Annand v Police
[2020] NZHC 3416
•18 December 2020
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2020-412-000031
[2020] NZHC 3416
BETWEEN MICHELLE CAROLYN ANNAND
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 December 2020 Appearances:
Appellant in person
R P Bates for Respondent
Judgment:
18 December 2020
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 18 December 2020 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date 18 December 2020
Introduction
[1] On 20 July 2020, after a defended Judge-alone trial,1 Michelle Annand was convicted of posting a digital communication with intent to cause harm.2 Ms Annand appeals her conviction on the following grounds:
1 Police v Annand [2020] NZDC 16403.
2 Harmful Digital Communications Act 2015, s 22.
ANNAND v NEW ZEALAND POLICE [2020] NZHC 3416 [18 December 2020]
(a)the charge had already been dismissed under s 147 Criminal Procedure Act 2011;
(b)the victim did not suffer harm;
(c)she suffered more harm than the victim;
(d)she did not make any admission that she should not have sent the communication;
(e)the conviction was contrary to her right to freedom of expression under the New Zealand Bill of Rights Act 1990 (NZBORA); and
(f)the fact of a conviction would prevent her proposed travels.3
She does not appeal the sentence of 40 hours’ community work and reparation in the sum of $250.
Facts
[2] During 2014 Ms Annand was involved in an ongoing dispute with her neighbour over the location of the boundary between their two properties in the remote settlement of Waipori Falls near Clutha.
[3] On 14 March 2018 Ms Annand sent an email to her neighbour’s employer, the Southern District Health Board. The email outlined her frustration about the boundary dispute, but also described her neighbour as evil, violent and destructive. The victim says she was extremely embarrassed over the allegations that attacked her personal and professional character.
Principles on appeal
[4] Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in
3 Ms Annand does not mention this directly in her submissions but has mentioned this in emails to the Court.
his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.4
Background to District Court decision
[5] Ms Annand was initially charged with both trespass and posting a harmful digital communication. The trespass charge was dropped after Ms Annand was convicted of the harmful digital communication charge.
[6] The charging document for the harmful digital communication charge was filed on 12 December 2018. There were numerous delays and several trial dates were vacated.5 Judge Crosbie issued a minute on 8 May 2020 noting that Ms Annand had initiated civil proceedings against the husband of the complainant in the criminal proceedings, and had signed an unconditional agreement to sell her house so she would be leaving the community. The Judge noted the position reached at that point was if Ms Annand discontinued the civil proceedings and settlement of her house sale occurred, the Police would withdraw the criminal charges.
[7] On 25 May 2020 Judge Crosbie issued a minute confirming settlement of the house sale had occurred. He then noted the Police would withdraw the charges if the civil proceedings were discontinued and the only impediment to both matters resolving was if there was an application for costs in the civil matter. He asked the respondent’s lawyer to advise the District Court whether the civil matter could be dismissed with no order as to costs.
[8] On 4 June 2020 Judge Crosbie issued another minute noting the Police charges remained in place as the respondent in the civil case did not agree to the civil claim
4 Section 232(4).
5 On 9 May 2019 no date was available due to backlog a nominal date of 6 June 2019 was allocated. On 6 June 2019 a trial date was allocated of 7 August 2019. On 7 August 2019 the matter could not be heard, and the trial was moved to the nominal date of 5 September 2019. On 2 September 2019 a trial date was allocated of 4 November 2019. On 4 November 2019 the matter could not be heard, and the trial was moved to the nominal date of 3 February 2020. On 27 February 2020 the trial date was vacated.
being discontinued with no order as to costs. Given the views of the victim in an attached memorandum from a victim’s advisor the Judge was surprised the Police ever advised the charges would be withdrawn if the civil matter was resolved. He directed the trial to proceed on 10 June 2020.
District Court decision
[9] Judge Rollo presided over a Judge-alone trial on 20 July 2020. The Judge first provided a brief overview of the background to the dispute which lead to the email being sent.
[10] The Judge then outlined the contents of Ms Annand’s email, which touched on her grievances in relation to the boundary dispute and other issues,6 and went on to make specific statements about the victim’s fitness to work as a nurse. Ms Annand wrote that the victim attempted to humiliate her and she wondered if the victim’s husband had a “psych disorder”. The Judge quoted these passages from the email:7
… If her husband has a condition one would hope that she would want to contain it but no, she seems to want to walk the loop-field as well. Maybe she has gone “native”.8 It may be really a question of her ethics and even the state of her mental health what she has displayed to me along with her husband is very unkind, violent and destructive behaviour and probably what I would recognise as “evil” and I am not a Christian.
…
Is this synonymous with being a nurse for the Southern District Health Board? I do not think so. It is unfortunate that I am inclined towards writing this, but [the victim and her husband] have put me in a situation whereby I do not even like to go to my own house as I do not know what damage they might do next. As it is they have gone far too far. Regards Michelle Annand.
[11] Turning to the elements of the offence Judge Rollo noted Ms Annand accepted unreservedly that she sent the letter but did not accept she wrote the letter to adversely impact the victim’s career or to cause her emotional distress. Rather, she emphasised she wrote the letter to enforce her property rights and resolve the dispute over her land.
6 Including the dumping of rubbish, the flow of raw sewage, trespass, vandalism, the approach of other neighbours in relation to problems caused by the victim and the costs she has incurred in attempting to resolve the issue.
7 Police v Annand, above n 1, at [18], quoting Ms Annand’s email (footnote added).
8 The victim is of Māori descent.
[12] The Judge relied on the victim’s evidence that she valued her position and her career emotionally and financially as she was the sole earner. The victim said she found the contents of the letter extremely distressing, felt they were an untrue distortion of the reality and was deeply offended by the suggestion she had “gone native” as a racial or ethnic slur. She was concerned about the impact of the letter on her employment and advancement although there was no apparent immediate impact.
[13] From the evidence the Judge was satisfied the contents of the letter and the circumstances in which it was sent caused the victim serious emotional distress. The Judge was also satisfied that the email would cause similar harm to an ordinary reasonable person in the position of the victim. Turning to whether Ms Annand posted the communication with the intention to cause harm, the Judge felt Ms Annand’s comments to Constable Christie that she “recognised that she should not have involved [the victim’s] workplace” was an acknowledgement that she knew the email would cause harm and had gone too far in sending it.
[14] The Judge therefore found the evidence proved beyond reasonable doubt that Ms Annand posted the digital communication (the email) to the Southern District Health Board, it was intended to cause harm to the victim, that posting such an email to an employer would cause harm to an ordinary reasonable person in the position of the victim, and it did cause serious emotional distress to the victim. Accordingly, she was convicted on the charge.
Submissions
Appellant’s submissions
[15] Ms Annand has provided a comprehensive outline of the background to the dispute that gave rise to the email and her resulting grievances, in her submissions. As was covered in the District Court decision, she explained repeatedly that she was driven to write the letter because of the failure of the police and other agencies to help her and because of the losses she has suffered including losing an earlier sale of her house and the wasted costs of engaging a surveyor to resolve the boundary dispute. She submits that after the settlement of her property sale the criminal charges were formally dropped. She says she was notified by two lawyers to that effect, and it was
recorded in the minute of 8 May 2020 by Judge Crosbie. Consequently, the prosecution should not have proceeded and she should not have a conviction.
[16] Ms Annand also submits she never admitted she should not have sent the message and she has evidence to that effect. She refutes the evidence from Constable Christie about what she said to him saying “[d]oes he have a recording to back up his claim”. She has attached several emails written to the secretary for the Minister for Police relating to pursuing the police for reparation.
[17] In addition, Ms Annand does not believe labelling the victim as “evil” caused her harm as the victim continued “with her pursuits” and was an active member of the body corporate at Waipori Falls. Ms Annand submits she that she was the one most harmed by the actions of the victim and she should therefore not have a conviction.
[18] Lastly, Ms Annand has mentioned she is concerned a conviction would affect her ability to travel.
Respondent’s submissions
[19] Mr Bates, for the Police, submits during the hearing Ms Annand conceded she had sent the communication to the victim’s employer. Further, the Court rightly accepted the evidence from Constable Christie that Ms Annand stated she “knew I shouldn’t have involved her work.”
[20] Mr Bates submits that the Court was correct to find that in posting the digital communication Mr Annand intended to cause the victim harm knowing the email would cause harm to an ordinary reasonable person and the charge was proved beyond reasonable doubt. Mr Bates reiterates there are no grounds for the conviction to be set aside.
Analysis
[21] Ms Annand’s primary ground of appeal is that the charge was dismissed by Judge Crosbie on 8 May 2020 under s 147 Criminal Procedure Act. Section 147 states:
147 Dismissal of charge
(1)The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.
(2)The court may dismiss the charge on its own motion or on the application of the prosecutor or the defendant
…
(6) If a charge is dismissed under this section the defendant is deemed to be acquitted on that charge.
[22] It is clear from Judge Crosbie’s minute of 8 May 2020 that he did not dismiss the charges. In that minute Judge Crosbie merely recorded the position of the parties, as that had been relayed to him. The Judge stated “[t]he position that has been reached today is that upon advice to the Court that the settlement has occurred…Ms Annand will discontinue the civil proceedings and the police will withdraw the criminal charges.”9
[23] The Police’s assertion that they would withdraw the criminal charges subject to the civil charges being dismissed appears to have been inconsistent with the views of the victim. Notwithstanding that, an issue as to costs arose in relation to the civil proceeding which prevented its discontinuance in another minute from 4 June where Judge Crosbie noted he was “surprised the Police previously advised the charges would be withdrawn if the civil matter resolved” given the views of the victim. On Ms Annand’s own evidence her lawyer advised her on 9 June to pay costs of $250 on the civil matter to make the criminal matter go away.
[24] Whether to lay or withdraw charges is a decision for the Police. It is concerning that the Police represented to the Court and Ms Annand that they were in a position to withdraw the charges if the civil proceeding resolved, apparently without the support of the victim, where withdrawal was inappropriate. In reliance on the Police’s position Ms Annand withdrew her civil proceeding, seeking a restraining order. Ms Annand may wish to address these issues with the appropriate independent authority.
9 Police v Annand DC Dunedin CRI-2018-012-2821, 8 May 2020 at [3].
[25] In any event, Judge Crosbie made the position clear to Ms Annand in his minute on 25 May 2020 that both the civil and criminal charges would proceed if an order as to costs was not resolved in relation to the civil hearing.
[26] It is clear the charge was not dismissed on 8 May 2020 and this ground of appeal cannot succeed.
[27] I consider the balance of Ms Annand’s grounds of appeal cannot support a finding that a miscarriage of justice occurred such that the conviction should be quashed. The Judge did not convict Ms Annand on the basis she accepted and agreed with the evidence presented by Constable Christie. The Judge noted that she denied making the statement to Constable Christie that she knew she shouldn’t have involved the victim’s work.
[28] The Judge was presented with two contradictory accounts of the meeting between Ms Annand and Constable Christie and was required to decide which account was more credible. The notes of evidence indicate Ms Annand was given an opportunity to cross-examine Constable Christie on the evidence he gave. I consider it was open to the Judge to find Constable Christie’s statement was reliable and credible for the reasons given by the Judge, in particular, that it is likely such a statement was recorded by the Constable at the time it was made. Indeed, Ms Annand acknowledges in her submissions that “[m]y email to the DHB was inappropriate”. This ground of appeal accordingly fails.
[29] Ms Annand’s next ground of appeal which is her belief that the victim did not suffer harm, is also simply a challenge to a factual finding by the Judge after hearing evidence from both the victim and Ms Annand. He provided a comprehensive explanation as to why he considered the communication caused the victim emotional distress, including her evidence that she was shaken by the events and that she found the letter extremely distressing. This was a reasonable conclusion to reach based on the available evidence and I do not reach a different view.
[30] Ms Annand provided submissions as to the level of harm caused by the series of events leading up to her sending the harmful digital communication. Her evidence
provided a comprehensive picture of the level of stress she was under and the factors which drove her to act in the way she did. The dispute between the victim and Ms Annand appears complicated and acrimonious.
[31] While that information forms part of the context in sending the email, the Judge was aware of the background and took it into account both in deciding whether the elements of the charge were met, and in setting the length of the sentence. Many of Ms Annand’s allegations as to the background of the dispute are strongly denied by the victim. I have no doubt Ms Annand suffered harm from the dispute, but this does not mean it was not open for the Judge to find the elements of the charge were met.
[32] In oral submissions, Ms Annand also claimed that the conviction breached the NZBORA in that it was contrary to s 14 which provides everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form. However, Ms Annand was prosecuted under s 22 of the Harmful Digital Communications Act. Section 4 of the NZBORA provides that:
4 Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a)hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b)decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
[33] Thus, the right to freedom of expression does not prevent conviction under the Harmful Digital Communications Act.
[34] I also note that Ms Annand also thought the NZBORA protected her personal property rights. There is no section in that Act to that effect. But importantly, the conviction did not have any bearing on Ms Annand’s property rights. This ground of appeal also fails.
[35] Finally, Ms Annand says she is concerned about the effect this conviction may have on her ability to travel. Ms Annand is an accomplished artist and former journalist and wishes to travel overseas. However, Ms Annand has other minor criminal convictions which have not prevented her from travelling and Ms Annand could not say why this further minor conviction would materially alter her ability to travel overseas.
[36] This factor does not meet the threshold for granting a discharge without conviction which is that the consequences are “out of all proportion to the gravity of the offending”.10 This ground of appeal is also without merit.
Conclusion
[37]Accordingly, the appeal against conviction is dismissed.
Solicitors:
Crown Solicitor, Dunedin Copy To: Ms Annand
10 Sentencing Act 2002, s 107.
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