Kronfield v Police

[2018] NZHC 66

ORDER PROHIBITING PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF COMPLAINANT

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2017-412-28

[2018] NZHC 66

BETWEEN

MARGARET DENISE KRONFELD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Date of hearing:	7 November 2017, AVL hearing 14 December 2017
Appearances:	A G Speed and E M Gresson for Appellant R P Bates and R Smith for Respondent
Judgment:	7 February 2018

JUDGMENT OF NICHOLAS DAVIDSON J (APPEAL AGAINST CONVICTIONS)

A.INTRODUCTION

[1]    This appeal is allowed in respect of one of four convictions entered in the District Court, but is otherwise dismissed. This Court had the advantage of argument which was not put before the District Court Judge.

[2]    Ms Kronfeld appeals against her convictions on one charge of criminal harassment by sending email messages to the complainant, “[Mrs X]”, and three charges of  intentionally  accessing  a  computer  system  without  authorisation.1  She earlier pleaded guilty to charges of sending fictitious messages, and making phone calls but not speaking when the phone was answered.

1      Police v Kronfeld [2017] NZDC 6769.

KRONFELD v NEW ZEALAND POLICE [2018] NZHC 66 [7 February 2018]

[3]    She appeals against all four convictions, and concurrent sentences of 120 hours community work imposed in the District Court at Dunedin on those charges and other charges to which she pleaded guilty.2 The appeal against sentence stands adjourned pending this judgment.

[4]    The setting for the prosecution is a personal relationship between the appellant and [Mrs X]’s husband, [Mr X], over several years, after they met as business colleagues. The relationship soured and the charges stem from the appellant’s conduct after that time.

[5]Charges were laid as follows:

Charge No	CRN	Date of offence	Offence Description	Legislative Reference
1 Guilty plea	15004006584	Between the 18th day of January 2015 and the 9th day of March 2015	Used a telephone device for the purpose of annoying by calling up without speech with the intention of offending the recipient [Mrs X]	Section         112(2)(a) Telecommunications Act 2001
2 Withdrawn	15004006585	Between the 26th day of February 2015 and the 5th day of April 2015	Used a telephone device for the purpose of annoying by [Mrs X] by creating 6 fake email accounts with google and using these false identities to send the victim 25 emails with the intention of annoying the recipient [Mrs X]	Section         112(2)(a) Telecommunications Act 2001
3 Withdrawn	15004006586	Between the 29th day of March 2015 and the 31st day of March 2015	In using a telephone device sent 9 emails using indecent language with the intention of offending the recipient [Mrs X]	Section             112(1) Telecommunications Act 2001
4 Guilty plea	15004006587	Between the 27th day of February 2015 and the 5th day of April 2015	In using a telecommunications device knowingly sent fictitious messages namely using 3 false identities to send 9 fictitious emails	Section         112(2)(b) Telecommunications Act 2001
5 Found Guilty	15004006588	On the 5th day of April 2015	Harassed [Mrs X] by sending email messages having already emailed her between the 01.03.2015     and    01.04.2015 intending that the harassment is likely to cause [Mrs X] given their particular circumstances to reasonably fear for their safety	Section            8(1)(a) Harassment Act 1997

2      Police v Kronfeld [2017] NZDC 14371.

6 Found Guilty	15012002555	On or before the 8th      day of January 2016	Intentionally accessed a computer system, namely [X] without authorisation knowing she was not authorised to access that computer system	Section 252(1) Crimes Act 1961
7 Found Guilty	15012002556	On the 6th day of February 2015	Intentionally accessed a computer system, namely [X] without authorisation knowing she was not authorised to access that computer system	Section 252(1) Crimes Act 1961
8 Found Guilty	15012002557	On the 6th day of February 2015	Intentionally accessed a computer system, namely the parent portal of [X] school without authorisation knowing she was not authorised to access that computer system	Section 252(1) Crimes Act 1961

[6]    As shown, the appellant entered pleas of guilty to charges one and four, and charges two and three were withdrawn by leave at the end of the defended hearing in the District Court.

B.        DISTRICT COURT JUDGMENT

[7]    The appellant’s relationship with [Mrs X]’s husband, [Mr X], was unknown to [Mrs X] until about three years before it ended in early 2014. The Judge found that Ms Kronfeld sent, or caused to be sent, “an inordinate number of emails and texts to [Mrs X]”. Schedules of documents were tendered as exhibits. They included emails for which the appellant created at least eleven fictitious addresses.

[8]    The procedural history of the prosecution includes a judgment of Mander J on appeal from a ruling as to the validity of a production order, made in the District Court.3 The complainant received 148 nuisance calls, texts or emails, including some 37 nuisance hang-up calls and malicious texts in a single day. Mander J referred to some of the texts including “rumours confirmed”, “move on lying”, “told truth?”, “lies”, “deception”, “double life”, “found your website lots of email addresses for me to have fun with”, “found your family Facebook”, “my instructions are to find your children”, and “making progress locating children”.

3      Kronfeld v Police [2016] NZHC 2277, appeal from District Court decision Police v Kronfeld

[2016] NZDC 7717.

[9]    Mander J addressed the distinction between criminal and civil harassment, and in particular a defendant’s mens rea (intention) necessary to prove the charge of criminal harassment. His judgment was applied by the learned Judge and I too follow it, as I will explain.

[10]   [Mrs X] gave evidence that she felt she was being taunted or played with, and that Ms Kronfeld was constantly trying to frighten her and wanted her to beg. She was living in a “nightmare”. She thought an email of 3 April 2015 was sent to frighten her. She said she had been constantly hassled, that it was “revolting and vile” and she was concerned for her children. [Mrs X] was not challenged about the effect on her of the emails.

[11]   [Mr X] spoke of texts, emails and hang-up calls, and said they were frightening because they seemed to be from an unknown person, or people, who were “harassing” him and [Mrs X].

[12]   The appellant accepted that the affair came to an end in February 2014. She sent five emails on 5 April 2015 on which the criminal harassment charge is founded, but said she did not intend to cause [Mrs X] to fear for her safety, and that her behaviour was not “normal” for her. Apart from wanting to annoy [Mrs X], she did not know why she acted in this way. She did not turn her mind to the effect that sending multiple such messages might have, but said she did not intend to cause physical or mental harm.

Charge 5:      CRN15004006588 – Criminal Harassment – s 8(1)(a) Harassment Act 1997

[13]   The charge is that on 5 April 2015 Ms Kronfeld harassed [Mrs X] by sending email messages having emailed her between the 01.03.2015 and 01.04.2015 intending that such harassment was likely to cause [Mrs X] to reasonably fear for their safety.

[14]The five emails read:

AEmail message 5 April 2015 at 8.50 pm from ‘Tracey Hopkins’ Subject: When he fucked you last.

Content:        What did you think about. Who else is he fucking?

Who else he has fucked?

BEmail message 5 April 2015 at 8.57 pm from ‘Tracey Hopkins’ Subject: The last time

Content:        He fucked you did you think who else is he fucking?

Who else he has fucked?

CEmail message 5 April 2015 at 12.51 pm from ‘Tracey Hopkins’ Subject: Not Tracy Hopkins

Content:Got a part time job. Don’t like myself for doing this job. Am now supposed to text you rude messages. Sorry. Someone else can have this dirty sick job.

DEmail message 5 April 2015 at 1.02 pm from ‘James Sillon’ Subject: New job

Content:Hi got a part time job. Got sent a phone and two email addresses with list of emails to send to you both. Man someone hates you two. Wot the f did you two do. Thought you needed to know someone hates you both.

EEmail message 5 April 2015 at 3.23 pm from ‘Diane Milne’ Subject: Thought of the day.

Content:        Respect yourself enough to walk away from anything

that no longer serves you, grows you or makes you happy.

[15]   The emails were designed by Ms Kronfeld to seem to come from three different people, and arithmetically met the charge of criminal harassment, which requires there to be at least two acts of harassment over a 12 month period.

[16]   The charge turned on the five emails, but referred to emails sent  “between the 01/03/2015 and 01/04/2015…”. The formulation of the charge in this way is the basis for one ground of appeal. In the period 1 March to 1 April 2015, there were 20 other emails. There were texts and malicious and fictitious phone calls, all part of what the Judge described as Ms Kronfeld “orchestrating a premeditated, persistent, vile barrage and attack on [Mrs X].”

[17]   The primary issue for the Judge was the nature and intended effect of the emails sent on 5 April 2015. They did not make direct threats of violence or harm. Counsel Mr Speed for Ms Kronfeld submitted that they were no more than “rude” messages to

get a reaction out of [Mrs X], and were not acts which reached the “fear of safety” threshold fundamental to criminal harassment. The  Judge  found  the  effect  was “… significantly more than mere emotional disturbance and was designed to be so”.4

[18]   The Judge found it was clear that [Mrs X] had been “significantly affected by Ms Kronfeld’s actions which can only be described as a more extreme case of its type, a campaign that included Ms Kronfeld attempting to cover her tracks in a relatively sophisticated manner”.5

[19]   The Judge did not accept Ms Kronfeld’s evidence and found her neither credible nor reliable in several respects. Despite the number of emails sent over several months she did not accept that her conduct was persistent. She said she was not in a rational state of mind, and was not her normal self, but she did not expand on that. There was no evidence of medical or psychological impairment. At times she was found to be evasive, lacking candour, and not wanting to assist the Court. Some explanations she gave were “glib and self-serving”. The Judge found that she conducted a premeditated campaign, involving “some sophistication and deception, aimed directly at [Mrs X] over a sustained period of time”. The Judge summed this up at para [36]:

The sustained nature of the contact, the deception involved and the crude, vile and offensive content of many of the communications paints a more accurate picture of Ms Kronfeld’s intent.

[20]   The Judge addressed the evidence of Ms Kronfeld’s actions objectively, as required at law. The issue is not whether the complainant held a fear for her safety or her family’s safety, but rather “the focus is on the state of mind of the person who is alleged to have committed the offence”.6 He concluded that [Mrs X] was significantly affected by what had occurred and followed Mander J who said the Court was entitled to take into account all of the conduct, on all of the charges, to draw an inference as to the state of mind of Ms Kronfeld when she sent the emails of 5 April 2015. That included having regard to the emails sent between 1 March and 1 April 2015. The Judge found it proved beyond reasonable doubt that Ms Kronfeld intended to cause

4      Police v Kronfeld, above n 1, at [33].

5 At [34].

6      Kronfeld v Police, above n 3, at [30].

[Mrs X] to fear for her safety. The charge of criminal harassment was proved to the required standard.

Charges of accessing a computer system without  authorisation  –  s 252(1)  Crimes Act 1961

Charge 6: CRN15001200555

[21]   The charge is that on or before 8 January 2015 the appellant intentionally accessed a computer system, namely [Mr [X]’s email account], without authorisation knowing she was not authorised to access that computer system. The charge is laid as a representative charge.

Charge 7: CRN15012002556

[22]   The charge is that on 6 February 2015 the appellant intentionally accessed a computer system, namely [Mr [X]’s email account], without authorisation, knowing she was not authorised to access that computer system. This too is a representative charge.

Charge 8: CRN15001200557

[23]   The charge is that on 6 February 2015 the appellant intentionally accessed a computer system, namely the parent portal of [X] School, without authorisation knowing she was not authorised to access that computer system, as a representative charge.

District Court decision

[24]   For charges six and seven, evidence was given that Ms Kronfeld’s iPad showed that the email account had been accessed, and she accepted that she had created at least 11 different email addresses including one for “JJ Enright”. The extract report from Ms Kronfeld’s iPad was replete with emails to and from “JJ Enright”, sent to [Mrs X]’s work email address and a number of other people to enquire whether “JJ Enright” was related to them and [Mrs X].

[25]   The same iPad was used to make searches of [Mrs X]’s name, and for connections between her name and employment. Information was retained to assist later when loading forms and websites. The user of the iPad knew the password for the email account as this was shown in the Google cache.

[26]   The Judge concluded that Ms Kronfeld obtained email addresses for [Mrs X]’s family members by accessing the email account. This enabled her to send the “JJ Enright” emails. The password had been entered into the iPad on or before 8 January 2015, the date of the alleged offence.

[27]   Ms Kronfeld accepted that she created the “JJ Enright” account. She said that she was given the password to Mr [X]’s account by [Mr X] in 2011 so she could access the account. She said that he wanted her to do so because he moved the computer system to cloud storage, and he asked if they could use an email address that was not related to his work. She said the address was used for their private communications, and there was concern that if anything happened to them, they could be “sitting there”, so he gave her the password. She was also worried that emails might be sent by him which may have been better left unsent.

[28]   [Mr X] said that the only time he gave an email password to Ms Kronfeld was to access the iTunes account on his phone, while they were in his car. He used the same password for his email address, but he did not give the password to her to access that address. Ms Kronfeld’s explanation of why she was given the password was put to [Mr X]. He remembered no such discussion.

[29]   He did remember being concerned about personal emails, but said that her evidence as to why he gave her the password was a “bunch of lies”. The Judge accepted [Mr X]’s evidence and rejected that of Ms Kronfeld. He found that while [Mr X] had been dishonest in his relationship with his wife, he was honest in his evidence.

[30]   Even if Ms Kronfeld’s evidence had been accepted, the relationship had long ended and she was not given password access to the account to look for other email addresses or contact anyone in the address book, so her access was for an improper

purpose. It was nothing to do with furthering the relationship, or protecting it, but part of an orchestrated effort to undermine [Mr X]’s relationship with his wife and to “demean, belittle and harass [Mrs X]”. This was deliberate and not inadvertent or reckless conduct.

[31]   The Judge said the only explanation given by Ms Kronfeld was that she had been given the password in 2011, but she did not say that the reason she was given it applied in 2015, at which time her access was unauthorised. The Judge held both charges were proved.

[32]   As to charge 8, Ms Kronfeld said that [Mr X] gave her the access code to the school’s parent portal in 2012, and he made something of a joke about the code. She accessed the portal in 2015, a year after the relationship ended. [Mr X] said he did not give her the code and the Judge accepted that evidence. There was no reason for her to access the portal, and Ms Kronfeld did not advance any reason other than to check exam results. Even if the code was provided with any authorisation, actual or implied, that ceased when the relationship ended. The charge was proved.

[33]   Ms Kronfeld was thus convicted on all charges of unauthorised access of a computer system.

C.          APPEAL – CRIMINAL HARASSMENT

[34]   Three issues are raised on appeal against conviction. One issue as advanced is upheld. The other two are dismissed. For completeness, all three are addressed.

[35]   The first issue is reflected in the pre-trial challenge to the charge as it was formulated, and flows into this appeal. The charge particularises email messages sent on 5 April 2015, “having already emailed her between 1 March and 1 April 2015” (see para [5] above).

[36]   On 21 February 2017, the Judge ruled that the prosecution was “restricted to five separate emails sent by three different entities on the same date”, and he refused to amend the charge to include the earlier range of emails, on the grounds that such an

amendment would prejudice the defence.7 The Police case had been clearly etched by reference to the five emails of 5 April 2015, but referring for context to messages sent between 1 March 2015 and 1 April 2015.

[37]   The second issue is whether the fact some of the emails of 5 April 2015 are elements of other charges admitted, or withdrawn, constitutes duplicity, carrying the risk of double jeopardy to Ms Kronfeld, so that these emails cannot found proof of criminal harassment.

[38]   The third issue is whether the Judge erred by failing to properly apply the high threshold test for criminal harassment under s 8(1)(a) of the Harassment Act 1997.

Criminal harassment

[39]The Harassment Act 1997 (“the Act”) provides:

8        Criminal harassment

(1)Every person commits an offence who harasses another person in any case where—

(a)the first-mentioned person intends that harassment to cause that other person to fear for—

(i)that other person’s safety; or

(ii)the safety of any person with whom that other person is in a family relationship; or

(b)the first-mentioned person knows that the harassment is likely to cause the other person, given his or her particular circumstances, to reasonably fear for—

(i)that other person’s safety; or

(ii)the safety of any person with whom that other person is in a family relationship.

2Interpretation

…

safety, in relation to any person, includes that person’s mental well-being

7      Police v Kronfeld [2017] NZDC 4723.

[40]“Harassment” is defined as follows:

3Meaning of harassment

(1)For the purposes of this Act, a person harasses another person if he or she engages in a pattern of behaviour that is directed against that other person, being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months.

(2)To avoid any doubt,—

(a)the specified acts required for the purposes of subsection (1) may be the same type of specified act on each separate occasion, or different types of specified acts:

(b)the specified acts need not be done to the same person on each separate occasion, as long as the pattern of behaviour is directed against the same person.

(3)For the purposes of this Act, a person also harasses another person if—

(a)he or she engages in a pattern of behaviour that is directed against that other person; and

(b)that pattern of behaviour includes doing any specified act to the other person that is one continuing act carried out over any period.

[41]A “specified act” is defined as follows:

4Meaning of specified act

(1)For the purposes of this Act, a specified act, in relation to a person, means any of the following acts:

…

(d) making contact with that person (whether by telephone, correspondence, electronic communication, or in any other way):

Issue  1  -  Reference  in  charge  to  emails  sent  between  1  March  2015  and  1 April 2015

[42]   Mr Speed submits that the Judge “combined” the acts of alleged criminal harassment in one charge, and the defence was prejudiced as it was unclear how the intent of the appellant in sending the five emails of 5 April 2015 was to be addressed.

He submits that this “confused the actus reus elements of the charge”, and refers to Blanchard J when he said:8

It is necessary that distinctly identifiable acts of alleged offending be the subject of separate charges where the accused may be prejudiced either at trial or on sentencing if they are combined in a single count.

[43]He also refers to Anderson J’s comments in Qiu v R:9

Separate counts facilitate fairness in the conduct of the trial by focusing attention on matters of fact and law which can and need to be distinguished for the purposes of different counts. In the event of conviction, they assist the sentencing Judge by indicating the extent of culpability.

[44]   This element of appeal is misconceived as these statements do not negate a charge which refers to more than one act, where that is an element of the offence. The charge of criminal harassment requires at least two instances in a 12 month period. The charge here referred to five, all elements of the actus reus.

[45]   Otherwise, Mr Speed for the appellant says the date of the alleged offence is 5 April 2015 and focus had to fall on the five emails that day, but the Judge said that the 5 April 2015 emails should not be read in isolation. The prosecution approach and that of the Judge is submitted to have cost the defence the opportunity to meet the case presented, as any communication by the defendant could satisfy the test for criminal harassment. Mr Speed lays emphasis on para [40] of the judgment.

[46]   Counsel submits that His Honour convicted the defendant on all of the emails sent, including emails subject to charges which had been withdrawn and that this constitutes an unfairness which unseats the judgment. In essence, he submits that Ms Kronfeld did not know what she had to meet at trial, and the communications on which the prosecution relied to prove the charge.

[47]   He also submits that Ms Kronfeld did not have an opportunity under cross-examination to respond to  each of the emails sent  in the period 1 March to     1 April 2015. Mr Bates’ reply for the Police was to take the Court through the transcript of evidence which showed that while not all emails in that range were the

8      Mason v R [2010] NZSC 129, [2011] 1 NZLR 296 at [9].

9      Qiu v R [2007] NZSC 51, [2008] 1 NZLR 1 at [8].

subject of cross-examination, there was plenty of reference to individual emails. An example is the set of questions in response to which Ms Kronfeld accepted that she used various false names.

[48]   The prosecution thus adduced the evidence of the emails sent on 5 April 2015 and in the month before, and the Judge brought all these to account in his assessment of the appellant’s intent  when she transmitted on 5 April  2015.   I do  not accept   Mr Speed’s submission that the prosecution was bound to put all the evidence of each email to the defendant when she gave evidence. She had the opportunity to respond to each of those emails said by the prosecution to be relevant to assessing her intent when she transmitted on 5 April 2015. There is no obligation on the prosecution to do so, and the risk should it not is that the defendant’s evidence may remain unchallenged to create an element of doubt which undoes the prosecution case. That decision is for the prosecutor, who may choose not to cross-examine a defendant because his or her evidence is thought to be without credibility, or because the prosecution evidence speaks for itself so that there is no need. The real point is that Ms Kronfeld had the opportunity to respond to all the emails produced in evidence, and, of most importance, say what she intended by those she sent on 5 April 2015. She did not do so to any degree, but she was taken to some of them by the prosecutor. There is no obligation on the prosecution which extends beyond that.

[49]   The Judge’s reference to the five emails not having to be “read in isolation” has attracted the appeal on this issue. He said:10

The offence description relies on the combined effect of those emails and those sent between 1 March and 1 April 2015. The five emails were on top of many other emails that are referred to in the description section of the charging document. In addition, texts and malicious and fictitious phone calls were part of Ms Kronfeld orchestrating a premeditated, persistent, vile barrage and attack on Mrs X.

[50]   Mr Bates submits that the Judge correctly focused on the intention of the appellant, which is fundamental to the charge, in sending the five emails. The focus on the state of mind of the person alleged to have committed the offence accords with the pre-trial ruling of Mander J. The Judge also said that: 11

10 At [32].

11 At [40].

[a]s held by Mander J, I am able to take into account all of the conduct on all of the charges before the Court in drawing the inference that I have. The combination of my assessment of Ms Kronfeld’s evidence and of all of the evidence before the Court is to find that the emails of 5 of April 2015 and those sent between 1 March and 1 April 2015 are evidence of an intention to cause Mrs X to fear for her safety.

[51]   Mr Bates says the appellant knew that the earlier communications would be considered as evidence in assessing the intent of the appellant on 5 April 2015 and submits that all evidence which bore on that intent was relevant, or might be so.

Discussion

[52]   This element of the appeal is the product of the way the charge was worded. There was no need to refer to the range of emails between 1 March and 1 April 2015. Those emails, like all Ms Kronfeld’s communications before 5 April 2015, provided an evidential background for what is alleged on 5 April 2015.

[53]   Ms Kronfeld’s case is that the 5 April 2015 emails had to be considered in isolation in assessing her intent that day. However, I agree with Mr Bates that the Court may look at the earlier emails and communications when determining her intent in sending the five emails on 5 April 2015. This is consistent with s 6 of the Act which reads:

6        Object

(1)The object of this Act is to provide greater protection to victims of harassment by—

(a)recognising that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context; and

(b)…

(2)       …

(3)Any court which, or any person who, exercises any power conferred  by or under this Act must be guided in the exercise of that power by the object specified in subsection (1).

[54]   Harassment involves a pattern of behaviour that is directed against another person, and the pattern lies in at least two separate acts within a period of 12 months. That does not mean separate days, or defined intervals. Twice is twice. When

considering a recipient’s mental well-being, it is not just the content of a communication which fixes its intended effect, although that may suffice, but the regularity, volume and content of all communications which preceded or accompanied it. The colour of the communications on 5 April 2015 is drawn from the full factual setting which bears on them.

[55]   I find nothing duplicitous, or prejudicial to the appellant, in the charging document referring to those emails sent between 1 March 2015 and 1 April 2015, as the  intent  necessary  to  establish  criminal  harassment  must  be  measured   on     5 April 2015, and will logically be viewed in the full context of communications and that day and prior. This may cut both ways as the broader context may soften the impact and intended effect of a communication, or support the prosecution case. This issue as a ground of appeal is dismissed.

Issue 2 - Duplicity (double jeopardy)

[56]   Of the five emails sent on 5 April 2015, only email 46, under the name “John Sirron” was not the subject of a separate charge. Emails 43 and 44 were part of CRN15004006586, the withdrawn charge of sending nine emails using indecent language with the intention of offending the recipient [Mrs X]. Email 45, sent by “Tracy Hopkins” is part of the charge of sending nine fictitious messages using three false identities under CRN15004006587 to which a guilty plea was entered. Email 47, under the name “Dianne Milne” relates to the withdrawn charge CRN15004006585 of using a telephone device for the purpose of annoying [Mrs X] by creating six fake email accounts with Google and using these false identities to send [Mrs X] 25 emails with the intention of annoying her.

[57]   The question is whether the appellant has been convicted of or been acquitted of another offence (here criminal harassment) arising from the same facts which found the criminal harassment charge. The Criminal Procedure Act 2011 (“CPA”) provides:

45Special pleas

(1)Only the following special pleas may be entered:

(a)   a plea of previous conviction:

(b)   a plea of previous acquittal:

(c)   a plea of pardon.

(2)More than 1 special plea may be entered in relation to the same charge.

(3)If the defendant enters any of the special pleas, the defendant must provide information about the conviction, acquittal, or pardon on which the plea is based.

46Previous conviction

(1)If a plea of previous conviction is entered in relation to a charge, the court must dismiss the charge under section 147 if the court is satisfied that the defendant has been convicted of—

(a)   the same offence as the offence currently charged, arising from the same facts; or

(b)   any other offence arising from those facts.

(2)Subsection (1) does not apply if—

(a)   the defendant was convicted of an offence and is currently charged with a more serious offence arising from the same facts; and

(b)   the court is satisfied that the evidence of the more serious offence was not readily available at the time the charging document for the previous offence was filed.

47Previous acquittal

If a plea of previous acquittal is entered in relation to a charge, the court must dismiss the charge under section 147 if the court is satisfied that the defendant has been acquitted of—

(a)the same offence as the offence currently charged, arising from the same facts; or

(b)any other offence arising from those facts.

(emphasis added)

[58]   Section 46(2) has no application as the more serious offence of criminal harassment could always have been charged with the other offences, because the facts were known. However, if the emails of 5 April include emails the subject of other charges, then the charge of criminal harassment arguably arises from the “same facts”.

[59]   Mr Speed’s submission is that there must be no ingredient of a charge, here criminal harassment, which is also the subject of another charge where there has been a conviction entered or the charge was dismissed.

[60]   Section 26(2) New Zealand Bill of Rights Act 1990 (“BORA”) provides that a defendant should not be subject to double jeopardy, meaning that a person acquitted of or convicted of an offence should not be tried or punished for it again. Section 10(4) of the Crimes Act 1961 provides that no one is liable to be punished twice in respect of the same offence.

[61]   Mr Bates recognises that s 45 CPA is concerned with special pleas, and while there was no such plea entered, the Police do not contest that s 46 CPA has application. Anyone entering a special plea carries an evidential burden, but the proper, and co-operative approach adopted by Mr Bates recognises s 26(2) of BORA above.

[62]   The jeopardy which Mr Speed asserts is that of Ms Kronfeld being convicted twice, and punished twice, in respect of, emails for which she admitted guilt, or where charges were withdrawn and which charges he submits have to be treated as dismissed. This is the application of the old pleas of autrefois acquit and autrefois convict. There are four such emails in the five sent on 5 April 2015, if Mr Speed is right.

[63]   The point is critical because if four of the five emails should not have been the subject of the harassment charge, as they were already the subject of other charges, either withdrawn so as to constitute a dismissal, or to which Ms Kronfeld pleaded guilty, then arguably there would be no two acts proving harassment within the five alleged, leaving only one, and one does not suffice.

[64]   Mr Speed submits that ss 146 and 147 CPA apply to the withdrawn charges, which included emails 43, 44 and 47.

146    Withdrawal of charge

(1)The prosecutor may, with the leave of the court, withdraw a charge before the trial.

(2)The withdrawal of a charge under this section is not a bar to any other proceeding in the same matter.

(3)A Registrar may,  in  respect  of  any  offence  other  than  a  category 4 offence, exercise the power under subsection (1) if the defendant consents to the prosecutor withdrawing the charge.

147    Dismissal of charge

(1)The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.

(2)The court may dismiss the charge on its own motion or on the application of the prosecutor or the defendant.

(3)A decision to dismiss a charge may be made on the basis of any formal statements, any oral evidence taken in accordance with an order made under section 92, and any other evidence and information that is provided by the prosecutor or the defendant.

(4)Without limiting subsection (1), the court may dismiss a charge if—

(a)   the prosecutor has not offered evidence at trial; or

(b)   in relation to a charge for which the trial procedure is the Judge- alone procedure, the court is satisfied that there is no case to answer; or

(c)   in relation to a charge to be tried, or being tried, by a jury, the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.

(5)A decision to dismiss a charge must be given in open court.

(6)If a charge is dismissed under this section the defendant is deemed to be acquitted on that charge.

(7)Nothing in this section affects the power of the court to convict and discharge any person.

[65]   Taken together, ss 146 and 147 allow withdrawal of a charge before trial, but dismissal is the correct course once trial is commenced. Mr Speed asked the Judge to dismiss the charges “withdrawn” and submits the “withdrawal” should be treated as a dismissal under s 147(2). If that is correct, given the plea of guilty to one charge, which was laid in part in reliance on email 45, there is only one email left (email 46), and one does not suffice.

Discussion

[66]   The special pleas apply when the Court is satisfied that a defendant has been “convicted” of an offence or a charge has been dismissed arising from the “same facts”.

[67]   In Rangitonga v Parker, the Court was concerned with a previous acquittal. The provisions of the CPA in respect of a previous conviction are expressed in identical

terms.12 An offence arises from the same facts where there is a common punishable act or omission central to the previous and the “new” charge. In that case, the charge of assault with intent to injure arose out of the same circumstances but not the same facts as the charge of rape where the central punishable act involved sexual connection without the complainant’s consent.

[68]   In another case, the Court of Appeal set aside convictions and ordered a re-trial where an appellant had been convicted following a jury trial on charges of causing grievous bodily harm with reckless disregard, and a charge of criminal nuisance.13 The case involved knowingly infecting a complainant with HIV. The charges were not laid in the alternative, and the appellant could not be convicted on both charges if they arose out of the same act of unprotected sex. The Court emphasised that a special plea is now considered not against the elements of the charges, but the facts giving rise to the charges.

[69]   Mr Bates refers to the charge involving email 45 under CRN 15004006587 to which a guilty plea was  entered.  Section 112(2)(b)  of  the  Telecommunications Act 2001 involves the use of a telecommunications device and sending fictitious messages. The central punishable act in the harassment charge is making contact with the complainant in the specified manner, and Mr Bates accepts that the central punishable act for the telecommunications charge is the same email, so it could not be relied on to establish the separate charge of criminal harassment.

[70]   However, Mr Bates says a plea of previous acquittal does not apply in the case of emails 43, 44 and 47, as those charges were withdrawn, and contests the submission that withdrawal of the charges in respect of those emails should be treated as an acquittal, or dismissal of the charges.

[71]   At a resumed AVL hearing on 14 December 2017, convened to address in more detail the issue of double jeopardy, counsel addressed which emails of 5 April 2015 survived the challenge that they were also facts of the charge admitted, or the charges withdrawn. The discussion and my conclusions arising, are as follows:

12     Rangitonga v Parker [2016] NZCA 166, [2016] NZAR 768 at [36].

13     Filitonga v R [2017] NZCA 492, [2017] NZAR 1667.

Email 46

[72]   No challenge is raised to this email, which properly forms part of the charge of criminal harassment.

Email 45

[73]   Mr Bates accepts that email 45 cannot be part of the criminal harassment charge, as it was part of charge CRN 15004006585 to which a guilty plea was entered.

Emails 43, 44 and 47 – CRN 15004006585 and 15004006586

[74]   At trial, Mr Speed made a submission of no case to answer to these charges. The prosecution alleged these emails were unlawfully sent using a “telephone device”. Mr Speed made a submission as to the meaning of “telephone device” and “telecommunication device”. The Judge was invited to dismiss the charges and after some discussion, the prosecutor, at the suggestion of His Honour, withdrew the charges as recorded in Ruling No 2 of 21 February 2017.14

[75]   Mr Bates resists withdrawal of the charges as a dismissal but otherwise says emails 43 and 44 were scheduled to CRN 15004006586, but as the charging date expired on 31 March 2015, these two emails could never have been part of the charge. He says that meant there could never have been a conviction on those charges, in respect of those emails, so there was no jeopardy to Ms Kronfeld.

[76]   Otherwise he submits that email 47 under CRN 15004006585 could have been addressed by the Court by way of an alternative charge, or amendment to the charge, so that dismissal would not have necessarily followed, and I should assume that course would have been taken.

[77]   The fact is Ms Kronfeld faced charges with these three emails as particularised factual elements. Whether the defence related to the meaning of a telephone device, or the emails did not correspond with the period charged, they were alleged facts on which the charges were brought. As a result, the correct outcome should have been a

14     Police v Kronfeld, above n 7.

dismissal of the charges. Absent an amendment or the charge being expressed in the alternative, I do not see how the practical suggestion of an experienced prosecutor can save the day because for whatever reason, the charges should in law have been dismissed and that is an end to it.

[78]   I therefore conclude that the charge of criminal harassment cannot stand, as only one email of 5 April 2015 has survived this appeal. The appeal on this ground is allowed and the conviction set aside. But for that conclusion the charge of criminal harassment would have been proven. I have rejected the first ground of appeal (Issue

1) and also reject the third ground (Issue 3) as follows.

Issue 3 - Section 8 threshold for criminal harassment

[79]   This element of appeal is redundant given the finding of double jeopardy, but I otherwise dismiss this ground for the following reasons.

[80]   Mr Speed submits that the Judge erred by not having proper regard to the high threshold required to establish criminal harassment and that “by generalising all the evidence, diverted [himself] from the task at hand”. He submits that the Judge did not turn his mind to the correct legal test in respect of the five emails of 5 April 2015, and “it was impossible to meet the required threshold”.

[81]   Section 8(1) of the Act requires more than causing anger, annoyance or other emotional disturbance as there must be an intent proven to cause fear for someone’s safety. Mr Speed submits that the “charging of the five emails” of 5 April under different and lesser charges meant that the Police thought some of the “harassing” emails were categorised by the prosecution as annoying or offensive, short of the s 8(1) standard. He submits that the five emails contained no threats of violence or harm and were instead “rude”, to annoy or offend, to elicit a reaction. The appellant acknowledged that she wanted to annoy the complainant, but she did not know “what [her] reasoning was”, in sending the emails. She denied knowing that the complainant would fear for her safety. She denied intending to cause physical or mental harm. She acknowledged that she was trying to give [Mrs X] the impression that someone was “hired to send these messages”.

[82]   [Mrs X] referred to emails of 12 March, 1 April, 2 April, 3 April 2015 as in a range of “upsetting”, “rude”, “revolting and vile” and that she was “in a nightmare”, “constantly hassled” and “quite nervous”.  Mr Speed  submits that in  assessing   [Mrs X]’s evidence, the Judge fell into error because none of the emails referred to and sent before 5 April 2015, were within the particulars of the charge and that the Judge focused on the complainant’s reactions and therefore misdirected himself at law, as the focus is on the defendant’s intention in sending the messages.

[83]The Judge found that:15

The sustained nature of the contact, the deception involved and the crude, vile and offensive content of many of the communications paints a more accurate picture of Ms Kronfeld’s intent.

[84]He concluded:16

…The combination of my assessment of Ms Kronfeld’s evidence and of all of the evidence before the Court is to find the emails of 5 April 2015 and those sent between 1 March and 1 April 2015 are evidence of an intention to cause Mrs X to fear for her safety.

[85]   The intention of an alleged harasser is crucial to a prosecution for criminal harassment. In R v D, the Chief Justice emphasised the need to direct attention to the sequence of events and their context, rather than to the “concern” caused to the complainant.17 The required intent must be assessed at the time of the incidents relied on by the prosecution. In that case, the Court of hearing ruled as irrelevant evidence about the relationship between the complainant and the appellant, and the knowledge of the appellant about the complainant’s response to the sexually explicit material in her letters. That ruling prevented the appellant pursuing that line of cross-examination of the complainant, and was held in error. In this appeal that is not the case, and is really the reverse, as the Judge brought to account other emails for context, as part of the factual matrix.

[86]   Mr Bates emphasises that the sequence of events provides relevant context when looking at the emails of 5 April 2015, including the relationship between the

15 At [36].

16 At [40].

17     R v D [2000] 2 NZLR 641 (CA).

complainant and the appellant, and the intended effect of the communications were designed to elicit from the complainant.

[87]   Proof of a charge under s 8 of the Harassment Act was addressed by the Judge when he cited Mander J’s judgment. Although Mander J’s remarks were in the context of a search warrant application, I consider they are a lucid distillation of principle and I set them out in summary.18

[27]      … The application refers to the complainant having received some 148 nuisance calls, texts or emails, culminating in some 37 nuisance hang up calls and malicious texts on a single day. The inquiries with Telecom are reviewed and the information the telecommunications company was able to provide detailed. The complainant is referred to as becoming increasingly fragile in her mental state and is described as feeling powerless. The inquiry made of the complainant by the police as to why she believed this may be happening to her, is reported as her believing the person or persons responsible were associates of a female with whom her husband had an affair the previous year. The dates and nature of the texts are referred to as appearing to corroborate that belief.

[28]      A number of examples of the texts are provided in the application. These include, “rumours confirmed”, “move on”, “lying”, “told truth?”, “lies”, “deception”, “double life”. Of particular concern were the examples provided of “found your website lots of email addresses for me to have fun with”, “found your family facebook”, “my instructions are to find your children”, “making progress locating children”.

…

[30]      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 requires proof of a person’s intention that the harassment cause the other person to fear for their safety or that of their family. Alternatively, that the person knows the harassment is likely to cause the other person to reasonably fear for their or their family’s safety. There is no requirement for the person to actually hold such a fear. The focus is on the state of mind of the person alleged to have committed the offence.

[31]      While the impact of the communications on the complainant may be a relevant consideration as part of an assessment of all the circumstances when considering whether the police had reasonable grounds to suspect this was the sender’s intention or knowledge, as with all criminal charges the issue of mens rea depends upon drawing inferences from the actions of the suspect.

…

[34] … NR v District Court at Auckland was concerned with the general “catch-all” category within the definition of “specified acts” of harassment contained in the Harassment Act, which requires proof of some other action,

18     Kronfeld v Police [2016] NZHC 2272.

other than making contact by telephone or electronic communication, which must cause a person to fear for his or her safety. Proof of such an effect is not required where the specified act relied upon is making contact with the person, as in the present case.

[43]   … Ms Kronfeld relied upon a decision of this Court, Brown v Police, to submit that specified acts must not only be reasonably likely to cause a fear for the safety of the complainant or her family, but that there must also be evidence to show that was her intended result or that she knew of its likelihood.

…

[46]      In the present case it was clear from the information contained in the application the suspect knew the complainant had children and was intentionally setting out to identify them. It was reasonable to conclude from the communications the children were being targeted. In contrast to Brown, there were not two incidents of harassment separated by a three month hiatus but some 148 nuisance calls, texts and emails over a four month period. Several of these messages referred specifically to the complainant’s children.

[47]      There was therefore an available reasonable inference that Ms Kronfeld intended this harassment to cause the complainant to fear for her or her children’s safety. As already observed, a similar finding is available that Ms Kronfeld knew the harassment was likely to cause the complainant to reasonably fear such harm. At the very least there was a basis upon which that could be reasonably suspected.

[48]      Contrary to Ms Kronfeld’s submission, Judge Turner’s consideration of the cumulative threatening impact of Ms Kronfeld’s communication does not reduce the s 8(1) mental elements to “mere numbers” or render them void. The sheer volume and incessant nature of unwelcome communications and the persistence of sending the communications, notwithstanding Telecom have blocked several numbers and cancelled SIM cards, were all

validly part of the Court’s assessment of the inference of intention and/or knowledge on the part of the suspect.

(Footnotes omitted).

[88]   Mander J did not have the evidence before him as did the Judge at hearing. He was dealing with a challenge to a search warrant. However, I regard Mander J’s observations in his para [46] as going directly to the correct approach to proof of the intent and knowledge of Ms Kronfeld. As the Judge said, Ms Kronfeld knew [Mrs X] had children and was intentionally setting out to identify them, and the children were being targeted themselves, or for the purpose of harassing [Mrs X]. There were 148 nuisance calls, texts and emails over a three month period and several of these referred specifically to the children. Looking at the events of 5 April 2015 in this context takes

them far beyond “annoying” or “unsettling” behaviour. They represent a deliberate and persistent undermining of the complainant, striking her where she was most vulnerable by reference to her husband’s conduct with Ms Kronfeld and her interest in the complainant’s children.

[89]   The Judge brought all evidence to account before finding the emails of 5 April 2015, in the context of those sent between 31 March and 1 April 2015, were evidence of an intention to cause [Mrs X] to fear for her safety, which is not limited to physical harm. While the appellant said she did not intend to do more than annoy [Mrs X], it was for the Judge to infer what was intended, and that is what he did, finding these were “sustained, crude, vile and offensive” communications which went directly to their intended effect on 5 April 2015. While not considered a physical threat, in overall context they were messages from fictitious, unknown parties, with knowledge of the family, expressing hatred, and are sinister. They were insidious, and by 5 April 2015 were the culmination of a sustained barrage intended to distress [Mrs X] and to create fear for her own mental health and wellbeing and that of her family. They were a dripping tap which found expression in emails of 5 April 2015 for the purpose of charging. They were plainly intended to torment [Mrs X]. The Judge was right to conclude that these emails met the required standard of intended fear held by [Mrs X] for her mental safety. The Judge accurately and carefully applied the law to the facts, and this ground of appeal is dismissed.

D.        APPEAL - ACCESSING COMPUTER SYSTEM WITHOUT AUTHORISATION, CHARGE 6 (CRN15012002555), CHARGE 7 (CRN15012002556) AND CHARGE 8 (CRN15012002557)

[90]   The charges are set out in para [5] above. Section 252 of the Crimes Act 1961 provides:

252     Accessing computer system without authorisation

(1)Every one is liable to imprisonment for a term not exceeding 2 years who intentionally accesses, directly or indirectly, any computer system without authorisation, knowing that he or she is not authorised to access that computer system, or being reckless as to whether or not he or she is authorised to access that computer system.

(2)To avoid doubt, subsection (1) does not apply if a person who is authorised to access a computer system accesses that computer system

for a purpose other than the one for which that person was given access.

(3)[Repealed]

[91]Section 248 of the Act provides:

248     Interpretation

For the purposes of this section and sections 249 to 252,—

access, in relation to any computer system, means instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system

authorisation includes an authorisation conferred on a person by or under an enactment or a rule of law, or by an order of a court or judicial process

computer system—

(a)means—

(i)a computer; or

(ii)2 or more interconnected computers; or

(iii)any communication links between computers or to remote terminals or another device; or

(iv)2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device; and

(b)includes any part of the items described in paragraph (a) and all related input, output, processing, storage, software, or communication facilities, and stored data.

[92]   It must be proved that a defendant is not authorised to access the relevant system. Mr Speed submits the offence is concerned with “hacking” as that is commonly understood, but that description has no settled meaning in law. It is not a necessary ingredient of the charge. The question of authority, whether express or implied, is central to the offence because if there was authority or any doubt that a defendant was reckless as to his or her authority to access a computer system, there is no offence. The offence is one of accessing “without authorisation” knowing that he or she is not authorised to access, or being reckless as to their authority to access.

[93]   The appellant said that she had been supplied with a password to the relevant email address, given to her by the complainant’s partner. The Judge inferred that whoever had access to the accounts had used a password. The appellant had been given the password to access [Mr X]’s iTunes account in 2011. He also agreed to use the email address to communicate with the appellant, and said he had changed it so that his wife could not use it. The Judge referred to the evidence of the appellant that the only basis for thinking she had the right and ability to access the email account in January 2015 was that she had been given the password in 2011, but that was for an entirely different purpose, to access [Mrs X]’s iTunes account. Mr Speed submits the Judge erred in law by not considering all evidence of authorisation.

[94]   Mr Bates’ submission is that the only question before the Court is whether the appellant had authority to access the computer systems at the address she had been given in 2011, and the school portal. [Mr X] denied he provided her with the password to access his personal email account. He said he had changed it in 2014 and had not given the new password to her, but she may have seen him use it, to access an iTunes account, and gave evidence of an occasion when she sat in the car beside him and grabbed his phone and asked for the password. She was trying to access the account for him. He did not know the passwords to his children’s school portals, and they were not provided to the appellant.

[95]   Mr Bates refers to findings of credibility, and in particular paras [35] and [36] of the judgment:

[35]I do not accept Ms Kronfeld’s evidence. I found her evidence to be neither credible nor reliable in many respects. Ms Kronfeld appeared to regard some questioning by Mr Sluis as something of a contest. Despite accepting that she sent multiple emails over months, she did not accept it was persistent. Despite repeatedly saying she was not in a rational state of mind and not her normal self, Ms Kronfeld provided no explanation of that. There was no evidence before the Court of any medical or psychological issues. Making due allowance for the effect of giving evidence, I considered Ms Kronfeld to be, at times, evasive. As a witness she lacked candour and I did not have an impression of her wanting to assist the Court.

[36]Her evidence was also inconsistent with evidence that is not in dispute. I found some explanations to be glib and self-serving, for example, “have you seen the size of me”. Her brief explanation of not being rational or her normal self does not equate with the overall inference and impact of the evidence which is that this was a

premediated campaign, involving some sophistication and deception, aimed directly at Mrs X over a sustained period of time. The sustained nature of the contact, the deception involved and the crude, vile and offensive content of many of the communications paints a more accurate picture of Ms Kronfeld’s intent.

[96]   The Judge expressly rejected the appellant’s evidence about having been provided with a password for the account. The Judge also accepted that he had not provided the code to the school portal account.

Discussion

[97]   I accept Mr Bates’ submission that after evidential enquiry, the Judge was fully entitled to reach the conclusions which he did.

[98]   Just because Ms Kronfeld had  been  told  the  password  to  access  his  Apple iTunes account that did not constitute express or implied authority in order to access any other account, or access that account when any authority was spent.

[99]   Mr Speed attempted to argue that there needs to be some sort of active break or cessation in the authority, but I do not accept that proposition. The prosecution must prove that the access alleged was unauthorised, and that may be because it was forbidden, or factual circumstances had changed so that what was authorised access, had become unauthorised. This ground of appeal was advanced with less enthusiasm by Mr Speed. That was appropriate, as the appellant had no authority to access any of the email accounts, and the factual findings were well open to the Judge.

E.        DISPOSITION

[100]   The appeal against the conviction for criminal harassment is allowed and the conviction set aside. The appeal is dismissed in all other respects. Ms Kronfeld will be sentenced in the context of this judgment and on the appeal against sentence, in respect of charges 1, 4, 6, 7 and 8.

[101]   The appeal against conviction on the charge of criminal harassment has succeeded on what is a technicality. The appeal was argued fully and precisely as to duplicity and the trial Judge did not have the same opportunity to address the issue. It

took more than one hearing to identify all relevant considerations, and fully address them. Were it not for the technical approach to “withdrawal” of charges, the conviction would have been secure, as the Judge’s reasoning and consideration of the facts was faultless.

[102]   This judgment is thus the result of the way the charge was laid and the prosecution was conducted. The Judge made observations critical of the charging in this case, as have I. Quite properly, by his Ruling (No 2),19 he restricted the prosecution case to the five emails of 5 April 2015 and this has proved to the advantage of the appellant. There were many other emails which could have founded the charge of criminal harassment. Ms Kronfeld’s conduct overall, reflected in the charges on which she has been found guilty and the appeal dismissed, and to which she pleaded guilty, remains to be readdressed at the sentencing appeal. A telephone conference with counsel will be arranged by the Registrar for this purpose.

……………………………………………….

Nicholas Davidson J

Solicitors:

R P Bates, RPB Law, Dunedin / A G Speed, Barrister, Auckland

19     Police v Kronfeld, above n 7.