connell noted, that conduct undermined the credibility of any claim that Mr K was acting in accordance with Congolese law and custom. He has never suggested that retention of either additional article was necessary for the purpose of obtaining a divorce in that country. And the intrusive nature of Mr K ’s entry is inconsistent with a genuine excuse.
[27] Third, on an objective assessment Mr K ’s excuse could never be characterised as reasonable. He is subject to the law of New Zealand. Whatever he may believe about his rights under another legal system has no favourable bearing upon his conduct in breaching a formal order.
[28] This ground of appeal must also fail. Accordingly, the appeals against both convictions for breach of a protection order are dismissed.
(3) Theft
[29] Mr K was charged with theft of Mr Obeira’s clothing and money; he removed both articles at the end of his first visit on 23 February. Mr Hope has correctly not attempted to pursue a ground of appeal based on claim of right. He accepts that the only question is whether at the time of taking the property from Mrs K ’s home Mr K intended to deprive Mr Obeira permanently of title or ownership.
[30] The Judge had no doubt that the prosecution had proven this element of the charge. Mr Hope relies today on two pieces of evidence to the contrary. One is Mr K ’s voluntarily return of the articles to Mr Obeira at the hearing in the District Court on 29 June 2007. The other is the absence of a formal demand for return.
[31] As the Judge properly noted, Mr K ’s intention is to be determined as at
23 February 2007. His subsequent conduct may be relevant. In this respect the absence of any steps taken by the complainant to recover the articles is irrelevant to Mr K ’s state of mind.
[32] I am in no doubt that Judge Connell was right. All the evidence supports his conclusion. Mr K only returned them at trial in the District Court when facing the charge of theft and when he was at real risk of conviction. That conduct, the Judge noted, might be treated as mitigation but could hardly negate a state of mind formed some months earlier. Mr K ’s retention of the property throughout the intervening period, coupled with the Judge’s finding that when visiting Mrs K ’s residence on the second occasion Mr K offered to surrender the removed property if he was allowed entry, is only consistent with an intention formed on 23 February to retain the goods permanently.
[33] Accordingly, I dismiss this ground and also Mr K ’s appeal against conviction on the charge of theft.
Rhys Harrison J
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