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…

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.

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Details

Case: [2016] NZHC 591
Decision Date: 8 April 2016

CaseChat Overview and Summary

The appellant, David Edward Struthers, appealed against his conviction for breaching a protection order on 18 August 2015 and against the sentence imposed on both this offence and a second offence of breaching a protection order on 12 November 2015. The appeal was heard before Nation J in the High Court at Dunedin. The appeal against conviction was dismissed. The appeal against sentence was also dismissed. The protected person’s name was suppressed. The appellant accepted the orders had been served on him. On 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 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. After a trial before Judge Turner, Mr Struthers was found guilty of breaching the protection order on 18 August 2015 and 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 agreed that the periods of supervision were concurrent. Mr Struthers’ appeal against his conviction on the charge he defended was dismissed. The appeal against sentence was also dismissed.

Orders