Police v SR

[2013] NZHC 980

PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT, PERSON UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF THE RESPONDENT AND PARTNER PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-393 [2013] NZHC 980

NEW ZEALAND POLICE

Appellant

v

SR

Respondent

Hearing:         6 May 2013

Counsel:         A Longdill and M Regan for the Appellant

R Weir and R Slade for the Respondent

Judgment:      6 May 2013

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:

Ms A Longdill/Mr M Regan, Meredith Connell, Office of the Crown Solicitor, Auckland

Mr R Weir/Mr R Slade, Public Defence Service, Auckland

POLICE V SR HC AK CRI-2012-404-393 [6 May 2013]

[1]      This is an appeal by the New Zealand Police by way of case stated following discharge  of  the  respondent  without  conviction  on  a  charge,  to  which  she  had pleaded guilty, of leaving children without reasonable care and supervision.[1]

[1] Police v SR DC Auckland CRI-2012-004-004730, 23 October 2012. Section s 10B Summary

Offences Act 1981.

[2]      The facts of the offending to which the respondent pleaded guilty, and the respondent’s further explanation as to how this offending came about, are noted in broad terms in the District Court judgment.   I do not propose to record the background facts again.  However, one matter that is important to note is that there was unchallenged evidence from the respondent explaining what happened in a way which, in my judgment, justified the Judge’s implicit conclusion that this offence was well short of being at the serious end of the spectrum for this particular type of offence.  I will come back to that point in a different way in a moment.

[3]      The question recorded in the case state is as follows:

Did  I misapply the  test in  s  107  of the  Sentencing Act  2002  by being satisfied on the material before me that there were direct and indirect consequences of a conviction for the respondent that would be out of all proportion to the gravity of the offence?

[4]      In my judgment, on the face of it, this does not raise a question of law; or at least it is difficult to discern the question of law with the question stated so broadly. Stated at the broadest level in respect of s 107 the question would be not whether the Judge misapplied the test, but whether he applied the correct legal test.   It is not contended by the appellant that the Judge applied the wrong test.   This is perhaps implicit in the question posed in the case stated.   In any event, the correct test is clearly identified in the decision; that is to say, the test under s 107.

[5]      As discussed with Ms Longdill during the hearing, the appropriate question of law at this point, if it is stated in general terms, would seem to be a question along the following lines: In applying the correct test did the Judge nevertheless misdirect himself  on  a  point  of  law?    And  this  would  be  expected  to  be  followed  by

submissions for the appellant identifying a specific error of law in the application of

the test.  In my opinion the written submissions for the appellant did not identify an error of law in the Judge’s application of the test, at least with the specificity that I have been seeking to indicate is required.   What the appellant pointed to in the written  submissions  was  a  failure  adequately  to  explain  the  conclusion.    For example, the appellant submitted in respect of the gravity of the offending:

Apart  from  commenting  about  the  general  nature  of  the  offending,  the District Court Judge did not convey where, on the scale of conduct contrary to s 10B of the Summary Offences Act 1981, he considered the Respondent’s actions fell.   In this respect, His Honour’s views, on the gravity of the Respondent’s offending, is somewhat unclear.

[6]      With respect, this does not give rise to a question of law.  The submissions that followed referred to a question of the adequacy of reasons for a decision, but the question of law is not directed to that point.

[7]      As to the direct  and indirect consequences of a conviction the appellant submitted in the written submissions:

It is settled law that an individual seeking a discharge without conviction must demonstrate that there is a ‘real and appreciable risk’ that any identified consequences will occur.  The higher the likelihood and the more serious the consequences, the more likely it is that the statutory test can be satisfied.[2]

[2] Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]-[35].

[8]      There is then reference to three cases.[3]    Following this there is, in effect, a challenge to the adequacy of the consequences identified by the respondent.  In my judgment this part of the written submissions in consequence engages directly with questions of fact.

[3] Vaipo v Police HC Auckland CRI-2011-404-141, 27 July 2011 at [18]; Chang v Police HC Auckland

[9]      In the course of oral submissions Ms Longdill submitted that the error of law is in fact that there was no evidence of adverse consequences from a conviction.  If there is no evidence to support a particular conclusion that a Judge has to reach then that would be an error of law.  But there are two difficulties with this.  One is that this certainly was not identified with any precision as the question of law giving rise to this case stated.   Had it been identified in this way the case stated – which of

course has to be stated by the Judge, not by the appellant – may very well have been

differently framed.   Secondly, I do consider that there was at least some evidence enabling the Judge to make an assessment of this part of s 107.  That would then bring the matter back to a question which is not open on a case stated on a matter of law;  that  is,  a  question  as  to  whether  the  Judge  was  justified  in  coming  to  a conclusion on the merits.

[10]     The Judge based his decision on this part of the s 107 assessment – direct and indirect consequences of a conviction – on the affidavit from the respondent.  There was no challenge to what she said.  The appellant submits that the specific matters that she identified are too speculative.  This was reference to a hope that in the future she would be able to pursue a career as a counsellor or a social worker in the social services area.  Ms Longdill submitted that this evidence was too speculative and, to an extent, that as a matter of law, it did not identify consequences.  I have perhaps expressed that differently from the way Ms Longdill did, but I think I have captured the essence.  That submission perhaps captures the difficulties that can arise in this area in identifying whether there is a true question of law or whether it is a question of fact.  But there is a further consideration beyond this.

[11]     I do not agree with a submission that there must be identified consequences if that is intended to mean that there must be specific outcomes beyond what may be described as the general effect of the fact of a conviction.  The fact of a conviction is the most obvious consequence.  Section 107 talks about direct consequences as well as indirect consequences.   More often than not applicants for discharge without conviction do identify indirect consequences such as the effect on employment or travel.  But the section itself is not circumscribed in this way. This was recognised in

a decision of Mallon J in Nash v Police.[4]    In Vaipo v Police Gendall J appears to

have expressed some reservations in relation to this.[5]

[4] Nash v Police HC Wellington CRI-2009-485-000007 at [19].

[5] Vaipo v Police HC Auckland CRI-2011-404-141, 27 July 2011 at [19]-[21].

[12]     I do consider, with respect, that as a matter of principle Mallon J was correct. I expressed a similar view in another case.[6]

[6] Thomas v Police HC Auckland CRI-2011-404-242, 31 October 2011.

[13]     In relation to consequences, the respondent’s affidavit evidence was in any event not confined to her hopes in respect of a future career.  She also said:

I cannot say for sure what will happen if I have a conviction is entered [sic] but I really am working hard to keep my life on the right track and I am really worried that a conviction like this could put that all in jeopardy.

[14]     I do agree with the appellant’s submission that some matters required to be considered under s 107 are not expressly recorded in the judgment.  But when the judgment is read as a whole, and when allowance is made, as it must be, for the fact that  this  was  an  oral  judgment  in  what  was  no  doubt  a  busy Court,  I am  not persuaded there was an error of law.   And it is, of course, for the appellant to persuade me that there was an error of law.  The Judge clearly identified the matters that he was legally bound to identify.  He drew this together in a manner which is consistent with the proper application of the legal test.  He said:

[14]     Looking at those matters and factoring them as I must, I have to determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending.  I have reached the conclusion in this case that a conviction in this instance against the background of the offending and the actual offending itself would be out of all proportion to the gravity of the offending.   There is a real and appreciable long-term consequence for you with a conviction and I acknowledge immediately that you have no other convictions.

[15]     Some further observations are warranted.   To an extent, at least, it does appear that part of the prosecutor’s complaint is that it was wrong for this respondent to be discharged without conviction because it was a relatively bad offence of its type and it involved five children and there really were no significant adverse consequences.  These are not propositions of law.  Having said that I acknowledge what I have already referred to; that is the identification by Ms Longdill of what would be questions of law.

[16]     The second observation is that, in my judgment, having read all of the factual matters placed before the Judge, there was justification for his coming to the conclusion he did come to.  This is not a finding by this Court that the Judge was right because that is not an issue that I am able to determine or required to determine. It is a reinforcement of the conclusion that there was no error of law.

[17]     In relation to consequences of conviction it is not to be overlooked that conviction in this case could in itself be significant for this relatively young woman struggling  in  difficult  circumstances  to  bring  up  five  young  children.    And  a relatively young woman who, following the events leading to her offence, has taken significant steps voluntarily to address problems and to equip herself to be a substantially better mother. A conviction in these circumstances can in my judgment readily be seen to be in itself a matter which has a reasonably significant adverse consequence.   And these things do need to be weighed against all of the circumstances of the offending which I earlier briefly adverted to.  It was far from the case of a woman who casually left her children in a car simply to indulge herself in a casino.   There was a great deal more in the background which caused real difficulties for the respondent.

[18]     It is appropriate to conclude with an observation from the Court of Appeal in a case called Z v R:[7]

In  Blythe,  this  Court  said the three-step  approach “is  but a  helpful  and practical way of applying the s 107 test”.[8]    As this suggests, it is important not to be too doctrinaire or prescriptive about it – after all, “[t]he test is the test”.[9]     What ultimately matters is that the terms of s 107 are applied, by whatever means that is done.

[7] Z v R [2012] NZCA 599 at [22]; [2013] NZAR 142 at [22].

[8] Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [14].

[9] R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [23].

[19]     For all of these reasons I am not persuaded that there was an error of law and in consequence the appeal by way of case stated is dismissed.

Woodhouse J

CRI-2011-404-063, 25 May 2011 at [13]-[16]; and Oliva v Police HC Auckland CRI-2010-404-086,
22 June 2010 at [12]-[14].