Mitchell v Police - [2019] NZHC 2017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-419-000037

[2019] NZHC 2017

BETWEEN
GORDON MITCHELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 July 2019

Appearances:

G Harvey for the Appellant

M Mortimer for the Respondent

Judgment:

16 August 2019

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 16 August 2019 at 3:30 pm

Registrar/Deputy Registrar Date:

Solicitors / Counsel:
Meredith Connell (Office of the Crown Solicitor), Auckland Public Defence Service, North Shore City

MITCHELL v NZ POLICE [2019] NZHC 2017 [16 August 2019]

[1] Following a Judge-alone hearing on 16 January 2019, Judge MLSF Burnett convicted Gordon Marcus Mitchell on four charges of contravening a restraining order. On 21 March 2019, the Judge fined Mr Mitchell $780 on each of the first three charges and $980 on the fourth charge. She also ordered Mr Mitchell to pay $2,000 to the complainant as emotional harm reparation. Mr Mitchell now appeals. Initially he appealed against both conviction and sentence, but now says that if the convictions are upheld the sentence will not be challenged.

Facts

[2] Mr Mitchell and the complainant are neighbours who share a sub-divided property in Mt Roskill. A restraining order with five special conditions was granted in the Auckland District Court on 3 February 2016. On 13 October 2016, the restraining order was varied, with special conditions amended, in accordance with a judgment delivered by Judge G M Harrison on 26 September 2016. Both the initial and the amended orders were stated under the heading “Duration of restraining order” to “Remain in force until further order of the Court”.

[3] The contraventions allegedly took place on 28 February, 4 and 5 March, and 8 October 2017, all over a year after the original grant of the order. Prior to the Judge- alone hearing on 16 January 2019, Mr Mitchell made an application under s 147 of the Criminal Procedure Act 2011 on the basis that the restraining order on which the charges were founded had expired. Mr Mitchell submitted that the District Court lacked jurisdiction to make an order for an indefinite or unspecified duration and if no period was specified, the order would expire after a year.

[4] In a pre-trial judgment on 17 April 2018, Judge AM Manuel dismissed Mr Mitchell’s application under s 147 as she found that there was jurisdiction for both the initial order and the variation to be made on the basis that they would continue in force, pending further order of the Court.

[5] Mr Mitchell sought to appeal to the High Court against the pre-trial ruling of Judge Manuel. In a decision of 18 July 2018, Lang J determined that a decision declining to discharge a defendant under s 147 was not amenable to appeal in the High

Court under s 296 of the Criminal Procedure Act.1 He said that instead the matter must proceed to trial in the District Court. He further said that…

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 Mitchell v Police

Details

AGLC: Mitchell v Police [2019] NZHC 2017
Case: [2019] NZHC 2017
Decision Date: 16 August 2019

CaseChat Overview and Summary

The case of Mitchell v Police involved an appeal by Gordon Mitchell against his conviction for contravening a restraining order. Mitchell argued that the restraining order on which the charges were founded had expired, rendering the charges a nullity. The appeal hinged on the interpretation of the term "period" as used in Section 21 of the Harassment Act, which provides for the duration of a restraining order. Mitchell contended that "period" could not encompass an indefinite duration, and thus, the restraining order should expire after one year unless a specific duration was specified. The court examined textual definitions, the purpose of the Act, and the implications of granting indefinite orders on fundamental rights. The court also compared the New Zealand approach with that of the United Kingdom and Australia, where indefinite orders are explicitly allowed. Ultimately, the court found that "period" required a finite duration, and as the original restraining order had expired before the alleged contraventions, Mitchell's convictions were quashed.

The court's reasoning was comprehensive, considering various legal principles and comparative jurisdictions. The textual analysis of Section 21 showed that while "period" could refer to either a definite or indefinite duration, the overall purpose of the Act and the principle of legality suggested that "period" should be interpreted as finite. The court also noted that the lack of an express provision for indefinite orders in the Harassment Act, unlike in family violence legislation and other jurisdictions, supported a finite interpretation. The court concluded that a finite interpretation was consistent with the purpose of the Act, which is to provide necessary protection to victims of harassment. The appeal was allowed, and Mitchell's convictions were quashed as the restraining order had expired before the alleged contraventions.

Orders