GEBBIE v NEW ZEALAND POLICE [2019] NZHC 1512

GEBBIE v NEW ZEALAND POLICE [2019] NZHC 1512 [1 July 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2019-485-22[2019] NZHC 1512BETWEEN BRENT GAYTHORNE GEBBIEAppellantAND NEW ZEALAND POLICERespondentHearing: 11 June 2019Appearances: Appellant in Person with I Murray as Amicus CuriaeC A Brook for the RespondentJudgment: 1 July 2019JUDGMENT OF CULL JOverview[1] Mr Gebbie seeks to appeal his conviction for criminal harassment under theHarassment Act 1997, but asks which Court has jurisdiction to hear it – the High Courtor the Court of Appeal?[2] Mr Gebbie was convicted by a jury of one charge of criminal harassment in theDistrict Court at Wellington. Mr Gebbie, who is self-represented, first attempted tofile his appeal at the High Court, but was directed to file at the Court of Appeal, as hisappeal was from a trial by jury for a category 3 offence. Mr Gebbie then attempted tofile at the Court of Appeal, but was again rejected. He was advised the High Courthad jurisdiction to hear the appeal. Mr Gebbie filed his appeal once more with theHigh Court. The matter was set down for a hearing on jurisdiction and Mr Murraywas appointed as Amicus to assist the Court.1 This judgment addresses solely thejurisdiction issue.[3] The question as to which Court has jurisdiction to hear the appeal hinges on adetermination of which section governs the appeal — is it s 34 of the Harassment Act1997, or s 230 of the Criminal Procedure Act 2011? I have determined that MrGebbie's appeal is governed by s 230 of the Criminal Procedure Act, and the Court ofAppeal has jurisdiction to determine the appeal. My reasons follow.Factual background[4] Mr Gebbie began a relationship in mid-2014 with a family friend. Inmid-2016, she ended her relationship with Mr Gebbie and, despite her making it clearto him that she no longer wished to pursue a relationship or have contact with him, heignored her requests and continued contact.[5] In December 2016, the police served Mr Gebbie with harassment and trespassnotices in relation to the victim and her address. Between 3 January 2017 and 9February 2017, Mr Gebbie emailed her on 21 separate occasions. Later, on 20 April2017, the victim found packages in her mailbox from Mr Gebbie containing rings anda further letter from him.[6] Mr Gebbie was convicted by a jury in the District Court at Wellington on 6March 2019, and sentenced on 12 April 2019.2The legislation[7] To determine which section properly applies, I will consider the appealprovisions of the respective statutes, and the object and scheme of both Acts.1 Gebbie v R HC Wellington CRI-2019-485-22, 6 May 2019 (Minute of Simon France J).2 R v Gebbie [2019] NZDC 9132.Appeal provisions of the respective statutes[8] Section 34 of the Harassment Act 1997 provides for appeals to the High Courtfrom a decision of the Family Court or the District Court in proceedings under theHarassment Act:34 Appeals to High Court(1AA) This subsection applies to a decision of the Family Court or theDistrict Court, in proceedings under this Act (including, withoutlimitation, proceedings under section 40), to—(a) make or refuse to make an order; or(b) dismiss the proceedings; or(c) otherwise finally determine the proceedings.(1) A party to proceedings in which there is made a decision to whichsubsection (1AA) applies may appeal to the High Court against thedecision.(2) The High Court Rules 2016 and sections 126 to 130 of the DistrictCourt Act 2016, with all necessary modifications, apply to an appealunder subsection (1) as if it were an appeal under section 124 of thatAct.(3) On the ex parte application of the appellant, the Family Court orDistrict Court (as the case requires) may order that the appellant mustnot be required under section 126(1) of the District Court Act 2016 togive the Registrar of the High Court security for costs.(3A) Subsection (3) overrides subsection (2).[9] At first glance, s 34 appears to apply to harassment proceedings, both civil andcriminal. The key to interpretation of this section is in the words "in proceedings underthis Act". The interpretation of those words and the applicability of s 34 must beconsidered in the context of criminal procedure and the Harassment Act as a whole.[10] Before examining the object and schemes of the Harassment Act and theCriminal Procedure Act, it is useful to consider the history of the framework forcriminal procedure in New Zealand, as Mr Murray provided to the Court.[11] Prior to 1 July 2013, there were two separate jurisdictional paths for summaryoffences and indictable offences. Summary offences, principally Judge alonehearings, were governed by the Summary Proceedings Act 1957. Indictableproceedings, similar to the current jury trial procedure, were governed by the CrimesAct 1961. In 2013, the summary and indictable distinctions were removed and a singlecriminal procedure was established for all criminal offences, governed by a singlestatute, the Criminal Procedure Act.[12] The Criminal Procedure Act 2011 provides for rights of appeal in criminalmatters. Section 230 defines the first appeal court with reference to the type ofcriminal proceeding and/or the category of offence. In this case, Mr Gebbie'sconviction occurred as a result of trial by jury in the District Court. Pursuant to s 230,it would seem the first appeal court is properly the Court of Appeal:230 First appeal courts(1) The first appeal court for an appeal under this subpart is—(a) the District Court presided over by a District Court Judge, ifthe appeal is against a conviction entered by the District Courtpresided over by 1 or more Community Magistrates or 1 ormore Justices of the Peace; or(b) the High Court, if the appeal is against a conviction enteredby the District Court presided over by a District Court Judge,other than a conviction for—(i) a category 3 offence after the convicted personelected a jury trial; or(ii) a category 4 offence; or(c) either the Court of Appeal or the Supreme Court, in any othercase.(2) For the purposes of subsection (1), if a convicted person elected a jurytrial but subsequently withdrew his or her election before trial, theconvicted person must be treated as if he or she had not elected a jurytrial.[13] I turn, then, to consider the object and scheme of the Harassment Act.The object and scheme of the Harassment Act 1997[14] The text of s 34 of the Harassment Act must be interpreted in light of itspurpose.3 It provides:3 Interpretation Act 1999, s 5.6 Object(1) The object of this Act is to provide greater protection to victims ofharassment by—(a) recognising that behaviour that may appear innocent or trivialwhen viewed in isolation may amount to harassment whenviewed in context; and(b) ensuring that there is adequate legal protection for all victimsof harassment.(2) This Act aims to achieve its object by—(a) making the most serious types of harassment criminaloffences:(b) empowering the court to make orders to protect victims ofharassment who are not covered by domestic violencelegislation:(c) providing effective sanctions for breaches of the criminal andcivil law relating to harassment.(3) Any court which, or any person who, exercises any power conferredby or under this Act must be guided in the exercise of that power bythe object specified in subsection (1).[15] The Harassment Act provides both criminal and civil sanctions for harassment,in furtherance of the object of the Act. Sanctions include the making of a restrainingorder for civil harassment (s 16), and the prosecution for criminal harassment (s 8).Part Two of the Act governs criminal harassment, and comprises just one section:8 Criminal harassment(1) Every person commits an offence who harasses another person in anycase where—(a) the first-mentioned person intends that harassment to causethat other person to fear for—(i) that other person's safety; or(ii) the safety of any person with whom that other personis in a family relationship; or(b) the first-mentioned person knows that the harassment is likelyto cause the other person, given his or her particularcircumstances, to reasonably fear for—(i) that other person's safety; or(ii) the safety of any person with whom that other personis in a family relationship.(2) Every person who commits an offence against this section is liable,on conviction, to imprisonment for a term not exceeding 2 years.[16] Part Three governs civil harassment, and deals with the form and contents ofan application for a restraining order, a defence for acts done for lawful purpose,conditions of an order, and enforcement of the restraining order. Part Four (ss 29–46)has general provisions relating to procedure. The provisions relating to standard ofproof (s 29) and admission of evidence (s 30) explicitly exclude criminal proceedings.[17] On the face of the wording of s 34 alone, it appears it could apply to criminalharassment proceedings, because criminal appeals are not specifically excluded. Todetermine whether s 34 governs criminal appeals, it is appropriate to examine themeaning of the words "in proceedings under this Act". Is criminal prosecution aproceeding under the Harassment Act, or is it a proceeding under the CriminalProcedure Act?The wording of s 34 of the Harassment Act[18] Mr Murray submits that the language of s 34 is consistent with civilproceedings, rather than a criminal proceeding. Section 34(3) refers to security forcosts, which are not available for criminal proceedings.4 Section 34(2) provides thatthe High Court Rules 2016 and ss 126 to 130 of the District Court Act 2016 apply toan appeal under s 34(1). Those provisions govern civil proceedings and provide formatters such as ex parte applications, security for costs, set out the powers of theappeal Court, dictate the method for repayment for setting aside judgments, andoutline how the judgment is enforced. I accept Mr Murray's submission that theseprovisions apply more readily to civil proceedings and have no place in a criminalappeal.4 Security for costs is not provided for under the Costs in Criminal Cases Act 1967.[19] Equally, the remedies under s 34(1AA) also have more of a civil flavour,although by way of comparison to other analogous statutory provisions, the samelanguage is used in appeal provisions across a range of civil and criminal statutes.5[20] Section 91 of the Domestic Violence Act 1995 provides a useful comparisonto s 34, as it is in substantially the same terms as s 34, and protection orders under theDomestic Violence Act are essentially the same in character as restraining orders underthe Harassment Act. Like criminal harassment charges under the Harassment Act,protection order charges also have a right of election of trial by jury. Recent examplesof appeals against conviction under the Domestic Violence Act following a jury trialhave all been heard in the Court of Appeal, consistent with s 230 of the CriminalProcedure Act.6 Those cases gave no indication that s 91 governed such appeals.[21] Mr Murray canvassed the perverse consequences that would result if criminalharassment appeals were governed under s 34 of the Harassment Act. The first is thatif first instance harassment prosecutions are transferred to the High Court, there wouldbe no right of appeal to the Court of Appeal under the Harassment Act. Section 36(1)of the Act provides that a party to an appeal may appeal to the Court of Appeal "againstany determination of the High Court". A party to a first instance prosecution in theHigh Court would not be a "party to an appeal" and would therefore be unable toappeal to the Court of Appeal. They would also be unable to use s 34, as this onlyprovides for appeals against a first instance decision to the High Court.[22] There are also practical inefficiencies resulting from appeals where chargeshave been laid under the Harassment Act and another criminal statute such as theCrimes Act 1961. Mr Murray gave an example of a charge notice containing criminalharassment charges and violence charges. If the defendant elected trial by jury, s 34of the Harassment Act, as it reads, would require the appeal to be heard in the HighCourt. If the appeal was from the Crimes Act charges, the appeal would be to theCourt of Appeal under s 219(1)(c) of the Criminal Procedure Act. I agree with counsel5 For example, the Domestic Violence Act 1995, s 91 and its replacement, the Family Violence Act2018, s 177; Care of Children Act 2004, s 143; Law Reform (Testamentary Promises) Act 1949, s5A; and Property (Relationships) Act 1976, s 39.6 Sharma v R [2015] NZCA 468; Dilley v R [2018] NZCA 210, [2018] NZFLR 536; and Heynen vR [2018] NZCA 123.that it cannot have been intended that separate charges would follow different appealpathways.[23] Similarly, there are irregularities if a defendant wishes to appeal differentaspects of the outcome, such as sentence or costs. As criminal costs are hardly everawarded, this could well be the result of legislative oversight.[24] While the offence of criminal harassment is created under s 8 of theHarassment Act, there are no provisions in the Harassment Act providing for theconduct of the criminal procedure relating to its prosecution. I am driven to theconclusion, as submitted by Mr Murray, that a prosecution for criminal harassment isgoverned by the Criminal Procedure Act. I do not consider, therefore, that aprosecution for criminal harassment is a "proceeding under the Harassment Act". InR v Harris, the Court of Appeal entertained the first appeal against a criminalharassment conviction from a jury trial.7 This is consistent with my view of thewording of s 34, the scheme and object of the Harassment Act, and the object andscheme of the Criminal Procedure Act, which I now turn to consider.The object and scheme of the Criminal Procedure Act 2011[25] The Criminal Procedure Bill 2010 recognised that the law relating to criminalprocedure was inflexible, inefficient and had been subject to piecemeal reform. TheBill aimed to provide for an integrated set of reforms to allocate cases more effectively,streamline procedure and simplify the categorisation of offences.8 Theimplementation of the Criminal Procedure Act in 2013 created a unified procedure forall criminal offences. Section 3 provides the purpose of the Act is to "set out theprocedure for the conduct of criminal proceedings".[26] In light of this legislative reform, it is consistent for criminal harassmentproceedings to be governed by the Criminal Procedure Act and its appeal provisionsfor criminal convictions. Thus, s 230 of the Criminal Procedure Act should determinethe jurisdiction of the Court for an appeal from a criminal conviction under the7 R v Harris (CA) 409/01, 11 July 2002.8 Criminal Procedure (Reform and Modernisation) Bill 2010 (243—1) (explanatory note) at 2.Harassment Act. This interpretation achieves the legislative purpose of streamliningand simplifying the appeal procedure for criminal offences, making it consistent withother criminal appeal procedure.[27] Such an interpretation is also consistent with ss 229 and 7 of the CriminalProcedure Act. Section 229 provides for the right of appeal against conviction, and isbroadly worded:229 Right of appeal against conviction(1) A person convicted of an offence may appeal under this subpart to thefirst appeal court against the conviction.[28] Section 229 is subject to s 7, which requires the Criminal Procedure Act to beread subject to any special provisions of any other enactment relating to the procedurein any particular case. In the absence of any provisions under the Harassment Actgoverning the criminal procedure for prosecuting criminal harassment, ss 229 and 230reinforce the finding that the Criminal Procedure Act should apply to criminalharassment provisions, while s 34 of the Harassment Act should govern all otheraspects of the civil harassment appeal procedure.[29] There is an absence of authority on the apparent conflict between s 230 of theCriminal Procedure Act and s 34 of the Harassment Act. Further, the cases are notconsistent. R v Harris was the first appeal against a criminal harassment convictionunder s 8 of the Harassment Act 1997. It was heard in the Court of Appeal.9 However,in Phillips v New Zealand Police, the High Court accepted for filing a second appealagainst a conviction for criminal harassment.10 In doing so, the Court referred to thespecific appeal pathway for criminal harassment convictions, with the first appealbeing heard in the High Court.[30] I accept Ms Brook's submission that Phillips is distinguishable, because of thesubsequent legislative criminal procedure reforms. The conviction in Phillips was first9 R v Harris CA 409-01, 11 July 2002.10 Phillips v New Zealand Police (Minute of Miller J) 3 April 2019.entered in April 2000, which meant that the appeal was governed by the SummaryProceedings Act 1957.11Conclusion[31] Although s 34 of the Harassment Act permits more than one interpretation, Iconclude that the more appropriate interpretation is that an appeal against a convictionfor criminal harassment, whether from a jury trial or District Court Judge, should begoverned by the Criminal Procedure Act, which sets out the procedural steps from thebeginning to the end of a criminal prosecution. Section 34 of the Harassment Actshould apply only to civil harassment proceedings.[32] From my conclusion, it follows that Mr Gebbie's appeal should be filed in theCourt of Appeal, as the appellate Court with the jurisdiction to hear an appeal againstconviction from a jury trial.Result[33] Mr Gebbie's appeal against conviction for criminal harassment under theHarassment Act, following a jury trial, is to be heard by the Court of Appeal, as theCourt with the appropriate appellate jurisdiction under s 230 of the Criminal ProcedureAct 2011.Cull JSolicitors:Crown Law, Wellington for the Respondent11 Under s 397 of the Criminal Procedure Act 2011, proceedings commenced before thecommencement date must be continued in accordance with the law as it was before thecommencement date.