IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CRI-2019-485-22
[2019] NZHC 1512	

BETWEEN	BRENT GAYTHORNE GEBBIE
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	11 June 2019	
Appearances:	Appellant in Person with I Murray as Amicus Curiae C A Brook for the Respondent	
Judgment:	1 July 2019	

JUDGMENT OF CULL J

Overview

[1]	Mr Gebbie seeks to appeal his conviction for criminal harassment under the Harassment Act 1997, but asks which Court has jurisdiction to hear it – the High Court or the Court of Appeal?

[2]	Mr Gebbie was convicted by a jury of one charge of criminal harassment in the District Court at Wellington. Mr Gebbie, who is self-represented, first attempted to file his appeal at the High Court, but was directed to file at the Court of Appeal, as his appeal was from a trial by jury for a category 3 offence. Mr Gebbie then attempted to file at the Court of Appeal, but was again rejected. He was advised the High Court had jurisdiction to hear the appeal. Mr Gebbie filed his appeal once more with the High Court. The matter was set down for a hearing on jurisdiction and Mr Murray

GEBBIE v NEW ZEALAND POLICE [2019] NZHC 1512 [1 July 2019]

was appointed as Amicus to assist the Court.1 This judgment addresses solely the jurisdiction issue.

[3]	The question as to which Court has jurisdiction to hear the appeal hinges on a determination of which section governs the appeal — is it s 34 of the Harassment Act 1997, or s 230 of the Criminal Procedure Act 2011? I have determined that Mr Gebbie’s appeal is governed by s 230 of the Criminal Procedure Act, and the Court of Appeal has jurisdiction to determine the appeal. My reasons follow.

Factual background

[4]	Mr Gebbie began a relationship in mid-2014 with a family friend. In mid-2016, she ended her relationship with Mr Gebbie and, despite her making it clear to him that she no longer wished to pursue a relationship or have contact with him, he ignored her requests and continued contact.

[5]	In December 2016, the police served Mr Gebbie with harassment and trespass notices in relation to the victim and her address. Between 3 January 2017 and 9 February 2017, Mr Gebbie emailed her on 21 separate occasions. Later, on 20 April 2017, the victim found packages in her mailbox from Mr Gebbie containing rings and a further letter from him.

[6]	Mr Gebbie was convicted by a jury in the District Court at Wellington on 6 March 2019, and sentenced on 12 April 2019.2

The legislation

[7]	To determine which section properly applies, I will consider the appeal provisions of the respective statutes, and the object and scheme of both Acts.

1	Gebbie v R HC Wellington CRI-2019-485-22, 6 May 2019 (Minute of Simon France J).
2	R v Gebbie [2019] NZDC 9132.

Appeal provisions of the respective statutes

[8]	Section 34 of the Harassment Act 1997 provides for appeals to the High Court from a decision of the Family Court or the District Court in proceedings under the Harassment Act:

34	Appeals to High Court

(1AA) This subsection applies to a decision of the Family Court or the District Court, in proceedings under this Act (including, without limitation, proceedings under section 40), to—

(a)	make or refuse to make an order; or

(b)	dismiss the proceedings; or

(c)	otherwise finally determine the proceedings.

(1)	A party to proceedings in which there is made a decision to which subsection (1AA) applies may appeal to the High Court against the decision.

(2)	The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under subsection (1) as if it were an appeal under section 124 of that Act.

(3)	On the ex parte application of the appellant, the Family Court or District Court (as the case requires) may order that the appellant must not be required under section 126(1) of the District Court Act 2016 to give the Registrar of the High Court security for costs.

(3A)	Subsection (3) overrides subsection (2).

[9]	At first glance, s 34 appears to apply to harassment proceedings, both civil and criminal. The key to interpretation of this section is in the words “in proceedings under this Act”. The interpretation of those words and the applicability of s 34 must be considered in the context of criminal procedure and the Harassment Act as a whole.

[10]	Before examining the object and schemes of the Harassment Act and the Criminal Procedure Act, it is useful to consider the history of the framework for criminal procedure in New Zealand, as Mr Murray provided to the Court.

[11]	Prior to 1 July 2013, there were two separate jurisdictional paths for summary offences and indictable offences. Summary offences, principally Judge alone hearings, were governed by the Summary Proceedings Act 1957. Indictable

proceedings, similar to the current jury trial procedure, were governed by the Crimes Act 1961. In 2013, the summary and indictable distinctions were removed and a single criminal procedure was established for all criminal offences, governed by a single statute, the Criminal Procedure Act.

[12]	The Criminal Procedure Act 2011 provides for rights of appeal in criminal matters. Section 230 defines the first appeal court with reference to the type of criminal proceeding and/or the category of offence. In this case, Mr Gebbie’s conviction occurred as a result of trial by jury in the District Court. Pursuant to s 230, it would seem the first appeal court is properly the Court of Appeal:

230	First appeal courts

(1)	The first appeal court for an appeal under this subpart is—

(a)	the District Court presided over by a District Court Judge, if the appeal is against a conviction entered by the District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or

(b)	the High Court, if the appeal is against a conviction entered by the District Court presided over by a District Court Judge, other than a conviction for—

(i)	a category 3 offence after the convicted person elected a jury trial; or

(ii)	a category 4 offence; or

(c)	either the Court of Appeal or the Supreme Court, in any other case.

(2)	For the purposes of subsection (1), if a convicted person elected a jury trial but subsequently withdrew his or her election before trial, the convicted person must be treated as if he or she had not elected a jury trial.

[13]	I turn, then, to consider the object and scheme of the Harassment Act.

The object and scheme of the Harassment Act 1997

[14]	The text of s 34 of the Harassment Act must be interpreted in light of its purpose.3 It provides:

3	Interpretation Act 1999, s 5.

6	Object

(1)	The object of this Act is to provide greater protection to victims of harassment by—

(a)	recognising that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context; and

(b)	ensuring that there is adequate legal protection for all victims of harassment.

(2)	This Act aims to achieve its object by—

(a)	making the most serious types of harassment criminal offences:

(b)	empowering the court to make orders to protect victims of harassment who are not covered by domestic violence legislation:

(c)	providing effective sanctions for breaches of the criminal and civil law relating to harassment.

(3)	Any court which, or any person who, exercises any power conferred by or under this Act must be guided in the exercise of that power by the object specified in subsection (1).

[15]	The Harassment Act provides both criminal and civil sanctions for harassment, in furtherance of the object of the Act. Sanctions include the making of a restraining order for civil harassment (s 16), and the prosecution for criminal harassment (s 8). Part Two of the Act governs criminal harassment, and comprises just one section:

8	Criminal harassment

(1)	Every person commits an offence who harasses another person in any case where—

(a)	the first-mentioned person intends that harassment to cause that other person to fear for—

(i)	that other person’s safety; or

(ii)	the safety of any person with whom that other person is in a family relationship; or

(b)	the first-mentioned person knows that the harassment is likely to cause the other person, given his or her particular circumstances, to reasonably fear for—

(i)	that other person’s safety; or

(ii)	the safety of any person with whom that other person is in a family relationship.

(2)	Every person who commits an offence against this section is liable, on conviction, to imprisonment for a term not exceeding 2 years.

[16]	Part Three governs civil harassment, and deals with the form and contents of an application for a restraining order, a defence for acts done for lawful purpose, conditions of an order, and enforcement of the restraining order. Part Four (ss 29–46) has general provisions relating to procedure. The provisions relating to standard of proof (s 29) and admission of evidence (s 30) explicitly exclude criminal proceedings.

[17]	On the face of the wording of s 34 alone, it appears it could apply to criminal harassment proceedings, because criminal appeals are not specifically excluded. To determine whether s 34 governs criminal appeals, it is appropriate to examine the meaning of the words “in proceedings under this Act”. Is criminal prosecution a proceeding under the Harassment Act, or is it a proceeding under the Criminal Procedure Act?

The wording of s 34 of the Harassment Act

[18]	Mr Murray submits that the language of s 34 is consistent with civil proceedings, rather than a criminal proceeding. Section 34(3) refers to security for costs, which are not available for criminal proceedings.4 Section 34(2) provides that the High Court Rules 2016 and ss 126 to 130 of the District Court Act 2016 apply to an appeal under s 34(1). Those provisions govern civil proceedings and provide for matters such as ex parte applications, security for costs, set out the powers of the appeal Court, dictate the method for repayment for setting aside judgments, and outline how the judgment is enforced. I accept Mr Murray’s submission that these provisions apply more readily to civil proceedings and have no place in a criminal appeal.

4	Security for costs is not provided for under the Costs in Criminal Cases Act 1967.

[19]	Equally, the remedies under s 34(1AA) also have more of a civil flavour, although by way of comparison to other analogous statutory provisions, the same language is used in appeal provisions across a range of civil and criminal statutes.5

[20]	Section 91 of the Domestic Violence Act 1995 provides a useful comparison to s 34, as it is in substantially the same terms as s 34, and protection orders under the Domestic Violence Act are essentially the same in character as restraining orders under the Harassment Act. Like criminal harassment charges under the Harassment Act, protection order charges also have a right of election of trial by jury. Recent examples of appeals against conviction under the Domestic Violence Act following a jury trial have all been heard in the Court of Appeal, consistent with s 230 of the Criminal Procedure Act.6 Those cases gave no indication that s 91 governed such appeals.

[21]	Mr Murray canvassed the perverse consequences that would result if criminal harassment appeals were governed under s 34 of the Harassment Act. The first is that if first instance harassment prosecutions are transferred to the High Court, there would be no right of appeal to the Court of Appeal under the Harassment Act. Section 36(1) of the Act provides that a party to an appeal may appeal to the Court of Appeal “against any determination of the High Court”. A party to a first instance prosecution in the High Court would not be a “party to an appeal” and would therefore be unable to appeal to the Court of Appeal. They would also be unable to use s 34, as this only provides for appeals against a first instance decision to the High Court.

[22]	There are also practical inefficiencies resulting from appeals where charges have been laid under the Harassment Act and another criminal statute such as the Crimes Act 1961. Mr Murray gave an example of a charge notice containing criminal harassment charges and violence charges. If the defendant elected trial by jury, s 34 of the Harassment Act, as it reads, would require the appeal to be heard in the High Court. If the appeal was from the Crimes Act charges, the appeal would be to the Court of Appeal under s 219(1)(c) of the Criminal Procedure Act. I agree with counsel

5	For example, the Domestic Violence Act 1995, s 91 and its replacement, the Family Violence Act 2018, s 177; Care of Children Act 2004, s 143; Law Reform (Testamentary Promises) Act 1949, s 5A; and Property (Relationships) Act 1976, s 39.
6	Sharma v R [2015] NZCA 468; Dilley v R [2018] NZCA 210, [2018] NZFLR 536; and Heynen v R [2018] NZCA 123.

that it cannot have been intended that separate charges would follow different appeal pathways.

[23]	Similarly, there are irregularities if a defendant wishes to appeal different aspects of the outcome, such as sentence or costs. As criminal costs are hardly ever awarded, this could well be the result of legislative oversight.

[24]	While the offence of criminal harassment is created under s 8 of the Harassment Act, there are no provisions in the Harassment Act providing for the conduct of the criminal procedure relating to its prosecution. I am driven to the conclusion, as submitted by Mr Murray, that a prosecution for criminal harassment is governed by the Criminal Procedure Act. I do not consider, therefore, that a prosecution for criminal harassment is a “proceeding under the Harassment Act”. In R v Harris, the Court of Appeal entertained the first appeal against a criminal harassment conviction from a jury trial.7 This is consistent with my view of the wording of s 34, the scheme and object of the Harassment Act, and the object and scheme of the Criminal Procedure Act, which I now turn to consider.

The object and scheme of the Criminal Procedure Act 2011

[25]	The Criminal Procedure Bill 2010 recognised that the law relating to criminal procedure was inflexible, inefficient and had been subject to piecemeal reform. The Bill aimed to provide for an integrated set of reforms to allocate cases more effectively, streamline    procedure    and    simplify    the    categorisation of   offences.8	The implementation of the Criminal Procedure Act in 2013 created a unified procedure for all criminal offences. Section 3 provides the purpose of the Act is to “set out the procedure for the conduct of criminal proceedings”.

[26]	In light of this legislative reform, it is consistent for criminal harassment proceedings to be governed by the Criminal Procedure Act and its appeal provisions for criminal convictions. Thus, s 230 of the Criminal Procedure Act should determine the jurisdiction of the Court for an appeal from a criminal conviction under the

7	R v Harris (CA) 409/01, 11 July 2002.
8	Criminal Procedure (Reform and Modernisation) Bill 2010 (243—1) (explanatory note) at 2.

Harassment Act. This interpretation achieves the legislative purpose of streamlining and simplifying the appeal procedure for criminal offences, making it consistent with other criminal appeal procedure.

[27]	Such an interpretation is also consistent with ss 229 and 7 of the Criminal Procedure Act. Section 229 provides for the right of appeal against conviction, and is broadly worded:

229	Right of appeal against conviction

(1)	A person convicted of an offence may appeal under this subpart to the first appeal court against the conviction.

[28]	Section 229 is subject to s 7, which requires the Criminal Procedure Act to be read subject to any special provisions of any other enactment relating to the procedure in any particular case. In the absence of any provisions under the Harassment Act governing the criminal procedure for prosecuting criminal harassment, ss 229 and 230 reinforce the finding that the Criminal Procedure Act should apply to criminal harassment provisions, while s 34 of the Harassment Act should govern all other aspects of the civil harassment appeal procedure.

[29]	There is an absence of authority on the apparent conflict between s 230 of the Criminal Procedure Act and s 34 of the Harassment Act. Further, the cases are not consistent. R v Harris was the first appeal against a criminal harassment conviction under s 8 of the Harassment Act 1997. It was heard in the Court of Appeal.9 However, in Phillips v New Zealand Police, the High Court accepted for filing a second appeal against a conviction for criminal harassment.10 In doing so, the Court referred to the specific appeal pathway for criminal harassment convictions, with the first appeal being heard in the High Court.

[30]	I accept Ms Brook’s submission that Phillips is distinguishable, because of the subsequent legislative criminal procedure reforms. The conviction in Phillips was first

9	R v Harris CA 409-01, 11 July 2002.
10	Phillips v New Zealand Police (Minute of Miller J) 3 April 2019.

entered in April 2000, which meant that the appeal was governed by the Summary Proceedings Act 1957.11

Conclusion

[31]	Although s 34 of the Harassment Act permits more than one interpretation, I conclude that the more appropriate interpretation is that an appeal against a conviction for criminal harassment, whether from a jury trial or District Court Judge, should be governed by the Criminal Procedure Act, which sets out the procedural steps from the beginning to the end of a criminal prosecution. Section 34 of the Harassment Act should apply only to civil harassment proceedings.

[32]	From my conclusion, it follows that Mr Gebbie’s appeal should be filed in the Court of Appeal, as the appellate Court with the jurisdiction to hear an appeal against conviction from a jury trial.

Result

[33]	Mr Gebbie’s appeal against conviction for criminal harassment under the Harassment Act, following a jury trial, is to be heard by the Court of Appeal, as the Court with the appropriate appellate jurisdiction under s 230 of the Criminal Procedure Act 2011.

Cull J
Solicitors:
Crown Law, Wellington for the Respondent

11 Under s 397 of the Criminal Procedure Act 2011, proceedings commenced before the commencement date must be continued in accordance with the law as it was before the commencement date.