G v Police HC Nelson CRI 2007-442-10

[2007] NZHC 1036

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2007-442-000010

BETWEEN  G

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         4 October 2007

Counsel:        S J Zindel for Appellant

J Bonifant for Respondent

Judgment:      10 October 2007

JUDGMENT OF WILD J

Introduction

[1]      Mr G   appeals against his conviction in the District Court at Nelson on a charge under the Telecommunications Act 2001.  The charge was that he committed an offence against s112(2)(a) of the Act in that he:

… used a telephone device for the purpose of disturbing any person by maliciously transmitting communication with the intention of offending the recipient Jane Penney.

[2]      Three charges against Mr G   under the Act went to hearing before the Judge.  They arose from three successive telecommunications by Mr G   to Ms Penney.   She was (and still is) the Civil Case Flow Manager  in the Wellington Registry of the High Court.  Judge Zohrab found proved the charge I have set out. Taking the view that a conviction on that charge “sufficiently marks the necessary

behaviour on that day”, the Judge dismissed the two other charges.

G V NEW ZEALAND POLICE HC NEL CRI 2007-442-000010  10 October 2007

[3]      The ingredients of the s112(2)(a) charge are that, in telephoning or faxing Ms

Penney, Mr G  :

a)       Had the purpose of disturbing her.

b)       Maliciously transmitted his communications. c)        Had the intention of offending Ms Penney.

[4]      Although Mr Zindel submits Judge Zohrab erred in  finding  any of these elements made out, he focused on the last – intention to offend Ms Penney – as his strongest point.

Background

[5]      Having heard the evidence of Ms Penney for the prosecution, and that of Mr G   giving evidence in his own defence, Judge Zohrab made a firm credibility finding in favour of the prosecution.  The Judge held, variously:

[40]      …  When I say that I do not believe that the defendant is lying, what I mean by that is that I believe he is living in some kind of fantasy world.  I believe entirely what Ms Penney said in terms of her account of events.  …

[41]      Mr G  , I think you think you are telling the truth today, but I am quite sure that the matters happened as described by Ms Penney …

[42]      I am quite satisfied that when I look at everything in context, and I accept  what  Ms  Penney says  and reject  your  evidence,  that all of  what transpired on that day is sufficient to prove the ingredients contained in (the charge on which the Judge then convicted Mr G  ).

[6]      Ms Penney’s evidence was of three successive telecommunications.  The first was a telephone call to Ms Penney at about 9 am.  The Judge summarised the content of this in the following way:

[14]      …   He raised a number of matters with (Ms Penney) about an ex parte application and a request to transfer (his) case to Christchurch.   She described him as being quite agitated … as getting aggressive and heated with his voice raised.

…

[16]      …  He outlined what he wanted to do and she indicated to him that the rules did not allow that.   She suggested … that if he wanted the case transferred to Christchurch then it could not be done without Crown Law … consenting  to  it.     She  described  him  as  getting  quite  agitated  and emphatically  stating  that  …  Crown  Law  must  not  be  contacted.    She described him as getting quite aggressive saying that everything was against him.  She then described him saying words to the effect that he could come to Wellington.   He mentioned a private plane.   He would shoot people at Crown Law and he named various Crown lawyers.  …   He said he would come, with a private plane, he would shoot people at Crown Law, he knew they were on The Terrace, people would take notice of him, the country would know all about it.

[7]      The Judge also mentioned Ms Penney’s evidence that, had she been dealing with Mr G   at the Registry counter, she would have called for assistance.  Ms Penney also deposed that she had referred the file to Gendall J, informing the Judge about Mr G  ’s telephone call.  She said the Judge had advised her not to have further personal contact with Mr G  .  Later in the morning she faxed Mr G   a memorandum stating:

Further to our telephone conversation this morning.  I referred this file to a

Judge for directions.

This matter cannot be dealt with tomorrow in Christchurch.  An order must be made transferring the whole proceedings from this registry to that  at Christchurch.

Please file an application to transfer the proceeding.  That application must be made on notice and served on the respondents.  If appropriate this Court will order the transfer of the file to Christchurch.

The application for determination of questions cannot be made on an ex parte basis, that is without the respondents being served.

In order for this matter to progress, please –

a)        serve  the  respondents  with  the  application  for  determination  of questions; and

b)        file and serve application to transfer the file to Christchurch.

[8]      Mr G  ’s second communication was a message he left on Ms Penney’s voicemail,  which  she  cleared  at  about  12.15  pm.    The  Judge  summarised  this message in this way:

[20]     …  The important points from that message were that he stated he wanted to be taken seriously.  He meant what he said earlier in the morning and he would be carrying it out.   Unfortunately Ms Penney by accident

deleted the message.  Her evidence was that it left her feeling very uneasy. She brought it to the attention of the Court policeman.  …

[9]      The third communication was a fax received by Ms Penney at 1.24 pm.  This was produced as Exhibit 2.  It was a handwritten message, three A4 pages in length. The part the Judge focused on was:

…  I’m going back on TV3, live, watch!  When it gets too the situation that Crown Law, who should be “straight”, are rotten to the core then its time for “action”.  I meant everything I said on the phone.  I will carry out everything I said, without fail!! Nothing will stop me.   I’ve reached the point after 12 years of nothing but crap and lies that one way or another I will stop this evil rot.  I have nothing too lose …

[10]     I take an exceedingly dim view of what Mr G   wrote to Ms Penney.  It is, to say the least, contemptuous.  Quite apart from sending communications which the Judge found were criminal, and making due allowance for his frustrations as a litigant, Mr G   has no conception of what is acceptable behaviour.

[11] Reverting to the Judge’s decision, he then summarised Mr G ’s evidence, made the findings of credibility set out in [5] above, and found the charge proved, also as set out in [5] above – this is the latter part of the Judge’s [42].

[12]     Mr Zindel submitted the Judge erred in equating “the purpose of putting a rocket under Ms Penney with the hope that she would do what he was imploring her to do” ([40] of his decision) with the required purpose of disturbing Ms Penney.  Mr Zindel contended Mr G   had only the intention of galvanising Ms Penney into taking the course he wanted – transferring his file to Christchurch so his ex parte application could be dealt with there by a particular Judge.

[13]     So far as that submission goes, it may well be correct.  But I have no doubt the Judge was correct to find Mr G   intended to achieve that aim by disturbing and frightening Ms Penney, to the extent that she would do what he requested.  Why else the threats he conveyed to her that he would fly to Wellington and shoot lawyers at the Crown Law Office?

[14]     The same rhetorical question disposes of the second ingredient.   The Judge was entitled to regard Mr G  ’s communications as malicious.   It is legitimate

for a litigant to telephone or fax a Court Registry Manager to make a request about some aspect of a Court proceeding.   To accompany that  request  with threats of violence and shooting deprives the request of any bona fides, and exposes it as a malicious communication.  It then becomes a communication made with ill will.

[15]     Although Mr Zindel sought to elevate the content of the third element, it requires nothing more than an intention “to be displeasing to” (one of the definitions given in the Concise Oxford 11th  edition, 2004).   It has the commonly used and understood meaning of “causing offence to” Ms Penney.

[16]     The three elements of the charge overlap.   Their essence is the illegitimate purpose  and  intention  of  upsetting  or  harming  the  recipient  of  the telecommunication.  I say illegitimate, to capture the malice or ill will required by the second element.

[17]     Although I accept that the Judge in his [42] moved abruptly from his findings of credibility and fact, to his finding that all the elements of the charge were made out, that is because the latter flowed inexorably from the former.   No  elaborate reasoning or explanation was called for.

[18]     Mr G  ’s case on appeal, like his defence before the Judge, was that his was harmless conduct and idle threats, albeit conveyed in extreme and flamboyant language.    No.    This  conduct  was  of an  altogether  different  and  more  sinister character.      That   is   particularly   so   because   the   threats   made   in   the   first communication were repeated not once, but twice, the third time in writing and with considerable emphasis that they would be carried out.

[19]     I am in  no  doubt  that the  Judge  correctly found  all the  elements of the s112(2)(a) charge made out, and properly convicted the appellant.

[20]     The appeal is accordingly dismissed.

Solicitors:

Zindels, Nelson for Appellant

Crown Solicitor, Nelson for Respondent