STRUTHERS v POLICE [2016] NZHC 591

STRUTHERS v POLICE [2016] NZHC 591 [8 April 2016]ORDER PROHIBITING PUBLICATION OF THE NAME OF THEPROTECTED PERSON AND FORMER PARTNER OF THE APPELLANTPURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYCRI-2016-412-000006CRI-2016-412-000007[2016] NZHC 591BETWEEN DAVID EDWARD STRUTHERSAppellantAND NEW ZEALAND POLICERespondentHearing: 4 April 2016Appearances: W J Wright for the AppellantC E R Power for the RespondentJudgment: 8 April 2016JUDGMENT OF NATION JIntroduction[1] Mr Struthers lives in a small country town. On 14 January 2013, the FamilyCourt made a temporary protection order against him for the benefit of his formerpartner 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 MrStruthers 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, thiscouple 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 andcharged with breaching a protection order on the basis he had been loitering near MsRoyal's home. Mr Struthers denied having been away from his home elsewhere inthe small town at any time during the relevant night.[3] After a trial before Judge Turner on 25 and 26 November 2015, Mr Strutherswas found guilty of breaching the protection order.[4] Mr Struthers also pleaded guilty to a charge of breaching the protection orderon 12 November 2015. At about 10.15 pm he walked to Ms Royal's home. Heentered her property by walking up the driveway and knocked on a window near thefront door.[5] On the charge relating to events on 18 August 2015, Mr Struthers wasconvicted and sentenced to 60 hours' community work and nine months' supervisionwith conditions. On the second charge relating to 12 November 2015, he wasconvicted and sentenced to 100 hours' community work, cumulative on the othersentence and nine months' supervision with conditions. The Crown agree that theperiods 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 appealSummary of the basis on which Mr Struthers was found guilty[7] Judge Turner accepted the evidence of the flatmate that she had identified MrStruthers at an intersection about a block from Ms Royal's home, walking on theother side of the road towards her, in a direction that was taking him away from MsRoyal's home. He considered that she had given evidence honestly, accurately andreliably. The Judge found she had a clear view of the pedestrian. There were noother persons on the road at the time. She had not expected to see him there. Shethought he lived in another part of the town. She had known Mr Struthers for over10 years. She recognised him by the clothes he was wearing, particularly a denimjacket which she described as having some fur on it which she had seen him wear 50or more times during the last five years. She recognised him by reason of his statureand gait. The Judge also accepted her evidence that, as she passed him, the malelooked up and she recognised his face.[8] Judge Turner also accepted the evidence of Ms Royal's son and his partnerthat, as they drove through another intersection close to Ms Royal's home, they sawa male they identified as Mr Struthers stationary on the road, outside or near MsRoyal's home and facing that property. They did not see the face of the man but saidthe person they saw was wearing jeans and a jacket with fur on it and there were noother people about at the time. The Judge drew the inference that the person theysaw was the same person the flatmate had seen only a matter of a few minutes earlierand about 200 metres away.[9] Ms Royal's son and his partner had known Mr Struthers for some 10 years.The son identified the clothes he was wearing as being clothes Mr Struthers regularlywore whenever he went out. Although he said he only saw the back of the man'shead, he considered his build was that of Mr Struthers. On seeing him, he identifiedhim as Mr Struthers and said he had got a fright seeing him there.[10] The son's partner said the man had been wearing the same clothes as healways did and had exactly the same body as Mr Struthers. She said she had beenshocked to see him standing outside Ms Royal's home.[11] Mr Struthers and his 21 year old son gave evidence that they had beentogether at Mr Struthers' home from about 7.00 pm that night and neither had left thehome during the evening. Mr Struthers' home was about 1200 metres from MsRoyal's home.[12] When the Police spoke to Mr Struthers the next day about the incident, MrStruthers said that he had been at home the whole evening with his son. Theconstable told Mr Struthers not to say anything to his son before the constable couldhave the opportunity of speaking to the son to verify this alibi. Mr Struthersunderstood the instruction. Despite this, the uncontested evidence was that, verysoon after this, Mr Struthers spoke on two occasions in the presence of his sonsaying that he had been arrested for breaching a protection order the previous nightfor being outside Ms Royal's home and that he had been at home with his son theprevious night.[13] The Judge considered the detail of evidence which was given by both MrStruthers and his son as to how they came to be at Mr Struthers' home and what theydid during the evening. He also considered conflicting evidence they had given as towhether there was any occasion when Mr Struthers had left the home he shared withhis son in the evening. Mr Struthers referred to an occasion when he had been awayfrom the home between 1¾ and two hours. The son said there had never been suchan occasion. The Judge noted various inconsistencies or conflicts between theevidence given by Mr Struthers and that given by the son. He also notedinconsistencies between what the son said in Court and what he had told the Policein a formal statement on 9 September 2015.[14] Having regard to all those matters, Judge Turner found the evidence from MrStruthers and his son to be unreliable and he rejected it. Given his acceptance of theevidence of the flatmate, Ms Royal's son and the son's partner, the Judge said he wassatisfied beyond reasonable doubt that Mr Struthers had stood outside Ms Royal'shome at around 8.40 pm on 18 August 2015 and was looking in the direction of thathome.[15] The Judge considered that what had been observed was sufficient to provethat Mr Struthers had been loitering near Ms Royal's home. On that basis, he foundthe charge had been proved.Jurisdiction[16] The appeal is brought pursuant to s 229(1) of the Criminal Procedure Act2011. Pursuant to s 232(2), I must allow the appeal if satisfied that:(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that a miscarriage ofjustice has occurred; or(c) in any case, a miscarriage of justice has occurred for any reason.[17] I must dismiss a first appeal in any other case.1[18] A miscarriage of justice means any error, irregularity, or occurrence in or inrelation to or affecting the trial that:2(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.First ground of appeal[19] The first ground of appeal was based on the contention for Mr Struthers thatthere had been a miscarriage of justice because of:A ruling that the appellant could not question the protected person on mattersthat had arisen in a prosecution of the appellant for a similar matter somemonths earlier. The appellant was not permitted to address the Court on thesubject matter upon which it was proposed to question the protected personor its relevance.[20] For Mr Struthers, Mr Wright began his submissions by telling me of thewidely publicised tragedy which had occurred in Dunedin not long ago where afather, while subject to a protection order, had killed two of his children. The thrustof his submission was that, as a result of that tragedy, the Police were now beingunnecessarily inflexible in ensuring protection orders were complied with. He thentold me at length how he came to be involved in defending Mr Struthers when heearlier faced a charge of breaching a protection order, of the strict terms on which MrStruthers had been granted bail and the burden he faced as a result of having toreside away from his normal town while he was on bail. Mr Wright also describedhow the case was based on Mr Struthers making contact with Ms Royal in breach ofthe protection order, how, as a result of discovery of telephone records, it waspossible for Mr Struthers to prove that there had been some 40 calls from Ms Royal'sphone to him and that Mr Struthers had responded to a call or message sent to himasking him to contact Ms Royal. On that basis, the charge against him wasultimately dismissed.1 Criminal Procedure Act 2011, s 232(3).2 Section 232(4).[21] I was also told that all this occurred in the context of Ms Royal and MrStruthers having some sort of continuing intimate relationship which she wished tokeep secret from her family because of their dislike of Mr Struthers. Mr Wright alsotold me that, at the hearing of the earlier charge, Ms Royal had denied sending MrStruthers messages on her cell phone but had said someone else could have hadaccess to her phone. He said that all this indicated someone else had deliberately setup a situation where Mr Struthers would breach the protection order made againsthim and in effect had fabricated evidence against him.[22] Mr Wright told me that this was the background which he had wanted to askMs Royal about.[23] These submissions were made without Mr Wright providing me with anyevidence to support the submission he was making, either by reference to evidencegiven at the hearing before Judge Turner or by way of further evidence that had beenput before the Court on the hearing of the appeal. I was not provided with thetranscript of the decision dismissing the earlier charge.[24] Ms Royal was called to give evidence by the Police on 25 November 2015.Her initial evidence was very brief. All she said was that she had been at home onthe relevant night. She had never seen Mr Struthers near her property that night. MrWright began his cross-examination of her by asking whether she had been thecomplainant in a similar earlier prosecution. She confirmed she had. The Judge thenquestioned whether this was relevant. There was then a discussion between theJudge and Mr Wright of which I have a transcript.[25] In his discussion with the Judge, Mr Wright explained that he believed theperson who made the phone calls, presumably relating to the earlier prosecution, wasgoing to be a witness at the hearing and what happened in relation to that person'suse of the phone would be material to that witness's credibility. Judge Turner saidMr Wright could ask Ms Royal who had her phone but indicated he still failed to seethe relevance of the earlier case. Mr Wright then discussed what he said were thecircumstances of the earlier case, similar to the way he had outlined them to me atthe beginning of his submissions.[26] In the discussion, Judge Turner made it clear he was not interested in theearlier case. He considered the issue was whether or not the defendant loitered in thevicinity of Ms Royal's home on 18 August 2015 and questions should be confined tothat issue. Ms Royal had not identified Mr Struthers as being outside her home onthat date so Judge Turner could not see how what occurred on the previous occasioncould be relevant. Mr Wright said what happened earlier was relevant because theperson who made the sighting on 18 August 2015 "has a very strong motive toimplicate this man because of his concern about the potential reconciliation betweenthe defendant and the woman". The discussion concluded with the Judge ruling thatMr Wright could ask Ms Royal about who had made a complaint to the Police on 18August 2015 but there were to be no questions of her as to the previous occasion.[27] In further cross-examination, Ms Royal confirmed that it had been her son'spartner who had made the phone call to the Police on 18 August 2015, she was prettysure it was made from a landline from her home. Ms Royal had not heard the callbeing made. She said she had not asked her son's partner to make the complaint. MrWright asked Ms Royal if her son's partner had "a hostile animosity" towards MrStruthers. Ms Royal said not that she was aware of. Mr Wright did not ask MsRoyal as to what she knew of her son's attitude towards Mr Struthers. He did notask any such questions as to what Ms Royal might have known of the attitude of theflatmate towards Mr Struthers.[28] Mr Wright did not question the flatmate at all as to her general opinion of MrStruthers or suggest the flatmate had any particular animosity towards Mr Struthers.He did ask questions as to what understanding she had as to the partner's attitudetowards Mr Struthers. With some prompting from the Judge, the flatmate said shethought that the partner's attitude was "neutral", that "she doesn't get along withhim", that she "doesn't particularly like him" but there was nothing in particular thatshe could comment on.[29] Mr Wright then asked her a question as to the son's attitude towards MrStruthers. The flatmate said that it was the same, that she thought the son dislikedMr Struthers.[30] Mr Wright did cross-examine the son as to his feelings towards Mr Struthers.The son acknowledged he had strong feelings about Mr Struthers "just because fromwhat he's done to my mum". In response to questions, the son said he had not beenaware that Mr Struthers and his mum "were reconciling earlier this year". He hadnot been aware of this at all.[31] Mr Wright then began a question by saying "And you're aware that MrStruthers had been previously prosecuted for exactly the same offence". At that, theJudge intervened. There was an objection from the Police to the evidence on thebasis of relevance. That exchange culminated in the Judge allowing Mr Wright toput his question.[32] Mr Wright then asked a series of questions as to whether the son had beenaware that someone, not his mother, had used the mother's phone to "put a call onMr Struthers' phone" asking Mr Struthers to respond and whether he or his partnerhad used the mother's phone to make it look as if she was sending messages to MrStruthers asking him to respond. The son said that neither he nor his partner haddone this.[33] The Judge then intervened to make sure the son understood the question. TheJudge pointed out that Mr Wright was putting to the son that on an earlier occasion,not the night of 18 August 2015, somebody had used the mother's phone and left amessage for Mr Struthers to phone her. The Judge said that Mr Wright wanted toknow whether the son had done that. The son's answer was "No. No way." MrWright then asked further whether the partner had done it. The son said his partnerhad not done it and he did not know who the person was who had done this.[34] The son said that he and his partner had decided to make the complaint on 18August 2015 after going to his mother's home after seeing Mr Struthers outside heraddress, that it was his partner and not his mother who had decided to ring thePolice.[35] Later, in cross-examination, the son accepted Mr Wright's proposition thatMr Struthers had been standing around near his mother's house "for the five or 10seconds" the son had seen him on the night of 18 August 2015. Mr Wright suggestedthat he would say anything to protect his mother. The son's response was that hewould "if it's the truth". He did not accept Mr Wright's proposition that he would"bend the truth a bit to help his mother". In the context of that cross-examination,the son said his partner had not been involved in the telephone calls relevant to theearlier prosecution and he did not know anything about the telephone calls. MrWright then began questioning the son about the earlier case and the "unknownperson" who had made the telephone calls from the mother's phone. The Judgequestioned the relevance of this. Mr Wright continued with questions, putting it tothe son "that on an earlier occasion somebody tried to set this man up on a falseprosecution". The Judge directed him not to answer that question. The Judge toldMr Wright to move on.[36] Mr Wright cross-examined the partner as to her attitude towards MrStruthers. She agreed that she did not like him. She said his actions had made herdislike him and that on at least two occasions recently when she had seen MrStruthers she had given him the fingers because he was "not a nice man". She saidshe did not give the fingers to other people. Mr Wright asked this witness as towhether earlier in 2015 Ms Royal and Mr Struthers were effecting a reconciliation.The partner said she highly doubted that, that she did "not believe that at all".[37] Mr Wright said that Ms Royal, on an earlier occasion, had said in Court thatshe and Mr Struthers did have consensual sex. The partner said she had not knownof this and thought she would have.[38] Mr Wright then put it to her that she had been involved in "the earliertelephone incident" and the earlier prosecution of Mr Struthers. The partner'sresponse was "What was that? When?" Mr Wright said that Mr Struthers wasprosecuted for making phone calls to a lady and that someone had used her phoneand made out it was Ms Royal. He asked the partner whether she knew anythingabout that. The partner said she did not and this was the first she had heard of it.She said she knew nothing about the earlier case and that she did not like to talkabout Mr Struthers. She said she was pretty sure she did not know how to get intoMs Royal's phone.[39] When he gave evidence, Mr Struthers said he had no reason to go around toMs Royal's house. He said that he had his daughter once a fortnight but they hadmade arrangements for him to pick up and drop off his daughter through friends ofMs Royal so they did not have any contact with each other. He said the only waythey had contact was to write in a book so he had no reason to be anywhere near MsRoyal's place and that he had not been invited by Ms Royal to go around to her placeon 18 August 2015 "because we don't talk". He also said that on 18 August 2015 hehad used his phone when texting his "new partner". He also referred to his meetingup briefly with Ms Royal when he saw her by chance at a liquor store in the townwhere she had just started work on 8 November 2015. He said it had been a shock tosee her there. They had a brief conversation. Mr Struthers said that after she toldhim it was her first day, he said "I won't be back here again".[40] I consider the first ground of appeal against that evidential background.[41] I do not accept that there was a real risk of a miscarriage of justice becausethe outcome of the trial has been affected by the Judge's ruling that Mr Wright couldnot question Ms Royal as to the background to the earlier prosecution or the way hertelephone had been used. The only way the background might have been relevantwould have been, as Mr Wright suggested, with regard to the credibility of witnesseswho were giving material evidence as to where Mr Struthers was on the night of 18August 2015. Ms Royal was not one of those witnesses.[42] The questions Mr Wright later asked of the son and his partner indicate thathe had no information from the first prosecution as to who, other than Ms Royal,might have used her telephone. There was certainly no suggestion in his cross-examination of the son and his partner that the information from the first trial was tothe effect that either the son or his partner had used that phone to leave messages onMr Struthers' phone. There is no evidential basis on which I can conclude that itwould have been likely or even possible that, had Mr Wright been able to questionMs Royal about the earlier incident, she would have given evidence to the effect thatit was either her son or his partner who had used her phone to somehow get MrStruthers to respond to her messages in a way that would potentially put him inbreach of a protection order.[43] The Judge did permit questions to be asked of both the son and the partner asto what they knew of the way the mother's phone had been used in connection withevents resulting in the first prosecution. The Judge permitted questions to be askedof these witnesses as to whether they had used Ms Royal's phone on those occasions.In their answers, they both were clear that they had not been involved in "setting-up"Mr Struthers in the way Mr Wright wanted to suggest or in a way which may havereasonably affected the Judge's assessment as to their credibility in relation to whatthey observed on 18 August 2015.[44] The Judge had the benefit of hearing and seeing how Mr Wright's questionswere put to these witnesses, the particular context in which the exchanges occurredand the way they responded. Their responses, as apparent from the transcript, appearto have been genuine, unrehearsed and honest. Given the way they responded to MrWright's questions, I do not consider the Judge's assessment as to their credibility inrelation to the crucial events on 18 August 2015 could reasonably have beendifferent if he had permitted questions to be asked of Ms Royal as to events resultingin the earlier prosecution or the way her phone had been used in relation to thoseevents.[45] I asked Mr Wright how evidence of what happened earlier would have beenrelevant to the issues which the Judge had to consider or which I have to consider onthis appeal. He said the evidence would have helped establish the intense animositythat both the son and his partner had towards Mr Struthers.[46] There was ample evidence before the Judge through the son and his partner'sacknowledged actions on the night and what they said of their dislike of Mr Struthersto indicate that they did not like Mr Struthers. Much of this had been made in cross-examination so that their attitude towards Mr Struthers had to be considered by theJudge in assessing their credibility as witnesses. It is most unlikely that any opinionthe mother might have expressed, as to what her son's attitude towards Mr Struthersmight have been, would have made any material difference to the assessment whichthe Judge had to make of the son's evidence. Ms Royal said she knew very little ofhis partner's attitude towards Mr Struthers. Judge Turner referred to their animositytowards Mr Struthers when giving his ultimate decision. He also said this wouldhave to be taken into account when he was ruling on the s 147 application at the endof the Police case.3[47] I also reject the contention that Mr Struthers, through his counsel, was notpermitted to address the Court on the subject matter of the earlier prosecution, uponwhich it was proposed to question the protected person or its relevance. I have readthe transcript of the discussion which took place. The transcript shows that duringthe discussion Mr Wright did describe "essentially what happened", the way MrWright put it when making submissions to the Judge.[48] I am not satisfied there was a miscarriage of justice on the first groundadvanced for Mr Struthers.Second ground of appeal[49] Mr Struthers' second ground of appeal was:That the District Court Judge's finding of fact that the appellant wasobserved for 2-3 seconds in the street outside the protected person's housewas erroneous and cannot be supported on the evidence and that the DistrictCourt Judge did not consider or have regard to the evidence which theappellant asserts would make it unlikely he to have been the figure claimedto have been observed for 2-3 seconds in the street outside the protectedperson's house.[50] At the end of the Police case, Mr Wright submitted, pursuant to s 147, thatthere was no case to answer. Firstly, on the basis that the evidence was not sufficientto identify Mr Struthers as being the person who had been on the road outside MsRoyal's address that night. He referred to the fact there had not been facialrecognition of the person by the son and his partner. Mr Wright submitted that,although the flatmate had identified Mr Struthers as being on the road about 150metres from Ms Royal's address, the inference that should have been drawn fromthat was that the son and his partner had subsequently identified the person outsidehis mother's address as Mr Struthers only because they had been told previously bythe flatmate that Mr Struthers had been seen in the vicinity just before that. TheJudge said he would have to take that possibility into account. Mr Wright referred to3 Criminal Procedure Act 2011, s 147."the distance" and what he described as the son and his partner's bizarre behaviourin not attempting to confront Mr Struthers. He referred to the way they had drivenaround the vicinity at the time and what he said would have been the pointless reasonfor Mr Struthers to be standing in the middle of the street outside Ms Royal's home.[51] The Judge obviously considered those submissions when ruling there was acase to answer. He would also have been mindful of those submissions when, at theconclusion of the evidence, he gave his decision. It was understandable andreasonable for the Judge not to invite or allow Mr Wright to make submissions onthe facts at the end of the evidence.[52] Mr Wright submitted that the Judge could not reasonably have found theperson said to be outside Ms Royal's home was Mr Struthers, firstly, because theperson identified by the flatmate on an intersection on a nearby street had beenwalking away from Ms Royal's home. He submitted the Judge had not consideredthis issue.[53] I reject that contention. In his oral decision, the Judge referred to MrStruthers as being identified by the flatmate on the particular street "walking towardsher" as she drove home from Dunedin. Through the maps and Google overview ofthe area which were before him as evidence, the Judge would have clearlyunderstood and appreciated that Mr Struthers had been walking away from MsRoyal's address at the time he was first sighted. The fact that Mr Struthers had beenfirst seen walking away from the address was highlighted by Mr Wright in cross-examination of both the son and his partner. The Judge clearly appreciated thisgiven the way he clarified, when the son was giving evidence, that Mr Struthers hadfirst been seen walking in a southerly direction towards the railway lines. The factthat Mr Struthers had initially been seen walking away from the address was alsosuggested by Mr Wright to be significant when cross-examining the constable whohad arrested Mr Struthers and who was familiar with the area being discussed. MrWright made the point, which the constable accepted, that for Mr Struthers to havebeen seen outside Ms Royal's address he would have had to double back one way oranother to have ended up outside her home.[54] Although the Judge did not say that he had taken the way in which MrStruthers was walking away from the home into account in concluding that MrStruthers was the person identified a short time later as being Ms Royal's home, I amsatisfied that he would have taken that into account.[55] Furthermore, given this appeal proceeds by way of rehearing, I do notconsider that the fact Mr Struthers was initially seen walking away from the addresswas inconsistent with him being seen a short time later outside Ms Royal's home.The first sighting was still just around two sides of the block from Ms Royal's home,the constable said probably less than 150 metres away. (The Judge proceeded on thebasis it could have been 200 metres away.)[56] As the constable accepted, there were various ways Mr Struthers could havegot from the point where he was initially seen to outside the home. It must also havebeen possible that Mr Struthers was initially walking on the first street towards MsRoyal's home, that on becoming aware of a vehicle coming along that street he hadturned to walk in the opposite direction so that the driver of the car would not seehim walking towards Ms Royal's home but, after the car has passed, he had changeddirection again to continue on an original route towards Ms Royal's home.[57] All of that is, of course, speculation. There was, however, no suggestion thatthere was insufficient time for Mr Struthers to have moved from where he was firstsighted by the flatmate to a point where he was outside Ms Royal's home, as seen bythe son and his partner.[58] What the Judge had was evidence that Mr Struthers was first seen on a streetaround the block from Ms Royal's home and, within a short time, was seen on thestreet outside her home. The issue for the Judge was whether or not all the evidencewas sufficient to establish that the person outside the house was the same person asinitially seen on the different street nearby.[59] Mr Wright submitted the identification evidence of the son and his partnershould not have been accepted as credible because the way they had acted on thenight was inconsistent with what they said was their genuine concern for Ms Royal.They had said they wanted to ensure she and the young child were both safe. MrWright submitted that it was inconsistent with this that they had not drivenimmediately to the mother's address and that, after they had claimed to haveidentified Mr Struthers outside the house, they did not confront him or driveimmediately to their mother's home.[60] I do not accept that their evidence should have been less credible given theway they acted on the night. They initially drove down the street where the flatmatehad said she had seen him. That was a logical thing for them to do given that, hadthey sighted Mr Struthers on that street still walking away from Ms Royal's home,they would have been able to at least assure themselves that he was not going to MsRoyal's home. After they had not seen him on that street, they took a slightlydifferent route to drive close-by Ms Royal's property. It was then, as they wentthrough an intersection, they saw Mr Struthers on the road outside her address. Theyboth said they got a shock to see him there. Rather than turn at the intersection to goto the home where they would come into contact with him, they continued throughthe intersection to ultimately take a circuitous but not particularly long route back tothe mother's property.[61] Neither of these witnesses liked Mr Struthers. Ultimately, after returning tothe mother's property, they chose to contact the Police to have them deal with thematter. The fact they went to the mother's property was consistent with them beingconcerned for her. The fact they contacted the Police is consistent with them beingconcerned for her and not wanting to, themselves, confront Mr Struthers. Theiractions were not inconsistent with their wanting to ensure Ms Royal was safe or withtheir being genuinely concerned that between 8.30 pm and 9.00 pm Mr Struthers,who was subject to a protection order, should be on the street, outside her home.[62] Mr Wright submitted that, because the Judge did not refer to the way the sonand his partner had driven off after seeing Mr Struthers outside the address, it cannotbe assumed he took that into account or treated it as having any significance. I donot accept that submission. The Judge did not have to refer to all of the evidence hehad heard or all the issues which he had considered in giving his decision.[63] Mr Wright cross-examined the son's partner as to why they had driven offafter seeing Mr Struthers and done a circuit before coming back to the home. TheJudge clearly took account of this line of questioning because he, himself, askedquestions of the partner, outlining the proposition which Mr Wright had put to herand asking for her explanation as to why they had proceeded in that way.[64] Mr Wright referred to the evidence of the son and his partner as being of an"unidentified figure" outside Ms Royal's home and of their having seen him for onlytwo to three seconds as they passed through the nearby intersection. He submittedthis would have been an inadequate time for them to make the positive identificationof the person as Mr Struthers. The contention that they would have observed him forjust two to three seconds was on the premise that they had observed the man only asthey were driving across the intersection, that this was a distance of 18.5 metres, sothat at a speed of 30 kilometres per hour they would have travelled 8.333 metresover two seconds or, at a speed of 20 kph, three seconds.[65] The son said that he did not know what speed they had been driving at butthought it might have been 30 or 40 kph after a stop sign which was at theintersection a block before the intersection near Ms Royal's home, although he didnot know, it could have been 20 kph as he "slowed down past the intersection". Hethought he might have observed Mr Struthers for five or six seconds. Under cross-examination, the son said the person he saw was definitely Mr Struthers and that hehad again seen him for five or six seconds.[66] His partner said that, as they drove through the intersection near Ms Royal'shome, they were not travelling very fast and that they "slowed down to see, to lookat him". She said they slowed down, had a look at him and then kept driving sothought that they may have seen him for ten seconds but she was not sure. She alsosaid it could have been seven seconds. The constable described how the son and hispartner could have continued to have a view of the street outside Ms Royal's homefor a distance after they had passed through the intersection.[67] When making legal submissions at the end of the evidence, Mr Wrightmentioned the need for caution to be exercised under the Evidence Act 2006 inconsidering the identification evidence of the witnesses, particularly so havingregard to their dislike for Mr Struthers.[68] In his decision, the Judge expressly recognised the special need for cautionwhere the case against Mr Struthers depended wholly or substantially on thecorrectness of visual identifications of the defendant, consistent with s 126 of theEvidence Act.[69] Judge Turner accepted the evidence of the flatmate as to identifying MrStruthers on the first road when she was driving home. The Judge referred to this asbeing on the road about 200 metres from Ms Royal's home. The acceptance of theflatmate's identification was not seriously challenged on this appeal.[70] Judge Turner demonstrated the caution required of him in the way he dealtwith the evidence from the son and his partner as to the way they had identified theperson outside Ms Royal's home as being a male wearing jeans and a jacket with furon it. He considered the street lighting which was available and which illuminatedthe figure they saw. He noted that, while they had some animosity towards thedefendant, there was no evidence that they had colluded or fabricated the evidencethey had given. The Judge did not simply rely on the fact that they had identified theperson they saw as being Mr Struthers. More cautiously than he perhaps needed tobe, the Judge relied on the fact they had identified a male as wearing particularclothing, clothing which the flatmate had identified Mr Struthers as wearing whenshe was able to identify him very clearly as the person she had seen just a short timeearlier in the vicinity. The Judge drew the inference, as I consider he was quiteentitled to, that, given the time of day, the absence of any other persons about at thetime and the description of the male wearing distinctive clothing, the person the sonand his partner saw was the same person the flatmate had seen just a few minutesearlier and about 200 metres away.[71] The Judge accepted that the son and his partner were honest and reliablewitnesses. Although they acknowledged they had not seen the face of the manoutside Ms Royal's home as they drove through the intersection, the way in whichthey described their driving past was consistent with them doing so in a manner thatwould have enabled them to identify the person, if there was any person there, and tosee if that person was Mr Struthers. The way they acted after seeing him is alsoconsistent with them having identified that person as Mr Struthers at that time.While they did not see his face, Mr Struthers was a person who was very familiar tothem. As they drove through the intersection, he would have been only about 30metres away. It would not have been unreasonable for the Judge to accept that theycould have identified him as Mr Struthers on the basis of particular clothing whichthey knew he often wore and on the basis of his general build and stature. JudgeTurner was more cautious than to do this and relied, quite reasonably, on theinference he had also drawn because of the identification made by the flatmate.[72] I consider there was ample evidence on which the Judge could quitereasonably conclude that the person outside Ms Royal's home at around 9.00 pm on18 August 2015 was Mr Struthers. I thus reject the second ground of the appeal.Third ground of appeal[73] The third ground for suggesting there had been a miscarriage was:That even if accepted it was the appellant observed outside of the protectedperson's property, his presence on the street for 2-3 seconds only could notamount to loitering i.e. proof "beyond reasonable doubt that there was someelement of idling, lingering or hanging about the complainant's property,even if only for a relatively short period".[74] Mr Wright had submitted there was no case to answer on this secondalternative ground, that the evidence as produced by the Police was not sufficient toestablish Mr Struthers had been loitering in the sense of hanging about Ms Royal'shome. His submission had been that the evidence could have established only thatMr Struthers had been there on only one occasion for seconds. The Judge referredhim to the judgment in Hargrave v Police.4 Mr Wright accepted the Judge'sstatement that, on the basis of that judgment, the prosecution had to prove there wassome element of idling, lingering or hanging about the complainant's property evenif that should only be for a relatively short period of time.4 Hargrave v Police (1998) 17 FRNZ 124 (HC).[75] In making legal submissions, Mr Wright repeated the submission that MrStruthers' conduct, as observed by the witnesses, did not amount to offending interms of the Act, on the basis that he had been seen for just seconds outside theaddress.[76] In his oral decision, Judge Turner stated:[26] In Hargrave v Police (1998) 17 FRNZ 124 (HC), Randerson Jconsidered the meaning of "loiter near" in circumstances where thedefendant in that case, without slowing down, lingering or stopping, haddriven past the protected person's home on two occasions. The Courtconcluded that the prosecution must prove beyond reasonable doubt thatthere was some element of idling, lingering or hanging about thecomplainant's property, even if that should be only for a relatively shortperiod. The question of whether a person is loitering is to be determined byan objective consideration of the observable facts rather than by enquiry intothe defendant's state of mind. Loitering may be for a lawful or unlawfulpurpose. That approach was endorsed by the High Court in Harding vPolice [2009] NZFLR 61 by Her Honour French J.[77] In Hargrave, Randerson J considered a situation where the appellant haddriven a motor car past the complainant's home on two occasions. There was noevidence that the car had travelled past at anything other than a normal motoringspeed. There was no evidence that the appellant's motor car had slowed down,lingered or stopped in the vicinity of the complainant's residence. The District CourtJudge had noted the "remarkable coincidence that the appellant's circuitous backroad route should include the complainant's street".[78] Randerson J allowed the appeal because, in that particular case, there was noevidence that the appellant had done anything other than drive past the complainant'shome at an ordinary speed without stopping or slowing. He held there was thus noelement of lingering, idling or hanging about[79] In his decision, Judge Turner correctly referred to the way Randerson Jsummarised what had to be proved where the charge related to an allegation that adefendant had loitered near the home of a protected person.[80] Randerson J's analysis has been adopted by the High Court in two differentjudgments that I was referred to.5 In Harding v Police, French J found the evidencehad been sufficient to establish loitering where an appellant had driven past the homeof the protected person, slowed and leaned over the steering wheel and stared up thedriveway. The Judge did note that he had done that on more than one occasion.[81] The evidence of the son's partner was that she saw Mr Struthers outside MsRoyal's address. Under cross-examination she said the man she saw near MsRoyal's home was standing there, facing the house. She confirmed this on severaloccasions to Mr Wright.[82] The son said he saw Mr Struthers "just outside" his mother's house. Whenasked what Mr Struthers was doing, the son said he was "just hanging in the middleof the road". Under cross-examination, he accepted the proposition put to him byMr Wright that Mr Struthers had been "just standing there, when they saw him".Under further questioning, the son said that he considered "loitering" meant"standing around being annoying" and that he thought this was what Mr Struthershad been doing during the "five or 10 seconds" (the words used by Mr Wright) thathe had seen Mr Struthers.[83] There was thus evidence which the Judge could accept: that between 8.30 pmand 9.00 pm Mr Struthers had been observed standing in the middle of the roadoutside Ms Royal's home and looking at her home.[84] There was no evidence that Mr Struthers was simply walking past MsRoyal's address or that he was doing this for any reason other than to be near herhome. Mr Struthers simply denied being there at all.[85] There was therefore a sufficient evidential basis on which the Judge couldreasonably conclude that Mr Struthers was hanging about or loitering near MsRoyal's address.[86] The third ground of the appeal has not been made out.5 McDowell v Police HC Wellington AP71/99, 30 April 1999; Harding v Police [2009] NZFLR 61(HC).Conclusion as to appeal against conviction[87] Accordingly, I have not been persuaded there was any error or occurrence inrelation to the trial that has resulted in the conviction being unfair or that the Judge'sconclusions could not be reasonably supported on the evidence which was availableto him. The appeal against conviction is therefore dismissed.Appeal against sentence[88] Mr Struthers was not sentenced until 5 February 2016.[89] The PAC report considered the likelihood of reoffending was low and therewas no risk of harm to others given his limited offending history in the past 13 years.The report, however, indicated that Mr Struthers had considered he could go aroundto Ms Royal's home at 10.15 pm on 12 November 2015 because the complainant hadspoken amicably to him for 10 to 15 minutes after he had accidentally met up withMs Royal at the liquor store. Mr Struthers' explanation causes me concern giventhat in admittedly limited evidence as to what happened when they met at the liquorstore, when Ms Royal told him she had just started work there, Mr Struthers said hewould make a point of not coming back to that place.[90] It must also have been of concern that, on both 18 August 2015 and 12November 2015, Mr Struthers had wanted to go near his former partner's address atnight and thereby put both himself and her in harm's way, when he was involvedwith a new partner, had made arrangements with regard to collecting and droppingoff his young daughter which were intended to avoid him having any contact withMs Royal and was in a situation where, on his own evidence, they were havingnothing to do with each other.[91] There was also no reasonable basis for the Judge to deal with Mr Struthers onthe basis, as Mr Wright submitted would have been appropriate, that he wasunderstandably confused as to whether Ms Royal wanted to have a relationship withhim at the time he made these visits to her home. On the evidence, both theseoffences occurred when Mr Struthers accepted they were not to have any contact,even over the times their daughter was to be with him.[92] The offence on 12 November 2015 was the more serious given that itoccurred when Mr Struthers was on bail on the charge relating to the 18 August 2015offence.[93] The PAC report referred to there having been eight domestic-related Policecall-outs concerning Mr Struthers since 2013 when the protection order was issued.Mr Struthers had a conviction from 15 January 2013 for the offence of wilfuldamage committed on 6 January 2013. Mr Wright confirmed this had related to MrStruthers breaking a window at Ms Royal's address which it was assumed was partof the background leading to the making of a temporary protection order in January2013. Mr Struthers did have five convictions for common assault, two of whichwere recorded as being domestic but the last of these was in 2001.[94] It was understandable that the PAC report recommended community work asa punitive measure. It was also reasonable for Judge Turner to decide that thepurposes of deterrence and denunciation made it necessary to impose some form ofpunitive sentence.[95] The Judge acknowledged that Mr Struthers was entitled to credit for hisguilty plea in relation to the second incident. He also acknowledged there had beenpositive developments in the relationship which Mr Struthers continued to have witha new partner. The pre-sentence report had also referred to his moving away fromthe town where the offending occurred. Judge Turner acknowledged the incident of18 August 2015 was less serious because Ms Royal had not known Mr Struthers wasoutside the house.[96] The Judge said the appropriate starting point for the offending was a sentenceof imprisonment. Giving Mr Struthers credit for the matters that Judge had referredto, he reduced the ultimate sentences to the periods of community work imposed foreach offence with the addition of supervision as a therapeutic measure which hehoped would assist Mr Struthers to avoid any further offending of this sort.Conclusion as to appeal against sentence[97] I can set aside the sentences imposed by Judge Turner only if I have beensatisfied that an error was made in his sentencing approach and if I am satisfied adifferent sentence should have been imposed.6 I have not been persuaded that therewas any error or that a different sentence should have been imposed. I musttherefore dismiss Mr Struthers' appeals against sentence and do so.[98] To avoid identification of the appellant's former partner, I make an order forsuppression of her name. In recognition of this, the judgment has been anonymisedthrough the use of a fictitious name for that protected person.Solicitors:Wilkinson Rodgers Lawyers, DunedinRPB Law, Dunedin.6 Criminal Procedure Act 2011, s 250(2)-(3).