Struthers v N Z Police [2016] NZCA 278

Struthers v N Z Police [2016] NZCA 278 [21 June 2016]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF THECOMPLAINANT'S NAME, ADDRESS, OCCUPATION OR IDENTIFYINGPARTICULARS REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDCA177/2016[2016] NZCA 278BETWEEN DAVID EDWARD STRUTHERSApplicantAND NEW ZEALAND POLICERespondentCourt: Miller, Lang and Peters JJCounsel: W J Wright for ApplicantK A Courteney for RespondentJudgment:(On the papers)21 June 2016 at 3.00 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Following a Judge-alone trial in the District Court Mr Struthers was found guilty of contravening a protection order issued by the Family Court in respect of his former partner and her two children.1 He had earlier pleaded guilty to another charge of breaching a protection order in respect of the same complainant. On 5 February 2016 the trial Judge, Judge Turner, sentenced Mr Struthers to a total of160 hours' community work and nine months' supervision.1 New Zealand Police v Struthers [2016] NZDC 25877. The offence of breaching a protection order is at s 49 of the Domestic Violence Act 1995.[2] On 8 April 2016, Nation J dismissed a first appeal by Mr Struthers against both conviction and sentence.2 Mr Struthers now seeks leave to pursue a second appeal to this Court.3 He contends that the proposed appeal raises an issue of general or public importance, or that a miscarriage of justice may occur unless leave is granted.The proposed issues on appeal[3] The prosecution alleged that Mr Struthers had breached the protection order by loitering outside the home occupied by his former partner, Ms Royal, on the night of 18 August 2015.4 It relied upon the evidence of three eyewitnesses, all of whom identified Mr Struthers as being in the vicinity of the home on that night. All of the eyewitnesses had known Mr Struthers for a considerable period of time, and were assisted in their respective identifications of him by the fact that he was wearing distinctive clothing that he habitually wore.[4] Two of the eyewitnesses were Ms Royal's son and his partner. They had borrowed a car to go out and look for Mr Struthers after being advised by theirflatmate that she had just seen Mr Struthers a short distance away from Ms Royal'shome. As they passed through an intersection, they saw Mr Struthers standing outside Ms Royal's address and looking up at it. They were approximately30 metres away when they made their identifications.[5] Mr Struthers challenged the reliability of the identification evidence given by all three eyewitnesses. The Judge in the District Court held that the identifications were reliably made, however, and also rejected alibi evidence given by Mr Struthers and his son to the effect that Mr Struthers had been at home with his son on the evening in question.2 Struthers v New Zealand Police [2016] NZHC 591.3 Criminal Procedure Act 2011, s 237.4 Ms Royal is not the real name of Mr Struthers' former partner. It is the name given to her byNation J in the judgment dismissing Mr Struthers' appeal against conviction and sentence.[6] The trial Judge then considered whether Mr Struthers' conduct amounted to loitering in terms of the principles enunciated in Hargrave v Police.5 In that case Randerson J observed that loitering must involve:6 some element of idling, lingering or hanging about the complainant'sproperty, 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 thedefendant's state of mind.[7] Ms Royal's son and his partner said that they saw Mr Struthers standingoutside Ms Royal's home for approximately five to six seconds. The trial Judge andNation J both considered this was sufficient to amount to loitering so as to constitute a breach of the protection order.[8] Mr Struthers wishes to mount a further challenge to the identification evidence in this Court, and also to have this Court determine whether conduct of such brief duration could amount to loitering as that concept was explained inHargrave.The test for a second appeal[9] This Court has held in McAllister v R and Hohipa v R that the threshold for a second appeal is a high one.7 Section 237 of the Criminal Procedure Act 2011 prohibits the Court from granting leave for a second appeal unless the proposed appeal involves a matter of general or public importance, or a miscarriage of justice has occurred or may occur if leave is not granted.8 The appeal is unlikely to give rise to an issue of public or general importance unless it raises an issue of general principle in the administration of the criminal law, or has broad application beyond the circumstances of the case in question.9 Leave may be granted under the second limb where the Court considers the court below may have been in error to the extent that a miscarriage of justice has occurred or may occur if leave is not granted.105 Hargrave v Police (1998) 17 FRNZ 124 (HC).6 At 130.7 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764; Hohipa v R [2015] NZCA 73.8 Criminal Procedure Act, s 237(2)(a) and (b).9 McAllister v R, above n 7, at [36].10 At [37] and [38].Decision[10] Mr Struthers does not seek to challenge the legal principles applied by the Judges in the courts below. Rather, he seeks to challenge the correctness of their application to the facts in this case. For that reason we do not see the issues that Mr Struthers wishes to raise as having any significance beyond the present case. Furthermore, we consider that the argument on the second issue may be based on a false premise. Although Ms Royal's son and his partner only saw Mr Struthers standing outside Ms Royal's house for 5 to 6 seconds, they obviously could not sayhow long he had already been there when they arrived. He may well have been there for a considerable period before their arrival.[11] Nor do we consider it appropriate for this Court to attempt to define when a person may be guilty of loitering outside an address by reference solely to the time period over which the conduct underpinning the charge occurs. All of the circumstances of the case will need to be taken into account.[12] We consider that the trial Judge's conclusions in relation to the reliability ofthe identification evidence were plainly open to him, as was his conclusion in relation to the issue of loitering. Mr Struthers' primary defence based on alibi hasalso been rejected. No miscarriage of justice is likely to occur if leave to appeal is denied. As a result, the case does not satisfy either limb of s 237.Result[13] The application for leave to bring a second appeal is declined.Solicitors:Wilkinson Rodgers Lawyers, Dunedin for ApplicantCrown Law Office, Wellington for Respondent