M v Police HC Auckland CRI 2010-404-106
[2010] NZHC 1093
•29 June 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2010-404-106
M
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 29 June 2010
Appearances: Appellant in person
N Speir for Respondent
Judgment: 29 June 2010
ORAL JUDGMENT OF MILLER J
[1] The appellant, Mr M , adheres to the belief that certain retail vendors in the hydroponic plant growing industry practise the distribution of poisonous plant food or chemicals. He also believes that those who sell or condone the sale of poisonous plant food are sodomites, and that all sodomites have direct passage to hell. That, he says, is the Lord’s verdict.
[2] He chose to share his views by fax with three men; Neville Stocker, Royce Everett and George Hawkins. Mr Stocker manages a company involved in the distribution of plant food. Mr Everett is a director of a company involved in the
manufacture of halogen lamps, which can be used for growing plants
M V NEW ZEALAND POLICE HC AK CRI 2010-404-106 29 June 2010
hydroponically. And as a Member of Parliament Mr Hawkins was able to promote action against the hydroponics industry.
[3] To each of these complainants Mr M sent faxes alleging that hellfire and damnation would fall upon them for selling poisonous plant food or assisting those who do so. He made what the Judge found were threats of death and destruction. For example, a fax he sent on 29 September 2009 to Mr Hawkins stated:
Dear Sodomite your life “was” numbered in years, then months, and now only days! It was 11 months ago that the good book was thrown at you....
And the Lord said unto Hawkin’s behold thy days approach that thou must die!
[4] To Mr Everett he sent a fax stating:
you should get your whole family selling poisonous plant food, so you can all be together in hell ….
Let death seize upon them [the sodomites] and let them go down quick into hell for wickedness is in them and among them.
[5] To Mr Stocker he sent a fax stating:
And if a man has committed sins worthy of death then put him to death.
[6] Understandably, the complainants found the faxes deeply disturbing.
[7] Mr M was charged with three offences under s 112(2)(a) of the
Telecommunications Act 2001, one for each complainant. The subsection provides:
112 Misuse of telephone device
(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.
[8] The offence is an unusual one. The leading authority remains Spooner v
Police.[1] The elements are as follows:
[1] Spooner v Police (1992) 8 CRNZ 666 at 671; Kazakos v Police HC Christchurch CRI 2009-409-130, 11 November 2009 at [5]; Gordon v Police
(a) Use of a telephone device. That Mr McLachlin used a telephone by sending faxes is not in dispute.
(b) The telephone must be used for the purpose of disturbing, annoying, or irritating any person. Purpose in this context is simply the reason for which anything is done.
(c) The telephone must be used by calling up without speech or by wantonly or maliciously transmitting communications or sounds. The legislation appears to distinguish between a caller who telephones without making any noise and a caller who emits some kind of sound or communication. This element of the offence emphasises that serious culpability is required; trifling remarks are excluded.
(d) The use must be done with the intention of offending the recipient; this added mental requirement focuses the offence on the recipient rather than anyone who might be offended in some incidental or derivative way.
[9] As Fisher J held in Spooner, by taking telephone service a person impliedly licenses others to call, and the legislation prohibits use of a telephone to do so only in circumstances where everyone ought to realise that the subscriber would not have intended or agreed to such use.[2] The offence excludes annoying and irritating calls where they were not made to disturb, annoy or irritate and with the intention of offending the recipient.[3] I add that it also excludes calls or faxes that were not made wantonly or maliciously. As thus interpreted, the legislation must be taken to be a reasonable restriction on any caller’s freedom of expression.
[2] Spoon v Police (1992) 8 CRNZ 670.
[3] Kazakos v Police HC Christchurch CRI 2009-409-130, 11 November 2009 at paragraph [10].
[10] The District Court Judge held that each of the complainants was threatened with hellfire and brimstone. Further, a sodomite is now understood as a person who
practices or commits sodomy, rather than the ancient meaning of someone who is struck down for their sins and takes a direct passage to hell. He found that Mr M knew the word sodomite was offensive, and sent the faxes because no one was listening to his concerns about the hydroponics industry.
[11] The Judge concluded:
(a)That you intended to distribute material that would be disturbing and annoying and irritating to the complainants.
(b)That you did so wantonly, that is maliciously, with a view to causing offence to each of the recipients in order to promote your purpose and you continued to transmit this type of material despite requests to cease, even in one case a request from a member of the police.
(c) That the transmitted material was offensive to the recipients, that is, it was disturbing, annoying or irritating, they expressed concern and they requested that you cease the activity.
(d)They sought, quite separately from each other as a last resort, police action.
[12] It will be seen that only the first two of these findings address the elements of the offence directly but the Judge found that all of the disputed elements were established.
[13] Mr M argued today on appeal that he merely conveyed the Lord’s verdict on selling poisonous plant food. He did so because he had been unsuccessful over a number of years in having the practice stopped. He has sworn an oath that sodomites shall not ply their trade and if the complainants were upset by the faxes, it was a “verdict of guilt”.
[14] However, that account is entirely consistent with a malicious or wanton purpose of offending the recipients. And indeed Mr M frankly accepted that he intended by that stage to offend them since they had failed to respond to his concerns. His position rather is that his conduct is justified because the chemicals sold by such vendors do not work. He explained that his concern is not with the commercial hydroponics industry but with certain sellers of products at retail level.
[15] I am satisfied that the evidence supported the Judge’s conclusions. The Judge recognised that Mr M was concerned about the hydroponics industry, but nonetheless his conclusion that Mr M intended immediately to offend the recipients was well-founded. The content of the faxes plainly warrants that inference; the complainants were by implication characterised as sodomites which understandably would be offensive in a modern context, and threatened with death and damnation.
[16] The appeal is dismissed.
Miller J
Solicitors:
Crown Solicitor’s Office, Auckland
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