R v Police HC Auckland CRI 2009-404-205

[2009] NZHC 1301

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-205

BETWEEN  R

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         21 September 2009

Counsel:         W J R  , Appellant in person

P Singh for Respondent

Judgment:      21 September 2009

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland
Copy to:

W J R  , Appellant in person

R V NEW ZEALAND POLICE HC AK CRI 2009-404-205  21 September 2009

[1]      Mr R   appeals against conviction on a charge of threatening to kill.  He was convicted in the District Court at Manukau on 2 June 2009 and sentenced to nine month’s supervision, with special conditions requiring an anger management counselling programme to be undertaken.

[2]      The charge arose out of incidents that occurred in the offices of Housing New Zealand.  Mr R   was alleged to have entered its premises at Otara and to have used  language of an  obscene  nature,  culminating  in  a  threat  to  kill  one  of  the employees, Ms Parker.

[3]      Judge Paul found the charge proved after reviewing the evidence in detail. However, it appears the Judge asked himself the wrong question in regard to the mental element of the offence.  The Judge said:

[10]     In terms of the law, a threat to kill can be proved where the words “threatening to kill” a person are made and the person receiving the threat does not actually have to be the person named in the threat.  Furthermore, the police are required to prove that the person who received the threat actually feared for his or her safety as a result of it.  That is why I indicated when I did that the evidence of Ms Parker was of limited relevance to the charge, because I saw the recipients of the threat either being Losa Bourne or Leann Blake.  Now, it is their response to that threat which is relevant.  As I have already indicated, both Ms Blake and Ms Bourne’s response, but particular Ms Bourne.  She felt intimidated by this man, she felt fearful and they were sufficiently concerned, particularly Ms Blake, that the police were called.

…

[13]     Having made that finding, were in particular Ms Bourne fearful of their safety as a result of the threat?  Well, clearly they were.  They gave that evidence and did not waiver on that, particularly Ms Bourne when she was cross-examined by Mr Edgar.  Accordingly, having found that threats were made, the persons who were threatened were fearful and acted upon it. I do find the charge proved against you Mr R   and, accordingly, you are convicted.  (my emphasis)

[4]      In R v Meek [1981] 1 NZLR 499 (CA), the Court considered the mental element of the offence of threatening to kill. The act is the speaking of words amounting to a threat to kill. The mental element is an intention that the words be taken seriously, not necessarily by the person whose life or safety is threatened but

by the  person  or  persons  to  whom  it  is  addressed  and  whose  conduct  may be influenced by it: at 503.

[5]      The Judge focussed on the fear of safety on the part of those who received the threat.   With  respect,  that  was  the  wrong approach.    The  Judge  ought  to  have focussed on what Mr R   intended by the words he uttered.

[6]      The fact that the victims feared for their safety as a result of the threat uttered, is evidence that could be used to identify an intent on the part of the speaker for his or her words to be taken seriously, but it does not expressly deal with the question of what was intended by the speaker.   That is an element of the offence which must be proved beyond reasonable doubt.

[7]      For those reasons, I hold that the Judge erred in his approach to the question whether Mr R   was guilty of the offence charged.   It follows that the appeal must be allowed.  However, I agree with Ms Singh that the seriousness of the events in issue, together with the fact that Mr R   has ongoing interaction with Housing New Zealand officers, means it is desirable for a rehearing to occur, notwithstanding the lenient sentence imposed in the District Court.

[8]      The  appeal  against  conviction  is  allowed.    The  conviction  and  sentence imposed in consequence are set aside.   The information is remitted to the District Court for rehearing.

[9]      Notice of the date of rehearing shall be given by the Registrar to Mr R   personally and to the Police.

P R Heath J