Lucas v The the Queen
[2022] NZCA 367
•10 August 2022 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA550/2021 [2022] NZCA 367 |
| BETWEEN | DAVID MICHAEL LUCAS |
| AND | THE QUEEN |
| Hearing: | 20 July 2022 |
Court: | Collins, Lang and Downs JJ |
Counsel: | Appellant in person |
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.
____________________________________________________________________
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 made he was acting for himself.
Following the issuance of the temporary protection order, Alice blocked Mr Lucas from her Facebook page. He did likewise.
For convenience, we shall set out the alleged breaches of the protection order by reference to the six charges that were pursued in the District Court against Mr Lucas.
Charge 1
The Crown alleged that between 7 February and 3 July 2018, Mr Lucas made a series of Facebook posts in which he said Alice:
(a)suffered from mental health issues;
(b)had lied in the Family Court proceedings;
(c)had made false allegations against Mr Lucas; and
(d)had committed perjury.
Many of the Facebook postings contained vile descriptions of Alice. She became aware of Mr Lucas’s Facebook comments about her through a friend and by accessing Mr Lucas’s Facebook page using a different identity.
Between 18 and 21 May 2018, Mr Lucas sent three emails to Mr Vincent, who had represented Alice in the Family Court proceedings. In those emails Mr Lucas alleged Alice:
(a)had lied in the Family Court proceedings;
(b)had made false allegations against Mr Lucas;
(c)had committed perjury;
(d)had used mental health issues to avoid paying her taxes;
(e)had made several attempts to commit suicide;
(f)had abandoned her daughters;
(g)was estranged from her own family; and
(h)changed her statements to the police.
Mr Lucas asked Mr Vincent to question Alice about Mr Lucas’s allegations.
Mr Vincent copied Alice into his response to one of Mr Lucas’s emails and he forwarded the other two emails to Alice when responding to inquiries from Detective Perano.
On 27 May 2018, Mr Lucas sent a text message to a friend of Alice in which he said:
I was wondering if you could spare me a little time to discuss what has happened, & possibly share your observations on [Alice’s] mental health over the period you lived with her!
I am planning on taking out a private prosecution, due to many instances of perjury in documents & in court. I have irrefutable evidence of perjury, but I believe it is due to [Alice’s] mental health issues, rather than any malicious reason.
Alice’s friend told her about Mr Lucas’s text message.
Charge 2
At about 3.00 am on 15 October 2018, a phone call was made from Mr Lucas’s cellphone to Alice’s cellphone. Mr Lucas did not speak during the 35-second phone call. He later explained that he did not intentionally make the phone call, which he thought occurred by accident when he was asleep. Mr Lucas was acquitted on this charge.
Charge 3
On 10 March 2019, Mr Lucas posted a message on his Facebook page in which he accused Alice of lying 164 times in affidavits sworn in the Family Court and lying under oath. Another of Alice’s friends drew the post to her attention.
Charge 4
On 5 March 2019, Mr Lucas made Facebook posts in which he made allegations about Alice threatening to hang herself at her daughter’s wedding, her alleged long battle with mental health issues and her lies. In the Facebook post, which became a public posting on 13 March, Mr Lucas acknowledged that his Facebook posting would be “classified” as a breach of the protection order. In the comments under another Facebook post, Mr Lucas also accused Alice of infidelity and the abandonment of her daughters.
Alice’s attention was drawn to the two Facebook posts by one of her friends.
Charge 5
On 15 March Mr Lucas, who had by this stage been arrested and granted bail in relation to the 5 March Facebook post, reposted the entire post and added further comments about Alice.
Charge 6
On 4 November 2019, Mr Lucas sent an email to Alice under the subject line “Why?”. The email read:
I know that this will get me locked up.
But.
I’m just struggling to understand why you think I pose any danger to you!
Have I ever harmed you?
Do you think I would ever harm you?
You know the truth. I know the truth.
WHY?
The trial
The trial commenced on 10 May 2021. Before the jury was empanelled, the Judge spoke to counsel about Charge 1 and suggested it should be a representative charge because it covered “a period of time and that means [the jury] could find one particular behaviour sufficient”. Mr Burston, senior counsel for the Crown, agreed, as did Mr Bott. As a consequence, the trial proceeded on the basis Charge 1 was a representative charge.
We interpolate at this juncture to explain that there were two categories of charges against Mr Lucas.
Charges 1, 3, 4 and 5 relied on s 19(1)(d) of the Domestic Violence Act, which provided:
(1)It is a condition of every protection order that the respondent must not—
…
(d)engage, or threaten to engage, in other behaviour, including intimidation or harassment, which amounts to psychological abuse of the protected person; …
Charge 1, for example, alleged that between specified dates Mr Lucas “did an act in contravention of [Alice’s] protection order … by engaging in behaviour amounting to psychological abuse of the protected person”.
Section 3(2)(c) of the Domestic Violence Act in force at the relevant time said:
(c) psychological abuse, including, but not limited to,—
(i)intimidation:
(ii)harassment:
…
Section 3(4) of the Domestic Violence Act stated:
(4) Without limiting subsection (2),—
(a)a single act may amount to abuse for the purposes of that subsection:
(b)a number of acts that form part of a pattern of behaviour may amount to abuse for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.
Thus, the legislation envisaged two types of psychological abuse charges, namely:
(a)those that relied upon a single incident of abuse; and
(b)those that relied on a pattern of behaviour through a number of instances.
As we will explain at [42], Charge 1 was prosecuted as a “pattern of behaviour” offence.
Charge 2 relied on s 19(2)(e) of the Domestic Violence Act, which provided:
(2)… it is a condition of every protection order that at any time other than when the protected person and the respondent are, with the express consent of the protected person, living in the same dwellinghouse, the respondent must not,—
…
(e)make any other contact with the protected person (whether by telephone, electronic message, correspondence, or otherwise), …
Charge 6 relied on the equivalent provision in s 90(b) of the Family Violence Act 2018, which had by then replaced the Domestic Violence Act.
Charges 2 and 6 alleged Mr Lucas breached the terms of the protection order by making contact with Alice. Those charges did not allege “psychological abuse”. Charge 6, for example, alleged on the specified date Mr Lucas “without reasonable excuse, did an act in contravention of [the] protection order, namely made contact with the protected person”.
Alice was the first witness for the Crown. She told the jury how distraught and concerned she was when she learnt of the messages that were either posted on Facebook, or sent in texts and emails about her by Mr Lucas. She also expressed her deep concern when she received a phone call from his cellphone at 3.00 am on 15 October 2018 and when he sent her the email headed “Why?” on 4 November 2019.
A number of police officers gave evidence, primarily about their interviews with Mr Lucas.
Mr Bott explained the defence during his opening and closing statements to the jury and during his cross-examination of Crown witnesses. The essence of the defence was:
(a)Mr Lucas had a reasonable excuse for publishing his comments on Facebook because he genuinely believed Alice had lied in the Family Court proceedings and that the police were harassing him.
(b)As he had blocked Alice from his Facebook posts he did not think she would see his posts.
(c)There was nothing wrong with Mr Lucas contacting Mr Vincent because, at that stage, Mr Lucas was acting for himself.
(d)The phone call at 3.00 am on 15 October was an accident.
(e)The email headed “Why?” was simply a “cry for help” from Mr Lucas.
Difficulties developed between Mr Bott and Mr Lucas on the third day of the trial. Mr Lucas, who had been diagnosed with an obsessive compulsive disorder, was in the practice of sending Mr Bott notes when Mr Bott was cross-examining a witness. More than 50 such notes were sent during the trial. Mr Bott was also concerned Mr Lucas was behaving in a distracting manner by interrupting his cross-examination and generally behaving in an unappealing way.
On the third day of the trial Mr Bott remonstrated with Mr Lucas in the court cells. The next day Mr Lucas sent a text message in which he said:
Good morning Michael [Bott],
Please accept my apologies for my behaviour yesterday, my emotions spiralled down after seeing my [EVI]. I shall be silent in court today, & leave you to do your job. I have every faith in you, & I know you are fighting for me.
See you in court.
Dave.
Mr Bott responded with a text in which he accepted Mr Lucas’s apology.
Mr Lucas elected not to give evidence. He did, however, call his 18-year-old daughter as a witness. Mr Lucas’s daughter spoke about an occasion when she received a phone call from Mr Lucas when he was sleeping at the same house as his daughter. That phone call was sent by accident.
Directions on Charge 1
Ms Farquhar, who gave the closing address for the Crown, said the jury could find Mr Lucas guilty if they were satisfied “that some or all of the behaviour included in the charge amounted to psychological abuse of [Alice]”. This reflected the Crown’s reliance on the second part of the definition of “psychological abuse” in s 3(4) of the Domestic Violence Act, namely “a number of acts that form part of a pattern of behaviour”. Although the “pattern of behaviour” criteria applied to Charge 1, Ms Farquhar also made references to the law concerning representative charges when talking about Charge 1.
When the Judge summed up to the jury, she reiterated the standard directions governing representative charges. The Judge said:
[31] Essentially, [Alice’s] evidence is that between 6 February and 22 July 2018, Mr Lucas sent three emails to her lawyer, a text message to her friend and posted messages on his Facebook page that were publicly viewable referring directly and indirectly to her that caused her humiliation and distress.
[32] To find the defendant guilty on charge 1, you must all be satisfied beyond reasonable doubt that on at least one occasion between 6 February and 22 July 2018, Mr Lucas breached the protection order by engaging in behaviour amounting to psychological abuse of [Alice]. Exactly when the breach of protection order happened does not matter nor how often, so long as you all agree that it happened at least once during that period.
The question trail in relation to Charge 1 asked if the jury were sure Mr Lucas breached the protection order by engaging in behaviour, on at least one occasion between 6 February 2018 and 22 July 2018, that amounted to psychological abuse of Alice. The Judge then gave the jury part of the statutory definition of psychological abuse:
A single act may amount to abuse.
A number of acts that form part of a pattern of behaviour (even if all or any of those acts, when viewed in isolation, may appear to be minor or trivial) may amount to abuse.
The Judge also gave the jury guidance on what type of behaviour might constitute psychological abuse:
Behaviour which chips at a person’s confidence or is designed to “put a person down” or humiliate that person;
Abuse of power, which by degrees makes another person apprehensive and unsettled;
Exploiting an emotional or psychological vulnerability of another party; and
Indulging in behaviour designed to unsettle, antagonise, offend, annoy, provoke or worry another party.
After the jury retired Mr Lucas sent Mr Bott a text in which he said:
Thank you for your excellent work today, your closing address was magnificent. See you tomorrow
After the jury convicted Mr Lucas, he expressed strongly his dismay with the jury’s verdict and again suggested that Mr Bott had not represented him in a competent manner.
After sentencing, Mr Lucas mellowed somewhat and suggested that he wished to appeal and asked Mr Bott to act for him. Mr Bott explained that if allegations of trial counsel error were going to be pursued on appeal, he would not be able to represent Mr Lucas. As we have previously mentioned, Mr Lucas has pursued allegations Mr Bott made serious errors in the trial. Mr Lucas has ended up representing himself in this Court.
Evidence on appeal
Mr Lucas’s allegations against Mr Bott can be distilled to the following complaints:
(a)failure to prepare adequately for the trial;
(b)not properly challenging the police summary of facts;
(c)not challenging the excision of parts of Mr Lucas’s EVIs;
(d)not properly challenging an erroneous claim by Alice that there were three outstanding arrest warrants for Mr Lucas;
(e)misunderstanding the identity of a person referred to as “Maria” in a text message;
(f)inadequate cross-examination of Detective Perano; and
(g)not challenging the Judge’s incorrect answer to the jury about whether Mr Lucas was represented in a Family Court hearing.
Mr Bott explained that before trial he met Mr Lucas in his Wellington office on three occasions and he also travelled to Mr Lucas’s home on the Kāpiti Coast on three occasions to assist Mr Lucas when preparing for the trial. Mr Bott said in his affidavit:
I do not usually do this, but felt that Mr Lucas was more relaxed in his own surroundings and it would make it easier to work through key arguments with him.
Mr Bott also explained Mr Lucas’s trial strategy, the essential elements of which we have summarised at [37].
First ground of appeal
In his submissions and affidavit, Mr Lucas focused upon the three emails he sent to Mr Vincent and argued the prosecution against him misfired from the outset because the police seemed to think that he could not communicate directly with Mr Vincent. Mr Lucas also argued he did not foresee Alice learning about his Facebook messages because she was blocked from his Facebook post. Nor, Mr Lucas argued, did he believe that Alice’s friends would tell her about his text message and Facebook posts.
We make the following three points about Mr Lucas’s submissions in relation to Charge 1:
(a)Mr Lucas could communicate directly with Mr Vincent once Mr Lucas had dispensed with the services of his lawyer in the Family Court proceedings. What Mr Lucas could not do however, was invite Mr Vincent to question Alice about Mr Lucas’s multiple allegations about Alice’s honesty and character.
(b)As this Court explained in Dilley v R,[3] the Domestic Violence Act did not require an abusive communication to be addressed directly to the protected person.
(c)The jury were entitled to conclude Mr Lucas appreciated that Alice would in all likelihood learn about Mr Lucas’s Facebook posts and his text message to her friend.
[3]Dilley v R [2018] NZCA 210, [2018] NZFLR 536 at [8].
As we have foreshadowed there was, however, a problem with the way Charge 1 was prosecuted.
Charge 1 was based upon multiple instances of abuse that formed a pattern of behaviour that amounted to psychological abuse. The jury needed to be instructed therefore that they had to be satisfied Mr Lucas had engaged in abusive conduct that formed a pattern. Instructing the jury they could find Mr Lucas guilty on Charge 1 on the basis of one instance of his abusive conduct was the antithesis of requiring the jury to be satisfied Mr Lucas had engaged in a pattern of abusive behaviour.
Charge 1 could have been prosecuted as a pattern of behaviour charge without classifying it as a representative charge. The decision to amend Charge 1 at the commencement of the trial by making it a representative charge was a mistake that was compounded by the Judge giving the standard directions to the jury on representative charges.
These errors meant a significant mistake occurred in the way Charge 1 was explained to the jury. That error cannot be remedied retrospectively. The conviction in relation to Charge 1 will be quashed.
Second ground of appeal
During the trial the jury asked if Mr Lucas was able to communicate with Mr Vincent after Mr Lucas had ceased to be represented in the Family Court proceedings. The answer given by the Judge was that Mr Vincent could communicate directly with Mr Lucas. Mr Lucas correctly points out the answer given by the Judge did not directly answer the question asked by the jury. The jury also asked the Judge whether Mr Lucas was represented in the Family Court, to which the Judge replied that he was not. Mr Lucas says that this was incorrect as he was represented in a Family Court hearing.
We do not need to pursue this point because the questions from the jury related only to Charge 1, which we have already determined in a way that is favourable to Mr Lucas.
Third ground of appeal
We have carefully reviewed Mr Bott’s conduct of the trial and have concluded his actions throughout were more than acceptable. Mr Bott spent hours preparing for the trial and in travelling to Mr Lucas’s home. He was very generous with his time. The trial strategy Mr Bott developed with Mr Lucas was very sound. The fact Mr Lucas was convicted on those charges was not a reflection on Mr Bott.
At [49] we have summarised the complaints about Mr Bott advanced by Mr Lucas. We will briefly summarise our response to each criticism:
(a)Mr Bott prepared very thoroughly for the trial.
(b)The police summary of facts was not an exhibit and not something that impacted on the trial.
(c)The edits to Mr Lucas’s EVIs concerned inadmissible comments made by Mr Lucas about Alice and hearsay statements. They were properly excised from the EVIs.
(d)The Judge intervened when Alice spoke about outstanding arrest warrants for Mr Lucas. Mr Bott wisely chose not to draw attention to Alice’s error but instead used her allegations to illustrate Mr Lucas was the victim of psychological abuse.
(e)Nothing hinges on the possible error about the true identity of “Maria”.
(f)There was nothing in Mr Bott’s cross-examination of Detective Perano that was inappropriate.
(g)Nothing turns on the Judge’s answer about Mr Lucas’s representation in the Family Court hearing.
No miscarriage of justice is identified in the third ground of appeal.
Fourth ground of appeal
Mr Lucas has made a series of allegations about the police investigation of the complaints against him, and in particular, the conduct of Detective Perano.
There is, however, a disconnection between Mr Lucas’s complaints about the police investigation and the defence to the charges. Mr Bott and Mr Lucas settled on a sound defence to the charges. Mr Bott was correct when he chose not to go down irrelevant rabbit holes by pursuing the allegations Mr Lucas wanted to make about the police.
No miscarriage of justice is disclosed in the fourth ground of appeal.
Fifth ground of appeal
Mr Lucas argues Alice and Detective Perano committed perjury when giving their evidence. The difficulty for Mr Lucas in pursuing these allegations is that none of the specific complaints he makes about Alice and Detective Perano detract from the evidence that he committed the acts which form the basis of Charges 3, 4, 5 and 6.
No miscarriage of justice arises in relation to the fifth ground of appeal.
Appeal against sentence
Mr Lucas candidly acknowledges the sentence imposed was “lenient”.
Having concluded that the conviction in relation to Charge 1 must be quashed, we consider it appropriate to also adjust the sentence imposed, bearing in mind Mr Lucas’s conduct was serious, the sentence imposed was generous and Mr Lucas’s offending was driven, at least in part, by his personality disorder.
The overall interests of justice will be served by adjusting Mr Lucas’s sentence to:
(a)four months’ community detention; and
(b)a period of six months’ supervision, which is the minimum period of supervision prescribed in s 45(2) of the Sentencing Act 2002.
The conditions imposed by the District Court in relation to the sentence of community detention and supervision remain in force.
Result
We allow Mr Lucas’s appeal against conviction in relation to Charge 1. His conviction in relation to that charge is quashed.
There will be no retrial in relation to Charge 1 because of the antiquity of the offending and the need for Alice and Mr Lucas to put this tragic episode in their lives behind them.
The appeal against conviction in relation to Charges 3, 4, 5 and 6 is dismissed.
The 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.
Solicitors:
Crown Law Office, Wellington for Respondent
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