MITCHELL v NZ POLICE [2019] NZHC 2017

MITCHELL v NZ POLICE [2019] NZHC 2017 [16 August 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-419-000037[2019] NZHC 2017BETWEEN GORDON MITCHELLAppellantAND NEW ZEALAND POLICERespondentHearing: 15 July 2019Appearances: G Harvey for the AppellantM Mortimer for the RespondentJudgment: 16 August 2019JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Friday, 16 August 2019 at 3:30 pmRegistrar/Deputy RegistrarDate:Solicitors / Counsel:Meredith Connell (Office of the Crown Solicitor), AucklandPublic Defence Service, North Shore City[1] Following a Judge-alone hearing on 16 January 2019, Judge MLSF Burnettconvicted Gordon Marcus Mitchell on four charges of contravening a restrainingorder. On 21 March 2019, the Judge fined Mr Mitchell $780 on each of the first threecharges and $980 on the fourth charge. She also ordered Mr Mitchell to pay $2,000to the complainant as emotional harm reparation. Mr Mitchell now appeals. Initiallyhe appealed against both conviction and sentence, but now says that if the convictionsare upheld the sentence will not be challenged.Facts[2] Mr Mitchell and the complainant are neighbours who share a sub-dividedproperty in Mt Roskill. A restraining order with five special conditions was grantedin the Auckland District Court on 3 February 2016. On 13 October 2016, therestraining order was varied, with special conditions amended, in accordance with ajudgment delivered by Judge G M Harrison on 26 September 2016. Both the initialand the amended orders were stated under the heading "Duration of restraining order"to "Remain in force until further order of the Court".[3] The contraventions allegedly took place on 28 February, 4 and 5 March, and8 October 2017, all over a year after the original grant of the order. Prior to the Judge-alone hearing on 16 January 2019, Mr Mitchell made an application under s 147 of theCriminal Procedure Act 2011 on the basis that the restraining order on which thecharges were founded had expired. Mr Mitchell submitted that the District Courtlacked jurisdiction to make an order for an indefinite or unspecified duration and if noperiod was specified, the order would expire after a year.[4] In a pre-trial judgment on 17 April 2018, Judge AM Manuel dismissedMr Mitchell's application under s 147 as she found that there was jurisdiction for boththe initial order and the variation to be made on the basis that they would continue inforce, pending further order of the Court.[5] Mr Mitchell sought to appeal to the High Court against the pre-trial ruling ofJudge Manuel. In a decision of 18 July 2018, Lang J determined that a decisiondeclining to discharge a defendant under s 147 was not amenable to appeal in the HighCourt under s 296 of the Criminal Procedure Act.1 He said that instead the matter mustproceed to trial in the District Court. He further said that if the trial resulted inconviction, Mr Mitchell could file an appeal against conviction incorporating, ifappropriate, the argument that did not find favour with Judge Manuel.Appellant's submissions[6] Section 21 of the Harassment Act provides:21 Duration of restraining order(1) A restraining order may be made for such period (whether longer orshorter than 1 year) as the court considers necessary to protect theapplicant from further harassment.(2) A restraining order continues in force until—(a) it is discharged under section 23; or(b) where the court directs that the order is to be in force for aspecified period, the expiry of that period; or(c) in the absence of such a direction, the expiry of 1 year fromthe date on which the order is made.[7] Counsel for Mr Mitchell submits that s 21 does not allow for making an orderof indefinite duration and that in the absence of a specified expiry date, the defaultlength of one year would apply. The charges against Mr Mitchell were therefore anullity as all charges fell outside the default one year period. The amended restrainingorder of 13 October 2016 does not remedy the one year issue because no considerationwas given to extending the duration of the order as required by s 22(4) of theHarassment Act, which provides:22 Power to vary restraining order(4) The court must not extend the duration of a restraining order underthis section unless the court is satisfied that the extension is necessaryto protect the applicant from further harassment.[8] Counsel has, however, made it abundantly clear that the question is not whetheran indefinite order was necessary in the circumstances, but whether it is possible togrant such an order under s 21.1 Mitchell v New Zealand Police [2018] NZHC 1773.Discussion[9] The sole issue in this appeal is therefore one of statutory interpretation. Canthe term "period", as used in s 21 of the Act, be interpreted as encompassing anindefinite duration.[10] The meaning of a provision is to be ascertained from its text and in light of itspurpose.2Text[11] The term "period" is defined by the Oxford English Dictionary as a "course orextent of time".3 This definition does little to clarify the matter as "until further orderof the court" is indeed a course of time, albeit an indefinite one. The question,however, is whether s 21 requires the course of time to be finite. The term "period"has not previously been defined by the court in the context of the Harassment Act, butin other unrelated contexts has been held by the court to be capable of encompassingan indefinite amount of time.4 As such, textual definitions do little more than highlightthat "period" may refer to either a definite or indefinite duration. On the words alone,in isolation from the remainder of the section, either is a reasonable interpretation ofthe term.[12] Recourse to the remainder of s 21 aids in curing the ambiguity that persists onan isolated textual interpretation of "period". Counsel for Mr Mitchell suggests alinkage between ss 21(1) and (2), and that "period" in subsection (1) should beinterpreted in light of subsection (2), which sets out the default period of one year thatis to apply when no time is specified in the order. As such, counsel contends that s 21contemplates either a specified duration, or the application of the default one yearperiod, and that accordingly, an interpretation that allows for an indefinite order isinconsistent with a reading of the section as a whole. This submission has significantforce, as to read subsection (1) in isolation from the remainder of s 21 would be to2 Interpretation Act 1999, s 5.3 Shorter Oxford English Dictionary (6th ed, Oxford University Press, Oxford, 2007) at vol 2, 2162.4 Needham v Director of Land Transport Safety [2000] DCR 790 held that disqualification fromdriving for an indefinite duration was a "period" for the purpose of the Land Transport (DriverLicensing) Rule 1999.give an artificial meaning to the term in question. The interpretation contended for bycounsel for Mr Mitchell essentially requires reading in the word finite so that s 21(1)reads: "a restraining order may be made for such [finite] period as the court considersnecessary".[13] A finite interpretation of "period" in s 21(1) is supported by reference tos 21(2)(b). This paragraph provides that a restraining order will continue in force untilthe "expiry" of the period specified in the order. The term "expiry" naturally refers toa finite period of time, where upon a specified date the time simply runs out, or,expires. In contrast, a restraining order that continues in force until further order ofthe Court cannot be said to expire. Rather, the restraining order is discharged bysubsequent order of the Court. To read s 21 as a consistent whole, an interpretation of"period" as requiring a finite duration, is favourable.[14] The wording of s 21 may also be compared to that of s 107 of the FamilyViolence Act 2018 (formerly s 45 of the Domestic Violence Act 1995), which providesthe court with the power to grant a temporary protection order. Section 107 providesthat the temporary protection order remains in force until the order becomes final, andthe final order only comes to an end when discharged by the court. This mechanismclearly envisions the granting of indefinite orders. Such an approach can be justifiedon the basis that protection orders are issued against intimate partners or familymembers, which may often create circumstances where the victim needs greater andsustained protection, typically from the unlawful acts of the offender. The same doesnot apply to restraining orders under the Harassment Act 1997. Although harassmentmust cause the recipient distress, it is often of a different degree to the conductcaptured by family violence legislation and typically involves lawful conduct.[15] This distinction between the Harassment Act and the Family Violence Act –whereby the latter act envisions the granting of orders for an indefinite duration – isconsistent with the proposition that Parliament intended "period" in s 21 of theHarassment Act to refer only to a finite duration. This interpretation is supported bya reading of s 21 as a whole, and is consistent with the notion that, had Parliamentintended a restraining order under the Harassment Act to endure indefinitely,Parliament could have legislated for this expressly, as was done in the case of familyviolence law.Purpose[16] In ascertaining the meaning of "period", reference must also be had to thepurpose of the legislation. The purpose of the Harassment Act is to provide greaterprotection to victims of harassment by recognising that behaviour that may appeartrivial when viewed in isolation, may amount to harassment when viewed in context.5The Act is also intended to supplement the legislation addressing domestic violenceby providing an avenue to obtain orders where the harassing behaviour is not in thecontext of an intimate or familial relationship.[17] The Act was initially introduced as part of the Harassment and CriminalAssociations Bill 1997 which aimed to crack down on gang violence and on gangintimidation of members of the public. Parliamentary debate also acknowledged therole of the Bill in assisting individuals who were harassed by other members of thepublic when attending abortion clinics, and in addressing the growing number ofwomen who had been the victims of stalking.6[18] Overall, the purpose of the Act may be summarised as providing the necessaryprotection for those who have been the subject of harassment. An interpretation of"period" that requires a finite duration is consistent with this purpose of the Act andwith the task the court is required to perform under s 21(1). Pursuant to this subsectionthe court is required to assess, presently, the duration of the restraining order that isdeemed necessary to protect the victim from further harassment. This type ofassessment can be distinguished from other instances where the Court may grant anindefinite order, as being situations where an assessment is deferred to a later point intime. To allow the granting of indefinite orders would be inconsistent with the natureof the task under s 21(1) and would detract from the purpose of providing protection,but only for the time that it is deemed necessary.5 Harassment Act 1997, s 6(1).6 (20 November 1997) 565 NZPD (Harassment and Criminal Associations Bill – Consideration ofReport of Justice and Law Reform Committee, Lianne Dalziel).Bill of Rights Act consistency[19] The New Zealand Bill of Rights Act 1990 is of relevance in questions ofinterpretation. Where possible, an enactment is to be interpreted consistently withfundamental human rights.7 The principle of legality further provides thatfundamental rights ought not be overridden by general or ambiguous words.8 Thus,unless the words of a statute expressly or by necessary implication curtail afundamental right, the words of the act will be read subject to the basic rights of theindividual.[20] The granting of a restraining order infringes on the fundamental rights of thesubject of the order, curtailing their right to freedom of association9 and freedom ofmovement.10 Section 21 of the Act determines the extent of time an order may curtailthese rights for. However, s 21 does not expressly provide for the ability to grant anindefinite restraining order nor does an indefinite order arise as a necessary implicationof s 21. As such, a rights consistent interpretation would not support an interpretationof the term "period" that encompasses an indefinite duration. Rather, in the absenceof such express wording, s 21 ought to be read as infringing on fundamental rights tothe minimal extent.[21] Counsel for the New Zealand Police argues that a rights consistentinterpretation only goes so far, and that if read as a whole, the Act provides forsufficient rights protections. These protections include s 22 of the Act which providesfor a mechanism to vary a restraining order, and s 23 which provides a way todischarge a restraining order; both of which can be drawn on if an individual believestheir rights have been unduly infringed. In addition, s 21(1) espouses the requirementthat the restraining order only endure for the period necessary to prevent furtherharassment, minimising any infringement on the individual's rights.[22] Although counsel correctly identifies the protections that an individual candraw on, such an approach is inconsistent with the principles governing statutory7 New Zealand Bill of Rights Act 1990, s 6.8 Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774 at [25].9 Section 17.10 Section 18.interpretation that require a right to be upheld where it is not sufficiently clear that itwas intended to be infringed. It would be contrary to this principle to permit a greaterinfringement of a fundamental right in the expectation that additional provisions couldbe utilised to remedy the infringement. Moreover, to adopt this logic would not bepragmatic.[23] A rights centred approach establishes an appropriate balance between theprotection of the victim (and the purpose of the Act in providing to the victim theprotection that is necessary) and the rights of the subject of the restraining order. Thisinterpretation does not unduly limit the use of s 21, as the same duration that could beachieved by an indefinite order remains capable of being achieved by an order of aspecific duration, so long as it can be established that the duration is necessary.Requiring a finite period ensures adequate rights protection while upholding theoverall purpose of the enactment.New Zealand case law[24] The New Zealand Courts are yet to directly address whether a "period" unders 21 may be of an indefinite nature. Counsel referred to a number of cases, none ofwhich are binding or decisive on the question. In the current proceedings concerningMr Mitchell, the District Court relied on Toreson v Murphy, a High Court decision thatJudge Manuel believed to be binding.11 Toreson allowed a restraining order, by wayof consent, to be extended for an indefinite period of time. The Judge was clear thatthe power to vary the order was available on the basis that the proceeding wasclassified as an application to vary a court order by way of consent.12 Accordingly,Judge Manuel was incorrect to believe this decision provided the authority to grant anindefinite order, as the matter before the Court was of a substantially different natureto that in Toreson.[25] Counsel also referred to Bleckman v O'Reilly13 and MJF v Sperling14; twocases that adopted differing approaches to the duration of a restraining order pursuant11 New Zealand Police v Mitchell [2018] NZDC 10341 followed Toreson v Murphy [2016] NZHC1549.12 At [6].13 Bleckman v O'Reilly DC North Shore CIV-2010-044-1647, 30 September 2011.14 MJF v Sperling [2013] NZFLR 715.to s 21 of the Act. Bleckman granted an extension of a restraining order, favouring afinite duration as opposed to an indefinite extension as was requested by counsel. Thisdecision turned partly on the basis that an indefinite order was not necessary in thecircumstances.15 In contrast Sperling considered an application for a restraining orderin regard to a number of blog posts. The nature of online material led the Judge tofavour an indefinite order as it was viewed as necessary to prevent future posting ofthe material.16 These cases adopt contradictory interpretations of "period" and neitheris binding on this Court. At best this case law operates as an aid in guiding theinterpretation question currently before the Court.[26] Counsel further referred to Beadle v Allen.17 Beadle concerned whether arestraining order amounted to a justified infringement on an individual's right tofreedom of expression, and whether the duration and special conditions of the orderwere necessary in the circumstances. As such, the issue in Beadle is of little relevanceto the current interpretation question, though the case provides recognition of the factthat there is a legitimate interest in ascertaining a meaning of "period" that is consistentwith fundamental rights.Comparative jurisdictions[27] The United Kingdom and Australia have enacted similar laws to protect againstharassment, empowering the court to issue orders to protect victims of harassment.The provisions adopted by these jurisdictions provide assistance in ascertaining theappropriate meaning of the term "period" in s 21 of the Act.[28] The equivalent United Kingdom enactment is the Protection from HarassmentAct 1997 (UK). Section 5 provides that upon conviction of an offence the Court maygrant a restraining order that may have effect "for a specified period or until furtherorder".18 Section 5A provides for orders of the same nature and duration in thealternative that the individual is acquitted. Sections 5 and 5A apply where the orderis sought by a public official. Under s 3A a private individual may apply for an15 At [10].16 At [83].17 Beadle v Allen [2000] NZFLR 639.18 Section 5(3).injunction, which is to have the same effect as a restraining order, but s 3A makes noreference to the time an injunction may endure. Despite this omission as to duration,due to the inherent nature of injunctions – that they tend to operate until a futuredetermination or event – I see no reason why an injunction under s 3A would not alsoendure indefinitely.[29] The Protection from Harassment Act 1997 (UK), pursuant to ss 5 and 5 A,specifically provides for the provision of an indefinite order of the exact nature utilisedin Mr Mitchell's case, whereby the order is to remain in effect until further order ofthe Court. And under s 3A an order of indefinite duration would also be permissiblegiven the nature of the order. The express ability to grant an indefinite order and theadoption of an injunction-based mechanism can be distinguished from the positionadopted in New Zealand. The Harassment Act 1997 neither explicitly provides for anindefinite order nor utilises injunctions, which by their nature tend to operate on anindefinite basis. This distinction supports the contention that, had Parliament intendedthe Court to be able to grant an indefinite restraining order, they would have explicitlyprovided this power.[30] In Australia the law governing harassment is managed at a state level and variesfrom state to state. Across the various states there appears to be three distinct methodsof addressing harassment. The first involves the provision of an interim order thatexpires upon an award of a final order, the second method prevents any limitationbeing imposed on the duration of the order, and the third reflects s 21 of theHarassment Act 1997.[31] The first mechanism referred to above is reflected in the New South WalesCrimes (Domestic and Personal Violence) Act 2007 (NSW). The enactment allowsthe Court to grant an order referred to as an apprehended personal violence order, oran AVO. Section 22 of this act provides that an interim order may be granted where itis necessary and appropriate to do so, and s 24 further provides that the interim orderwill remain in force until it is revoked, or until a final order is made. Similar provisionsoperate in Victoria19 and the Northern Territory.20 The regime in the Australian CapitalTerritory is also broadly similar. However, if a final order is not granted an interimorder shall come to an end after 12 months, putting in place a maximum duration.21[32] This mechanism operates in the same way that family violence laws operate inNew Zealand; potentially because many of these jurisdictions address harassmentthrough domestic and personal violence laws, as opposed to standalone harassmentlegislation. The significance of this, is that similar to the domestic violence provisionsin New Zealand, an indefinite order is more readily justified in light of the additionalprotection required to address domestic or physical violence, over and above that ofharassment.[33] The second mechanism implemented in Australia is of an entirely differentnature to that in operation in New Zealand. In South Australia the Intervention Orders(Prevention of Abuse) Act 2009 (SA), provides that an intervention order may begranted to protect an individual from acts of abuse.22 The intervention order isdescribed as ongoing and continuing in force until it is revoked. Most relevantly, theAct provides that the issuing authority may not fix a date for expiry of an interventionorder or otherwise limit its duration.23 The express ability to grant an indefinite orderand the inability to limit that order is inherently different from the regime in NewZealand and lacks relevance in interpreting the New Zealand legislation.[34] The third and final mechanism implemented in Australia engages a procedureand wording that is most similar to the regime under the Harassment Act 1997 in NewZealand. In Western Australia the Restraining Orders Act 1997 (WA) provides for the19 Personal Safety Intervention Orders Act 2010 (Vic). Section 35 allows the court to grant aninterim order where satisfied on the balance of probabilities the order is necessary pending a finalorder. Section 43 subsequently provides that an interim order expires upon the making of a finalorder.20 Personal Violence Restraining Orders Act 2016 (NT). Section 19 allows the court to grant aninterim order and provides that the order will expire either upon the grant of a personal violencerestraining order or when ordered by the court.21 Personal Violence Act 2016 (ACT), ss 20 and 21.22 Section 6 provides that an order may be issued where there are reasonable grounds to suspect thatthe defendant will, without intervention, commit an act of abuse, and where the issuing of an orderis appropriate in the circumstances. Section 8 defines an Act of abuse as an act that is intended toresult or does result in physical injury or emotional or psychological harm (including distress,anxiety or fear that is more than trivial). This is broad enough to extend to harassment (under s12(1)(e) an intervention order may prohibit a defendant from harassing a protected person).23 Section 11(2).granting of a violence restraining order.24 Upon the issuing of a final order it willremain in force until the "period (of whatever duration)" specified in the order comesto an end, or if no period is specified, after two years.25 This mechanism is mostsimilar to s 21 of the Harassment Act 1997 as it provides for an order that may endurefor a "period" and subsequently identifies a default period. This enactment introducesthe same ambiguity that is evident in s 21, namely, whether a "period (of whatever)duration" requires an order to be granted for a finite amount of time. Similar to NewZealand this question appears to have generated little focus in Western Australia, withno cases directly addressing this issue. Of limited relevance is Baron v Walsh whichreferenced an earlier tribunal decision in the proceeding's history that consideredgranting an indefinite order. 26 The tribunal stated that an indefinite order was possible,but not appropriate in the circumstances of the case.[35] This final mechanism although of a very similar nature to that in s 21, offerslittle guidance in this exercise of interpretation. The lack of relevant case law indicatesthat this is a question best resolved by reference to the New Zealand law and principlesof interpretation.[36] The preceding analysis of both the harassment law in the UK and Australia, isillustrative of the various different legal mechanisms that have been adopted in orderprotect victims of harassment, and that by and large,27 each mechanism has adoptedan express ability for the Court to grant an order restraining such behaviour for anindefinite duration. None of these mechanisms have been adopted in New Zealand.Rather, Parliament adopted a stand-alone enactment – the Harassment Act 1997 – thatonly allowed for orders to be granted for the "period" deemed necessary by the court.In contrast to the approaches adopted in these comparative jurisdictions, the NewZealand approach is of its own nature.24 This extends only to stalking and not to harassment more broadly.25 Section 16B.26 Walsh v Baron [2014] WASCA 124 at [104].27 With the exclusion of the civil mechanism in the UK under s 3A of the Protection from HarassmentAct 1997 (UK), and the restraining order procedure in Western Australia under the RestrainingOrders Act 1997 (WA).Conclusion[37] With regard to the plain meaning of the words, the purpose of the statute, thedesirability to interpret the section consistently with fundamental rights and thedistinction that can be drawn between s 21 and the explicit availability of indefiniteorders under the family violence regime and the regimes in other jurisdictions, aninterpretation of "period" that requires an order to be of a finite nature is mostappropriate, although I concede that it is a question on which reasonable minds maydiffer. As such, a restraining order granted under the Harassment Act must specify afinite period of time for which it will endure, otherwise it will expire after a year.[38] The appeal is allowed on the basis that the original restraining order grantedon 3 February 2016 had expired prior to the dates of the alleged contraventions. Thevariation to the restraining order made by Judge Harrison on 26 September 2016 didnot have the effect of extending the duration of the order as the Judge did not turn hismind to the necessity for any such extension. As a result the conduct for whichMr Mitchell was convicted occurred after the restraining order expired and cannotform the basis of a conviction.[39] The four convictions entered against Mr Mitchell on 18 January 2019 forbreach of the restraining order are quashed as are the sentences imposed on 21 March2019.________________________________Woolford J