N (CA615/2022) v NEW ZEALAND POLICE [2023] NZCA 103

N (CA615/2022) v NEW ZEALAND POLICE [2023] NZCA 103 [6 April 2023]NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHERINFORMATION.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA615/2022[2023] NZCA 103BETWEEN N (CA615/2022)ApplicantAND NEW ZEALAND POLICERespondentCourt: Gilbert, Ellis and Davison JJCounsel: C J Nicholls for AppellantB So for RespondentJudgment:(On the papers)6 April 2023 at 3 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Davison J)Introduction[1] Mr N (N) applies for leave to bring a second appeal against conviction andsentence.1 In a judge-alone trial held in the District Court at Hutt Valley, he was foundguilty of one charge of breaching a protection order. He was ordered to pay a fine of$150 and court costs.[2] In accordance with the direction in Courtney J's Minute of 1 December 2022,N's application for leave to bring a second appeal has been dealt with on the papersand separately from the proposed substantive appeal. This judgment determines hisapplication pursuant to s 237(1) of the Criminal Procedure Act 2011, for leave to bringa second appeal against conviction and sentence.BackgroundThe protection and parenting orders[3] N was previously married to the complainant. They have two childrentogether. Their children were aged seven and nine years old at the time of the allegedoffending.[4] On 12 December 2019 a without-notice temporary protection order was madeagainst N. The protected people were N's former wife (the complainant) and theirtwo children.[5] On 4 March 2020 a final protection order was made by the Hutt ValleyDistrict Court, making the temporary protection order against N final.[6] The final protection order included a standard non-contact condition, statingthat N must not "make any unauthorised contact with the [complainant]".[7] However, the final protection order included specific exceptions to the standardno-contact condition. It relevantly provided:1 The applicant's name has been anonymised throughout this judgment, despite it not beingsuppressed, in order to protect the privacy and identity of N's former wife (the complainant) andtheir children.Other exceptions to standard no-contact conditionContact by the respondent, or associated respondent, with the [complainant] isauthorised, and not in breach of the standard no-contact condition, if the contact is—(2) permitted under any order or written agreement relating to the role ofproviding day-to-day care for, or contact with, or custody of—(i) any child (within the meaning of section 8 of the Care of Children Act2004); or(ii) any child or your person (within the meaning of section 2 ofthe Oranga Tamariki Act 1989); or[8] On 18 May 2021 the Family Court at Hutt Valley made a parenting order byconsent. The order included the following condition:It will not be a breach of the protection order for [N] to communicate with[the complainant] by text message regarding the care of the children or about contact.The alleged offending[9] In September 2021 N discovered the complainant was proposing to movehouse. On 24 September 2021 he sent two text messages to the complainant regardingthe children at 2.47 pm and 9.27 pm. The complainant did not reply.[10] Later, at 9.46 pm on 24 September 2021, he sent the complainant a textmessage saying:iv known u since 2011-11yrz. Hav u made up yr mind wat u want to do w thsmarriage (that has 2xkids needing their mum & dad).[11] The following day, 25 September 2021 at 1.43 pm, N sent the complainant atext saying that he had left a chicken on the roof of her friend's vehicle (which wasparked near her home address). The circumstances being that N was aware thatthe children would not want to take the chicken home to their mother from himdirectly, and not wanting the chicken to go to waste, he had left it on top ofthe neighbour's car and then sent the complainant a text message to that effect.[12] Later at 6.24 pm on that evening N sent the complainant another text messagesaying:[complainant] r u ready 4 divorce or nt? Y or n[13] Once again the complainant did not respond. The following day N continuedtexting her about various topics.[14] The two text messages asking about the marriage and a divorce (set out aboveat [10] and [12]) were the subject of charges alleging breaches of the final protectionorder. N has one previous conviction for breaching the protection order inFebruary 2020.District Court proceedings[15] At a judge-alone trial held in the Hutt Valley District Court on 21 September2022, N was found guilty of one of the two charges.2[16] Judge C D Sygrove held the 9.46 pm text sent on 24 September 2021 waswithin the scope of the permitted exception in the parenting order because it explicitlyreferred to the children.3 The Judge also acquitted N in respect of the charge in relationto the text message sent at 1.43 pm on 25 September 2021.4[17] However, the Judge found N guilty of the charge relating to the 6.24 pm textsent on 25 September 20215 and sentenced him to pay a fine of $150 and court costsof $130.62 Police v [N] [2022] NZDC 21841.3 At [4]–[6].4 At [7]–[8].5 At [8]–[9].6 At [10]–[11].High Court appeal[18] In a judgment delivered on 9 November 2022, Palmer J dismissed N's firstappeal against conviction and sentence.7[19] N's conviction appeal was grounded in s 45 of the Family Proceedings Act1980 (FP Act) which provides that the Family Court may not dissolve a marriageunless it is satisfied that arrangements have been made for the care, maintenance andwelfare of the children. N argued that consistently with that provision, anytext message about divorce necessarily and implicitly relates to the care of children.He therefore argued that his text message fell within the exception permitted bythe parenting order. In the alternative, N submitted that he had a reasonable excusefor sending the text because he made an honest mistake in interpreting what was andwas not allowed to be included in it.8[20] Justice Palmer considered the relevant sections of the Family Violence Act2018: s 79 which provides the circumstances in which the court may make a protectionorder; s 90(b) which imposes as the standard condition a prohibition on a respondentmaking any contact with a protected person which is not authorised by ss 91 or 96;s 10(2) regarding acts which form a pattern of behaviour that may collectively amountto abuse; s 4(b) regarding the principle that decision makers should where appropriaterecognise that family violence that appears minor or trivial when viewed in isolationmay form part of a pattern that causes cumulative harm; and s 112(2) which providesa defence of reasonable excuse for contravening a protection order. In dismissingthe conviction appeal, the Judge said:[12] The parenting order here authorises texts only about "the care of the childrenor about contact". I do not accept that any text solely about divorce implicitly relatesto the care of children or contact. The text at issue here, viewed in context, did not.The law regarding divorce does not change that. I agree with Judge Sygrove that istoo long a bow to draw. It is not an available interpretation of the parenting order andis not an objectively reasonable excuse. I accept the Police submission that theparenting order authorises communication about the logistics of contact, anyguardianship decisions which need to be made jointly, and any other mattersconcerning the well-being of the children which require coordination. The texts haveto relate directly to the welfare of the children, in the interests of the protected persons.The complainant can always agree to greater contact.7 [N] v Police [2022] NZHC 2936 [High Court judgment].8 At [8].[13] I agree that it was open to the Judge to find that the Police proved its casebeyond reasonable doubt. The parenting order did not authorise this text. There hasbeen no miscarriage of justice. I dismiss the conviction appeal.[21] In relation to N's sentence appeal, Palmer J rejected N's submission thatthe conviction itself was an appropriate penalty. He did not consider there was anyerror in the sentence. He said that the " relatively small fine and costs order shouldact as a reminder to [N] to keep within the terms of the order that he has now breachedtwice."9Threshold for leave to bring a second appeal[22] N requires leave to bring a second conviction and sentence appeal. Leave willbe granted if he satisfies us that his appeal involves a matter of general or publicimportance or that a miscarriage of justice may have occurred, or may occur, unlesshis appeal is heard.10 This Court's decision in McAllister v R confirms that the test isa high one.11SubmissionsThe applicant[23] Mr Nicholls, counsel for N, submits that the proposed appeal involves a matterof general importance. He says the issue of general importance raised in this case iswhether a court, in deciding in the context of a criminal prosecution how a group ofwords should be interpreted "is entitled to disregard the statute law in New Zealandthat touches on that subject (here, regarding divorce as it relates to children, beingthe [FP Act])." He says the appeal will consider s 11 of the Legislation Act 2019,which was not raised in the High Court appeal and has not been considered by thecourts generally. Section 11 of the Legislation Act requires that legislation applies tocircumstances as they arise.9 At [14].10 Criminal Procedure Act 2011, ss 237(2) and 253(3).11 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.[24] Mr Nicholls further submits that a miscarriage of justice will occur if the appealis not heard. He says the High Court erred in failing to consider the context createdby the text sent on 24 September 2021 in relation to which N was acquitted, whendeciding the meaning of the text sent on 25 September 2021 for which he wasconvicted. Mr Nicholls says had Palmer J considered the context created by the earliertext message referring to the children, N ought to have been acquitted. He thereforesubmits if the conviction stands, a miscarriage of justice will result.The respondent[25] Ms So, for the respondent, submits that the appeal does not engage an issue ofgeneral or public importance. She submits that N's appeal turns on a question of fact:namely whether his text message was permitted by the parenting order that was inplace. As such, it does not raise an issue of general or public importance.[26] Ms So submits that in any event, the Judge was correct to find the provisionsof the FP Act do not inform a proper analysis of the relevant provisions of theFamily Violence Act. Section 45 of FP Act requires the Family Court to be satisfiedthat care arrangements are in place for a couple's children before dissolving amarriage. It does not render that any private discussions between the parties aboutdivorce are necessarily about the care of children of the marriage. She notes that inthis case there were already care arrangements for the children in place by virtue ofthe parenting order. She submits therefore that the interpretation consistent with s 11of the Legislation Act is that discussion about divorce did not require discussion aboutthe care of the couple's children.[27] Ms So says there is a key difference between the text message sent on24 September 2021 and the message sent on 25 September for which N was convicted.The former specifically referred to the children whereas the latter did not. She says itdoes not follow that simply because one of N's messages about divorce referred tothe children, subsequent correspondence about divorce implicitly fell within the samecategory. Ms So submits that Palmer J nevertheless took account of the contextapparent from the text message sent on 24 September 2021, and he was correct inconcluding that it was open to the District Court Judge to find that the Police provedthe charge beyond reasonable doubt.[28] Ms So submits that the high threshold required for a grant of leave to bring asecond appeal has not been met, and the application for leave should be dismissed.Discussion[29] Section 237 of the Criminal Procedure Act provides:Right of appeal against determination of first appeal court(1) A convicted person may, with the leave of the second appeal court,appeal to that court against the determination of the person's firstappeal under this subpart.(2) The High Court or the Court of Appeal must not give leave for asecond appeal under this subpart unless satisfied that—(a) the appeal involves a matter of general or public importance;or(b) a miscarriage of justice may have occurred, or may occurunless the appeal is heard.[30] Leave to appeal must be refused unless the Court is satisfied that one or otherof the two grounds set out in s 237(2) are established.[31] In McAllister v R this Court explained:12[32] The leave provisions dealing with second appeals in the Act reflect achange. Previously, a second appeal to this Court was confined to a questionof law which ought to be considered by reason of its general or publicimportance. These criteria were strictly applied. As we have seen, under s 264there is no requirement for a question of law. Further, the leave requirementsalso entail consideration of an alternative limb, namely, that a miscarriage ofjustice may have occurred, or may occur unless the appeal is heard.These changes mean that, in large measure, the test for an application for leavefor a second appeal is in the same terms as that in s 13 of the Supreme CourtAct 2003.[33] Section 13 provides that the Supreme Court must not give leave toappeal unless satisfied leave is necessary "in the interests of justice".Section 13(2) states, relevantly, that it is necessary in the interests of justice tohear and determine a proposed appeal if:12 McAllister v R, above n 11 (footnotes omitted).(a) the appeal involves a matter of general or public importance;or(b) a substantial miscarriage of justice may have occurred, or mayoccur unless the appeal is heard; [36] Adopting an approach consistent with that applied to s 13 of theSupreme Court Act would suggest, for example, that the threshold ins 264(2)(a) will be met where the proposed appeal gives rise to an issue of"general principle or of general importance in the administration ofthe criminal law by the Courts". An illustration of a matter of general or publicimportance is one raising an important question of law having broadapplication beyond the circumstances of the particular case. By contrast, thereare numerous illustrations in the leave decisions of the Supreme Court whereleave has been declined on the basis that the application for leave raises issuesin the nature of a "factual assessment that is specific to the circumstances ofthe case" or the application of "well-established principles to a particular factsituation". This approach indicates that the expansion of the test to encompassquestions of fact does not necessarily mean a more liberal standard is to beapplied to questions of leave on a second appeal.[37] In terms of the miscarriage of justice limb, there are various ways ofcharacterising the approach to be taken, for example, if there is an argumentreasonably available that the court below is in error, that possibility wouldappear to come within s 264(2)(b), with the qualification we discuss in [38].In the context of applying s 13 of the Supreme Court Act, the language usedby that Court varies and a prescriptive approach would be unhelpful.[32] We do not consider the proposed appeal raises an issue of general or publicimportance. We agree with the respondent that the issue arising in this proposedappeal turns on a factual assessment specific to the circumstances of this case.Specifically, whether the 6.24 pm text sent on 25 September 2021 in which N said:"[complainant] r u ready 4 divorce or nt? Y or n" comes within the scope of thepermitted exception provided by clause 8 of the parenting order by virtue of being a" text message regarding the care of the children or about contact".[33] As is obvious, N's 6.24 pm text message does not mention the children.[34] We also agree with Palmer J that the reference in the message to divorce doesnot necessarily or implicitly refer to or engage issues regarding the care of the childrenor N's contact with the children.13 Section 45 of the FP Act stipulates thatthe Family Court shall not make an order dissolving a marriage unless satisfied that13 High Court judgment, above n 7, at [12].arrangements have been made for the day-to-day care, maintenance, and other aspectsof the welfare of every child of the marriage under the age of 16 years, and that thosearrangements are satisfactory or the best that can be devised in the circumstances.14But here the issues as to which parent has day-to-day care of the children and the termsof N's contact with them are already covered by the parenting order, and those orderswill not be affected by a dissolution of the parents' marriage.[35] Where the meaning of an individual communication is clear, it is to beinterpreted accordingly. However, the meaning and purpose of text messages andcommunications will often be informed by their content and context, including whereappropriate by reference to prior and subsequent communications. Where this isthe case it will be artificial to consider a single communication in isolation when it isin reality part of a broader (in this case text-based) communication or conversation.[36] Although the text message sent at 6.24 pm on 25 September 2021 is clearly afollow-up to the text message N had sent at 9.46 pm the previous day, the messageasking about a divorce does not concern the care of the children or contactarrangements and is therefore not within the scope of the exception in the parentingorder.[37] The applicant has not shown that the proposed appeal involves a matter ofgeneral or public importance, and we are not persuaded that there is any risk of amiscarriage of justice arising out of the way the matter was dealt with inthe High Court and accordingly we decline the application for leave to bring a secondappeal.Result[38] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent14 Family Proceedings Act 1980, s 45(1)(a).