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Kronfeld v Police

Kronfeld v Police

Case [2016] NZHC 2277 26 September 2016

Admissibility of Evidence

Criminal Law

Evidence Law

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-9 [2016] NZHC 2277

BETWEEN
MARGARET DENISE KRONFELD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 September 2016

Appearances:

A Speed for Appellant
M Grills for Respondent

Judgment:

26 September 2016

JUDGMENT OF MANDER J

[1] The appellant, Margaret Kronfeld, faces charges of intentionally accessing a computer system, misuse of a telephone, and criminal harassment. The prosecution is reliant upon telecommunications records obtained from Telecom as a result of the execution of a production order.

[2] Ms Kronfeld challenged the admissibility of this evidence alleging the application made in support of the production order was deficient and its content insufficient to satisfy the requirements of the Search and Surveillance Act 2012. Judge Turner found the production order had been validly issued and ruled the evidence
admissible.1 Ms Kronfeld appeals that decision.

1 Police v Kronfeld [2016] NZDC 7717.

Background

[3] On 22 May 2014, the complainant contacted the Dunedin police alleging she had been receiving “hang up” telephone calls and concerning text messages and emails from an unknown person or persons.

[4] Because of the volume and nature of these communications the complainant reported the matter to Telecom. This resulted in Telecom blocking several numbers and cancelling several SIM cards. However, the calls and text messages continued. Because of privacy considerations, Telecom was not able to provide information to the complainant about the identification of the alleged caller. On the day the complainant made her complaint to the police she had received an email from Telecom advising the subscriber of a private number had been issued “a warning” in relation to the contact but Telecom was unable to take the matter further.

[5] The complainant advised police she was uncertain as to who was responsible for the communications. She thought it likely the person or persons responsible were associated with a woman with whom her husband had an affair in 2013. The calls and messages had commenced soon after she had become aware of the relationship.

[6] As a result of the complaint the police applied for a production order which was issued that day. The following day the order was executed on Telecom. This resulted in the police taking possession of Telecom’s investigation file and other records detailing communications between [the complainant’s] mobile phone number and other phone numbers for the period 8 May 2014 to 22 May 2014.

[7] As a result of this information being made available further production orders and warrants were obtained and the police obtained evidence which ultimately resulted in Ms Kronfeld being charged.

Jurisdiction for appeal

[8] The appeal arises from a pre-trial admissibility ruling that the evidence obtained as a result of the production order is admissible.2 Section 215 of the Criminal

2…

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 Kronfeld v Police

Details

AGLC: Kronfeld v Police [2016] NZHC 2277
Case: [2016] NZHC 2277
Decision Date: 26 September 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Margaret Kronfeld, the appellant, appealed a decision of the District Court that upheld the admissibility of evidence obtained pursuant to a production order under the Search and Surveillance Act 2012. The evidence was obtained by the police and used in their prosecution of the appellant for charges of intentional access to a computer system, misuse of a telephone, and criminal harassment. The appellant challenged the admissibility of the evidence on the basis that the application made in support of the production order was deficient and its content insufficient to satisfy the requirements of the Act. The District Court Judge found the production order had been validly issued and ruled the evidence admissible. The appeal to the High Court was dismissed.

The court was required to decide whether the production order was validly issued and whether the evidence obtained pursuant to the order was admissible. The court needed to determine whether the application made in support of the production order was sufficient to satisfy the requirements of the Search and Surveillance Act 2012. The court also needed to assess whether the evidence obtained as a result of the production order was admissible.

The court held that the application made in support of the production order was sufficient to satisfy the requirements of the Search and Surveillance Act 2012. The court found that the application provided the issuing officer with reasonable grounds to suspect that the offence of criminal harassment had been committed. The court held that the necessary reasonable suspicion did not rest on the complainant's fear of loss of reputation or invasion of privacy. The charge of criminal harassment required proof of a person's intention that the harassment cause the other person to fear for their safety or that of their family. The court found that there was a reasonable inference available to the issuing officer that it was likely or possible the messages were intended to cause the complainant to fear for the safety of her children. The court also found that the inclusion of two erroneous pieces of information in the application did not affect the validity of the warrant as there was sufficient other material before the issuing officer on which to suspect the commission of an offence of criminal harassment.

The appeal was dismissed and an order was made prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest was permitted.

Orders