Howard v The King

[2024] NZHC 1308

[EDITORIAL NOTE: PSEUDONYM NAME IS USED FOR APPELLANT IN THIS JUDGMENT]

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-070

[2024] NZHC 1308

BETWEEN

TIMOTHY HOWARD

Appellant

AND

THE KING

Respondent

Hearing (via VMR):	22 May 2024
Appearances:	A M S Williams and K N Stitely for Appellant W J S Mohammed for Respondent
Judgment:	23 May 2024

JUDGMENT OF GRAU J

[Appeal against decision to admit propensity evidence at trial]

[1]                Mr Howard faces a Judge-alone trial on 24 June 2024 on one charge of breaching a protection order through psychological abuse.1

[2]                Judge Callaghan granted an application by Police to admit as propensity evidence the Summary of Facts and Mr Howard’s 2021 conviction for breach of the same protection order by unauthorised contact.2 Mr Howard appeals. He requires the Court’s leave.3 Leave is granted. The appeal has merit. It is in the interests of justice to hear the appeal before the trial.4

1      Family Violence Act 2018, ss 9, 90(a) and 112(1)(a) (maximum penalty of three years’ imprisonment).

2      Police v [Howard] [2024] NZDC 2679.

3      Criminal Procedure Act 2011, s 215.

4      W v R [2023] NZCA 397 at [52].

HOWARD v R [2024] NZHC 1308 [23 May 2024]

The trial allegation

[3]                On 2 September 2019 a final protection order was issued in the Christchurch District Court against Mr Howard to protect his ex-partner. The couple have two teenage daughters (aged 15 and 13) who are also protected by the order.

[4]                On 29 April 2024 at 11:40 am, Mr Howard sent a Snapchat message to his daughters that referred to their mother’s new partner. The message read:

Hey gorgeous girls. Hope all is well [smiley face emoji]. We’re having another party weekend in [Hanmer] and it’s going to be great [another emoji]. I will send pics. Hey I heard Callum is back in drug and alcohol rehab. That’s a shame he can’t manage himself and his excessive alcoholism.

[5]                His daughters took a screenshot of the message, causing Mr Howard to send another message saying, “Gee, why you guys taking screenshots?”. The younger daughter replied: “What business is this of yours and why are you trying to cause trouble and why are you telling us that?”.5 The elder daughter then contacted their mother, who reported the matter to Police, stating she was upset and disturbed by the contact.

The proposed propensity evidence

[6]                The proposed propensity evidence comprises the conviction and Summary of Facts for Mr Howard’s previous breach of the protection order in March 2021.

[7]                The Summary of Facts states that Mr Howard sent his ex-partner at least eight emails between 5 and 14 March 2021. In these emails, Mr Howard said she is arrogant, bullying, controlling and manipulative (amongst other things), which was outside the agreed parameters of communication about the children.

[8]                The Summary of Facts records that Mr Howard’s ex-partner found the emails “to be vindictive and she feels back into a corner, with [Mr Howard] watching and waiting for her to put a foot wrong and that he is trying to destroy her life”.

5      While the daughters are named as protected people under the order, there was some permitted contact between them and Mr Howard. Charges had initially been laid in respect of the contact with the daughters but were withdrawn.

[9]                The emails do not appear to have been provided to the Judge who heard the application. They have not been provided to this Court.

The decision under appeal

[10]            The Judge noted that propensity evidence “on a relationship basis” does not require the traditional sense of linkage and coincidence where it is led to inform the fact finder of the nature of the relationship.6

[11]            In his view, the fact that the children had immediately referred the message on showed their understanding that it was not in the nature of permitted contact. The Judge says Mr Howard acknowledged this himself when asking why the children were taking screen shots of the message, and received the response that it was none of his business and asked why he was trying to cause trouble.7

[12]            The Judge agreed with the Police submission that this behaviour was further evidence of Mr Howard’s controlling and coercive behaviour towards his ex-partner, the complainant, by trying to undermine her in the eyes of the children. He said that, although the nature of it was “not arrogant, bullying or manipulative”, it nonetheless had the impact of causing distress and the earlier messages would also have had the same impact. He considered there was a cumulative effect of harm being caused to the complainant.8 The purpose of the message was to deride the complainant’s partner in the eyes of his children and therefore had enough of an impact on the complainant. He concluded:

[9]        … Accordingly, I am satisfied that there is enough linkage or enough link between the previous conviction and this behaviour to allow a Judge to be permitted to know that the defendant’s behaviour is one where there is a cumulative effect upon the victim or the complainant from this message being sent.

[10]      It is clear that the message itself, subject to the evidence that would be heard, would be a breach of the protection order because it is not solely designed to talk about contact with the children. Accordingly, I am prepared to allow the previous conviction and the summary of facts to be made available. The Judge will be fully aware of the impact upon him or her as the decision-maker as to what use that the previous conviction can be made once

6      Police v [Howard], above n 2, at [7].

7      At [8]

8      At [9]

the evidence has been heard, but at this stage, I am prepared to allow the previous conviction and summary of facts by way of propensity evidence to be led …

The issue in dispute and the parties’ positions

[13]            The sole issue in dispute at Mr Howard’s trial will be whether the Snapchat message he sent to his daughters amounted to psychological abuse of their mother.

[14]            The appellant’s position is that the previous conviction does not have any relevant propensity that is probative of that issue, that is, it cannot help to determine whether, at law, Mr Howard’s actions in sending the message amounts (on an objective basis) to psychological abuse.

[15]            For the respondent, Mr Mohammed very fairly and responsibly accepted there was considerable force in the appellant’s position, when propensity evidence is evidence of acts that tend to show a person’s propensity to act in a particular way or have a particular state of mind, but those are not relevant issues at Mr Howard’s trial.

Discussion

[16]            There are some difficulties in the decision. The Judge appears to have considered the proposed propensity as “relationship propensity” (so that concepts of linkage and coincidence are less prominent), but then has gone on to express the view there is sufficient “linkage” to enable its admission, which would suggest “orthodox” propensity reasoning. It may be the Judge considered the evidence was admissible on both bases.

[17]            His Honour also considered that the message had the impact of causing distress with a cumulative impact, despite that it was not “arrogant, bullying or manipulative”. However, those words were used by Mr Howard to describe the complainant according to the Summary of Facts—they were not her description of his behaviour, or the effect on her. And it is difficult to see a “cumulative” effect when the two communications are three years apart.

[18]            The more fundamental problem is that although there is some broadly similar conduct by Mr Howard in 2021, any tendency to act in a particular way or have a particular state of mind is not relevant to the sole issue at trial, which is whether the Snapchat message amounts to psychological abuse. The prosecution only needs to prove the existence and knowledge of the protection order (which is not at issue) and that it was breached. In this case that requires proof beyond reasonable doubt that the Snapchat message amounted to “psychological abuse”.

[19]            “Psychological abuse” is broadly defined in s 11 of the Family Violence Act 2018. It includes, among other things, threats of physical abuse or abuse of other kinds, intimidation or harassment, damage to property, or financial or economic abuse. The proposed evidence does not help to establish whether this definition is met; the objective meaning of “psychological abuse” can be met regardless of Mr Howard’s tendency to act in a particular way or have a particular state of mind.

[20]            Accordingly, I find the Judge erred in admitting the evidence of the 2021 conviction.

Result

[21]The appeal is allowed.

Grau J

Solicitors:
Crown Solicitor, Christchurch for Respondent

cc:        A M S Williams, Christchurch for Appellant