Lawson v Police - [2013] NZHC 3230

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-443-000031 [2013] NZHC 3230

BETWEEN SONJA MAREE LAWSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 3 December 2013

Counsel: Appellant in person, Mr Gary Coxhead as MacKenzie Friend
SA Law for Crown

Judgment: 3 December 2013

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors: Crown Solicitor, New Plymouth

LAWSON v POLICE [2013] NZHC 3230 [3 December 2013]

Introduction

[1] After a hearing in the District Court at Hawera before Judge GF Ellis on

5 September 2013, Ms Lawson was convicted of two charges of using a telephone for the purpose of disturbing the complainants. She was convicted and ordered to come up for sentence if called upon within twelve months. She appeals against her conviction

Background

[2] The charges arose out of a series of text messages sent to Max Brooking and Roger Wells between 13 and 19 April 2013. Mr Brooking and Mr Wells are employees of Work and Income New Zealand. The text messages were abusive and high defamatory. They were peppered with expletives and obscenities and, among other things, made allegations against the recipients that they were sexual predators and perverts.

[3] The charges were brought under s 112(2)(a) of the Telecommunications Act

2011 which provides:

(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.

[4] The elements of an offence under s 112(2)(a) are well established. A number of judgments have followed the analysis of Fisher J in Spooner v Police1 who said that in order to establish a breach of the section, proof is required:

(a) of the use of a telephone device;

(b) for the purpose of disturbing, annoying or irritating any person;

1 Spooner v Police (1992) 8 CRNZ 666 (HC) at 7.

(c) that the device was used by means of either calling up without speech or by wantonly or maliciously transmitting communications or sounds; and

(d) that the device was used with the intention of offending the recipient.2

Judge’s decision

[5] In his decision Judge Ellis had no difficulty inferring from the terms of the text messages themselves and the fact that some were sent in the middle of the night, an intention to disturb and offend the recipient. He said3 a string of such messages is likely to disturb their sleep and if those messages are larded with profanities and containing implicit and explicit threats, then he had no difficulty in finding that they were sent for the deliberate purpose of disturbing the recipient.

[6] Judge Ellis was similarly satisfied that the communications were transmitted maliciously. Indeed, he said that Ms Lawson had made it clear in her evidence that she disliked both men; she bore them ill-will; her feelings were, as he put it, “hateful, spiteful, vengeful…

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.

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Details

Case: [2013] NZHC 3230
Decision Date: 3 December 2013

CaseChat Overview and Summary

Sonja Maree Lawson appealed against her conviction in the District Court at Hawera, which found her guilty of two charges of using a telephone for the purpose of disturbing the complainants, Max Brooking and Roger Wells. The charges stemmed from a series of abusive and defamatory text messages sent between 13 and 19 April 2013. The legal issues before the court were whether the text messages constituted a breach of s 112(2)(a) of the Telecommunications Act 2011, which requires proof of the use of a telephone device for the purpose of disturbing, annoying or irritating any person, and that the device was used with the intention of offending the recipient.

Judge Rodney Hansen found that the text messages were abusive, high defamatory, peppered with expletives and obscenities, and made allegations against the recipients that they were sexual predators and perverts. The judge was satisfied that the communications were transmitted maliciously and that there was the requisite intention to offend the recipients. He concluded that Ms Lawson had made it clear in her evidence that she disliked both men, bore them ill-will, and her feelings were "hateful, spiteful, vengeful, and driven by ill-feeling". The judge rejected Ms Lawson's claim that she did not intend to disturb or offend the recipients, stating that she was motivated by intense feelings of hostility towards them. The appeal was dismissed, and Ms Lawson's conviction stood.

Orders