[1] This is an appeal against conviction. The appellant appeals his conviction on a charge of breaching a domestic protection order, pursuant to the Domestic Violence Act 1995. He was convicted in the District Court, Judge Treston, and sentenced to pay a fine of $450 together with Court costs.

[2] The context of this case is that the appellant posted on his Facebook abuse of a person who had the benefit of a protection order from him. One of the terms of that protection order, condition 1(a)(iv), required the appellant not to “engage or threaten to engage in other behaviour including intimidation or harassment, which amounts to psychological abuse of any person”. This term is the same as s 19(1)(d) of the Domestic Violence Act 1995. It is not necessary to set out in this judgment
what that abuse was.

SENIOR V NEW ZEALAND POLICE HC CHCH CRI-2012-409-101 [28 February 2013]

[3] The appeal issue is whether or not the appellant had, in legal terms, the appropriate mens rea, or intention, or reckless state of mind when lodging this abuse on Facebook. The protected person was not one of the friends or readers of the Facebook. There were 261 readers of the Facebook. The protected person saw the abuse on the Facebook when she had been in the company of her niece, who was a person able to check the Facebook of the appellant, the niece being of his friends on his Facebook, and she saw the abuse.

[4] The Judge found, because of the large number of people reading the

Facebook, that:

...There is no doubt in my view that the defendant, rather than using it simply as a diary, had been intending in some way or another to engage in some psychological abuse upon the complainant.

That finding of fact occurred in that part of his judgment examining whether or not the case had been proved. It is at the end of paragraph [6]. In paragraph [9], he found the case proved and entered the conviction. In paragraph [10], he turned to the sentencing. As often is the case in sentencing, comments as to culpability, which touch on state of mind, have the effect of appearing to qualify what was otherwise a firm finding of fact. The Judge said in paragraph [10]:

[10] ...As I have indicated I find that you did that in a deliberate fashion to abuse the complainant. The wording was very, very strong. The wording was totally unnecessary. You through your counsel have said that you accept that it was immoderate and that you did not anticipate it would have been drawn to her attention, but of course that is the danger in some of these social websites which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Senior v Police

Details

AGLC: Senior v Police [2013] NZHC 357
Case: [2013] NZHC 357
Decision Date: 28 February 2013

CaseChat Overview and Summary

The appeal in this matter concerns the conviction of Jade Steele Senior for breaching a domestic protection order, which was upheld by the District Court. The respondent, New Zealand Police, sought to enforce the protection order, which required Senior not to engage in psychological abuse of the protected person. The key issue before the court was whether Senior had the requisite mens rea, or intention, or a reckless state of mind when posting abusive content on Facebook. The protected person came across the content indirectly, through her niece who was a friend of Senior on Facebook. The appeal issue focused on whether Senior had the appropriate mental state when posting the content, given the large number of readers on Facebook.

The court found that Senior had indeed intended to engage in psychological abuse, as evidenced by the deliberate and strong nature of the abusive content posted on Facebook. The court emphasised the awareness that Facebook content often extends beyond the intended recipients, making it highly reckless to post such content. The court noted that it is improbable to claim ignorance of the potential reach of Facebook content, especially when directed at a former partner. The court further observed that the distinction between intent and recklessness in the context of protection orders against psychological abuse should not undermine the effectiveness of such orders. The court found that the District Court Judge had correctly applied the law and that the conviction was sound.

Based on the above findings, the appeal against conviction was dismissed. The court upheld the conviction and sentence imposed by the District Court, which included a fine and court costs. The court found that Senior had deliberately engaged in behaviour that amounted to psychological abuse, in breach of the protection order, and that the District Court Judge had correctly applied the law in reaching this conclusion.

Orders