M v Police HC Masterton CRI-2006-435-7

[2006] NZHC 1187

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CRI-2006-435-7

BETWEEN  M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         3 October 2006 (at Wellington) Appearances: K M Daniels for Appellant

D La Hood for Respondent

Judgment:      6 October 2006

In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 2.15pm on the 6th day of October 2006.

RESERVED JUDGMENT OF GENDALL J

[1]      This  is  an  appeal  against  a  conviction  entered  in  the  District  Court  at Masterton on 1 August 2006 of an offence against s19(1) of the Domestic Violence Act 1995.  The information alleged that the appellant engaged in behaviour which amounted to psychological abuse of a protected person, Mrs HW whilst the appellant was subject to the protection order.   After a defended hearing the appellant was convicted and ordered to come up for sentence within 12 months.

Background facts

[2]      The appellant had been in a relationship with Ms HW from about December

2002 which ended some time in early 2006 with the complainant’s evidence being that  she  had  tried  to  leave  the  relationship  for  some  years  but  final  separation

M V NEW ZEALAND POLICE HC MAS CRI-2006-435-7  6 October 2006

occurred it seems some time in 2003.  The complainant obtained a protection order on 29 August 2003.  Her evidence was that, despite that, she had many letters and cards from the appellant, being what she described as a “continuous pattern of his obsession” for her.  There appears to have been an assault by the appellant upon the complainant in May or June 2005 for which he was sentenced on 6 April 2006 to imprisonment.

[3]      On  2  May  2006  the  complainant  received  a  letter  in  the  mail  with  the Post Office mark showing that it had come from Rimutaka Prison.  Her evidence was that she was distraught or concerned enough to take it to the police.  The envelope was opened and the complainant was able to observe that the letter was from the appellant and although she did not see the entire contents she was “terrified, distraught”.  She was taken by the police to a refuge to receive help and guidance. Her evidence was that when she received the letter and saw the prison mark she knew that it had come from the appellant, because she had received other letters from him.   She was scared about what the letter might contain as it was “just a continuous pattern of his obsession for me”.

[4]      The    letter    itself    contained    an    elaborately    scripted    card    stating “Happy Birthday”, plus four pieces of writing some in poetry, some introspective, ending  with  “The  tall  man  behind  the  mask  was  no  stranger.    It  was  me!!!” “By Richard M  ” “The Riksta”.  There was no dispute that the appellant created and sent the documents and, of them, the Judge said this:

“…I indicate to the defendant that whilst the poems themselves may have contained terms of endearment or expressions of feelings and emotions on the part of the defendant, the headlines themselves are worth reference.  The first poem is headlined, ‘My love for You!!’, with two exclamation marks, and underlined in red pen;   the next poem is ‘My Only Wish!’, with one exclamation mark;   the third is ‘My Entity!’, with one exclamation mark; and the card itself is a distinctive document.”

[5]      The appellant did not give evidence.   When interviewed by the police he admitted sending the material;  he knew that a protection order applied in relation to him, and he claimed that he was responding to a poem that he had read which was written by the complainant.  It seems that at the time the appellant was sentenced for his assault upon the complainant a poem that she had written (but not to him), came

into his possession together with the victim impact report.   The appellant in his statement to the police said:

“I made a stupid mistake.  I shouldn’t have done it.”

The District Court Judge’s decision

[6]      The Judge outlined the essential facts and referred to the submissions of counsel that the behaviour did not constitute psychological abuse, and that even if the material and the posting of it should have constituted such abuse then the appellant had committed an attempted offence because the complainant did not open the letter herself but delivered it to the police.  The Judge said:

“People who are entitled to the protection that is afforded under this legislation, when a protection order is in their favour, are usually, and often, in a very vulnerable state.   It is that vulnerability and stressful situation which is the background to the offence provisions in the domestic violence legislation.”

[7]      In finding the charge proved, the Judge said that in the absence of any other explanation from the appellant he was obliged to draw, with some circumspection, certain conclusions and reached the conclusion that the preparation and posting of the material containing the card and the headlined items amounted to psychological abuse of the complainant.

Counsel’s submissions on appeal

[8]      In summary, Mr Daniels contended that the contents of the material sent by the  appellant  to  the  complainant  did  not  comprise  psychological  abuse.     He submitted that the offence could not have taken place unless the letter had been opened by the complainant, so that the contents, said by him to be “the abuse”, had been communicated to her.   He contended that mere preparation and posting of a document  could  not  in  itself  amount  to  actual  psychological  abuse  of  the complainant.  He further submitted (although did not strongly press this argument), that no offence had been committed on 1 May 2006 because that was the date of mailing of the letter which was not, on the evidence, when it was received by the complainant on 2 May 2006.

[9]      Mr Daniels submitted that the Judge found that the appellant had a “non- aggressive state of mind” and thus he should have dismissed the information.  That submission was based upon a remark the Judge made in the sentencing context when, in speaking to the appellant, he said:

“….it is crucial for you to understand that from the complainant’s point of view, the relationship, in all respects, is over, and you must respect that. Whilst you may have had some benevolent reasons for sending the poems and the birthday card, it is clearly in breach of the protection order, and that order is a document and an order, which means that there may be no contact, in any shape or form….”

[10]     The essence of counsel’s submission was that there had to be an intention to psychologically abuse before there could be a conviction.

Statutory provision

[11]     Section 19 of the Domestic Violence Act 1995 provides:

“19      Standard conditions of protection order –

(1)It is a condition of every protection order that the respondent must not—

(a)      Physically or sexually abuse the protected person;  or

(b)Threaten  to  physically  or  sexually  abuse  the  protected person;  or

(c)Damage, or threaten to damage, property of the protected person;  or

(d)Engage, or threaten to engage, in other behaviour, including intimidation or harassment, which amounts to psychological abuse of the protected person; or

(e)Encourage  any  person  to  engage  in  behaviour  against  a protected person, where the behaviour, if engaged in by the respondent, would be prohibited by the order.

(2)Without  limiting  subsection  (1)  of  this  section,  but  subject  to section 20 of this Act, it is a condition of every protection order that at any time other than when the protected person and the respondent are, with the express consent of the protected person, living in the same dwellinghouse, the respondent must not,—

(a)      …. (b)     ….

(c)      …. (d)     ….

(e)       Make any other contact with the protected person (whether by telephone,  correspondence,  or  otherwise),  except  such contact—

(i)       As is reasonably necessary in any emergency;  or

(ii)      As   is   permitted   under   any   order   or   written agreement relating….; or

(iii)     As is permitted under any special condition of the protection order;  or

(iv)     As  is  necessary  for  the  purposes  of  attending  a

‘family group conference’….

[12]     The  meaning  of  “domestic  violence”  in  s3(2)  is  widely  described  and includes the following:

“(c)     Psychological abuse, including, but not limited to,— (i)     Intimidation:

(ii)      Harassment:

(iii)     Damage to property:

(iv)      Threats of physical abuse, sexual abuse, or psychological abuse:

(v)       In  relation  to  a  child,  abuse  of  the  kind  set  out  in subsection (3) of this section.”

[13]     Section 3(4) provides that without limiting subsection (2):

“(a)      A  single  act  may  amount  to  abuse  for  the  purposes  of  that subsection:

(b)A number of acts that form part of  a pattern  of  behaviour  may amount to abuse for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.”

[14]     Section 3(5) provides:

“Behaviour may be psychological abuse for the purposes of subsection (2)(c) of this section which does not involve actual or threatened physical or sexual abuse.”

Discussion

[15]     Psychological abuse may take an infinite variety of forms.   Obviously it requires some behaviour on the part of the perpetrator directed ultimately at another. Whether or not such behaviour amounts to psychological abuse is a question of fact. It is to be determined in the context of all the surrounding circumstances, historical as  well  as  proximate  or  present,  as  they  relate  to  the  abuser  and  victim. Psychological abuse typically plays on a victim’s mind and emotions, and often does not  involve  physical  contact;     C  v  C  FC NEL  FP042/37/97  25  May  1997

Judge Grace.  In G v C (1997) 16 FRNZ 201 at 208 Judge Walsh said:

“While it is impossible to define psychological abuse absolutely I think it can be said that there are some characteristics of behaviour that are peculiar to psychological abuse such as:

•Behaviour  which  chips  at  a  person's  confidence  or  is designed to ‘put a person down’ or humiliate that person.

•Abuse of power, which by degrees makes another person apprehensive and unsettled.

•Exploiting an emotional or  psychological  vulnerability of another party.

•Indulging  in  behaviour  designed  to  unsettle,  antagonise, offend, annoy, provoke or worry another party.

•        Implicit or explicit threats.

Those characteristics are by no means exhaustive.”

[16]     A  single  definition  cannot  be  reliably  provided  to  describe  the  type  of behaviour required, which is so widely varied and can take almost infinite variety of forms.  I accept and respectfully refer to the remarks of Miller J in M v M (2005) 7

HRNZ 971, at [21]:

“I accept that in many – perhaps most – cases, psychological abuse will involve an attempt to establish or exploit a relationship characterised by control over the protected person.  However, the legislature has not defined the term in that way.   It is doubtful whether any single definition could encapsulate   all   forms   of   behaviour   affecting   the   protected   person’s emotional  or  mental  state,  still  less  the  circumstances  in  which  such behaviour will amount to abuse.”

[17]     In terms of the section, a single act clearly may amount to psychological abuse.  It will depend on the nature of the behaviour, its effect upon the victim and (usually but not necessarily) its purpose.   There may be cases where genuine, but wrong headed beliefs or motives on the part of a person (for example, in seeking to create or resurrect a relationship) can amount to psychological abuse depending on all the circumstances.   Indirect behaviour may constitute domestic violence in the nature of psychological abuse;  for example Blackwell v Blackwell (1998) 17 FRNZ

584;  C v H DC WANG FP083/258/99 5 April 2000 Judge Walsh.

[18]     The Judge found as a matter of fact that in the context of the relationship and historical events affecting the victim and the appellant, the behaviour in writing the poems whilst in prison and mailing them to the former partner, was behaviour which amounted to psychological abuse.  Context, as always, is critical.  Whilst the letter writing was a single act it had to be viewed as against the background.  The evidence was that the appellant had previously assaulted the victim, was serving a prison sentence for such crime, and had written to her on previous occasions in what she described was “a continuous pattern of his obsession for me”, and she had obtained a protection order.  I do not accept that it was necessary for the victim to have opened and read the contents of the communication before the appellant could be convicted of the offence.  It is his behaviour which is the subject of the section.  If it amounts to psychological abuse then he commits an offence.  Of course, he had to do more than simply write the poem, but he did that.   He mailed it to the complainant intending that she receive it.  He said he knew that he should not have done so.  She received the envelope and correctly assumed it had come from him because of the past events.  That was the very reason she took it to the police.  In any event, there was evidence that she became emotionally upset and distressed upon seeing some of the contents of it.

[19]     Just as there can be psychological abuse arising from the behaviour where nothing is said (for example, telephone calls in which nothing is said but the abuser hangs up), so too, there can be abuse where a victim is traumatised through other types of behaviour designed to breach a protection order.  After all, it is the existence of the protection order which is meant to provide a safe haven (physical and psychological) for the victim and if there is some form of behaviour which amounts

to psychological abuse infringing the protection order, then the offence occurs.  I do not accept the submission of Mr Daniels that because (as he put it) the abuse had to be  communicated  to  the  victim  no  psychological  abuse  took  place.    It  is  the behaviour of the appellant that is in question, and if that behaviour was psychologically abusive as a matter of fact in the context of the protection order this complainant had against this appellant then that was sufficient.

[20]     Likewise, I do not accept the submission that the Judge erred in concluding that  the  contents  of  the  communication  were  psychologically  abusive.     The behaviour in sending the communication together with its contents was capable of amounting to psychological abuse in the context that there existed a protection order that prevented such contact.   It had to be kept in mind that, in the context of an alleged offence against s19(1), a protection order has already been made.   A protection order has already been made pursuant to s14 so it is implicit  that  a respondent has used domestic violence against the applicant and the making of the order was necessary for his/her protection.   It was open to the Judge to find as a matter of fact that the contents were such, as to cause distress, anxiety and alarm, to this complainant given that she had a protection order.

[21]     The issue as to the date on which the offence occurred can be disposed of shortly.   The behaviour occurred on 1 May 2006 when the appellant mailed the communication.  That was when he engaged in the prohibited behaviour.  Through the logical progression of the delivery of the letter it amounted to psychological abuse.  The effects of his behaviour may have occurred on 2 May and perhaps the information might have said “Between 1-2 May 2006” but the conviction is not suspect by reason of any incorrect date in the information.

[22]   Finally, I do not accept that there has to be a specific “intention” to psychologically abuse before there could be a conviction as Mr Daniels contended; see, for example, A v B (1998) FRNZ 330, [1998] NZFLR 783.  There has to be an intention to act deliberately in a way that breaches the protection order being behaviour which, viewed  objectively,  amounts  to  psychological  abuse.    But  the offender does not necessarily have to have a motive, or alternatively the state of mind  intending  to  abuse.    As  I  have  said,  the  prohibited  behaviour  may  be

undertaken with a genuine belief that no harm is done and with misguided good intentions, but nevertheless, because of the context in which it occurs (bearing in mind that there must always exist a protection order), amounts to psychological abuse.  It is the behaviour of the offender, and its effect upon the protected person that is important, given that he/she is already subject to a protection order.

[23]     The Judge did not err in his factual conclusions and the remarks that he made that the appellant “may have had some benevolent reasons” for sending the communications were made in the context of referring to a mitigating circumstance when dealing with sentence which no doubt persuaded the Judge to convict the appellant and order him to come up for sentence if called upon within 12 months.

[24]     The appeal is dismissed.

…………………………….

J W Gendall J

Solicitors:

Ken Daniels, Masterton for Appellant

Crown Solicitor, Wellington for Respondent