O'Neill v Malcouronne - [2021] NZHC 3027

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2021-441-26

[2021] NZHC 3027

BETWEEN
MARY JELENA O’NEILL

Applicant

AND

PETER JAMES MALCOURONNE

Respondent

Hearing: 9 November 2021 (via AVL)

Appearances:

Applicant in Person Respondent in Person

Judgment:

9 November 2021

ORAL JUDGMENT OF ISAC J

[1] The applicant, Mrs O’Neill, seeks leave to appeal a decision of the District Court dismissing her private prosecution of the respondent, Mr Malcouronne. The application is made under s 296 of the Criminal Procedure Act 2011, which provides for appeal on a question of law with leave of the Court.

[2] Mrs O’Neill’s proposed prosecution relates to an alleged breach of a restraining order. The charging document she filed in the Napier District Court alleges:

While a restraining order made pursuant to the Harassment Act 1997 was in force against him, without reasonable excuse failed to comply with a condition of that restraining order namely making contact with Mary Jelena O’Neill by sending to her Facebook page a “friend” request, being an offence punishable by 6 months imprisonment and/or a $5,000 fine.

O’NEILL v MALCOURONNE [2021] NZHC 3027 [9 November 2021]

[3] In order to pursue her appeal Mrs O’Neill must of course establish the existence of a restraining order on the date of the alleged offence.1

Decision under appeal

[4] In an oral judgment of 4 August 2021, Judge Collins dismissed Mrs O’Neill’s prosecution under s 147 of the Criminal Procedure Act.2 The Judge concluded that it was difficult to conceive of “a more trivial matter where the criminal jurisdiction of the court is being asked to be involved.”3 He then concluded that the underlying substance of the charge was “so trivial that to ask it to occupy the time of the Court is an abuse of process.” He went on to observe:

I say that when the District Court is under huge pressure to provide time and hearing time for far more serious matters. We are dealing on a daily basis with people with mental health issues, with addiction issues and intergenerational deprivation to deal with such a prosecution which, as I say, has no public interest and is an abuse of the Court process.

Status of the restraining order

[5] As I have noted, in order to pursue her intended prosecution, Mrs O’Neill must establish the existence of a restraining order.

[6] In an oral judgment of 19 February 2020, Judge David Harvey made a restraining order against both Mr Malcouronne and Mrs O’Neill following a defended hearing. The order against Mr Malcouronne was for one year, while the order against Mrs O’Neill was for two. The reason for the disparity was Mrs O’Neill’s “relentless and obsessive pattern of behaviour” which required a longer period of restraint.4

[7] Mr Malcouronne appealed the District Court decision. In a detailed judgment of 26 March 2021, Clark J upheld his appeal, and set aside the restraining order.5 Her Honour concluded:6

1 The date of the alleged…

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.

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Details

Case: [2021] NZHC 3027
Decision Date: 9 November 2021

CaseChat Overview and Summary

Mary Jelena O'Neill has applied to the High Court for leave to appeal the District Court's dismissal of her private prosecution of Peter James Malcouronne for an alleged breach of a restraining order under the Harassment Act 1997. The application was heard and dismissed by Isac J on 9 November 2021. The central issue before the Court was whether to grant leave to appeal the dismissal of the private prosecution. The Court held that the application was moot and dismissed it. Mrs O'Neill's proposed prosecution of Mr Malcouronne was predicated on the existence of a restraining order against him. However, the High Court had already set aside the restraining order against Mr Malcouronne, and the Court of Appeal dismissed Mrs O'Neill's appeal of that decision. Therefore, Mrs O'Neill could not establish a necessary element of the offence—the existence of a restraining order. Further, the proposed appeal did not constitute a question of law capable of serious argument. The application for leave to appeal was dismissed.

Orders