Keesing v Police

[2012] NZHC 422

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-000385 [2012] NZHC 422

NICHOLAS PHILIP KEESING

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         12 March 2012

Counsel:         I P Tongatule for the Appellant

A Longdrill for the Respondent

Judgment:      12 March 2012

[ORAL] JUDGMENT OF WYLIE J

Distribution:

IP Tongatule: [email protected]

A Longdill: [email protected]

KEESING V POLICE HC AK CRI 2011-404-000385 [12 March 2012]

[1]      Mr  Keesing  appeals  a  conviction  for  personation  of  a  police employee, contrary to s 48(1)(a) of the Policing Act 2008.

[2]      Mr Keesing was convicted by Judge AJ FitzGerald, sitting in the Auckland

District Court, following a defended hearing on 20 September 2011.  He was fined

$1,600, together with Court costs of $132.89.

[3]      There is no appeal against the sentence imposed. [4]   The notice of appeal asserts as follows:

(a)       Personation of a police employee involves an actual person only, and

(b)A virtual creation of a police employee is not personation within the terms of s 48.

Relevant Facts

[5]      On or about 7 October 2010, Mr Keesing created a profile of a police officer from  his  Facebook  account.     The  profile  comprised  a  photograph  of  then Deputy Commissioner Rickards dressed in his uniform, and used the name of a Detective Sergeant Paul Hampton.

[6]      Having set up this profile, Mr Keesing then used it to send a message to the victim, a Ms Kimberley Green. The message read as follows:

Attn: Miss Kimberly Green: fwd: Facebook online crime team.

Paul Hampton

To Miss Kimberly Green, [date of birth as recorded] M Dee Green; F. Rhys

Green; S; Kaipara, Western Springs.

Good  afternoon  Miss  Green,  I  am  Sergeant  Paul  Hampton  of  the  New Zealand Police online drug squad.   As part of the National Party’s new co-operative  initiative  in  dealing  with  the  war  against  drugs,  we  are contacting  those  who  we  have  detected  through  Facebook  net  engine searches that we believe are intimately involved in the dissemination and production of methamphetamines.

It has come to police attention that you have the custody of a one year old child named Isabelle.  Your current boyfriend is a known methamphetamine supplier.  May I inform you that under new Misuse of Drugs Act guidelines, that  we  will  not  tolerate  the  presence  of  Class A controlled  substances around children.

We have had no other recourse but to contact CYFS and organise a hair strand test to be carried out upon you and your partner in the next two weeks.  If you should return a failed test, a warning shall be issued.  Should you, after another month’s grace period, upon retesting, you give a similar result, we will have no choice but to demand of the Court that the child be made a ward of the state and possibly be adopted out to foster parents.

Please contact the Auckland Central Police Station if you have any queries. Sergeant Paul Hampton.

[7]      Mr Keesing got the name Paul Hampton off the internet by carrying out a search using references such as “drugs” and “police”.   Detective Senior Sergeant Paul Hampton is a serving police officer working in Wellington, involved in drug investigations.

[8]      Ms Green was not known to Mr Keesing, but a friend of Mr Keesing’s wanted to exact some kind of revenge on Ms Green, and as a result, Mr Keesing decided  to  send  the  message.     When  he  was  interviewed  about  the  matter, Mr Keesing said that his purpose in sending the message was to give Ms Green “the runaround” and get her worried.   He thought that sending her a message from a supposed police officer  would  “get  the chickens  running  around the  coop  for  a couple of days”.

[9]      Ms Green gave evidence before Judge FitzGerald.  She was upset and angry at receiving the message.  Part of her concern was due to the fact that she thought that the message had been copied to others, including her mother, father, sister, brother and the school that she had attended.   She checked on the internet using Google.   She found that Mr Hampton was an actual detective involved in drug investigations.  She replied to the message that Mr Keesing had sent to her, but she received  no  response.    She  then  made  a  complaint  to  the  Police  Complaints Authority.  Judge FitzGerald had no doubt that Ms Green believed that the message had been sent by a police officer.

Submissions

[10]     I have heard from Mr Tongatule, on behalf of Mr Keesing.  He reviewed the legislative history, and dealt with the various elements of the offence.  He submitted that the police, as the informant, had failed to establish all of the relevant elements. In particular, he argued that the virtual image created by Mr Keesing was an “inanimate object”, incapable of pretending to be a police employee.  He argued that there were no words spoken or uttered by Mr Keesing direct to the victim, and that there was no conduct by Mr Keesing in the presence of the victim suggesting that he was a police employee.  He also asserted that Mr Keesing was never in the presence of the victim, and that she did not have the opportunity to observe his demeanour. He summarised his submissions as follows:

To pretend or pretending to be a police employee can only be attributed to animates, not inanimate[s].  Animate means life whilst inanimate means no life.   One breathes whilst the other does not.  A police employee breathes while a virtual image does not.  This being the case, it would be absurd to attribute animate qualities to what is essentially an inanimate item, ie, virtual image.

Mr Tongatule submitted that “the pretending element” by Mr Keesing was via a virtual image created online and on a social networking site.   He argued that the New Zealand legislation does not extend to personations undertaken via the internet.

[11]     Ms   Longdill,   for   the   Crown,   referred   to   observations   made   by Judge FitzGerald when he dismissed the same argument in the course of the hearing before him.   She submitted that the Judge’s reasoning was cogent and persuasive, and that there was no basis in law for reading down the plain meaning of s 48(1)(a).

Analysis

[12]     Section 48(1) provides as follows:

48       Personation and representing vehicle, etc, as Police vehicle

(1)       A person commits an offence who, without reasonable excuse, and in circumstances likely to lead a person to believe that the person is a Police employee,—

(a)      pretends  to  be  a  Police  employee  by  his  or  her  words, conduct, or demeanour; or

(b)      assumes the name, designation, or description of a Police employee.

[13] This section is in similar terms to s 51 of the Police Act 1958, now repealed. In that context, Tompkins J found that mens rea is an essential ingredient of the offence of personation.[1]  The Judge observed as follows:

It is my view, therefore, that to establish the charge the prosecution must prove that the appellant, with intent to deceive, represented himself to be a member of the police with the intention that that representation should be believed.

[1] Keesing v Police HC Auckland, M 1205/83, 31 October 1983 at 6; Saunders v Police HC Auckland AP 152/91, 13 August 1991 at 4.

[14]     Against this background, I turn to address the elements of the offence created by s 48.

[15]     First, there can be no doubt but that Mr Keesing acted without reasonable excuse.   The evidence before the District Court Judge clearly established that his intention was to be mischievous, and to send a message that would “get the chickens running around the coop for a couple of days”.

[16]     Secondly, there can be no doubt that the circumstances were likely to lead Ms Green to believe the sender of the Facebook message was a police employee. The message contained a photograph of a police officer.   It adopted the rank and name of a serving police officer.  Mr Keesing as author of the message introduced himself as Sergeant Paul Hampton of the New Zealand Police Online Drugs Squad. He referred to various matters having come to police attention, advised Ms Green to contact the Auckland Central Police Station, and signed off the message as Sergeant Paul Hampton.

[17]     Thirdly,  it  is  patently clear that  Mr Keesing as  the author  of the online message was pretending to be a  police employee.   He used a photograph of a police officer in uniform, and he took and used the name of a serving police officer

involved in drug-related offending.

[18]     The only remaining issue is whether Mr Keesing pretended to be a police employee by his words, conduct or demeanour.

[19]     There  is  nothing  in  the  section  which  suggests  that  the  phrase  “words, conduct, or demeanour” should be limited to words, conduct or demeanour uttered or undertaken by one person in the physical presence of another.  A word is a word whether it is spoken or written, and conduct is conduct whether it is undertaken in the presence of another person or not.  As Ms Longdill noted, the section does not require that words used by an offender must be spoken to the complainant.   The Court is required to take a purposive approach to the legislation.   The section is intended to create an  offence where a person personates police employees,  and regardless of whether the pretence is maintained at a distance or in person.

[20]     I can do no better than summarise the wording of Judge FitzGerald in the

District Court.  He noted as follows:[2]

Mr Keesing was pretending to be a police employee by his words.  The fact that the words were conveyed electronically via a Facebook profile rather than a person does not cause the charge to fail.  In my view it is nonsense in this  day  and  age  to  suggest  that.    A large  amount  of  communications, transactions, dealings between people and organisations occurs electronically now.  The legislation can and should be read purposively and in the context of the world in which we live.  The subsection with which we are concerned, s 48(1)(a), specifically provides options for how the pretence may be carried out.  I could accept that ‘demeanour’ requires physical presence.  ‘Conduct’ would include a person’s behaviour in the presence of another, but it is capable of wider application.  Similarly, ‘words’ cannot be confined only to those spoken by one person in the presence of another; written or electronically communicated words qualify.

[2] Police v Keesing DC Auckland CRI 2011-404-000385, 20 September 2011.

[21]     It was the clear intention of Parliament to prohibit any words or conduct by which people, by whatever means, pretend to be police employees.  The pretence can be effected by face to face conduct, or conduct undertaken remotely, for example by telephone,[3] appearing on television, or via a video conference.  The pretence can also be effected by using words, either face to face, or in writing.  The words of pretence can be in a letter, a text message, an email, a message on a social networking site, or

otherwise.

[3] Police v Taniora-Waitai DC Manukau CRI 2009-092-015970, 1 December 2009.

[22]     It is clear that Mr Keesing pretended to be a police employee by using words and indulging in conduct intended to create the pretence.

[23]     The arguments advanced on Mr Keesing’s behalf are not, in my view, capable

of tenable argument. The appeal is dismissed.

Wylie J