R v Parsons

[2018] NZHC 1385

NOTE: ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-044-004690

[2018] NZHC 1385

BETWEEN

THE QUEEN

Applicant

AND

EVAN MALOUF PARSONS

Respondent

Hearing:	31 May 2018
Appearances:	J Murdoch and S T L Teppett for Crown P H H Tomlinson for Respondent
Judgment:	12 June 2018

JUDGMENT OF COURTNEY J

R v PARSONS [2018] NZHC 1385 [12 June 2018]

Introduction

[1]    It is a fundamental right that persons charged with an offence may examine prosecution witnesses, including by knowing their identity.1 Witness anonymity orders, which are permitted under s 112(4) of the Evidence Act 2006 are an exception to this right and justified only in the limited circumstances provided by s 112(4). The central issue in this case is whether the threshold criteria in s 112(4)(a), that “the safety of the witness or of any other person is likely to be endangered” if the witness’s identity is disclosed, is limited to physical safety or whether it should be interpreted more widely to take into account psychological safety.

[2]    Evan Parsons is a United States citizen who is facing one charge of criminal harassment.2 The charge is based on Mr Parsons’ online communications with and attempts (with varying success) to physically locate and speak to the complainant. Mr Parsons is liable for deportation either at the conclusion of his trial (if acquitted) or at the completion of his sentence (if convicted). Nevertheless, the complainant is fearful of ongoing harassment online. The Crown has applied for witness anonymity orders in respect of her and her boyfriend.

[3]    Mr Parsons opposes the application. He says, first, that the statutory threshold is not met because there is no risk to the complainant’s physical safety and secondly, if the order is made his trial will be moved to this Court, with a consequent delay of some months. This would be to Mr Parsons’ detriment because he is a United States citizen who has no social support network in New Zealand.

The scope of a witness anonymity order

[4]Section 112 relevantly provides that:

…

(4)The Judge may make a witness anonymity order if satisfied that –

(a)the safety of the witness or of any other person is likely to be endangered, or there is likely to be serious damage to property, if the witness’s identity is disclosed; and

(b)either –

1      New Zealand Bill of Rights Act 1990, s 25(f).

2      Pursuant to s 8(1)(b) of the Harassment Act 1997.

(i)there is no reason to believe that the witness has a motive or tendency to be dishonest, having regard (where applicable) to the witness’s previous convictions or the witness’s relationship with the defendant or any associates of the defendant; or

(ii)the witness’s credibility can be tested properly without disclosure of the witness’s identity; and

(c)the making of the order would not deprive the defendant of a fair trial.

(5)Without limiting subsection (4), in considering the application, the Judge must have regard to –

(a)the general right of a defendant to know the identity of witnesses; and

(b)the principle that witness anonymity orders are justified only in exceptional circumstances; and

(c)the gravity of the offence; and

(d)the importance of the witness’s evidence to the case of the party who wishes to call the witness; and

(e)whether it is practical for the witness to be protected by any means other than an anonymity order; and

(f)whether there is other evidence that corroborates the witness’s evidence.

[5]    The development of the law leading to s 112 began with R v Hughes, in which a majority of the Court of Appeal held that undercover police officers were required to give their real names in court, even though doing so could expose them to retaliation.3 Section 13A of the Evidence Act 1908 was enacted in response to R v Hughes and allowed undercover officers to give evidence anonymously.

[6]    The issue of witness anonymity subsequently arose in relation to gang-related trials in which witnesses feared retaliation from the defendant or his associates. In R v Hines, the Court of Appeal, by majority, declined to depart from the limited application of R v Hughes, considering that it was inappropriate to develop a new common law rule allowing courts to grant anonymity to witnesses generally.4 Parliament responded promptly to R v Hines with the Evidence (Witness Anonymity) Amendment Act 1997, which inserted new sections, 13B – 13J, in to the Evidence Act

3      R v Hughes [1986] 2 NZLR 129 (CA) at 148 and 155.

4      R v Hines [1997] 3 NZLR 529 (ca) AT 550 AND 588.

1908. The threshold in s 112(4)(a) is in substantially the same wording as that in s 13B(4)(a). The purpose of witness anonymity orders was described by the Court of Appeal in R v Atkins:5

It followed a report from the Law Commission, and as the parliamentary debates disclose, it was enacted to counter problems in the prosecution of serious crime arising when potential witnesses have real grounds to fear for their safety or property if they gave evidence in a trial situation. It was therefore designed to give the Courts additional powers to prevent disclosure of identity of witnesses properly requiring that protection but, as would be expected where possible disadvantages to accused persons resulting from alterations to established trial processes are involved, subject to appropriate prerequisites being met and ensuring that specified factors are taken into account.

[7]    The nature of the apprehended harm required for a witness anonymity order was considered by the Law Commission prior to the introduction of s 13B. Initially, it recommended that the fear of the witness should relate to the risk of “serious personal harm (serious physical harm to a person)”.6 Responses to the Law Commission’s discussion paper raised the difficulty of interpreting the word “personal”. The Law Commission amended its recommendation to encompass exposure to the risk of “serious harm”.7

[8]    As ultimately enacted, however, the criterion was changed to the “safety of the witness”. … is likely to be endangered”. This wording was lifted, largely unchanged, from s 13B of the Evidence Act 1908 and used in s 112 of the Evidence Act 2006. Certainly in 1997, when s 13A was enacted, physical safety was undoubtedly at the forefront of judicial and legislative concern. But since then there has been a greater appreciation of the devastating consequences that online harassment can have and the psychological harm that can result from publicising the identity of a complainant or witness. The provisions relating to the suppression of a witness’ identity in ss 200 and 202 of the Criminal Procedure Act 2011 uses the same phrase “endanger the safety of” but it is accepted that, in that context, risk of psychological harm is a basis for suppression.8 For example, in K v Inland Revenue Department, Williams J said:9

5      R v Atkins [2000] 2 NZLR 46 (CA) at [6].

6      Law Commission Evidence Law: Witness Anonymity (NZLC PP29, 1997) at [84].

7      Law Commission Evidence Law: Witness Anonymity (NZLC R42, 1997) at [36].

8      See, for example, R v Shailer [2015] NZHC 2607 at [18].

9      K v Inland Revenue Department [2013] NZHC 2426, (2013) NZTC 21-034.

[51]   While the Law Commission report in particular, suggests that danger to the safety of a defendant’s family was not in the contemplation of those whose recommendations produced the legislation, even less, self-inflicted danger, the wording of s 200(2)(e) is clear and broad. It suggests that the open justice principle is not so powerful that it provides a reason to place individuals in harm’s way. That limit on open justice makes good sense. Nor does the provision contain any restriction on the ways in which the safety of individuals can be endangered. There is certainly no good reason to read the restrictions suggested by the Crown into the wording. If open justice will put individuals in danger, for any reasons, the court has the power (and indeed ought to have the power) to prevent that occurring.

This, to me, captures your argument. In a modern age where the harmful effects of digital communications are well-recognised, there might be little basis upon which to impose a judicial restriction on otherwise broad language.

[9]    In my view, the phrase is properly interpreted in the same way as it appears in ss 200 and 202 of the Criminal Procedure Act. Of course, the considerations are similar. In considering suppression of publication of a witness’ identity the Court is concerned to properly recognise and protect principles of open justice. In the context of witness anonymity, the Court is concerned to recognise and protect the fair trial rights of the defendant, which includes the right to know the identity of his or her accuser.

[10]   The complainant is an online entertainer for the website iCam Online (“iCam”). Users chat to her online. They can see her but she cannot see them. Although the complainant will often have around 300 people in her “chat room”, there are about 20 dedicated customers who she chats with on a regular basis. Only subscribed customers can chat to her.

[11]   In 2015 Mr Parsons, a United States citizen, joined the complainant’s chat room. He was not a “friend” on iCam, which meant he was not able to send the complainant private messages.

[12]   Mr Parsons purchased access to the complainant’s Snapchat broadcasts. His snapchat  username  was  “theevmeister”.  Although  the  complainant   tolerated   Mr Parsons’ Snapchat messages initially, his messages became more personal over time. He told her he was falling in love with her. He would send her photos of himself every day. Eventually she blocked him.

[13]   Mr Parsons created a new Snapchat account, this time under the username “Wicolas Cage”, and continued to contact the complainant. She told him that he made

her uncomfortable and that he needed to “stop being a weirdo” otherwise she would re-block him.

[14]   On 2 February 2017 Mr Parsons tuned in to the complainant’s iCam session. The complainant at the time had burns on her wrist which she suffered from her oven, and chapped lips; and her cat, also visible, had a scratch on his nose. Mr Parsons contacted her through Snapchat demanding that she provide full body pictures every two days with the day’s newspaper to prove that she was not being abused:

I will never not be here for you. This month terrified me. The pictures from 2016, your bruised lip, the burn, azu’s nose, your hormones… your body went thru that and nobody even asked what’s happening. Well, my WHATTHEFUCK fuse is totally blown. Something’s going on. Please be on my page here: I think someone is hurting you. And that u cover it with makeup. So, hear me: I’ll pay whatever it takes for you to give me full length body snaps, nude, without makeup, every two days. Till the end of time. If you feel better to think I’m just a perv, so be it. Invent whatever excuse in ur head u need. I… even want u to include today’s newspapers, it’ll be for my fragile psyche. Let’s put it that way. It’s all I can think to do. That or, if I am right, just… walk away, so you don’t get hurt? I could write my own rejection response. “You’re crazy” “if I do this I’ll just be feeding your obsession, and you might ‘this’ or ‘that’”. Don’t… reject this. I will to be in your life forever, okay!!??! I have fallen in love and it seems like I am the only person who is even paying attention to what is going on. It’s… your sweet stalker :((( I’m sorry. I’m just. So hideously not cut out for 2017 I think. Maybe it’s the global sentiment, women just want to stay far away and independent or something. I’m not a disease, or a danger, I’m not a rapist or some cartoony machismo ego. I just, developed feelings, apparently impossible, delusional feelings, which are now spiralling into paranoia.

(emphasis added)

[15]The complainant screenshotted this message and blocked him.

[16]   Between late February and March 2017, Mr Parsons re-purchased access to the complainant’s Snapchat under the username “John Black”. He used a fake persona. After a day, he revealed it was him and that he was not going to try to scam her anymore. She told him that he was making her anxious and uncomfortable. Because he had paid for her Snapchat account, the complainant told him that he could stay on as a regular Snapchat user so long as he did not talk to her, did not take screenshots and did not send her any pictures of his penis.

[17]   Later, he screenshotted a picture of her as a six-year-old which she had featured on her Snapchat story. She blocked him on Snapchat. There was no further

communication from Mr Parsons until May 2017. At about that time, she mentioned during one of her iCam sessions that she was going on holiday to see a concert by a band, the Suicide Boys. She flew to Melbourne with her boyfriend on 3 May 2017. The concert was on 6 May. When the complainant and her boyfriend arrived, she spotted Mr Parsons standing close to the stairs leading down to the floor area. While waiting for the band to start playing he jumped down the stairs next to the complainant and bumped her shoulder to say hello. She jumped behind her boyfriend, insisting that they leave. The Crown says Mr Parsons introduced himself to the complainant’s boyfriend as a “dangerous weirdo” – Mr Parsons denies this. The Crown says Mr Parsons harassed the complainant’s boyfriend to allow him to talk to her. He said, “I really need to talk to that girl”. A bouncer is said to have later removed Mr Parsons from the venue – a claim Mr Parsons denies.

[18]   On the night of the concert, Mr Parsons messaged the complainant through Tumblr, telling her that he had previously been kicked out of New Zealand. He explained that he went to all three of Suicide Boys’ concerts in Sydney, Brisbane and Melbourne and that he felt he and the complainant were meant for each other. He said he wanted to meet her at the Flagstaff Gardens, which were only 15 minutes from where she was staying.

[19]   On her return  to  New  Zealand,  the  complainant  received  emails  from  Mr Parsons trying to convince her that he was not dangerous or a stalker and to give him a chance. He wanted to get a beer with her and have a conversation. The complainant did not respond.

[20]   By this stage the complainant was suffering from anxiety. She was prescribed Seroquel to ease that. She also went to therapy, following which she was prescribed Clonazepam.

[21]   The complainant did not receive any emails from Mr Parsons for two to three months. On 30 November 2017, she received an email from Mr Parsons saying, “I’m here. I’ve been here for a few days. It’s imperative I speak with you”. He explained that he was in Browns Bay and that he had been hanging around the local Starbucks for a few days and wanted to talk to her. She did not respond and instead phoned the police.

[22]   When spoken to by the police, Mr Parsons refused to confirm his name. He said he had lived in New Zealand his whole life and that the passport in his bag was not his. He said he had been at Starbucks for about five days and that he would sleep on the beach and walk around at night. Mr Parsons’ laptop and mobile phone were seized. Mr Parsons’ journal was also examined. Inside it were various entries about the complainant, including“NO, my cowardice in speaking to her was not my only fault. The harassment must continue. I will keep pouring my dysfunctional heart into the verbosphere”, “I cherish you 417 so much God I’ve written so much in Melbourne, as I threw I threw my wallet, passport, and fanny pack into the river”, and “Evan, Hoodie, Mrkeurig, Theevmeister, Tangled”.

[23]   Mr Parsons was identified as a United States national, who had entered New Zealand aboard a cruise ship and failed to return to it before its departure for Sydney. Further immigration checks confirmed that Mr Parsons had previously been in New Zealand between 28 December 2015 and 4 March 2016, during which he spent three months in mental health custody.

[24]   Mr Parsons was detained under s 109 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 on grounds that he was experiencing acute psychological distress. Additionally, as he had entered New Zealand via a loophole in the customs vetting procedures, he was considered a continuing threat to the complainant.10

Application

[25]   Mr Parsons received treatment in the Mason Clinic and was released earlier this year. Since being discharged, Mr Parsons has been on bail awaiting trial. His bail conditions include not contacting the complainant or travelling to the North Shore. There are no reported breaches of those conditions. The most recent evidence about

10 It appears that Mr Parsons was entitled to a three-month visitor visa on entering New Zealand and that the relevant deportation procedures for persons unlawfully in New Zealand were not applicable as he had disembarked from a cruise ship. Apparently, had be disembarked from an airplane through customs at an airport, he would have been denied entry.

Mr Parsons’ current state of health came from a letter dated 12 February 2018 by psychiatrist Dr Krishna Pillai, who expressed the opinion that Mr Parsons’ condition had improved but noted he was still at risk of trying to contact the complainant.

[26]   The Crown says Mr Parsons has displayed psychotic tendencies and has already caused considerable harm to the complainant in that his unwanted attention has caused her anxiety, for which she has had to be medicated. Although the Crown acknowledges that Mr Parsons’ condition has improved under professional care, it is concerned that his health could easily deteriorate again.

[27]   Mr Tomlinson, on behalf of Mr Parsons, argued that s 112 is concerned with physical safety and that online harassment that might cause emotional upset is not within the intended scope of s 112. Mr Tomlinson also argued that there is no physical risk to the complainant because Mr Parsons has never made a threat of physical harm, is taking medication as required and, in any event, will be deported from New Zealand to the United States where he will be out of physical reach of the complainant and unable to return to New Zealand for the foreseeable future.

[28]   Given Dr Pillai’s observation, I have to accept that there is some force in the Crown’s concern that Mr Parsons’ mental health could deteriorate again. However, there is insufficient evidence on which to conclude that, even if that happened,      Mr Parsons would pose a physical threat to the complainant. He has no history of threatened or actual violence towards the complainant. As things presently stand, he can expect to be deported immediately if acquitted and within a reasonably short time if convicted. A judge apprised of the issues could be expected to impose conditions for any further period on remand (whether pending sentence or serving a non-custodial sentence) that would protect the complainant and control Mr Parsons’ movements.

[29]   The Crown is also concerned about ongoing online harassment, which could not be prevented once Mr Parsons returns to the United States. The allegations against Mr Parsons certainly describe an unhealthy obsession that has affected the complainant to the extent that she has required counselling and medication. I have no doubt that the conduct described would have been upsetting and stressful. As discussed, I do not consider that s 112 is limited to physical harm. However, nor do I accept that the risk to the complainant’s psychological safety as a result of Mr Parsons

knowing her name reaches the statutory threshold. In particular, there is no evidence of serious or long-lasting effects from which I could conclude that the complainant’s psychological health is threatened.

Result

[30]   The application is dismissed. Leave is reserved, however, to renew the application if there is a change in circumstances.

P Courtney J