Pollard v Police HC Christchurch CRI-2011-409-000035

[2011] NZHC 543

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000035

BETWEEN  GLEN POLLARD Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         3 June 2011

Appearances: A S Greig for Appellant

K Basire for Crown

Judgment:      8 June 2011 at 2:00 PM

JUDGMENT OF THE COURT

This judgment was delivered by me on 8 June 2011 at 2.00pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, PO Box 533, Christchurch

Copy to:            A S Greig, PO Box 25 259, Christchurch

POLLARD V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000035 8 June 2011

Introduction

[1]      Following a defended hearing before Judge Couch in the District Court at Christchurch the appellant was convicted on one charge of breach of a protection order.  He appeals against that conviction.

Background

[2]      The appellant had been in a relationship with the complainant for a number of years.  They had children as a result of their relationship.  In 2009 the complainant obtained a protection order against the appellant.  As at October 2010 a lot of the appellant’s furniture and other possessions were still at the complainant’s home. The appellant and complainant had a mutual associate, Mr Hinds.  It was arranged that Mr Hinds would collect the appellant’s property from the complainant’s home.  Mr Hinds went to the complainant’s address and, in her presence, collected a number of the appellant’s possessions.  However, some items were too heavy for him to load on his own and as his car and trailer was full he left those heavy items and some other items behind.

[3]      On 18 October 2010 the appellant went to the complainant’s address, while she was at work, and uplifted a number of the remaining items of property but not the heavy items.   The complainant’s adult son, (not related to the appellant), was present.  The son was looking after his brother, one of the appellant’s children.  The appellant was arrested shortly thereafter and charged with breach of the protection order.

The defence

[4]      The facts as to the existence of the protection order and as to the appellant being at the complainant’s property were not in issue.  Prima face the appellant had breached the protection order.  The appellant defended the charge on the basis that he had a reasonable excuse for breaching the order:   s 49(2) Domestic Violence Act

1995.

[5]      In A v Police[1]  the Court confirmed that in this context, whether the excuse was  reasonable would  depend  on  whether it  was  objectively reasonable for the defendant to have engaged in the particular conduct or action.  In this case, the issue is whether it was objectively reasonable for the appellant to have gone to the complainant’s property in breach of the protection order.

[1] A v Police [1999] 2 NZLR 505

[6]      The appellant’s case was that the complainant had consented to Mr Hinds acting as an intermediary, had led Mr Hinds to believe that the appellant could come back alone and collect the remaining items, and that Mr Hinds had relayed that to the appellant.   On that basis the appellant had a reasonable excuse for going to the property in breach of the protection order.

The decision in the District Court

[7]      The Judge rejected the appellant’s defence of reasonable excuse.   First he discussed the circumstances of Mr Hinds’ involvement and what the appellant said he had been told by the appellant:

[8]       After he had loaded the trailer Mr Hinds had a discussion with [the complainant]  about  getting  the  rest  of  the  defendant’s  belongings.    Mr Hinds’ evidence about this was not very specific but he said that he was led to understand that the defendant could get the rest of his belongings as long as [the complainant] was not there at the time.   As an alternative he (Mr Hinds) could come back alone to get the rest of the belongings whilst she was there.

[9]       [The complainant’s] evidence was that she made it clear to Mr Hinds that there was no problem with him returning to get the rest of the defendant’s belongings but that this would need to be done by him alone. [The complainant] was adamant that she did not agree at all that the defendant could come to the property to get the rest of his belongings.

[10]      When Mr Hinds took the trailer load back to the defendant they had a discussion about the rest of the belongings.  Mr Hinds’ evidence was that he told the defendant it was all right for him to get the rest of the belongings but not while [the complainant] was there.

[11]     The  defendant’s  account  of  this  conversation  was  somewhat different and more specific.   My note of what the defendant said was, “I believe he said it was okay for us to go and get the rest because there was no one there to help with the heavy stuff”.  In his evidence the defendant did not mention any difficulty in collecting the belongings because the trailer

was full, only because some of the furniture was too heavy for Mr Hinds to lift on his own.  In his evidence the defendant then went on to say that he went alone to [the complainant’s] property on 18 October because Mr Hinds was working that day.  He said that he “decided to grab what I could”.

[8]      Then,  after  considering  the  submission  based  on  the  reasonable  excuse defence that, if an agreed intermediary (Mr Hinds), conveyed the message to [the appellant] that it was okay for him to go on the property, that would constitute a reasonable excuse, the Judge concluded:

[14]      In broad terms I accept that submission but I do not accept that it accurately summarises the facts as I find them on the evidence I have heard. I am prepared to accept, for the purposes of this issue, that Mr Hinds could be described as an agreed intermediary but I do not find on the facts that the message Mr Hinds conveyed to the defendant was that it was acceptable to [the complainant] to go alone on to her property.

[15]      I  base  that  view  on  the  defendant’s  own  evidence  that  I  have referred to earlier.  He said that the emphasis of what Mr Hinds said to him was that it needed two people to go there because there was heavy items to be lifted and, consistent with that, he made the point that he went there alone  on  the  day  in  question  because  Mr  Hinds  was  working,  the implication being that Mr Hinds was therefore unavailable.   He also said that he went to get what he could, the implication of that being that he knew he could not get it all because some was too heavy for one person to lift.

[9]      The Judge therefore found the charge proved.

This appeal

[10]     Mr Greig submitted that by failing to cross-examine the appellant on what he had been told by Mr Hinds and by failing to cross-examine Mr Hinds on what he had said to the appellant about this issue the prosecution had effectively accepted that Mr Hinds  had  told  the appellant  he had  the complainant’s  permission  to  go  to  the property.    He  submitted  there  was  no  basis  upon  which  Mr  Pollard  could  be convicted as he had every belief he had the complainant’s express consent to go to the property.

Decision

[11]     Despite Mr Greig’s submissions that the police accepted the appellant and Mr Hinds’ evidence on this issue the transcript shows otherwise.   It was put to the appellant that Mr Hinds really didn’t tell him that he could go on to the property. The appellant denied that proposition.  Given that denial there was no point in taking that line of questioning further.

[12]     Further,  while  the  questioning  of  Mr  Hinds  was  perhaps  general,  the prosecution did not accept that he had told the appellant he had the complainant’s permission to go to her property while she was not there.  It was put to him that there had  been  a  miscommunication,  which  Mr Hinds  accepted.    Overall,  Mr Hinds’ evidence on the issue was confusing.

[13]     While the test is an objective test, the important evidence on whether Mr Hinds had told the appellant he could go to the property and on what terms was the appellant’s own evidence.

[14]     At no stage during his evidence-in-chief did the appellant say that Mr Hinds told him that the complainant had said he could go to the property alone, provided the complainant was not at home which is what the appellant seeks to rely on as the reasonable excuse.

[15]     Read as a whole, the appellant’s evidence is that the approval communicated to him by Mr Hinds was no more than that the appellant could have gone with Mr Hinds  to  help  him  lift  the  heavier  items  provided  that  was  done  when  the complainant was not there. The appellant himself said in his evidence:

There was only [the complainant] there at the time so we had to go back and get the rest of it.

And later:

... it was okay for us to go get it.

Emphasis added.

[16]     Mr Greig sought to suggest that the appellant was talking about two further trips, one with both he and Mr Hinds to recover the heavy items and the other, the appellant on his own to collect the rest of his other gear.  The appellant said in his evidence that:

Um, I thought I’d grab what I could, squeeze it in the car and then when we

were to go back we could get the heavy stuff together.

But there was no need for two further trips.  Mr Hinds confirmed in his discussion with the Judge that he could not get one or two of the appellant’s belongings because they were too heavy and, in any event, the trailer was full.  The remaining trip was to get the heavy items and the remaining items.  Two people were required to lift the heavy items, but only one further trip was required.  The complainant had agreed, in those circumstances, to the appellant accompanying Mr Hinds to collect the rest of his gear (including the heavy items) but only when she was not at the property.

[17]     Bearing in mind the test is an objective one, the appellant’s reliance on a defence of reasonable excuse must be considered in the context that the relationship had broken down to the extent that the complainant had gone to the trouble of ensuring that an intermediary collected the goods, not the appellant.  The appellant knew he was not permitted to go to the complainant’s and the children’s home, whether  or  not  the  complainant  was  present.    There  was  no  reason  for  the complainant to have changed her mind. Nothing had changed.

[18]     In short, the appellant did not say in his evidence that Mr Hinds told him the complainant had said he could go to her home alone provided she was not there. There was no objectively reasonable excuse for him to go  to the complainant’s property in breach of the order.   The Judge’s decision was open to him on the evidence before him.

[19]     The appeal is dismissed.

Venning J