Lawson v Police
[2013] NZHC 3230
•3 December 2013
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 and driven by ill-feeling”.
[7] He proceeded then to consider whether there was the requisite intention to offend the recipients. As was said by Miller J in McLachlan v Police,4 this additional mental requirement focuses on the recipient rather than anyone who might be offended in some incidental or derivative way.
[8] Ms Lawson had said in evidence that she did not intend to disturb or offend the recipients. Judge Ellis responded to her evidence in the following passage of his judgment:5
... I have to tell, having listened to you, having heard your sense of pain and hurt, I do not believe you. I believe in fact that you are motivated by very intense feelings of hostility towards those gentlemen. I believe you knew
2 See also: McLachlan v Police HC Auckland CRI-2010-404-106, 29 June 2010; Kazakos v Police
HC Christchurch CRI-2009-409-130, 11 November 2009 and Lawson v Police [2013] NZHC
3139.
3 Lawson v Police, above n 2 at [3].
4 McLachlan v Police HC Auckland CRI-2010-404-106, 29 June 2010 at [8](d).
5 Lawson v Police, above n 2 at [13].
exactly what you were doing and that when you sent those messages you wanted to vent your anger and feelings of ill will towards them, that you were in that sense malicious, that you wanted to grab their attention in the most forceful way you could and using the most forceful and offensive language that you could and in that way it was your purpose that they be disturbed, that they be roused, that they be fully aware of the strength of your feelings and the whole object of that was that you would convey to them your feelings of loathing, of distaste, of absolute contempt. You wanted them to feel that. You wanted them to be offended and so I find all of the elements of these offences established beyond any reasonable doubt.
The appeal
[9] Ms Lawson has presented her submissions with courage and dignity, having regard to the very recent death of her father. She has tendered a large volume of documents in an attempt to shed light on her dealings with the authorities – the Taranaki District Health Board and the New Zealand Police as well as Work and Income New Zealand – which, as she sees it, have led to her being maliciously persecuted. She plainly has a deeply held conviction that she has been unfairly treated and that the prosecution against her was a further attempt to discredit her.
[10] Ms Lawson endeavoured to put information of the same general nature before Judge Ellis. She wanted to disclose that there had been a previous prosecution for misusing a telephone and also sought, through her lawyer, to introduce documents intended to provide background and context to the proceeding. Judge Ellis declined to receive evidence of the earlier prosecution and of the background documents. Ms Lawson’s counsel was unable to satisfy the Court that the documents had the requisite degree of relevance to the charges.
[11] Ms Lawson has criticised the way in which her counsel conducted the case in failing to secure the admission of this additional material. But a reading of the transcript makes it clear that he did his professional best to give effect to his client’s instructions. He cannot be criticised for failing to achieve that objective.
[12] Ms Lawson also raises a further concern in relation to the complainant, Mr Brooking. She has submitted that Mr Brooking, who gave evidence for the prosecution, was not the person who came to her address and conducted himself in a way which, as she thought, provided her with the justification to send text messages
accusing him of being, among other things, a peeping Tom. However, it is clear that her concerns in this regard were fully ventilated in the course of the hearing and the Judge would have been well aware of Ms Lawson’s reservation about his identity.
[13] In order to succeed on the appeal, Ms Lawson has had to show that the Judge was not entitled to draw the necessary inferences as to her state of mind at the time that she sent the texts. The text messages speak for themselves. In tone and content and in the circumstances in which they were sent they provide ample grounds for the Judge to make findings that they were intended to disturb, were sent maliciously and that there was present the requisite intention to offend. He had a full opportunity to assess the credibility of Ms Lawson. It may well be that she was (and remains) sincere in her belief the epithets she employed were justified. But the Judge was entitled to conclude that she was motivated by intense feelings of hostility and made a deliberate decision to vent her anger and ill-will towards the complainants by using extreme, intemperate and defamatory language in the text messages.
Result
[14] Despite her comprehensive and careful submissions, Ms Lawson has been unable to show that the Judge erred in reaching his decision. The appeal must accordingly fail.