Y v Police HC Hamilton CRI 2007-419-94

[2007] NZHC 2041

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007-419-94

Y

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 August 2007 (Heard at Hamilton)

Appearances: AJ Hamblett for Appellant

JP Mackie for Respondent

Judgment:      23 August 2007

ORAL JUDGMENT OF ASHER J

Solicitors:

Legal Services Agency, Arcadia Building Worley Place Hamilton

Almao Douch, PO Box 19173 Hamilton

AJ Hamblett, PO Box 15 Hamilton

Y V NZ POLICE HC HAM CRI 2007-419-94  23 August 2007

[1]      On 25 July 2007 Y   was convicted under s 49(1)(a) of the Domestic Violence Act 1995 for breaching a protection order.   She was convicted and sentenced to 150 hours community work.  She now appeals her conviction and sentence.

[2]      The complainant is Christine Y  ’s daughter, Ms Rachel Y  .  There has been a domestic protection order against Mrs Y   in favour of her daughter since

1997.  On 18 May 2007 Rachel Y   was living at an address in Marshall Street, Hamilton.  Between 4:00 and 5:00 pm on that day Christine Y   went to the back door of this address.  She spoke to Rachel Y  ’s husband and said she wanted to see her daughter.  By the time Rachel Y   came to the door her mother had gone.

[3]      There is no dispute about the existence of the protection order or the basic facts that I have set out.  The charge is defended on the basis that Christine Y   had a reasonable excuse to go to the daughter’s house and therefore she could not be convicted under s 49(1)(a) of the Domestic Violence Act 1995, which provides that it is  an  offence  to  do  an  act  in  contravention  of  the  protection  order  “without reasonable excuse”.

[4]      The reasonable excuse put forward at the trial and in this appeal is that Christine Y   believed that the protection order was no longer in force.  Another defence put forward at the trial, namely that there was a reasonable excuse for her to go to the house because she was uplifting some items of furniture for her grandchildren, has not been pursued before me.   There was no dispute as to the proposition that if Christine Y   had believed that the protection order was no longer in force, she would have a defence.  The issue addressed on the appeal is one of fact, namely whether Christine Y   in fact had that belief.

[5]      The appeal as it was developed by Mr Hamblett focused on the fairness of the admission of some of the evidence and whether in the light of that evidence the Judge’s conclusion that Christine Y   did know of the protection order was sound. His submissions focused on some questions by the prosecuting sergeant of Christine Y   when she was giving evidence.

[6]      Christine  Y    had  faced  a  prosecution  on  a  previous  occasion  on

21 February 2007 for an alleged breach of the protection order.  That prosecution did not ultimately proceed and was abandoned.  It had been her defence that from that point she did not believe that the protection order was in force.   When she was examined, the prosecuting sergeant put it to her that at the time of the previous hearing on 21 February 2007, an officer had asked her whether she was aware of the protection order and that she had acknowledged awareness of it.  The extract reads as follows:

Q.       In fact after the, you were here on the 21st of February this year?

A.       Um, quite honestly I don’t know what dates, my paperwork is at home.

Q.       Okay, there was a Court date where there were a number of other charges that we’ve already spoken about today?

A.       Yeah.

Q.       Where they didn’t go ahead.  So you were in Court on that day?

A.       Um, yeah, and they told me that it had been, um, that the charges had been dropped or something.

Q.       And you spoke to a Constable Theresa Ward didn’t you?  She was in

charge of that case?

A.       I’m not sure who I spoke to. Q.    A female Constable?

A.       Yeah, yeah.

Q.       She told you at that stage (interrupted) OBJECTION: MR HAMBLETT

This is hearsay. THE COURT:

Well, it’s Mr Hamblett, it’s directly relevant to the ultimate issue.  Go ahead
Sergeant.
SERGEANT WICKHAM:

I’m  failing  to  see  hearsay  anyway  Ma’am.   This  is  the  defendant  I’m speaking to.

CROSS-EXAMINATION CONTINUES:  SERGEANT WICKHAM

Q.       She told you, or said to you at that time, “The order has not been lifted”, didn’t she?

A.       Yeah.

Q.       She told you after the last hearing in Court on the 21st February? A. Yes.

Q.       She approached you in Court and said, “That the order has not been

lifted, you have to abide by it”? A.         Yeah.

Q.       That’s correct isn’t it?

A.       Yeah,  but  I  only  saw  Nick  after  that,  I  didn’t  see  Rachel,  I (interrupted).

[7]      Mr Hamblett submitted that prior to the hearing he had not seen any brief of evidence from a police officer in which it was stated that this earlier acknowledgement by the appellant had occurred.  He was not able to suggest that

there had been a failure to disclose any document, as there is nothing to indicate that any document relating to a discussion on 21 February 2007 exists.   He submitted, rather, that advance notice should have been given of the possible allegation, or the question, that might be asked in cross-examination.   Although the issue was on occasions expressed as a hearsay issue, it was in essence one of fairness of the trial process.  This is a guaranteed right, of course, under s 27 of the New Zealand Bill of Rights Act 1990.

[8]      I do  not  consider  that  there  was  any unfairness  in  the  Court  process  in relation to this evidence.  There had indeed been some general disclosure of evidence of this type provided by the police.   In the disclosure documents the police had provided a copy of a statement of the complainant.  In that statement the complainant said that her mother was aware of the protection order and that: “She was informed last time when the charges were dropped.  They gave her a warning.”  This is a clear reference to the police having given Christine Y   a warning at the time of the last hearing, consistent with the question that was put to her in cross-examination that she had been told by an officer that the order had not been uplifted.  The question, therefore, should not have come as a surprise.  I do not consider it to have been an ambush.

[9]      In any event it was no more than a question that while leading, was not presented in a threatening way or by reference to any existing document or other authority.  It was entirely open to Christine Y   to reject the proposition. She did not do so.  She accepted it.  I see no evidence of any unfair practice on the part of the police in putting this question.  It is perfectly understandable that in a case of this type some information might be just  in  the  general  knowledge  and  memory of officers and not recorded in a particular document.   It is perfectly possible that a piece of information like this could genuinely be recalled during a day of hearing.  In the  end,  a  defended  hearing is  an  adversarial  process  and  there  is  certainly no obligation on the part of a prosecutor to signal all areas of questioning before cross- examination.

[10]     In this case there had been reasonable notice of the prosecution case.   The fact   that   every   detail   of   possible   cross-examination   might   not   have   been

communicated  was  not  a  breach  of  the  rules  of  natural  justice  or  good  trial procedure.

[11]     In any event, even if there had been some failure on the part of the police to communicate some relevant evidence in its possession, I do not consider that the failure to communicate it was in bad faith or in the end particularly material.  There was a great deal of evidence available to the Court to indicate that Christine Y   knew of the existence of the protection order.

[12]     Her general conduct indicated awareness of it.   Not only had she faced a

Court  hearing  which  ultimately  did  not   go   ahead   on   that   same  issue  on

21 February 2007, but she had not seen her daughter since that time, prior to her visit to the house on 18 May 2007.  As Mr Mackie points out, her non-appearance for that duration of time indicates some awareness of a protection order being in force.  So does her conduct on the day, when she departed immediately after asking for her daughter without in fact seeing her.  Further, her statement to the police confirmed knowledge of the existence of the protection order.  Even in her evidence-in-chief she appeared to accept her knowledge of its existence.   She certainly appeared to agree with the proposition that she knew of the order when that proposition was put to her generally, and in so acknowledging she used the same terminology as she had used when the police had interviewed her on the day of the incident.

[13]   The District Court Judge found that Christine Y   gave contradictory evidence. She made a credibility finding.   I must say, on the material before the Court, a finding of knowledge of the protection order seemed to be almost inevitable.

[14]     Therefore, I do not think that the learned Judge erred in allowing the question to be put to Christine Y   about what she said to the officer at the time of the

21 February 2007 hearing.  I do not consider that the admission of that evidence was wrongful or that the way in which the events unfolded was unfair to the appellant.  I consider that the conclusion reached by the District Court Judge was entirely open to her on the evidence.  Indeed, as I have said, it is difficult to see how she would have reached any other conclusion.

[15]     I therefore dismiss the appeal against conviction.

The appeal against sentence

[16]     Mr Hamblett  with  some  force  submits  that  this  offending  was  relatively minor.  There was only one visit to the daughter’s house in breach of the protection order, and it was relatively fleeting.   There was no intimidating behaviour and no threaten words.  Indeed, the appellant could not be said to have made a nuisance of herself.  It is of particular relevance that she left before actually establishing contact with her daughter.

[17]     The offence carries a maximum penalty of six months’ imprisonment.   I would put this offending, while not trivial, at the least serious end of the culpability spectrum.  Although there is no victim impact report I can fully understand it would be a matter of considerable concern for the daughter to find her mother breaching the order, although it is to be noted that in the previous year and sometime before that there must have been some reconciliation between mother and daughter as they had lived together for a period.

[18]     There  are  no  previous  convictions  for  breaches  of  the  protection  order. Christine Y   has no previous convictions at all save for two convictions of the previous year for threatening to kill and common assault against a different person. These appear to have been domestically related and the sentence was 110 hours community work, which was later altered to supervision.  The learned Judge when sentencing noted the previous convictions.   She noted that there is a significant antagonism between the complainant and her mother and she noted the convictions of the previous year.  She concluded:

As I say, it is quite evident that the disputes between you and your daughter, the complainant, are significant and cause significant distress, no doubt to you as well as to Rachel, but given that Rachel has the protection order that is what you must abide by.  You are to carry out 150 hours community work.

[19]     I consider the penalty of 150 hours’ community work is severe.   However, there are two factors which make it within the range, although right at the highest end.   They are the attitude of Christine Y   to the protection order, which is

evident from the notes of evidence in her statements to the police. She obviously has great difficulty in accepting its existence.  The other fact is the previous conviction, which although it does not relate to the daughter does indicate a tendency to allow her personal relationships to get out of hand.

[20]     I have considered whether it would be appropriate to reduce the hours of community work, but I have decided on balance that such a response would be simply to substitute my view for that of the District Court Judge.  In the end I do not consider that there has been an error in the imposing of the sentence of 150 hours of community work.  It was not manifestly excessive while, as I have said, at the upper most limit of the acceptable range.

[21]     I therefore dismiss the appeal against sentence.

Result

[22]     The appeals against conviction and sentence are dismissed.

………………………..

Asher J