Struthers v Police

[2016] NZHC 591

ORDER PROHIBITING PUBLICATION OF THE NAME OF THE PROTECTED PERSON AND FORMER PARTNER OF THE APPELLANT PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-000006 CRI-2016-412-000007

[2016] NZHC 591

BETWEEN

DAVID EDWARD STRUTHERS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

4 April 2016

Appearances:

W J Wright for the Appellant

C E R Power for the Respondent

Judgment:

8 April 2016

JUDGMENT OF NATION J

Introduction

[1]        Mr Struthers lives in a small country town. On 14 January 2013, the Family Court made a temporary protection order against him for the benefit of his former partner Ms Royal (not her real name) and two children then aged 17 and nearly 5. The protection order was made final and remained in effect as at 18 August 2015.  Mr Struthers accepted the orders had been served on him.

[2]        On the night of 18 August 2015, a young woman (the flatmate) who knew Mr Struthers said she saw him walking along a street not far from Ms Royal’s home.  She told her flatmates who were Ms Royal’s son and his partner. Soon after this, this couple said they saw Mr Struthers standing in the road outside Ms Royal’s home. The son’s partner contacted the Police. The next day, Mr Struthers was arrested and

STRUTHERS v POLICE [2016] NZHC 591 [8 April 2016]

charged with breaching a protection order on the basis he had been loitering near Ms Royal’s home. Mr Struthers denied having been away from his home elsewhere in the small town at any time during the relevant night.

[3]        After a trial before Judge Turner on 25 and 26 November 2015, Mr Struthers was found guilty of breaching the protection order.

[4]        Mr Struthers also pleaded guilty to a charge of breaching the protection order on 12 November 2015. At about 10.15 pm he walked to Ms Royal’s home. He entered her property by walking up the driveway and knocked on a window near the front door.

[5]        On the charge relating to events on 18 August 2015, Mr Struthers was convicted and sentenced to 60 hours’ community work and nine months’ supervision with conditions. On the second charge relating to 12 November 2015, he was convicted and sentenced to 100 hours’ community work, cumulative on the other sentence and nine months’ supervision with conditions. The Crown agree that the periods of supervision were concurrent.

[6]        Mr Struthers has appealed against his conviction on the charge he defended. He has appealed against the sentence imposed on both charges.

The conviction appeal

Summary of the basis on which Mr Struthers was found guilty

[7]        Judge Turner accepted the evidence of the flatmate that she had identified Mr Struthers at an intersection about a block from Ms Royal’s home, walking on the other side of the road towards her, in a direction that was taking him away from Ms Royal’s home. He considered that she had given evidence honestly, accurately and reliably. The Judge found she had a clear view of the pedestrian. There were no  other persons on the road at the time. She had not expected to see him there. She thought he lived in another part of the town. She had known Mr Struthers for over  10 years. She recognised him by the clothes he was wearing, particularly a denim jacket which she described as having some fur on it which she had seen him wear 50

or more times during the last five years. She recognised him by reason of his stature and gait. The Judge also accepted her evidence that, as she passed him, the male looked up and she recognised his face.

[8]        Judge Turner also accepted the evidence of Ms Royal’s son and his partner that, as they drove through another intersection close to Ms Royal’s home, they saw a male they identified as Mr Struthers stationary on the road, outside or near Ms Royal’s home and facing that property. They did not see the face of the man but said the person they saw was wearing jeans and a jacket with fur on it and there were no other people about at the time. The Judge drew the inference that the person they  saw was the same person the flatmate had seen only a matter of a few minutes earlier and about 200 metres away.

[9]        Ms Royal’s son and his partner had known Mr Struthers for some 10 years. The son identified the clothes he was wearing as being clothes Mr Struthers regularly wore whenever he went out. Although he said he only saw the back of the man’s head, he considered his build was that of Mr Struthers. On seeing him, he identified him as Mr Struthers and said he had got a fright seeing him there.

[10]      The son’s partner said the man had been wearing the same clothes as he always did and had exactly the same body as Mr Struthers. She said she had been shocked to see him standing outside Ms Royal’s home.

[11]      Mr Struthers and his 21 year old son gave evidence that they had been together at Mr Struthers’ home from about 7.00 pm that night and neither had left the home during the evening. Mr Struthers’ home was about 1200 metres from Ms Royal’s home.

[12]      When the Police spoke to Mr Struthers the next day about the incident, Mr Struthers said that he had been at home the whole evening with his son. The constable told Mr Struthers not to say anything to his son before the constable could have the opportunity of speaking to the son to verify this alibi. Mr Struthers understood the instruction. Despite this, the uncontested evidence was that, very soon after this, Mr Struthers spoke on two occasions in the presence of his son

saying that he had been arrested for breaching a protection order the previous night for being outside Ms Royal’s home and that he had been at home with his son the previous night.

[13]      The Judge considered the detail of evidence which was given by both Mr Struthers and his son as to how they came to be at Mr Struthers’ home and what they did during the evening. He also considered conflicting evidence they had given as to whether there was any occasion when Mr Struthers had left the home he shared with his son in the evening. Mr Struthers referred to an occasion when he had been away from the home between 1¾ and two hours. The son said there had never been such an occasion. The Judge noted various inconsistencies or conflicts between the evidence given by Mr Struthers and that given by the son. He also noted inconsistencies between what the son said in Court and what he had told the Police  in a formal statement on 9 September 2015.

[14]      Having regard to all those matters, Judge Turner found the evidence from Mr Struthers and his son to be unreliable and he rejected it. Given his acceptance of the evidence of the flatmate, Ms Royal’s son and the son’s partner, the Judge said he was satisfied beyond reasonable doubt that Mr Struthers had stood outside Ms Royal’s home at around 8.40 pm on 18 August 2015 and was looking in the direction of that home.

[15]      The Judge considered that what had been observed was sufficient to prove that Mr Struthers had been loitering near Ms Royal’s home. On that basis, he found the charge had been proved.

Jurisdiction

[16]      The appeal is brought pursuant to s 229(1) of the Criminal Procedure Act 2011. Pursuant to s 232(2), I must allow the appeal if satisfied that:

(b)   in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c)   in any case, a miscarriage of justice has occurred for any reason.

[17]I must dismiss a first appeal in any other case.1

[18]      A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:2

(a)   has created a real risk that the outcome of the trial was affected; or

(b)   has resulted in an unfair trial or a trial that was a nullity.

First ground of appeal

[19]      The first ground of appeal was based on the contention for Mr Struthers that there had been a miscarriage of justice because of:

A ruling that the appellant could not question the protected person on matters that had arisen in a prosecution of the appellant for a similar matter some months earlier. The appellant was not permitted to address the Court on the subject matter upon which it was proposed to question the protected person or its relevance.

[20]      For Mr Struthers, Mr Wright began his submissions by telling me of the widely publicised tragedy which had occurred in Dunedin not long ago where a father, while subject to a protection order, had killed two of his children. The thrust of his submission was that, as a result of that tragedy, the Police were now being unnecessarily inflexible in ensuring protection orders were complied with. He then told me at length how he came to be involved in defending Mr Struthers when he earlier faced a charge of breaching a protection order, of the strict terms on which Mr Struthers had been granted bail and the burden he faced as a result of having to reside away from his normal town while he was on bail. Mr Wright also described how the case was based on Mr Struthers making contact with Ms Royal in breach of the protection order, how, as a result of discovery of telephone records, it was possible for Mr Struthers to prove that there had been some 40 calls from Ms Royal’s phone to him and that Mr Struthers had responded to a call or message sent to him asking him to contact Ms Royal. On that basis, the charge against him was  ultimately dismissed.

1      Criminal Procedure Act 2011, s 232(3).

2      Section 232(4).

[21]      I was also told that all this occurred in the context of Ms Royal and Mr Struthers having some sort of continuing intimate relationship which she wished to keep secret from her family because of their dislike of Mr Struthers. Mr Wright also told me that, at the hearing of the earlier charge, Ms Royal had denied sending Mr Struthers messages on her cell phone but had said someone else could have had access to her phone. He said that all this indicated someone else had deliberately set up a situation where Mr Struthers would breach the protection order made against him and in effect had fabricated evidence against him.

[22]      Mr Wright told me that this was the background which he had wanted to ask Ms Royal about.

[23]      These submissions were made without Mr Wright providing me with any evidence to support the submission he was making, either by reference to evidence given at the hearing before Judge Turner or by way of further evidence that had been put before the Court on the hearing of the appeal. I was not provided with the transcript of the decision dismissing the earlier charge.

[24]      Ms Royal was called to give evidence by the Police on 25 November 2015. Her initial evidence was very brief. All she said was that she had been at home on the relevant night. She had never seen Mr Struthers near her property that night. Mr Wright began his cross-examination of her by asking whether she had been the complainant in a similar earlier prosecution. She confirmed she had. The Judge then questioned whether this was relevant. There was then a discussion between the  Judge and Mr Wright of which I have a transcript.

[25]      In his discussion with the Judge, Mr Wright explained that he believed the person who made the phone calls, presumably relating to the earlier prosecution, was going to be a witness at the hearing and what happened in relation to that person’s use of the phone would be material to that witness’s credibility. Judge Turner said Mr Wright could ask Ms Royal who had her phone but indicated he still failed to see the relevance of the earlier case. Mr Wright then discussed what he said were the circumstances of the earlier case, similar to the way he had outlined them to me at the beginning of his submissions.

[26]      In the discussion, Judge Turner made it clear he was not interested in the earlier case. He considered the issue was whether or not the defendant loitered in the vicinity of Ms Royal’s home on 18 August 2015 and questions should be confined to that issue. Ms Royal had not identified Mr Struthers as being outside her home on that date so Judge Turner could not see how what occurred on the previous occasion could be relevant. Mr Wright said what happened earlier was relevant because the person who made the sighting on 18 August 2015 “has a very strong motive to implicate this man because of his concern about the potential reconciliation between the defendant and the woman”. The discussion concluded with the Judge ruling that Mr Wright could ask Ms Royal about who had made a complaint to the Police on 18 August 2015 but there were to be no questions of her as to the previous occasion.

[27]      In further cross-examination, Ms Royal confirmed that it had been her son’s partner who had made the phone call to the Police on 18 August 2015, she was pretty sure it was made from a landline from her home. Ms Royal had not heard the call being made. She said she had not asked her son’s partner to make the complaint. Mr Wright asked Ms Royal if her son’s partner had “a hostile animosity” towards Mr Struthers. Ms Royal said not that she was aware of.  Mr Wright did not ask Ms  Royal as to what she knew of her son’s attitude towards Mr Struthers.  He did not  ask any such questions as to what Ms Royal might have known of the attitude of the flatmate towards Mr Struthers.

[28]      Mr Wright did not question the flatmate at all as to her general opinion of Mr Struthers or suggest the flatmate had any particular animosity towards Mr Struthers. He did ask questions as to what understanding she had as to the partner’s attitude towards Mr Struthers. With some prompting from the Judge, the flatmate said she thought that the partner’s attitude was “neutral”, that “she doesn’t get along with him”, that she “doesn’t particularly like him” but there was nothing in particular that she could comment on.

[29]      Mr Wright then asked her a question as to the son’s attitude towards Mr Struthers. The flatmate said that it was the same, that she thought the son disliked  Mr Struthers.

[30]      Mr Wright did cross-examine the son as to his feelings towards Mr Struthers. The son acknowledged he had strong feelings about Mr Struthers “just because from what he’s done to my mum”. In response to questions, the son said he had not been aware that Mr Struthers and his mum “were reconciling earlier this year”. He had  not been aware of this at all.

[31]      Mr Wright then began a question by saying “And you’re aware that Mr Struthers had been previously prosecuted for exactly the same offence”. At that, the Judge intervened. There was an objection from the Police to the evidence on the basis of relevance. That exchange culminated in the Judge allowing Mr Wright to  put his question.

[32]      Mr Wright then asked a series of questions as to whether the son had been aware that someone, not his mother, had used the mother’s phone to “put a call on Mr Struthers’ phone” asking Mr Struthers to respond and whether he or his partner had used the mother’s phone to make it look as if she was sending messages to Mr Struthers asking him to respond. The son said that neither he nor his partner had done this.

[33]      The Judge then intervened to make sure the son understood the question. The Judge pointed out that Mr Wright was putting to the son that on an earlier occasion, not the night of 18 August 2015, somebody had used the mother’s phone and left a message for Mr Struthers to phone her. The Judge said that Mr Wright wanted to know whether the son had done that. The son’s answer was “No. No way.” Mr Wright then asked further whether the partner had done it. The son said his partner had not done it and he did not know who the person was who had done this.

[34]      The son said that he and his partner had decided to make the complaint on 18 August 2015 after going to his mother’s home after seeing Mr Struthers outside her address, that it was his partner and not his mother who had decided to ring the Police.

[35]Later, in cross-examination, the son accepted Mr Wright’s proposition that

Mr Struthers had been standing around near his mother’s house “for the five or 10

seconds” the son had seen him on the night of 18 August 2015. Mr Wright suggested that he would say anything to protect his mother. The son’s response was that he would “if it’s the truth”. He did not accept Mr Wright’s proposition that he would “bend the truth a bit to help his mother”. In the context of that cross-examination,  the son said his partner had not been involved in the telephone calls relevant to the earlier prosecution and he did not know anything about the telephone calls. Mr Wright then began questioning the son about the earlier case and the “unknown person” who had made the telephone calls from the mother’s phone. The Judge questioned the relevance of this. Mr Wright continued with questions, putting it to the son “that on an earlier occasion somebody tried to set this man up on a false prosecution”. The Judge directed him not to answer that question. The Judge told  Mr Wright to move on.

[36]      Mr Wright cross-examined the partner as to her attitude towards Mr Struthers. She agreed that she did not like him. She said his actions had made her dislike him and that on at least two occasions recently when she had seen Mr Struthers she had given him the fingers because he was “not a nice man”. She said she did not give the fingers to other people. Mr Wright asked this witness as to whether earlier in 2015 Ms Royal and Mr Struthers were effecting a reconciliation. The partner said she highly doubted that, that she did “not believe that at all”.

[37]      Mr Wright said that Ms Royal, on an earlier occasion, had said in Court that she and Mr Struthers did have consensual sex. The partner said she had not known  of this and thought she would have.

[38]      Mr Wright then put it to her that she had been involved in “the earlier telephone incident” and the earlier prosecution of Mr Struthers. The partner’s response was “What was that? When?” Mr Wright said that Mr Struthers was prosecuted for making phone calls to a lady and that someone had used her phone and made out it was Ms Royal. He asked the partner whether she knew anything about that.  The partner said she did not and this was the first she had heard of it.  She said she knew nothing about the earlier case and that she did not like to talk about Mr Struthers. She said she was pretty sure she did not know how to get into Ms Royal’s phone.

[39]      When he gave evidence, Mr Struthers said he had no reason to go around to Ms Royal’s house. He said that he had his daughter once a fortnight but they had made arrangements for him to pick up and drop off his daughter through friends of Ms Royal so they did not have any contact with each other. He said the only way they had contact was to write in a book so he had no reason to be anywhere near Ms Royal’s place and that he had not been invited by Ms Royal to go around to her place on 18 August 2015 “because we don’t talk”. He also said that on 18 August 2015 he had used his phone when texting his “new partner”. He also referred to his meeting up briefly with Ms Royal when he saw her by chance at a liquor store in the town where she had just started work on 8 November 2015. He said it had been a shock to see her there. They had a brief conversation. Mr Struthers said that after she told  him it was her first day, he said “I won’t be back here again”.

[40]I consider the first ground of appeal against that evidential background.

[41]      I do not accept that there was a real risk of a miscarriage of justice because the outcome of the trial has been affected by the Judge’s ruling that Mr Wright could not question Ms Royal as to the background to the earlier prosecution or the way her telephone had been used. The only way the background might have been relevant would have been, as Mr Wright suggested, with regard to the credibility of witnesses who were giving material evidence as to where Mr Struthers was on the night of 18 August 2015. Ms Royal was not one of those witnesses.

[42]      The questions Mr Wright later asked of the son and his partner indicate that he had no information from the first prosecution as to who, other than Ms Royal, might have used her telephone. There was certainly no suggestion in his cross- examination of the son and his partner that the information from the first trial was to the effect that either the son or his partner had used that phone to leave messages on Mr Struthers’ phone. There is no evidential basis on which I can conclude that it would have been likely or even possible that, had Mr Wright been able to question Ms Royal about the earlier incident, she would have given evidence to the effect that it was either her son or his partner who had used her phone to somehow get Mr Struthers to respond to her messages in a way that would potentially put him in breach of a protection order.

[43]      The Judge did permit questions to be asked of both the son and the partner as to what they knew of the way the mother’s phone had been used in connection with events resulting in the first prosecution. The Judge permitted questions to be asked  of these witnesses as to whether they had used Ms Royal’s phone on those occasions. In their answers, they both were clear that they had not been involved in “setting-up” Mr Struthers in the way Mr Wright wanted to suggest or in a way which may have reasonably affected the Judge’s assessment as to their credibility in relation to what they observed on 18 August 2015.

[44]      The Judge had the benefit of hearing and seeing how Mr Wright’s questions were put to these witnesses, the particular context in which the exchanges occurred and the way they responded. Their responses, as apparent from the transcript, appear to have been genuine, unrehearsed and honest. Given the way they responded to Mr Wright’s questions, I do not consider the Judge’s assessment as to their credibility in relation to the crucial events on 18 August 2015 could reasonably have been different if he had permitted questions to be asked of Ms Royal as to events resulting in the earlier prosecution or the way her phone had been used in relation to those events.

[45]      I asked Mr Wright how evidence of what happened earlier would have been relevant to the issues which the Judge had to consider or which I have to consider on this appeal. He said the evidence would have helped establish the intense animosity that both the son and his partner had towards Mr Struthers.

[46]      There was ample evidence before the Judge through the son and his partner’s acknowledged actions on the night and what they said of their dislike of Mr Struthers to indicate that they did not like Mr Struthers. Much of this had been made in cross- examination so that their attitude towards Mr Struthers had to be considered by the Judge in assessing their credibility as witnesses. It is most unlikely that any opinion the mother might have expressed, as to what her son’s attitude towards Mr Struthers might have been, would have made any material difference to the assessment which the Judge had to make of the son’s evidence. Ms Royal said she knew very little of his partner’s attitude towards Mr Struthers. Judge Turner referred to their animosity towards Mr Struthers when giving his ultimate decision. He also said this would

have to be taken into account when he was ruling on the s 147 application at the end of the Police case.3

[47]      I also reject the contention that Mr Struthers, through his counsel, was not permitted to address the Court on the subject matter of the earlier prosecution, upon which it was proposed to question the protected person or its relevance. I have read the transcript of the discussion which took place. The transcript shows that during the discussion Mr Wright did describe “essentially what happened”, the way Mr Wright put it when making submissions to the Judge.

[48]      I am not satisfied there was a miscarriage of justice on the first ground advanced for Mr Struthers.

Second ground of appeal

[49]Mr Struthers’ second ground of appeal was:

That the District Court Judge’s finding of fact that the appellant was observed for 2-3 seconds in the street outside the protected person’s house was erroneous and cannot be supported on the evidence and that the District Court Judge did not consider or have regard to the evidence which the appellant asserts would make it unlikely he to have been the figure claimed to have been observed for 2-3 seconds in the street outside the protected person’s house.

[50]      At the end of the Police case, Mr Wright submitted, pursuant to s 147, that there was no case to answer. Firstly, on the basis that the evidence was not sufficient to identify Mr Struthers as being the person who had been on the road outside Ms Royal’s address that night. He referred to the fact there had not been facial recognition of the person by the son and his partner. Mr Wright submitted that, although the flatmate had identified Mr Struthers as being on the road about 150 metres from Ms Royal’s address, the inference that should have been drawn from that was that the son and his partner had subsequently identified the person outside his mother’s address as Mr Struthers only because they had been told previously by the flatmate that Mr Struthers had been seen in the vicinity just before that. The Judge said he would have to take that possibility into account. Mr Wright referred to

3      Criminal Procedure Act 2011, s 147.

“the distance” and what he described as the son and his partner’s bizarre behaviour in not attempting to confront Mr Struthers. He referred to the way they had driven around the vicinity at the time and what he said would have been the pointless reason for Mr Struthers to be standing in the middle of the street outside Ms Royal’s home.

[51]      The Judge obviously considered those submissions when ruling there was a case to answer. He would also have been mindful of those submissions when, at the conclusion of the evidence, he gave his decision. It was understandable and reasonable for the Judge not to invite or allow Mr Wright to make submissions on the facts at the end of the evidence.

[52]      Mr Wright submitted that the Judge could not reasonably have found the person said to be outside Ms Royal’s home was Mr Struthers, firstly, because the person identified by the flatmate on an intersection on a nearby street had been walking away from Ms Royal’s home. He submitted the Judge had not considered this issue.

[53]      I reject that contention. In his oral decision, the Judge referred to  Mr Struthers as being identified by the flatmate on the particular street “walking towards her” as she drove home from Dunedin. Through the maps and Google overview of the area which were before him as evidence, the Judge would have clearly understood and appreciated that Mr Struthers had been walking away from Ms Royal’s address at the time he was first sighted. The fact that Mr Struthers had been first seen walking away from the address was highlighted by Mr Wright in cross- examination of both the son and his partner. The Judge clearly appreciated this  given the way he clarified, when the son was giving evidence, that Mr Struthers had first been seen walking in a southerly direction towards the railway lines. The fact that Mr Struthers had initially been seen walking away from the address was also suggested by Mr Wright to be significant when cross-examining the constable who had arrested Mr Struthers and who was familiar with the area being discussed. Mr Wright made the point, which the constable accepted, that for Mr Struthers to have been seen outside Ms Royal’s address he would have had to double back one way or another to have ended up outside her home.

[54]      Although the Judge did not say that he had taken the way in which Mr Struthers was walking away from the home into account in concluding that Mr Struthers was the person identified a short time later as being Ms Royal’s home, I am satisfied that he would have taken that into account.

[55]      Furthermore, given this appeal proceeds by way of rehearing, I do not consider that the fact Mr Struthers was initially seen walking away from the address was inconsistent with him being seen a short time later outside Ms Royal’s home. The first sighting was still just around two sides of the block from Ms Royal’s home, the constable said probably less than 150 metres away. (The Judge proceeded on the basis it could have been 200 metres away.)

[56]      As the constable accepted, there were various ways Mr Struthers could have got from the point where he was initially seen to outside the home. It must also have been possible that Mr Struthers was initially walking on the first street towards Ms Royal’s home, that on becoming aware of a vehicle coming along that street he had turned to walk in the opposite direction so that the driver of the car would not see him walking towards Ms Royal’s home but, after the car has passed, he had changed direction again to continue on an original route towards Ms Royal’s home.

[57]      All of that is, of course, speculation. There was, however, no suggestion that there was insufficient time for Mr Struthers to have moved from where he was first sighted by the flatmate to a point where he was outside Ms Royal’s home, as seen by the son and his partner.

[58]      What the Judge had was evidence that Mr Struthers was first seen on a street around the block from Ms Royal’s home and, within a short time, was seen on the street outside her home. The issue for the Judge was whether or not all the evidence was sufficient to establish that the person outside the house was the same person as initially seen on the different street nearby.

[59]      Mr Wright submitted the identification evidence of the son and his partner should not have been accepted as credible because the way they had acted on the night was inconsistent with what they said was their genuine concern for Ms Royal.

They had said they wanted to ensure she and the young child were both safe. Mr Wright submitted that it was inconsistent with this that they had not driven immediately to the mother’s address and that, after they had claimed to have identified Mr Struthers outside the house, they did not confront him or drive immediately to their mother’s home.

[60]      I do not accept that their evidence should have been less credible given the way they acted on the night. They initially drove down the street where the flatmate had said she had seen him. That was a logical thing for them to do given that, had they sighted Mr Struthers on that street still walking away from Ms Royal’s home, they would have been able to at least assure themselves that he was not going to Ms Royal’s home. After they had not seen him on that street, they took a slightly different route to drive close-by Ms Royal’s property. It was then, as they went through an intersection, they saw Mr Struthers on the road outside her address. They both said they got a shock to see him there. Rather than turn at the intersection to go to the home where they would come into contact with him, they continued through the intersection to ultimately take a circuitous but not particularly long route back to the mother’s property.

[61]      Neither of these witnesses liked Mr Struthers. Ultimately, after returning to the mother’s property, they chose to contact the Police to have them deal with the matter. The fact they went to the mother’s property was consistent with them being concerned for her. The fact they contacted the Police is consistent with them being concerned for her and not wanting to, themselves, confront Mr Struthers. Their actions were not inconsistent with their wanting to ensure Ms Royal was safe or with their being genuinely concerned that between 8.30 pm and 9.00 pm Mr Struthers, who was subject to a protection order, should be on the street, outside her home.

[62]      Mr Wright submitted that, because the Judge did not refer to the way the son and his partner had driven off after seeing Mr Struthers outside the address, it cannot be assumed he took that into account or treated it as having any significance. I do  not accept that submission. The Judge did not have to refer to all of the evidence he had heard or all the issues which he had considered in giving his decision.

[63]      Mr Wright cross-examined the son’s partner as to why they had driven off after seeing Mr Struthers and done a circuit before coming back to the home. The Judge clearly took account of this line of questioning because he, himself, asked questions of the partner, outlining the proposition which Mr Wright had put to her and asking for her explanation as to why they had proceeded in that way.

[64]      Mr Wright referred to the evidence of the son and his partner as being of an “unidentified figure” outside Ms Royal’s home and of their having seen him for only two to three seconds as they passed through the nearby intersection. He submitted this would have been an inadequate time for them to make the positive identification of the person as Mr Struthers. The contention that they would have observed him for just two to three seconds was on the premise that they had observed the man only as they were driving across the intersection, that this was a distance of 18.5 metres, so that at a speed of 30 kilometres per hour they would have travelled 8.333 metres  over two seconds or, at a speed of 20 kph, three seconds.

[65]      The son said that he did not know what speed they had been driving at but thought it might have been 30 or 40 kph after a stop sign which was at the intersection a block before the intersection near Ms Royal’s home, although he did not know, it could have been 20 kph as he “slowed down past the intersection”. He thought he might have observed Mr Struthers for five or six seconds. Under cross- examination, the son said the person he saw was definitely Mr Struthers and that he had again seen him for five or six seconds.

[66]      His partner said that, as they drove through the intersection near Ms Royal’s home, they were not travelling very fast and that they “slowed down to see, to look at him”. She said they slowed down, had a look at him and then kept driving so thought that they may have seen him for ten seconds but she was not sure. She also said it could have been seven seconds. The constable described how the son and his partner could have continued to have a view of the street outside Ms Royal’s home for a distance after they had passed through the intersection.

[67]      When making legal submissions at the end of the evidence, Mr Wright mentioned the need for caution to be exercised under the Evidence Act 2006 in

considering the identification evidence of the witnesses, particularly so having regard to their dislike for Mr Struthers.

[68]      In his decision, the Judge expressly recognised the special need for caution where the case against Mr Struthers depended wholly or substantially on the correctness of visual identifications of the defendant, consistent with s 126 of the Evidence Act.

[69]      Judge Turner accepted the evidence of the flatmate as to identifying Mr Struthers on the first road when she was driving home. The Judge referred to this as being on the road about 200 metres from Ms Royal’s home. The acceptance of the flatmate’s identification was not seriously challenged on this appeal.

[70]      Judge Turner demonstrated the caution required of him in the way he dealt with the evidence from the son and his partner as to the way they had identified the person outside Ms Royal’s home as being a male wearing jeans and a jacket with fur on it. He considered the street lighting which was available and which illuminated the figure they saw. He noted that, while they had some animosity towards the defendant, there was no evidence that they had colluded or fabricated the evidence they had given. The Judge did not simply rely on the fact that they had identified the person they saw as being Mr Struthers. More cautiously than he perhaps needed to be, the Judge relied on the fact they had identified a male as wearing particular clothing, clothing which the flatmate had identified Mr Struthers as wearing when she was able to identify him very clearly as the person she had seen just a short time earlier in the vicinity. The Judge drew the inference, as I consider he was quite entitled to, that, given the time of day, the absence of any other persons about at the time and the description of the male wearing distinctive clothing, the person the son and his partner saw was the same person the flatmate had seen just a few minutes earlier and about 200 metres away.

[71]      The Judge accepted that the son and his partner were honest and reliable witnesses. Although they acknowledged they had not seen the face of the man outside Ms Royal’s home as they drove through the intersection, the way in which they described their driving past was consistent with them doing so in a manner that

would have enabled them to identify the person, if there was any person there, and to see if that person was Mr Struthers. The way they acted after seeing him is also consistent with them having identified that person as Mr Struthers at that time.  While they did not see his face, Mr Struthers was a person who was very familiar to them. As they drove through the intersection, he would have been only about 30 metres away. It would not have been unreasonable for the Judge to accept that they could have identified him as Mr Struthers on the basis of particular clothing which they knew he often wore and on the basis of his general build and stature. Judge Turner was more cautious than to do this and relied, quite reasonably, on the inference he had also drawn because of the identification made by the flatmate.

[72]      I consider there was ample evidence on which the Judge could quite reasonably conclude that the person outside Ms Royal’s home at around 9.00 pm on 18 August 2015 was Mr Struthers. I thus reject the second ground of the appeal.

Third ground of appeal

[73]The third ground for suggesting there had been a miscarriage was:

That even if accepted it was the appellant observed outside of the protected person’s property, his presence on the street for 2-3 seconds only could not amount to loitering i.e. proof “beyond reasonable doubt that there was some element of idling, lingering or hanging about the complainant’s property, even if only for a relatively short period”.

[74]      Mr Wright had submitted there was no case to answer on this second alternative ground, that the evidence as produced by the Police was not sufficient to establish Mr Struthers had been loitering in the sense of hanging about Ms Royal’s home. His submission had been that the evidence could have established only that Mr Struthers had been there on only one occasion for seconds. The Judge referred him to the judgment in Hargrave v Police.4 Mr Wright accepted the Judge’s statement that, on the basis of that judgment, the prosecution had to prove there was some element of idling, lingering or hanging about the complainant’s property even if that should only be for a relatively short period of time.

4      Hargrave v Police (1998) 17 FRNZ 124 (HC).

[75]      In making legal submissions, Mr Wright repeated the submission that Mr Struthers’ conduct, as observed by the witnesses, did not amount to offending in terms of the Act, on the basis that he had been seen for just seconds outside the address.

[76]In his oral decision, Judge Turner stated:

[26] In Hargrave v Police (1998) 17 FRNZ 124 (HC), Randerson J considered the meaning of “loiter near” in circumstances where the defendant in that case, without slowing down, lingering or stopping, had driven past the protected person’s home on two occasions. The Court concluded that the prosecution must prove beyond reasonable doubt that there was some element of idling, lingering or hanging about the complainant’s property, even if that should be only for a relatively short period. The question of whether a person is loitering is to be determined by an objective consideration of the observable facts rather than by enquiry into the defendant’s state of mind. Loitering may be for a lawful or unlawful purpose. That approach was endorsed by the High Court in Harding  v Police [2009] NZFLR 61 by Her Honour French J.

[77]      In Hargrave, Randerson J considered a situation where the appellant had driven a motor car past the complainant’s home on two occasions. There was no evidence that the car had travelled past at anything other than a normal motoring speed. There was no evidence that the appellant’s motor car had slowed down, lingered or stopped in the vicinity of the complainant’s residence. The District Court Judge had noted the “remarkable coincidence that the appellant’s circuitous back road route should include the complainant’s street”.

[78]      Randerson J allowed the appeal because, in that particular case, there was no evidence that the appellant had done anything other than drive past the complainant’s home at an ordinary speed without stopping or slowing. He held there was thus no element of lingering, idling or hanging about

[79]      In his decision, Judge Turner correctly referred to the way Randerson J summarised what had to be proved where the charge related to an allegation that a defendant had loitered near the home of a protected person.

[80]      Randerson J’s analysis has been adopted by the High Court in two different judgments that I was referred to.5 In Harding v Police, French J found the evidence had been sufficient to establish loitering where an appellant had driven past the home of the protected person, slowed and leaned over the steering wheel and stared up the driveway. The Judge did note that he had done that on more than one occasion.

[81]      The evidence of the son’s partner was that she saw Mr Struthers outside Ms Royal’s address. Under cross-examination she said the man she saw near  Ms Royal’s home was standing there, facing the house. She confirmed this on several occasions to Mr Wright.

[82]      The son said he saw Mr Struthers “just outside” his mother’s house. When asked what Mr Struthers was doing, the son said he was “just hanging in the middle of the road”. Under cross-examination, he accepted the  proposition put to him by  Mr Wright that Mr Struthers had been “just standing there, when they saw him”. Under further questioning, the son said that he considered “loitering” meant “standing around being annoying” and that he thought this was what Mr Struthers had been doing during the “five or 10 seconds” (the words used by Mr Wright) that he had seen Mr Struthers.

[83]      There was thus evidence which the Judge could accept: that between 8.30 pm and 9.00 pm Mr Struthers had been observed standing in the middle of the road outside Ms Royal’s home and looking at her home.

[84]      There was no evidence that Mr Struthers was simply walking past Ms Royal’s address or that he was doing this for any reason other than to be near her home. Mr Struthers simply denied being there at all.

[85]      There was therefore a sufficient evidential basis on which the Judge could reasonably conclude that Mr Struthers was hanging about or loitering near Ms Royal’s address.

[86]The third ground of the appeal has not been made out.

5      McDowell v Police HC Wellington AP71/99, 30 April 1999; Harding v Police [2009] NZFLR 61 (HC).

Conclusion as to appeal against conviction

[87]      Accordingly, I have not been persuaded there was any error or occurrence in relation to the trial that has resulted in the conviction being unfair or that the Judge’s conclusions could not be reasonably supported on the evidence which was available to him. The appeal against conviction is therefore dismissed.

Appeal against sentence

[88]Mr Struthers was not sentenced until 5 February 2016.

[89]      The PAC report considered the likelihood of reoffending was low and there was no risk of harm to others given his limited offending history in the past 13 years. The report, however, indicated that Mr Struthers had considered he could go around to Ms Royal’s home at 10.15 pm on 12 November 2015 because the complainant had spoken amicably to him for 10 to 15 minutes after he had accidentally met up with Ms Royal at the liquor store. Mr Struthers’ explanation causes me concern given  that in admittedly limited evidence as to what happened when they met at the liquor store, when Ms Royal told him she had just started work there, Mr Struthers said he would make a point of not coming back to that place.

[90]      It must also have been of concern that, on both 18 August 2015 and 12 November 2015, Mr Struthers had wanted to go near his former partner’s address at night and thereby put both himself and her in harm’s way, when he was involved with a new partner, had made arrangements with regard to collecting and dropping off his young daughter which were intended to avoid him having any contact with Ms Royal and was in a situation where, on his own evidence, they were having nothing to do with each other.

[91]      There was also no reasonable basis for the Judge to deal with Mr Struthers on the basis, as Mr Wright submitted would have been appropriate, that he was understandably confused as to whether Ms Royal wanted to have a relationship with him at the time he made these visits to her home. On the evidence, both these offences occurred when Mr Struthers accepted they were not to have any contact, even over the times their daughter was to be with him.

[92]      The offence on 12 November 2015 was the more serious given that it occurred when Mr Struthers was on bail on the charge relating to the 18 August 2015 offence.

[93]      The PAC report referred to there having been eight domestic-related Police call-outs concerning Mr Struthers since 2013 when the protection order was issued. Mr Struthers had a conviction from 15 January 2013 for the offence of wilful damage committed on 6 January 2013. Mr Wright confirmed this had related to Mr Struthers breaking a window at Ms Royal’s address which it was assumed was part of the background leading to the making of a temporary protection order in January 2013. Mr Struthers did have five convictions for common assault, two of which  were recorded as being domestic but the last of these was in 2001.

[94]      It was understandable that the PAC report recommended community work as a punitive measure. It was also reasonable for Judge Turner to decide that the purposes of deterrence and denunciation made it necessary to impose some form of punitive sentence.

[95]      The Judge acknowledged that Mr Struthers was entitled to credit for his guilty plea in relation to the second incident. He also acknowledged there had been positive developments in the relationship which Mr Struthers continued to have with a new partner. The pre-sentence report had also referred to his moving away from  the town where the offending occurred. Judge Turner acknowledged the incident of 18 August 2015 was less serious because Ms Royal had not known Mr Struthers was outside the house.

[96]      The Judge said the appropriate starting point for the offending was a sentence of imprisonment. Giving Mr Struthers credit for the matters that Judge had referred to, he reduced the ultimate sentences to the periods of community work imposed for each offence with the addition of supervision as a therapeutic measure which he hoped would assist Mr Struthers to avoid any further offending of this sort.

Conclusion as to appeal against sentence

[97]      I can set aside the sentences imposed by Judge Turner only if I have been satisfied that an error was made in his sentencing approach and if I am satisfied a different sentence should have been imposed.6 I have not been persuaded that there was any error or that a different sentence should have been imposed. I  must therefore dismiss Mr Struthers’ appeals against sentence and do so.

[98]      To avoid identification of the appellant’s former partner, I make an order for suppression of her name. In recognition of this, the judgment has been anonymised through the use of a fictitious name for that protected person.

Solicitors:

Wilkinson Rodgers Lawyers, Dunedin RPB Law, Dunedin.

6      Criminal Procedure Act 2011, s 250(2)-(3).