KM v Police - [2013] NZHC 395

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF APPLICANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000087 [2013] NZHC 395

BETWEEN KM Applicant

ANDNEW ZEALAND POLICE Respondent

Judgment (on the papers): 5 March 2013

JUDGMENT OF COLLINS J

Introduction

[1] On 19 November 2012 I dismissed Ms M’s appeal against conviction but allowed her appeal against sentence. Ms M had appealed her conviction for breaching a protection order.[1]

[1] Domestic Violence Act 1994, s 49(1).

[2] The events leading to Ms M being charged arose out of the breakup of Ms M’s relationship with Mr L. The circumstances surrounding the breakup of that relationship led to a protection order being issued in favour of Mr L on 24 April
2008. On 14 May 2010 the protection order was extended to include Mr L’s new

partner.

KM V NEW ZEALAND POLICE HC WN CRI-2012-485-000087 [5 March 2013]

[3] On 3 July 2012 Ms M went to the home occupied by Mr L and his new partner at about 10.30pm. Initially Ms M put identification at issue at the District Court hearing. However, during the course of the hearing it emerged that identity was not an issue. The key issue was whether Ms M had a lawful excuse for being at the address of her former partner. It was Ms M’s case that she went to Mr L’s home to serve Family Court documents and that her intention to serve those documents provided her with a lawful excuse to be at the address.

[4] I summarised the relevant evidence in [4]-[8] of my 19 November 2012 judgment. It is not necessary for me to repeat that evidence. Suffice to note:

(1) Ms M did not leave documents at the address;

(2)Ms M accepted she could have served the papers in question on Mr L’s lawyers. However, she said they had apparently refused to accept service.

Application for leave to appeal

[5] On 24 December 2012 Ms M filed an application for leave to appeal my judgment. No grounds of appeal were explained in the application.

[6] On 8 February 2013 I issued a Minute in which I explained that leave could only be granted:

(1) on a question of law, which

(2)by reason of its general and public importance, or for any other reason, ought to be submitted to the Court of Appeal for decision.

I invited Ms M to file a memorandum explaining her proposed grounds of appeal and advised that I would in due course issue a decision on the papers.

[7] Ms M filed a comprehensive memorandum on 13 February 2013 in which she identified the following two possible questions for the Court of Appeal:

(1)“Under what circumstances does a ‘Protected Person’ under Section 2 and/or s 16(2) of the Domestic Violence Act 1995, actions or…

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 KM v Police

Details

AGLC: KM v Police [2013] NZHC 395
Case: [2013] NZHC 395
Decision Date: 5 March 2013

CaseChat Overview and Summary

KM was the applicant in a case heard by the High Court of New Zealand. The nature of the dispute was the applicant's appeal against the sentence imposed following her conviction for breaching a protection order. The respondent was New Zealand Police. The legal issues that the court was required to decide were whether the applicant had satisfied the criteria for leave to appeal to the Court of Appeal. The court's reasoning and outcome were that the applicant had not satisfied the criteria for leave to appeal to the Court of Appeal. The court found that the first proposed question for the Court of Appeal was fact specific and could not be disguised as a question of law. The court also found that the first proposed question for the Court of Appeal did not raise a question of law, and was not of general or public importance. The identification evidence given by Constable Whittaker was not relied upon by the District Court Judge when he convicted the applicant. Therefore, any question of either fact or law relating to this evidence was entirely moot and did not constitute a question of public or general importance. The application for leave to appeal to the Court of Appeal was dismissed.

Orders