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 offence is said to be “on or about 8 May 2020.”

2      O’Neill v Malcouronne [2021] NZDC 15805.

3 At [10].

4      O’Neill v Malcouronne [2020] NZDC 2991 at [26].

5      Malcouronne v O’Neill [2021] NZHC 641.

6 At [124].

It is unnecessary to traverse the appellant's points in detail. They are, in my view, carefully validated. There is uncontroverted evidence of Ms O'Neill making false and damaging accusations of sexual misconduct, indecency and child abuse. The assertions have been made to public authorities and have been published on Facebook.

[8]Later, the Court concluded:7

The specified acts on the part of Ms O'Neill and the evidence of them discloses a pattern of conduct that unarguably constitutes harassment in terms of s 3(4) of the Act and which renders necessary the making of a restraining order. I accept the submission advanced on behalf of Mr Malcouronne that there is no equivalence between his and Ms O'Neill 's conduct.

[9]    The position when Mrs O’Neill’s prosecution came before Judge Collins on  4 August 2021 was that the High Court had set aside the restraining order. So, when Judge Collins considered Mr Malcouronne’s s 147 application, a judgment of the High Court had rendered Mrs O’Neill prosecution legally unsustainable.

[10]   Matters did not improve for Mrs O’Neill. She subsequently sought leave to appeal the High Court judgment to the Court of Appeal. In a recent judgment, that Court dismissed her application, finding that Mrs O’Neill had failed to persuade the Court that there was a question of law capable of serious argument “involving some interest, public or private of sufficient importance to outweigh the cost and delay of the further appeal.”8

[11]As the Court of Appeal noted:9

Correctly analysed, all of the issues which Mrs O’Neill wishes to raise are entirely case-specific. Further, what private significance the High Court findings might have for the parties is greatly reduced by the fact that the restraining order against Mr Malcouronne has already expired and indeed had done so before the High Court delivered its judgment. As for the strength of the proposed appeal, it is not immediately apparent to us that the approach taken by Clark J was anything other than orthodox. The chances of this proposed second appeal succeeding are in our assessment low.

7 At [127].

8      O’Neill v Malcouronne, [2021] NZCA 556 at [9]–[10].

9 At [11].

[12]   So, as at the date of today’s hearing, there is a judgment of the Court of Appeal, binding on this Court, the effect of which is to confirm that Mr Malcouronne is not subject to a restraining order.

Applicant’s grounds in support of leave

[13]Mrs O’Neill advances four arguments in support of her application for leave:

(a)First, she argues the District Court Judge “erred in the obligations under the Human Rights Act 1993, 21 Prohibited grounds of discrimination

(g) ethnic national origins — which is in the public interest.” In oral submissions the key focus of this ground is said to be the failure of the District Court to hear and determine the prosecution before the expiry of   the   one-year   restraining   order    originally    imposed    on    Mr Malcouronne.

(b)Second, a “failure to take a proper care over harm under the Crimes Act 1961 to 1962 307A(3), (a) “creating a risk of health of one or more people”. This ground was also amplified in oral submissions. Its central point  was  that  Mr Malcouronne’s  alleged  conduct  had   caused Mrs O’Neill serious health issues and harm, constituting an offence under s 307A of the Crimes Act. That provision makes it an offence for any person without lawful justification to threaten to do an act likely to create a risk to health of one or more people (amongst other things).

(c)Third, Mrs O’Neill submits that “failure in Oral Judgement to take proper care over the New Zealand Bill of Rights Act 1990 (s 26) retroactive penalties: liable to conviction of offence that constitutes an offence by such person under the law of New Zealand at the time it occurred.” This ground was clarified in oral submissions. Mrs O’Neill considers that the effect of s 26 of the New Zealand Bill of Rights Act 1990 is to ensure Mr Malcouronne remains liable to criminal prosecution for breach of a restraining order notwithstanding the judgments of the High Court and Court of Appeal, because she commenced the prosecution before either of the judgments of those

courts had issued and at a time when a restraining order was still in existence.

(d)Finally, she submitted that “dismissal was not lawful in light of the fact that Judge Collins failed to acknowledge harm Mrs O’Neill endured and provide the reparation for victims. Court is obliged to comply with moral standards and dismissal of the charge without taking into account the serious harm caused – was morally indefensible.”

[14]   In relation to whether her appeal is moot as a result of the judgments of the High Court and Court of Appeal, Mrs O’Neill submitted that:

Mr Malcouronne’s friend request carry liability for creating the serious health complications and serious life-threatening risk to the Mrs O’Neill – which is a subject to provisions under the Crimes Act 1962 1961 307A (3), (a) “creating a risk to the health of one or more people”, and to

It failed to prevent and regulate his future behaviour.

[15]She also relied on the Supreme Court’s decision in Ngan v R.10

Analysis

[16]   Mrs O’Neill’s appeal is moot, and it is not appropriate to grant her leave to appeal. That conclusion is inevitable given the terms of the judgments of both this Court and the Court of Appeal.

[17]   The effect of those judgments is that Mr Malcouronne should never have been subject to a restraining order. No such order exists. It follows that Mrs O’Neill cannot possibly succeed in her proposed prosecution of Mr Malcouronne. And there is a separate basis supporting the District Court’s  dismissal  of  the  charge:  that  is,  Mrs O’Neill’s inability to establish the existence of an essential element of the offence

— a restraining order. Accordingly, there can be no criticism of the District Court’s decision to dismiss the charge. Indeed, I consider it would have been improper to permit the prosecution to continue given the appeal judgments.

10     Ngan v The Queen [2007] NZSC 105, [2008] 2 NZLR 48.

[18] The submissions Mrs O’Neill advances at [14] above do not answer the difficulty her prosecution, and therefore her proposed appeal, faces. Mr Malcouronne was not charged with an offence under s 307A of the Crimes Act. And the High Court at least found, based on the evidence, that it was not necessary to issue a restraining order against him “to prevent and regulate his future behaviour.”

[19]   Nor am I satisfied that any of the grounds advanced in support of the application constitute a question of law capable of serious argument. None of them are errors of law contained in the District Court’s judgment.

[20]   Finally, while I do not have to determine the issue, even if Mrs O’Neill could point to an error of law material to the District Court’s decision, it would not assist her application for leave given her prosecution is a legal impossibility.

Result and order

[21]The application for leave to appeal is dismissed.

Isac J