Dilley v R

[2018] NZCA 210

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA44/2018
 [2018] NZCA 210

BETWEEN	JESSE WILLIAM DILLEY Appellant
AND	THE QUEEN Respondent

Hearing:	14 May 2018
Court:	Miller, Ellis and Woolford JJ
Counsel:	S K Green for Appellant E J Hoskin for Respondent
Judgment:	21 June 2018 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

1. Mr Dilley is subject to a protection order under which the protected persons are his former partner, Ms A, and their young son, K.  On 19 November 2016 Mr Dilley sent messages to A’s new partner, Mr H, that caused her distress when she was shown them.  The messages were sent on Facebook Messenger, which is a private messaging service.  The exchange between Mr Dilley and Mr H was:

   Mr Dilley:       You want to stop smoking your P in your house my son is  allways sick.

   Mr H:From what I hear ur the only cracker that smokes that shit mate u don’t deserve a son.

   Mr Dilley:From the person that lies through her teeth and sleeps with everyone.  I spend all my time with [K] not live with someone to get them to rise them i will be filling to have him removed from you drugo.

   Want to see that hear family backed me in court not her go figr.

2. The question at trial was whether this amounted to a breach of the protection order; and if so, whether Mr Dilley, who gave evidence to say that he was motivated by concern for K, had reasonable cause for behaving as he did.  The jury heard evidence of his previous convictions for breaching the protection order.  This behaviour was said to evidence a pattern of abuse.

3. Mr Dilley now appeals his conviction.  He maintains that a protection order is not breached when messages are sent privately to third party such as Mr H who is not himself a protected person.  It is also said that the propensity evidence was inadmissible.

The legislation

1. A protection order may be made if the Court is satisfied that the respondent is using, or has used, domestic violence against the applicant or a child of the applicant’s family and an order is necessary for their protection.[1]  “Domestic violence” means violence against anyone with whom the respondent is, or has been, in a domestic relationship, and “violence” is defined to include psychological abuse, which in turn is defined non-exhaustively to include intimidation and harassment.  A single act may amount to abuse, and a number of acts forming part of a pattern of behaviour may amount to abuse even though some or all of them may appear minor or trivial when viewed in isolation.[2] 

   [1]Domestic Violence Act 1995, s 14.

   [2]Domestic Violence Act 1995, s 3.

2. The order was issued under s 14 of the Domestic Violence Act 1995 (the Act) on a standard condition that Mr Dilley must not “engage … [in] behaviour, including intimidation or harassment, which amounts to psychological abuse of any protected person.”  A further standard condition was that he must not “make … contact with any protected person (whether by telephone, electronic message, correspondence, or otherwise)”, except in certain circumstances none of which are applicable.

3. It is an offence under s 49 of the Act to breach a protection order by doing any act in contravention of the order or failing to comply with any of its conditions.  There is no need to prove a specific intention to abuse, or to psychologically abuse.[3]  It is a defence if the defendant proves that he or she had a reasonable excuse for breaching the order.[4]

The alleged abuse in this case

[3]A v B (1998) 17 FRNZ 330 (HC) at 335;  and Hargrave v Police (1998) 17 FRNZ 124 (HC) at 132.

[4]Domestic Violence Act, s 49(2).

1. The abuse is said to comprise Mr Dilley’s accusations that Ms A is promiscuous and a liar, and his threat to pursue custody of K.  It is not in dispute that this behaviour is capable of amounting to abuse.  Ms Green (who appeared for Mr Dilley) submitted that it nonetheless did not breach the order in this case because these things were said in communications between Mr Dilley and Mr H, not intended for Ms A.

2. This submission must fail.  It is not necessary that an abusive communication be addressed to the protected person.  The legislation imposes no such requirement.  Rather it focuses on the effect of the defendant’s conduct on the protected person.[5]  Whether a communication addressed to someone else amounted to psychological abuse of the protected person is a question of fact.  The content may be aimed at the protected person, or at their relationship with the addressee.[6]  The question whether the defendant intended that the communication would be disclosed to the protected person goes to the defence of reasonable excuse.

   [5]SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [18]–[20]; and M v M (2005) 7 HRNZ 971 (HC) at [21]. Compare Mark Henaghan and others Family Law in New Zealand (18th ed, LexisNexis, Wellington, 2017) at 1251.

   [6]See for example AB v ST [Domestic Violence] [2011] NZFLR 669 (HC);  Senior v Police [2013] NZHC 357, [2013] NZFLR 356; and Carrington v Carrington [2018] NZHC 505.

3. In this case Mr Dilley must have expected that his messages would be passed on;  the recipient was A’s partner and the communication concerned custody of K.  A defendant may have reasonable excuse for breaching a protection order where he had no reason to believe that his words would reach or otherwise affect her, but this is not such a case.

The propensity evidence

1. The propensity evidence took the form of previous convictions for breach of the order and information about the content of those communications which took the form of texts and Facebook Messenger messages.

2. Ms Green submitted that there was a failure of direction, in that the Court did not identify for the jury why the evidence was being led.  The Judge ought to have identified the trial issue to which the evidence was relevant.

3. It was not in dispute that Mr Dilley knew he was subject to a protection order.  However, he did dispute that messaging the complainant’s partner amounted to psychological abuse and he contended that he had a reasonable excuse, namely the welfare of his child.  If the jury accepted that the propensity evidence established a pattern of controlling behaviour by him then it was relevant to both those questions because it made it more likely that the message would have affected her as abuse and less likely that the concern for the child was Mr Dilley’s true motivation.  In our opinion the Judge made it sufficiently clear to the jury that the evidence was relevant to these trial issues.  He drew the jury’s attention to the previous convictions in these contexts and warned the jury that they must not think that because Mr Dilley had previously breached the order he must have done so on this occasion. 

4. This ground of appeal fails.

Result

1. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent