Knaus v Police

[2017] NZHC 279

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-375 [2017] NZHC 279

BETWEEN

DAVINA KNAUS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	27 February 2017
Appearances:	J Bioletti for Appellant N Dobbs for Respondent
Judgment:	28 February 2017

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 28 February 2017 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

KNAUS v NEW ZEALAND POLICE [2017] NZHC 279 [28 February 2017]

[1]      Ms Knaus faced a charge of threatening to do grievous bodily harm to one

Peter Rogers.  She defended the charge, but in an oral decision delivered on 18 April

2016 she was found guilty by Judge McAuslan.1    On 11 October 2016, the Judge sentenced Ms Knaus to 80 hours community work and nine months supervision. Ms Knaus now appeals against conviction.2

The evidence

[2]      The  charge  was  laid  following  a  series  of  events  that  occurred  on  the afternoon and evening of 22 August 2015.  They occurred against a background in which  there  was  an  ongoing  employment  dispute  between  the  complainant, Mr Rogers, and Ms Knaus’ former husband.   Mr Rogers had been employed by a company operated  by  Ms  Knaus’ former  husband.    He  had  been  dismissed  by Mr Knaus some time earlier.   Proceedings were before the Employment Relations Authority in relation to that dismissal.   In addition, Mr Rogers was due to give evidence  at  another  hearing  involving  his  former  employer  during  the  week following incidents giving rise to the charge.

[3]      The  events  giving  rise  to  the  charge  began  when  Ms  Knaus  arrived  at Mr Rogers’ rural property on the afternoon of 22 August 2015.  She drove part of the way  up  the  driveway  and  began  taking  photos  of  Mr  Rogers’ wife,  who  was exercising her four dogs in the front paddock of the address.  Mrs Rogers says she approached Ms Knaus to find out what she wanted.  She did not initially recognise Ms Knaus as being the wife of her husband’s former employer.   Ms Knaus then identified herself to Mrs Rogers and abused her verbally at some length.  This ended when Ms Knaus got back into her vehicle, reversed down the driveway at speed and drove away.

[4]      Not surprisingly, Mrs Rogers was shaken by the incident.  She went back to her house and told her husband what had happened.  Mr Rogers was upset by the fact that Ms Knaus had seen fit to come to his property and abuse his wife.   He then

attempted unsuccessfully to contact Ms Knaus using his cellphone.  Mr Rogers had

1      New Zealand Police v Knaus [2016] NZDC 8895.

2      The notice of appeal states that the appeal is against both conviction and sentence.  Mr Bioletti did not make any submissions in relation to the issue of sentence and I therefore treat the appeal against sentence as having been abandoned.

Ms Knaus’ cellphone number stored as a contact on his cellphone.  These attempts were unsuccessful, and Mr Rogers left messages on Ms Knaus’ cellphone advising her that he was upset at what she had done.

[5]      Ms Knaus then telephoned Mr Rogers at 5.04 pm.   Mr Rogers was not immediately able to tell that Ms Knaus was the caller, because his cellphone showed the  call  as  being  from  a  private  number.    Mr  Rogers,  who  has  considerable experience in the field of communications technology, deduced from this that the caller identification function on the caller’s cellphone had been de-activated.  The prosecution produced cellphone records to show that this call lasted for 11 seconds.

[6]      When  the  caller  began  speaking,  Mr  Rogers  immediately  recognised Ms Knaus’ voice.   He had dealt with her from time to time whilst he had been employed by her husband’s company.   That was the reason he had her cellphone number in his list of contacts.  Mr Rogers said that Ms Knaus told him he owed her the sum of $10,000, that he had placed a lot of strain on her relationship with her husband and she wanted to “fucking stab him”.   Mr Rogers said he immediately terminated the call when Ms Knaus made this threat.  Mr Rogers then telephoned the police using the 111 emergency number at 5.07 pm.

[7]      Mr Rogers received a second call, again from a private number, at 5.29 pm. He said he was standing in the driveway of his address when he answered this call, which he immediately discovered was from Ms Knaus.  He said he saw his wife’s son Trevor standing a short distance away.  He beckoned Trevor over, and activated the speaker function on his cellphone to enable Trevor to hear what was being said. The call was indeed from Ms Knaus, and Mr Rogers’ cellphone records show the call that followed lasted for 25 seconds.  Mr Rogers said that Ms Knaus told him during the call that her husband’s company had brought more than half a million dollars into New Zealand’s economy, and that she would be willing to pay another half a million dollars to pay somebody to “knock him off”.

[8]      Trevor confirmed Mr Rogers’ evidence in this regard.  He says it took him about 10 seconds to reach Mr Rogers, and he was only able to hear the end of the conversation.  He said the caller was a female, and he heard her telling Mr Rogers

that she would pay half a million dollars to a gang to threaten Mr Rogers and his family.

[9]      The police arrived at the address at about 6.45 pm, and obtained photographs of screen shots from Mr Rogers’ cellphone.  These showed the two incoming calls from the private number.  The call directory on Mr Rogers’ cellphone also contained a record of the two calls Mr Rogers had made to Ms Knaus’ cellphone and the 111 call he made at 5.07 pm.  Mr Rogers also subsequently provided the police with a copy of several text messages he received from Ms Knaus later the same evening. These were shown on his cellphone as having come from Ms Knaus and not from a private number.  Mr Rogers explained that it is not possible to de-activate the caller identification function when one sends text messages.  The text messages were also arguably of a threatening nature.

[10]     Ms Knaus gave evidence in which she acknowledged having travelled to Mr Rogers’ address on the afternoon of 22 August 2015.  She said she had done so in order to take photographs of equipment on his property.   She said this was for purposes related to the case in which Mr Rogers was to be giving evidence the following week.   She denied she was abusive in her dealings with Mrs Rogers, although  she  acknowledged  telling  Mrs  Rogers  that  her  husband   had  cost Mrs Knaus’ husband’s company the sum of $10,000.

[11]     Ms  Knaus’ defence  to  the  charge  was  that  the  two  conversations  with Mr Rogers had never occurred.   She flatly denied having contacted Mr Rogers by telephone and abusing him.  She acknowledged, however, that she had sent the text messages to Mr Rogers later in the evening.

Ground of appeal

[12]     The sole ground of appeal is that the Judge ought to have found Mr Rogers’ evidence wholly implausible because the threats in question could not have been made given the very short duration of the two calls.

[13]    Mr Bioletti advanced the same argument before the trial Judge, but she considered the prosecution witnesses had given credible evidence and had no reason

to make up their allegations against Ms Knaus.   The Judge clearly considered her assessment of credibility of the prosecution witnesses overcame any concern arising out of the short duration of the calls. The Judge also relied on the fact that Ms Knaus had acknowledged going to the property on the afternoon of 22 August 2015, and being in possession of the cellphone from which the calls and text messages to Mr Rogers’ cellphone were made and sent.  Furthermore, she acknowledged she had sent the text messages to Mr Rogers later in the evening of 22 August.

Decision

[14]     Mr Rogers was very vague regarding the likely duration of the two calls, and Mr Bioletti submits the Judge ought to have found that this seriously detracted from his overall credibility.  I do not consider this submission to be correct.  Experience shows that it is notoriously difficult for witnesses to give an accurate estimate of the length of time during which stressful events occur.   These were clearly stressful events for Mr Rogers’ family.  I do not consider his vagueness as to timing to have any significant impact on his credibility.

[15]     Nor do I accept Mr Bioletti’s next submission, which is that it would not have been physically possible for Ms Knaus to have made the threats attributed to her in the first call within 11 seconds.  Mr Rogers’ evidence suggests that the first call was virtually, if not exclusively, a one way conversation with Ms Knaus doing all the talking.  Furthermore, Mr Rogers said he terminated the call as soon as she made the threat to stab him.  I consider there was sufficient time during this call for Ms Knaus to say that Mr Rogers owed her $10,000, that he had placed her relationship under strain and that she wanted to stab him.

[16]     Mr Bioletti also submitted that it is reasonably possible that nothing at all was said in the first call.   By way of example, Ms Knaus may have unwittingly or unknowingly dialled Mr Rogers’ number but did not speak to him once he answered. Ms Knaus did not say this may have occurred, however, and the possibility was never  put  to  Mr  Rogers  in  cross-examination.    Furthermore,  it  is  unlikely  that Mr Rogers would have called the police at 5.07 pm if he had just received that type of call.

[17]     The prosecution’s position was obviously even stronger in relation to the second call.  A call of 25 seconds duration enables a considerable amount to be said. In addition, Mr Rogers’ evidence about the threat made during this call received strong support from Mrs Rogers’ son Trevor.

[18]     In addition, it needs to be borne in mind that the two calls from Ms Knaus fell in  the  middle  of  a  series  of  continuing  events.    These  began  when  Ms  Knaus travelled  to  Mr  Rogers’ property  and  confronted  Mrs  Rogers  in  an  aggressive fashion.   They ended with Ms Knaus sending semi-threatening text messages to Mr Rogers after she had made the two calls a short time earlier.  When the calls are placed in that context, I consider the Judge was plainly entitled to conclude that Mr Rogers and Trevor were telling the truth about what Ms Knaus said during both calls.

Result

[19]     The appeal against conviction is dismissed.

Lang J

Solicitors:

Kayes Fletcher Walker, Auckland