Lucas v The the Queen - [2022] NZCA 367

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA550/2021
[2022] NZCA 367

BETWEEN	DAVID MICHAEL LUCAS Appellant
AND	THE QUEEN Respondent

Hearing:	20 July 2022
Court:	Collins, Lang and Downs JJ
Counsel:	Appellant in person J A Eng for Respondent
Judgment:	10 August 2022 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal against conviction in relation to Charge 1 is allowed. The conviction on Charge 1 is quashed. There will be no retrial.
BThe appeal against conviction in relation to Charges 3, 4, 5 and 6 is dismissed.
CThe appeal against sentence is allowed. The sentence of six months’ community detention and nine months’ supervision is quashed, and a sentence of four months’ community detention and six months’ supervision is substituted.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

Following a trial before a jury in the District Court, Mr Lucas was convicted on five charges of breaching a protection order that had been issued by the Family Court in favour of “Alice”, Mr Lucas’s former partner. Mr Lucas was found not guilty on a further charge of breaching the protection order.
Judge JM Kelly sentenced Mr Lucas to:[1]
(a)community detention for six months; and
(b)supervision for nine months.

Conditions were attached to both limbs of the sentence.

[1]R v Lucas [2021] NZDC 22414 at [63] and [65].

Mr Lucas appeals his convictions on the following grounds:
(a)Charge 1 was flawed.
(b)Judge Kelly erred when answering questions from the jury.
(c)Mr Bott, trial defence counsel, made a series of errors when representing Mr Lucas.
(d)The police misconducted the investigation into Mr Lucas.
(e)Alice, and Detective Perano, the officer-in-charge of the investigation, committed perjury.
Mr Lucas argues that the sentence should be quashed.

Narrative

Mr Lucas and Alice commenced their relationship in 2014. Their relationship came to an end in October 2015 but recommenced in February 2017.
In July 2017, the police became involved in an incident that occurred between Mr Lucas and Alice. That incident led to Alice obtaining a temporary protection order under the Domestic Violence Act 1995[2] on 25 July 2017. The protection order was made final on 6 October 2017, following a defended hearing in the Family Court. The protection order was varied in November 2018 after Alice changed her surname.
[2]The Domestic Violence Act 1995 was repealed by the Family Violence Act 2018. The provisions of the Domestic Violence Act apply in this case to Charges 1 to 5, whereas the provisions of the Family Violence Act apply to Charge 6.
The protection orders contained a number of conditions, including:
(a)that Mr Lucas not make any contact with Alice; and
(b)that he not engage in any behaviour which amounted to psychological abuse of Alice.
We will explain the relevant statutory definition of psychological abuse at [29]–[30].
Mr Lucas was ordered to pay Alice costs in the sum of $3,597.43. Although Mr Lucas had been represented in the Family Court, by the time the costs order was…

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 Lucas v The the Queen

Details

AGLC: Lucas v The the Queen [2022] NZCA 367
Case: [2022] NZCA 367
Decision Date: 10 August 2022 at 10.30 am

CaseChat Overview and Summary

The case of Lucas v The Queen involved an appeal by David Michael Lucas against his convictions and sentence for breaching a protection order. The protection order had been issued by the Family Court in favor of Lucas's former partner, Alice. Lucas was convicted on five charges of breaching the protection order, which prohibited him from making contact with Alice and engaging in psychological abuse towards her. Lucas was acquitted on one charge of making contact with Alice. The District Court sentenced Lucas to six months of community detention and nine months of supervision. Lucas appealed his convictions on multiple grounds, including the trial judge's direction to the jury regarding one of the charges, alleged errors by his trial counsel, misconduct by the police investigation, and perjury by Alice and the investigating officer. Lucas also appealed his sentence, arguing it was excessive.

The Court of Appeal allowed Lucas's appeal against his conviction on the first charge, quashing the conviction. The Court found the trial judge misdirected the jury by treating the first charge as a representative charge rather than a pattern of behavior charge, as required by the legislation. This error meant the jury could have convicted Lucas based on a single instance of abuse rather than a pattern of abusive behavior. The other charges were dismissed as the Court found no miscarriage of justice. The appeal against sentence was also allowed, reducing Lucas's sentence to four months of community detention and six months of supervision, reflecting the seriousness of his offending and his personality disorder. The conditions attached to the original sentence remained in force.

In summary, the Court of Appeal quashed Lucas's conviction on the first charge due to a trial error but dismissed his other appeals. His sentence was reduced to four months of community detention and six months of supervision, with the existing conditions remaining. There would be no retrial on the quashed charge.

Orders