Rizvi v Police - [2020] NZHC 411

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-57

[2020] NZHC 411

BETWEEN
REGAN JOEL RIZVI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 February 2020

Counsel:

L A Caris for Appellant

K L Kensington for Respondent

Judgment:

6 March 2020

JUDGMENT OF THOMAS J

Introduction

[1] Regan Rizvi pleaded guilty in the District Court to a number of charges, including burglary, relating to an incident where he, while being subject to a protection order, entered his former partner’s home and assaulted her. He was sentenced to 12 months’ intensive supervision. Mr Rizvi appeals the burglary conviction on the grounds that a miscarriage of justice occurred because the admitted facts do not amount to a burglary.

[2] The central issue is whether, as a matter of law, on the admitted facts, a properly directed fact-finder could reasonably conclude that the appellant possessed the intention to commit an imprisonable offence when he entered the house without authority.1

1 As required in the circumstances of this case for a conviction of burglary.

RIZVI v NEW ZEALAND POLICE [2020] NZHC 411 [6 March 2020]

Factual background

[3] On 10 September 2017, a final protection order was issued against Mr Rizvi with his former partner, the victim, named as the protected person.

[4]The summary of facts to which Mr Rizvi pleaded guilty records that, at

12.12 am on Thursday 28 March 2019, Mr Rizvi cycled to the victim’s address. He knocked on her bedroom window and called out her name. She told him to go away. Mr Rizvi then gained access to the house through the dining room window. The victim found him in the hallway of her house and again asked him to leave. He demanded to know who had been in the house.

[5] Mr Rizvi then grabbed the victim with two hands and tried to drag her out of the house through the front door. The victim’s 10 year old son woke up, saw what was happening and shouted at Mr Rizvi to leave. Mr Rizvi then left.

[6]The victim did not give Mr Rizvi permission to enter her property or her house.

Procedural history

[7] Mr Rizvi was charged with burglary,2 assault on a person in a family relationship,3 contravention of a protection order by trespass4 and breach of release conditions.5

[8] Mr Rizvi applied to the District Court for dismissal of the burglary charge pursuant to s 147 of the Criminal Procedure Act 2011. Burglary requires the defendant to have had the “intent to commit an imprisonable offence in the building”.6 It was argued there was insufficient evidence to infer an intent to commit an imprisonable offence when Mr Rizvi entered the victim’s house. The charging document did not

2      Crimes Act 1961, s 231(a), maximum penalty 10 years’ imprisonment.
3      Section 194A, maximum penalty two years’ imprisonment.
4      Domestic Violence Act 1995, ss 19(2)(d) and 49, maximum penalty three years’ imprisonment. The Family Violence Act 2018 came into…

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 Rizvi v Police

Details

AGLC: Rizvi v Police [2020] NZHC 411
Case: [2020] NZHC 411
Decision Date: 6 March 2020

CaseChat Overview and Summary

Regan Joel Rizvi appeals against his conviction of burglary by the District Court. Rizvi had pleaded guilty to entering his former partner's house while subject to a protection order and assaulting her. He was sentenced to 12 months' intensive supervision. Rizvi argues that a miscarriage of justice occurred because the admitted facts do not amount to a burglary. Rizvi contends that the charging document did not specify the imprisonable offence that he allegedly intended to commit when he entered the house. Rizvi also argues that he could not have intended to commit an imprisonable offence when he entered the house because he had already committed an offence by entering the property without authority. Rizvi argues that a burglary charge should not have been laid. The High Court held that Rizvi's appeal should be dismissed. The Court held that, on the admitted facts, a properly directed fact-finder could reasonably conclude that Rizvi possessed the intention to commit an imprisonable offence when he entered the house without authority. The Court held that, on the admitted facts, there was an evidential foundation for the burglary charge. Rizvi's behaviour provided an evidential foundation for an intended breach of the protection order. Rizvi's appeal against his conviction of burglary was dismissed.

Orders