Vakavelo v Police
[2013] NZHC 2541
•30 September 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-000181 [2013] NZHC 2541
BETWEEN LATANO VAKAVELO Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 30 September 2013
Counsel: H R Laubscher for Appellant
L M Mills for Respondent
Judgment: 30 September 2013
JUDGMENT OF COLLINS J
Introduction
[1] The question I have to decide is whether Mr Vakavelo has been convicted twice of the same offence.
Context
[2] This question arises in the context of an appeal from a ruling of Judge Collins made on 12 June 2013 in which he held that Mr Vakavelo was not at risk of being convicted twice of the same offence when he was charged with:
(1) breaching a protection order when, “without reasonable excuse [he]
physically abused Masina Vakavelo”;1 and
(2) male assaults female.2
1 Domestic Violence Act 1995, s 49.
2 Crimes Act 1961, s 194(b).
VAKAVELO v NEW ZEALAND POLICE [2013] NZHC 2541 [30 September 2013]
Both charges arise from the same incident.
[3] On 10 June 2013 Mr Vakavelo pleaded guilty to the charge laid under the Domestic Violence Act 1995. His application to be discharged in relation to the charge under s 194(b) of the Crimes Act 1961 was heard at the same time. After Judge Collins ruled that Mr Vakavelo had not been charged twice with the same offence, Mr Vakavelo pleaded guilty to the charge under s 194(b) of the Crimes Act
1961. Mr Vakavelo was then sentenced to a concurrent period of supervision in relation to both charges.
[4] For present purposes it is accepted that:
(1)A protection order was made against Mr Vakavelo in favour of Masina Vakavelo on 6 July 2006. The standard conditions of a protection order are contained in s 19(1) of the Domestic Violence Act 1995. Those standard conditions include that a person against whom an order is made shall not “physically or sexually abuse the protected person”.
(2)On 12 March 2012 Mr Vakavelo and Masina Vakavelo were at a house in Lower Hutt. They became engaged in an argument which escalated into Mr Vakavelo punching Masina Vakavelo in her eye.
The law
[5] Section 10(1) of the Crimes Act 1961 provides that where an act or omission constitutes an offence under the Crimes Act 1961 and under any other Act, the offender may be prosecuted either under the Crimes Act or under that other Act. Section 10(3) of the Crimes Act 1961 provides that where an act or omission constitutes an offence under two or more provisions of the Crimes Act or any other Act the offender may be prosecuted under any one of those provisions. Section 10(4) of the Crimes Act 1961 provides that no one can be liable for conviction twice in respect of the same offence.
[6] The difference between ss 10(1) to (3) and (4) of the Crimes Act 1961 is that the first three subsections prohibit multiple charges for the same offences whereas s 10(4) prohibits multiple punishments for the same offence. However, all of the prohibitions in s 10 of the Crimes Act 1961 are aimed at codifying the common law rule against double jeopardy.3
[7] Section 10 of the Crimes Act 1961 replaced s 6 of the Crimes Act 1908 and s 25 of the Acts Interpretation Act 1924. In R v Moore the Court of Appeal noted that:4
Both of those [earlier] provisions provided that an offender shall not be punished twice “for the same offence”. The meaning of the words “the same offence” has created difficulty in a number of different jurisdictions where similar provisions are to be found ... Various tests have been developed to determine whether two offences are the same, but none has been found satisfactory. That which seems to have generally found most favour with English judges is whether the second prosecution is for “substantially the same” or “in effect the same” or “practically the same offence”.
[8] Thus, in deciding if s 10 of the Crimes Act 1961 is engaged, I have to decide if the acts and omissions that constitute the two offences with which Mr Vakavelo has been charged are the same, or substantially the same.5
[9] I propose to:
(1) examine the elements of the two offences; and
(2)consider whether Mr Vakavelo could be liable for one offence on a different basis to him being liable for the other offence.
This approach is consistent with that followed by Cartwright J in de Montalk v Police where she explained in circumstances similar to the present case that the question is not whether the facts or evidence related to an offence under the Domestic Violence Act 1995 and the Crimes Act 1961 are the same, but whether the
offences are the same or substantially the same.6
3 See Pearce v R [1998] 194 CLR 610, 156 ALR 684 (HCA) at 686.
4 R v Moore [1974] 1 NZLR 417 (CA) at 422.
5 R v Clarke [1982] 1 NZLR 654 (CA) and R v MacKenzie [2007] NZCA 8.
6 de Montalk v Police HC Auckland AP 109/98, 24 September 1998.
The elements of the two offences
Section 49 of the Domestic Violence Act 1995
[10] Those who breach the conditions of a protection order set out in s 19(1) of the Domestic Violence Act 1995 commit an offence under s 49 of that Act. Under s 49 of the Domestic Violence Act 1995 an offence is committed by those who breach a protection order by:
(1) doing an act in contravention of the protection order; or
(2) failing to comply with a condition of the protection order.
A defendant may, however, escape liability if they prove that they had a reasonable excuse for breaching the protection order.7
[11] The offence provisions of s 49 of the Domestic Violence Act 1995 reflect Parliament’s intention to create an effective legal redress where domestic violence occurs. Domestic violence in relation to adults is broadly defined to mean:8
(1) physical abuse; (2) sexual abuse;
(3)psychological abuse, including, but not limited to: (a) intimidation;
(b) harassment;
(c) damage to property;
(d) threats of physical abuse, sexual abuse, or psychological abuse.
7 Domestic Violence Act 1995, s 49(2).
8 Section 3(2). Additional considerations apply to domestic violence against children, see
Domestic Violence Act 1995, s 3(2)(c)(v) and (3).
[12] The precondition to an offence is the issuing of a protection order. Protection orders are issued under s 14 of the Domestic Violence Act 1995, and reflect the objectives set out in s 5(1)(a) and (b) of the Domestic Violence Act 1995 which explain that its objectives include:
(a) recognising that domestic violence, in all its forms, is unacceptable behaviour; and
(b)ensuring that, where domestic violence occurs, there is effectively protection for its victims.
Thus, a principal objective of s 49 of the Domestic Violence Act 1995 was to provide an effective mechanism to protect those who were at risk of domestic violence, and subject to a protection order issued under s 14.
[13] The essential element of the offence is therefore the breach of a protection order.
Section 194(b) of the Crimes Act 1961
[14] The offence under s 194(b) of the Crimes Act 1961 is committed when a male assaults a female. Assault is defined to mean the act of intentionally applying or attempting to apply force to another or threatening to apply force if the person making the threat has or causes the other person to believe on reasonable grounds that they have the ability to apply force.9
Analysis
[15] The elements of the two offences with which Mr Vakavelo has been charged are quite different. The essential element of the offence under the Domestic Violence Act is the breaching of a protection order. The essential element of the offence under s 194(b) of the Crimes Act 1961 is the commission of an assault by a
male on a female.
9 Crimes Act 1961, s 3.
[16] The fact that the particulars of the charge under the Domestic Violence Act refer to “physical abuse”, and in many instances physical abuse will be an assault, does not mean the offences are the same. The essential element of the offence under the Domestic Violence Act involves the breaching of a protection order, which can occur even without any physical contact or abuse.
[17] Thus, while the physical acts leading to both offences have much in common in this case, the offences are different. Furthermore, the act or omission which gave rise to liability under s 49 of the Domestic Violence Act 1995 is the breach of the protection order.
[18] In my assessment the two offences with which Mr Vakavelo has been charged are not the same or substantially the same. The acts and omissions giving rise to both offences are different. Charging Mr Vakavelo with breaching the protection order and of a male assaults female did not offend s 10(1) and (3) of the Crimes Act
1961 and he was not punished twice for the same offence.
Conclusion
[19] The answer to the question posed in paragraph [1] is that Mr Vakavelo has not been convicted twice of the same offence.
[20] The appeal is dismissed.
D B Collins J
Solicitors:
Crown Solicitor, Auckland
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