K v Police HC Christchurch CRI 2009-409-130

[2009] NZHC 2351

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2009-409-000130

K

Appellant

v

POLICE

Respondent

Hearing:         21 October 2009

Counsel:         A Bailey for Appellant

S Jamieson for Respondent

Judgment:      11 November 2009

JUDGMENT OF FOGARTY J

A.       Convictions set aside

B.       Bond to keep the peace imposed

[1]      This is an appeal against a judgment of the District Court (Judge J J Moran) convicting the appellant of 71 charges of misuse of a telephone, variously for the purpose of irritating or annoying, with the intention of offending or annoying the

recipients.

K V POLICE  HC CHCH CRI 2009-409-000130  11 November 2009

[2]      Mr K  , the appellant, is a mentally disturbed young man who has been making a serious nuisance of himself, to the recipients, being the staff at More FM Radio and the Boon family.

[3]      He has been doing this by making numerous telephone calls, described by the trial Judge, Judge J J Moran, as follows:

[6]       I heard a number of calls through a tape recording today and they were consistent with the evidence of Mr Boon in terms of the content of the calls.     Almost  invariably  Mr  K    identified  himself  and  without engaging in any conversation with the person he had called he entered into something of a stream of consciousness monologue which in many respects was disturbing.  It was somewhat meaningless and certain grandiose.  When he spoke of international businesses which he owned, the very  large sums of money which he had, his association with famous people, the case that he was an heir to Batman’s fortune, that he was the father of Britney Spears child, a member of Parliament and so on.   Often the communication was incomprehensible and it was disjointed.

[4]      These informations were laid pursuant to s 112(2)(a) of Telecommunications

Act 2001 which provides:

112      Misuse of telephone device

…

(2)       Every person commits an offence who—

(a)       uses, or causes or permits to be used, any telephone device for the purpose of disturbing, annoying, or irritating any person, whether by calling up without speech or by wantonly or maliciously transmitting communications or sounds, with the intention of offending the recipient; or

…

[5]      This is a very unusual provision as it distinguishes three aspects of the mental element:

•    For the purpose of disturbing or annoying or irritating any person

•    By wantonly or maliciously transmitting communications or sounds

•    With the intention of offending the recipient

[6]      Fisher  J  in  the  decision  of  Spooner  v  Police  (1992)  8  CRNZ  666  has subjected these three parts to analysis. As to the first limb, he concluded:

… [I]t must be the dominant purpose which matters. (At 670)

I do not think that Fisher J was intending to gloss the words by inserting another word “dominant”.   Rather, to me, his conclusion is correct because the telephone must have been used “for the purpose”.  It is necessary to prove that the phone call was made for the purpose of disturbing, annoying or irritating.

[7]      Then, to narrow the potential range of offences by using a telephone call

Parliament has required quite a specific state of mind of an intention to offend.

[8]      Fisher J could not see what the phrase “with the intention of offending the recipient” added to the language of “wantonly  and maliciously”.

[9]      I agree with the submission of Ms Jamieson in this case that these three parts of the provision are interconnected rather than being separate aspects of the mental element of the offence.

[10]     My interpretation of the section is that the draftperson, conscious that there could be a whole range of disturbing or annoying telephone calls which did not warrant  the  intervention  of  criminal  proceedings,  established  the  purpose  of disturbing and so on as a threshold requirement, and then narrowed that potentially wide set of calls with a subset picking up calls without speech or calls with “wanton and maliciously transmitting or communications or sounds, both with the intention of offending the recipient”.  The effect of the definition is to exclude annoying and irritating calls where the calls were not made to disturb, annoy or irritate and with the intention of offending the recipient.

[11]     There is no doubt that these calls did annoy and irritate the staff at More FM Radio and the Boon family and moreover did disturb to the point of inducing a degree of fear to Mrs Boon.

[12]     There are, however, two problems with the conviction of the appellant on all

71 counts.  They are:

1.This trial proceeded on the basis that the 71 calls were all materially the same so that it was sufficient to call one witness as to the content of the calls to More FM Radio and one witness to the content of the calls to the Boon family.

2.The evidence of both the witnesses for the police and the evidence of the appellant all seems to accept that a lot of the content of the calls was harmless nonsense and that there was only partial or sporadic recognition by the appellant that he was annoying the callers.

[13]     That led, I think, to the way in which Judge J J Moran reasoned in these two paragraphs:

[8]       The issue therefore for my determination is his intention in placing these calls.  That intention can be inferred from the circumstances and from the evidence of the defendant Mr K   himself.  In discerning that intent I look at a number of features.  The first is the fact that he placed telephone calls to total strangers.  The second is that he was repeatedly asked, certainly by Mr Boon and I accept Mr Boon’s evidence, not to call again and that his calls were unwelcome but he continued to do so.  Mr Boon’s evidence was that he was advised both in polite terms and in a very forthright manner that his  calls  were  unwelcome  but  they  continued.    The  calls  were  often numerous and often repeated within a very short time span.  On one occasion he placed 20 calls in one day and they continued right through until 4am in the  morning.    Other  times  the  calls  went  through  until  midnight.    The contents of the calls was, as I have said, meaningless and rambling.  He said on one occasion that he knew that he should not be placing the call.  He had been told by his father who had been contacted by Mr Boon to stop. Significantly today in cross-examination when asked by Sergeant Berryman what he would think or feel if he was rung repeatedly by a stranger he said he would be annoyed.

[9]       All of this leads me to the irresistible inference that when these calls were placed despite Mr K  ’s mental illness he knew the effect of those calls.  He knew that they were unwelcome and that the recipient would be annoyed and therefore I find the intention exists.  Therefore the ingredients of the crime has been established and it is proven beyond a reasonable doubt.

[14]     In my view those findings of fact do not go beyond justifying a finding that he knew the annoying effect of the calls.  The reasoning falls well short of finding it proved that that is why he made the calls.

[15]     There was other evidence that one of the reasons he was making the calls was to talk to somebody.  That was certainly the inference drawn by Ms Taylor giving evidence for More FM Radio.   It appears to have been partially acknowledged by Mr Boon, who on one occasion struck a deal with this young man that if he did call he would ask to speak to Mr Boon and that if he called he was to give Mr Boon a break by not calling for a month, the terms of which he did agree, and adhere to.

[16]     The oral judgment of Judge J J Moran did not set out the statutory provision, or refer to the analysis of Fisher J in Spooner or any other authorities.  Furthermore, the opening sentence of paragraph [8] frames the issue of terms of intention.  There is no doubt that in many statutory offences an intent to do X can be proved by showing that the conduct is undertaken knowing that the effect will be X.  But s 112 is not one of these sections.  It is a threshold requirement of proof of a mental intent that the calls were made for the purpose of causing annoyance.    With respect I do not think the trial Judge applied that test.

[17]     Having then gone beyond the findings of fact to see whether the test is satisfied by the evidence I am left in considerable doubt that it is.  I do not think it would be safe to enter a conviction on any of these informations against the strict criminal intent requirements of the statutory provision.  Accordingly, the convictions are set aside.

[18]     However, it is plainly not in the public interest for this young man to be given free rein to make these calls.  It is clear from the transcript of evidence that the police were driven to bring these charges by the utter frustration and annoyance of the recipients  of  these  calls.    It  is  also  clear  that  this  young  man  is  under  some restraining influence from his father but to a degree was making calls thinking that the police could not stop him doing so.

[19]     This seemed to me to be a case where he should be bound over to keep the peace.   This is an ancient common law remedy which has now been adopted by Parliament.  See the judgment of Penlington J in Bracanov v Moss [1996] 1 NZLR

445.  It is to be found in Part 6 of the Summary Proceedings Act 1957.  Section 188 provides:

188      Making of order for bond where person charged with offence

Where any person is charged before a Court presided over by a District Court Judge with an offence and the evidence establishes one of the grounds which would justify the making of an order for a bond for keeping the peace, then, whether or not the defendant is convicted of the offence and whether or not any penalty is imposed on him in respect of the offence, the Court may make such an order as if an application therefor had been made under section

186 of this Act.

[20]     Section 186(b) provides:

186      Application for order for bond to keep the peace

Any person may apply, by complaint, to a Court presided over by a District Court Judge for an order requiring any other person to enter into a bond, either  with  or  without  sureties,  for  keeping  the  peace,  on  any  of  the following grounds:

…

(b)       that  the  defendant  has,  to  or  in  the  presence  of  the complainant for the purpose of annoyance and provocation, or to the common annoyance of members of the public,—

(i)       used provoking or insulting language; or

(ii)      exhibited any offensive writing or object; or

(iii)     done any offensive act; …

[21]     The evidence establishes that Mr K   used both provoking and insulting language towards Mr Boon.  He suggested to Mr Boon, an employee of Amway, that he was working for a company to blame for the World Trade Centre.   He used provoking language inasmuch as he repeatedly called Mr Boon pursuing conversations which would have tried the patience of a saint.  The word “provoking” needs to be interpreted against the purpose of the Act which is a conservation of the peace.  Language can become provoking when it is continually repeated in unwanted telephone calls.  As Judge J J Moran has already found, there is a pattern in these calls, a stream of conscious monologue.

[22]     Similarly, I think the same behaviour to the staff of More FM falls within (i) of “using provoking or insulting language”.  He saw himself again taking advantage of the fact that he could not be stopped from persistently ringing More FM radio and pursuing these inane conversations.

[23]     At least one of his calls was offensive where he referred to something down the front of his pants.

[24]     In conclusion, the appellant has made calls to the common annoyance of members of the public, which amounted to provoking and insulting language within the  terms  of  s  186(b)(i)  by  the  calls  being  a  stream  of  conscious  monologue somewhat meaningless and grandiose, incomprehensible and disjointed, and by their repetition over a long period of time

[25]     Initially  Mr  Bailey  submitted  that  s  186(b)  did  not  apply  because  the statements were not made in the presence of the complainants.   However, he was minded to accept the submission of Ms Jamieson that it was sufficient that they had been made over the telephone to the complainants.

[26]     The reason for the alternative of statements made to complainants or in the presence of complainants follows from the mischief to be avoided being a breach of peace.

[27]     This ancient remedy is a response to conduct which is not of itself a criminal offence but which without a remedy may lead in future to some breach of the law either by the person to be bound over to keep the peace or by the recipients of insults or offensive conduct.   Penlington J in Bracanov cited Denning LJ  in Everett v Ribbands [1952] 2 QB 198,206 where Denning LJ said:

The substance of the matter is, not only fear of what the accused man may do, but also a complaint of something he has already done, some words or conduct which give rise to apprehension of disorder or other breach of the law … .

[28]     Persons can be provoked, insulted or offended by remarks made in their presence even if the remarks are not directed to them.  That is the reason, I think, for the phrase in s 186(1)(b) “to or in the presence of the complainant”.

[29]     However, because these statements were made by telephone a question of fact arises as to whether or not they can give rise to the fear that there will be a future disorder or other breach of the law.  Section 188 does not make it explicit that there

has  to  be  an  apprehension  of  a  possible  disorder  or  other  breach  of  the  law. However, that test is embedded in the phrase “which would justify the making of an order for a bond for keeping the peace”.

[30]     Although these remarks were made by telephone both the More FM staff and the  Boon  family  found  that  there  was  no  simple  remedy  of  hanging  up  on Mr K  .  Complaints were made in the end for the police to take some action and so the police did intervene by bringing these proceedings.  Had the police not intervened there is in my view a risk, though probably only a very low risk, that the conduct of the appellant would escalate to being for the purpose of annoyance or that the staff at More FM or the Boon family would find it necessary to confront this young man, out of which may come some disorder.

[31]     I have given consideration as to whether or not these low risks justify the making of an order for a bond.  There is an argument that they do not.

[32]     There is also an argument that s 186 grounds should be interpreted to be confined to provocative, insulting or offensive statements made to a complainant where the complainant was in the physical presence.   That would be reading s

186(1)(b) in the language of “to and in the presence of” rather than “to or in the presence of”.     Yet, that would be a reading more consistent with the traditional exercise of this jurisdiction.

[33]     I have given consideration as to whether or not I should refuse to order a bond, but invite Parliament to reconsider the scope of this section of the Summary Proceedings  Act  to  take  into  account  modern  methods  of  communication  by telephone calls, texting, and electronic mail, twittering and so on.

[34]     I have decided it is appropriate to take advantage of the text “to or in the presence of” and to apply this part of the Act to telephone conversations.  I think this is in accord with the original common law jurisdiction to bind over and keep the peace and fits the purpose of the statutory provisions applied in the modern context where modes of communication have expanded greatly.  There is a risk, albeit low, of future disorder or other breach of the law.  There is justification to avoid this risk.

[35]     Section 187 provides:

187      Making of order for bond

(1)    If on the hearing of any such complaint the Court considers that there is good ground to do so, it may order the defendant to enter, with or without a surety or sureties, as the Court thinks fit, into a bond in such sum or sums as the Court thinks sufficient, subject to the condition that the defendant keep the peace towards the complainant and refrain from doing the act feared or from repeating the conduct complained of or from doing the act threatened, as the case may be, for such time, not exceeding one year, from the date of the bond as is fixed by the order.

(2)    No order shall be made under this section, unless—

…

(b)       In  the  case  of  a  complaint  under  paragraph  (b)  of  that section, the Court is of opinion that the conduct complained of is likely to be repeated and may tend to provoke a breach of the peace; or

…

(3)    A bond under this section shall be in the prescribed form, and may be entered into by any of the parties to it before any District Court Judge or Justice or Registrar, and it shall not be necessary for all the parties to the bond to be present at the same time or at the same place, and more than one form of bond may be signed. The person before whom any bond is entered into shall give to each of the persons entering into it before him a notice in the prescribed form.

(4)    In any case where a surety or sureties are required, the Court may at any time, if it is satisfied that the defendant is unable to obtain the surety or sureties, order that the surety or, as the case may be, any or all of the sureties be dispensed with.

[36]     The first question is as to the sum of the bond.   Mr K   is a sickness beneficiary but has some ability to work.  In January of this year he was working six to eight hours during the week part time at a local fish and chip shop.  He has been fined small amounts in the past, the largest sum being $200, which he has paid.

[37]     It is appropriate to choose a sum which is within his means to pay should he fail to keep the condition of the bond, and which will provide an incentive for him to keep the condition.  I fix that sum at $500.

[38]     I refer to Form 48 in Schedule 1 of the Summary Proceedings Regulations

1958 which provides for the form of the monetary bond.  The two relevant clauses of the bond shall be as follows:

I, Leoindos Markos K  , of [address and occupation to be added] the defendant, bind myself to perform the following obligations:

To keep the peace towards Mr Christopher Boon, and the Boon Family and the staff of More FM and to refrain from repeating the conduct complained of in the proceedings which were the subject of the judgment of Judge J J Moran in the District Court being a large number of calls both to the Boon household and to More FM for the space of two years from this date.

And I, the defendant, acknowledge myself bound to forfeit to the Crown the sum of $500.

[39]     It  may be  noted  that  I have  not  called  upon  sureties.    I am  aware  that Mr K  ’ father has some influence over his son’s behaviour but I do not think it is appropriate that he be made a surety.

[40]     It may be noted that the bond will not be treated by a single call to either of these premises.  It will be a question of degree for a District Court Judge to decide from a pattern of the defendant’s conduct as to whether or not there has been a breach of the condition of the bond.

Solicitors:

A Bailey, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent