Mark v Police

[2013] NZHC 1041

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-000030 [2013] NZHC 1041

BETWEEN  JAMIE DENNIS MICHAEL MARK Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         10 May 2013

Counsel:         D A Ewen and P A Walker for Appellant

I R Murray for Respondent

Judgment:      10 May 2013

ORAL JUDGMENT OF COLLINS J

Introduction

[1]      The principal issue I have to determine is encapsulated in the following question:

Are proceedings which allege a breach of a police safety order issued under Part 6A of the Domestic Violence Act 1995 (the Act) civil or criminal proceedings?

Context

[2]      This  question  arises  in  the  context  of  an  appeal  from  a  decision  of

Judge Hobbs delivered in the Wellington District Court earlier this week.

[3]      Judge Hobbs determined that the proceedings under Part 6A of the Act are civil proceedings and that ss 84 and 85 of the Act applied. Those sections provide:

MARK V NEW ZEALAND POLICE HC WN CRI-2013-485-000030 [10 May 2013]

In any proceedings under this Act (other than criminal proceedings), and whether by way of hearing in the first instance or by way of appeal, or otherwise, the Court may receive any evidence that it thinks fit, whether or not it is otherwise admissible in a court of law.

85       Standard of proof

Every question of fact arising in any proceedings under this Act (other than criminal proceedings) must be decided on the balance of probabilities.

Background

[4]      On  5 May  2013  at  approximately  5.00  pm,  police  attended  a  domestic violence incident at Mr Mark’s home.  The police determined there was a likelihood that Mr Mark would use domestic violence against the person at risk, Ms X, as he told her, in the presence of the police, that he would cut her telephone, internet and power sources.  As a result, the police issued a police safety order at 5.45 pm.  The order was to last for three days.

[5]      At 6.45 pm that evening, Mr Mark returned home in contravention of the police safety order.  He asked Ms X to hand him his passport, and then turned off the power from the outside power box.  Ms X went outside and switched the power back on. At about 8.30 pm Mr Mark returned again and turned the power off again.  Ms X called the police who located Mr Mark and took him into custody.

[6]      Under s 124L of the Act, a person who breaches the conditions of a police safety order can be taken into custody and brought before a District Court Judge within 24 hours.1

[7]      A  complaint  was  laid  by  police  for  breaching  the  police  safety  order. Mr Mark appeared before Judge Hobbs on 6 May 2013.

1      Domestic Violence Act 1995, s 124L(4).

[8]      Judge Hobbs determined that the allegation that Mr Mark breached the police safety order was a civil proceeding and that he needed only to be satisfied on the balance  of  probabilities  that  Mr  Mark  had  breached  the  police  safety  order. Judge Hobbs also decided he could rely on the unsworn statement of Ms X when satisfying himself Mr Mark had breached the police safety order.   Judge Hobbs extended the police safety order by a further five days.

Police safety orders

[9]      A police safety order is issued under Part 6A of the Act.  The purpose of a police safety order was explained in the following way by the Select Committee that issued a report in relation to the Domestic Violence (Enhancing Safety) Bill:2

[The purpose of police safety orders are to give] the police the ability to issue “on-the-spot” police orders ... to be issued where there is insufficient evidence to arrest a person for an offence but where a constable has reasonable grounds to believe that the order is necessary to ensure the safety of another person.

[10]     It is a condition of every police protection order that the person against whom the order is issued must not, amongst other things:3

(1)      physically or sexually abuse the person at risk;  or

(2)      threaten to physically or sexually abuse the person at risk;  or

(3)      damage or threaten to damage property of the person at risk;  or

(4)engage   or    threaten    to   engage    in    other    behaviour    including intimidation or harassment that amounts to psychological abuse of the

person at risk.

2      Domestic Violence (Enhancing Safety) Bill (9-2) (select committee report) at 1 and 3.

3      Domestic Violence Act 1995, s 124E(2)(a) to (d).

[11]     Those who breach a police safety order are not charged by way of laying an information.  Instead, proceedings are initiated by way of a “complaint”.   Other examples of where a complaint can be laid in the District Court include:

(1)where there has been an application for an order for a bond to keep the peace;4

(2)where  a  local  authority  has  ordered  the  removal  of  weeds  and obstructions from specified water courses;5   and

(3)where  a  person  contravenes  the  provisions  relating  to  smoke-free work places and public places.6

[12]     Once a breach complaint is before a District Court Judge pursuant to Part 6A of the Act, then the Judge has the power to either issue another police safety order for a period not exceeding five days, or issue a temporary protection order.7    No conviction is entered and no sentence can be imposed.

Are proceedings alleging a breach of a police safety order criminal or civil proceedings?

[13]    Judge Hobbs did not provide reasons why he considered this to be a civil proceeding.  He may have done so on the basis that police safety orders are akin to protection orders, which are civil in nature and are usually made on application by

the other party to the relationship.8

4      Summary Proceedings Act 1957, s 186.

5      Land Drainage Act 1908, s 63(1)(a).

6      Smoke-Free Environments Act 1990, s 16(6).

7      Domestic Violence Act 1995, s 124N.

8      Section 7 or if the Court is exercising its jurisdiction under s 124N, without objection from the other party to the relationship.

[14]     It is counter intuitive to regard a complaint initiated by the police in the District Court as falling within the District Court’s criminal jurisdiction, where no offence is committed and no conviction can follow.

[15]     Section 12 of the Summary Proceedings Act 1957 refers to two alternate ways in which a proceeding can be commenced under the Act, namely by way of laying:

(1)      an information;  or

(2)      a complaint.

[16]     Section 74 of the Summary Proceedings Act 1957 states that:

74       Provisions of this Part to apply to complaints

Subject to the provisions of any other Act, the provisions of this Part of this Act, as far as they are applicable and with the necessary modifications, shall apply  to  proceedings  brought  by  way  of  complaint  as  if  they  were proceedings brought on an information, and as if references in this Part to the informant were references to the complainant, as if references to a charge or to an offence were references to the ground of the complaint, and as if references to a conviction were references to an order.

[17]     The effect of s 74 of the Summary Proceedings Act 1957 is that:

(1)      A complaint is to be dealt with as if it were an information.

(2)      The grounds of a complaint are dealt with as if they were a charge.

(3)An  order  made  following  a  finding  of  a  breach  is  similar  to  a conviction.

Thus, when the police lay a complaint under s 124L of the Act for a breach of a police safety order, the proceeding is similar to a criminal proceeding rather than a civil proceeding.

[18]     This is consistent with the Select Committee report on the Domestic Violence (Enhancing Safety) Bill that introduced police safety orders, where the Select Committee stated:

As  the  bill  does  not  make  a  breach  of  an  order  an  offence,  there  is uncertainty as to how a hearing for a failure or refusal to comply with an order might be referred to the District Court.  To clarify this we recommend inserting new section 124I(3) to allow the police to make an application to the District Court by way of a complaint.

[19]     Furthermore, the serious consequences which flow from a police safety order justify  breaches  of  those  orders  being  treated  as  criminal  proceedings.    Once Mr Mark was served with a police safety order he was required to:

(1)      vacate his home;9   and

(2)      cease to have possession of any firearms that he may have owned.10

In addition, any parenting order in favour of Mr Mark would be suspended.11

[20]     These  consequences  are  serious  and  would  constitute  a  limitation  of Mr Mark’s rights of freedom of movement and association affirmed by ss 17 and 18 of the New Zealand Bill of Rights Act 1990.  It is therefore appropriate that breaches of a police safety order are governed by the protections provided by criminal law procedures and safeguards.

[21]     I therefore consider that proceedings of this kind are criminal in nature, and engage the Court’s summary jurisdiction.  As a result, ss 84 and 85 of the Act do not apply, and Judge Hobbs was not entitled to rely on Ms X’s statement without being

satisfied it was admissible under the Evidence Act 2006.

9      Domestic Violence Act 1995, s 124E(1)(b).

10     Section 124E(1)(a).

11     Section 124G.

Disposition

[22]     Judge Hobbs did not have the jurisdiction to deal with the complaint in a civil jurisdiction.    Accordingly,  he  made  an  error  of  law  when  he  determined  the complaint in accordance with ss 84 and 85 of the Act.

[23]     Mr Mark has argued that I should determine the complaint in his favour because the evidence before Judge Hobbs was incapable of establishing that a valid police safety order had been issued.   Mr Mark may be correct.   Under normal circumstances the appropriate course would be to allow the appeal and remit this proceeding back to the District Court for it to be determined in the District Court’s criminal jurisdiction applying the rules of evidence and principles that govern criminal proceedings.   However, as the existing orders against Mr Mark expire tomorrow, Saturday 11 May 2013, there is little utility in troubling the District Court

further with this matter.  I will accordingly simply set aside Judge Hobbs’ order.

D B Collins J

Solicitors:

Crown Solicitor, Wellington for Respondent