Gonzalez v Police - [2020] NZHC 2810

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE VICTIM IS PROHIBITED BY S 39 OF THE HARASSMENT ACT 1997. SEE

SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT PURSUANT TO S 39 OF THE HARASSMENT ACT 1997: SEE PARAGRAPH [105].

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CRI-2020-418-000002

[2020] NZHC 2810

BETWEEN
OSVALDO ANTONIO REYES GONZALEZ

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 October 2020

Appearances:

K I Jefferies for the Appellant A M Harvey for the Respondent

Judgment:

28 October 2020

JUDGMENT OF NATION J

[1] The appellant, Mr Gonzalez, pleaded guilty to a charge of criminal harassment in respect of a person he had previously been in a relationship with for approximately one year. He appeals against a Judge’s refusal of a discharge without conviction and the refusal to suppress his name.1

1 Police v Gonzalez [2020] NZDC 15064.

GONZALEZ v POLICE [2020] NZHC 2810 [28 October 2020]

Background

[2] Mr Gonzalez’ one year relationship with the victim was ended by her in April 2019.

[3] The summary of facts stated that, after this, Mr Gonzalez engaged in persistent and unwanted electronic harassment of the victim in the form of emails and text messages.

[4] On 11 September 2019, he was warned for criminal harassment by a constable. The summary said he was served with papers clearly defining what amounted to harassment and advised to have no contact with the victim “or he may be committing harassment and could be charged”.

[5] He was charged in the District Court at Greymouth on 22 January 2020 under s 8(1)(a) Harassment Act 1997 that between 8 October 2019 and 25 December 2019 at Dunedin he harassed the victim by regular unwanted electronic contact in the form of emails and text messages, having already persistently harassed the victim by email and text messaging between April 2019 and July 2019, intending that harassment to cause the victim to fear for her safety.

[6]Section 6 Harassment Act states:

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 family 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).

[7]Section 3(1) states:

3 Meaning of harassment

(1) For the purposes of this Act, a person harasses another person if he or she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gonzalez v Police

Details

AGLC: Gonzalez v Police [2020] NZHC 2810
Case: [2020] NZHC 2810
Decision Date: 28 October 2020

CaseChat Overview and Summary

The appellant, Mr Gonzalez, was convicted in the District Court of criminal harassment. He appeals against the refusal of a discharge without conviction and the refusal to suppress his name. The harassment related to unwanted electronic communications between the appellant and a former partner. The appellant was warned by Police that his conduct amounted to harassment and that if it continued he could be charged. He was subsequently charged with criminal harassment in terms of s 8(1)(a) of the Harassment Act 1997. He pleaded guilty to the charge but applied for a discharge without conviction. The District Court refused the application and also refused to suppress his name. The appellant appeals against those refusals. The appeal against the refusal to grant a discharge is dismissed. The appeal against the refusal to suppress his name is allowed, with a new suppression order made.

Orders