Senior v Police

[2013] NZHC 357

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-101 [2013] NZHC 357

JADE STEELE SENIOR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 February 2013

Appearances: R Glover for the Appellant

B Hawes for the Respondent

Judgment:      28 February 2013

JUDGMENT OF FOGARTY J

[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 have a wider circulation than just simply placing it on your Facebook and you acknowledged in your own evidence that there were

260 plus people who had access to it and  clearly in my view that was behaviour which was clearly in breach of the protection order.  A simpler

way to deal with it would have been to have written nothing about the

protected person, the respondent, at all.

[5] For the purposes of this appeal, I am prepared to read that phrasing as qualifying the more simple finding at the end of paragraph [6]. Then, for that purpose, to test the strength of the conviction against clause (1)(a)(iv) or s 19(1)(d), as I have mentioned.

[6]      The Court takes judicial notice that persons who use Facebook are very aware that the contents of the Facebook are often communicated to persons beyond the “friends” who use Facebook.  When information is put on a Facebook page, to which hundreds of people have access, the persons putting the information on the page know that that information will likely extend way beyond the defined class of “friends”.   Very strong personal abuse directed at a former partner, placed on Facebook, read by a large number of friends, some of whom will inevitably have contact in the natural social network with the person being abused, is at the very least highly reckless.   It is somewhat improbable to say, which was not said here, “Oh, I never thought it was possible that the person I was abusing could possibly have known about this.”

[7] Mr Hawes submitted that it is important when applying s 19 of the Domestic Violence Act not to impose distinctions between intent and recklessness which would undermine the effectiveness of a condition in a protection order against psychological abuse. I agree. Almost all provisions of a statute need to be read in the light of s 5 of the Interpretation Act. That is, read in the light of their purpose.

[8]      Mr Hawes sought to rely on dicta in a judgment of Gendall J in the case of R v Mariu.[1]   This was a case where the appellant was sending mail from prison to a person subject to a protection order from him.  That is an important fact, because it was direct communication with her.  That, in my view, is the reason why the Judge said, in paragraph [15], first sentence:

[1] High Court Masterton, CRI-2006-435-7, delivered on 6 October 2006

Psychological abuse may take an infinite variety of forms, obviously it requires some behaviour on the part of the perpetrator directed ultimately at another...

Secondly, he also said in paragraph [22]:

...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...

[9]      In this case of Maruia the problem the Judge had to resolve was whether or not there  was  a breach  of  a protection  order  because  of  intentional  sending  of

material to the person being protected, in circumstances where it is arguable that the person sending the material did not realise it amounted to psychological abuse. Here, the facts are materially quite different.  There is no doubt at all that the content placed on Facebook was abusive of the person subject to the protection order.  It was so abusive that I do not see any reason why I have to set it out again in a Court judgment.   The question here is whether or not there is any defence available, by reason of the fact that the person subject to the order was not a friend and it may not have been  known  for sure that  she  would  see  this  abuse.    I do  not  think  fine distinctions  between  direct  communication  or  indirect  communication  between intent and recklessness are needed. This was, as the Judge found, broadcasting abuse into  a  community  of  persons,  some  of  whom  would  obviously  know  the complainant.  It is sufficient in that context to make the findings that Judge Treston did make.  I am not going to set the findings out again.  It was a deliberate abuse. There was a clear and present danger of very wide circulation of that abuse, and that had to be understood as behaviour prohibited by condition 1(a)(iv).

[10]     For these reasons, I am satisfied that the District Court Judge was correctly applying the law, and that the conviction is sound.   Therefore, the appeal against conviction is dismissed.

Solicitors:

Rupert Glover Barrister, Christchurch

Raymond Donnelly & Co, Christchurch