Swannell v Police

[2025] NZHC 2124

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-278

[2025] NZHC 2124

BETWEEN

KEVIN JAMES SWANNELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	17 February 2025
Appearances:	T D Clee for the Appellant C E Best for the Respondent
Judgment:	31 July 2025

JUDGMENT OF GAULT J

This judgment was delivered by me on 31 July 2025 at 4:00 pm.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr T D Clee, Barrister, Auckland

Ms C E Best and Mr T Riley, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City

SWANNELL v POLICE [2025] NZHC 2124 [31 July 2025]

Introduction

[1]    Mr Swannell appeals his conviction following a Judge-alone trial and judgment of Judge N Tahana in the District Court at Papakura dated 10 June 2024,1 in respect of one charge of misusing a telephone device.2

[2]    The appeal raises legal grounds concerning the technical requirements of the offence and freedom of expression, and whether the language used was in fact obscene.

Offending

[3]    On 9 December 2022 at about 7:45 am, Mr Swannell began messaging [REDACTED], [Ms S], regarding [REDACTED]. The evidence indicates these messages were exchanged  over  Messenger.  At  first  [Ms  S]  responded,  but  as Mr Swannell began sending abusive messages, [Ms S] told him to stop messaging her. Mr Swannell continued to send messages, including:

Go to the fucken police you gutless poor excuse of a human. You are a loser and I am coming to get my fucken [REDACTED] so fuck you you fat fuck

Do your passive aggressive blocking fatty

… your brain is to[o] fucked to talk.

You will always be alone you miserable cunt

District Court judgment

[4]The Judge described the elements of the charge as being that:3

(a)a telephone device was used and that telephone device was used to send messages – noting the issue was to whether the means of sending those communications fit within the definition of a “telephone device”;

1      Police v Swannell [2024] NZDC 13630.

2      Telecommunications Act 2001, s 112(2). Maximum penalty three months’ imprisonment or fine not exceeding $2,000. At sentencing, Mr Swannell was dealt with by way of a good behaviour bond to come up for sentence if called upon within seven months.

3 At [6].

(b)there was obscene language used in those communications; and

(c)the use of obscene language was done with the intention of offending the recipient.

[5]    The Judge was satisfied that Mr Swannell sent the messages to [REDACTED],4 and that obscene language was used.5 The Judge said the more colourful and abusive language was used after [Ms S] said that [REDACTED] would not be coming to his place for the holidays and after she said “I have received enough nasty messages and I would like you to stop those messages now”. The Judge also found by inference that Mr Swannell intended to offend the recipient.6

[6]    The Judge came back to the primary issue – whether the medium of communication comes within the definition of a “telephone device”.7 The Judge referred to Mr Clee’s argument for Mr Swannell that the charge relates only to voice, not written communications. The Judge said  the  Telecommunications Act  2001 (the Act) defines a “telephone device” in s 5 as any terminal device capable of being used for transmitting or receiving any communications over a network designed for the transmission of voice frequency communication.8

[7]    The Judge said there was no evidence of the specific device used but it was clear from the screenshots that the device was capable of both receiving written and voice messages. The Judge found the messages – which could have been sent by a phone with a Messenger app, a desktop computer or a tablet – are sufficient to be caught by the definition of telephone device.9 The Judge referred to three earlier cases which concerned such (written) communications or messages.10 The Judge said that although those cases did not give rise to an issue regarding the definition of a telephone

4      Police v Swannell [2024] NZDC 13630 at [9]-[11].

5      At [12]-[14].

6      At [15]-[17].

7 At [18].

8 At [19].

9 At [20].

10 Jacks v Hastings District Court [2005] NZAR 736 (CA), where the charge related to two email messages; McLachlin v Police HC Auckland CRI-2010-404-106, 29 June 2010, where the offence was committed by using a fax; and Lawson v Police [2013] NZHC 3230, which the Judge also said involved a fax but in fact involved text messages.

device, they are capable of being used to determine that the definition is broader than just a telephone.11

[8]Accordingly, the Judge found the charge proven.

Approach on appeal

[9]    In the case of a judge-alone trial, a conviction appeal must be allowed if the Court is satisfied that:12

(a)the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred (s 232(2)(b) of the Criminal Procedure Act 2011 (the CPA)); or

(b)a miscarriage of justice has occurred for any other reason (s 232(2)(c) of the CPA).

[10]   Otherwise, the appeal must be dismissed.13 Thus, s 232(2)(b) is concerned with assessment of evidence, whereas s 232(2)(c) is concerned with whether something material has gone wrong with the trial, beyond the sufficiency of the evidence.14

[11]   An appeal against conviction governed by s 232(2)(b) proceeds by way of a rehearing on the record.15 The appellate court has the responsibility of considering the merits of the case afresh.16 The appellate court must be persuaded that a miscarriage of justice has occurred, but the weight it gives the reasoning of the court below is a matter for the appellate court’s assessment. No deference is required beyond the

11     Police v Swannell [2024] NZDC 13630 at [21]-[22].

12     Criminal Procedure Act 2011, s 232(2).

13     Section 232(3).

14     Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [25]; Misa v R [2019] NZSC 134, [2020] 1 NZLR

85 at [45].

15     Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].

16     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] and [16].

customary caution appropriate in cases where the trial judge has had the advantage of seeing the witnesses, such as where credibility is important.17

[12]   Miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:18

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

[13]   The inquiry involves a two-step process: was there an error, irregularity or occurrence in or in relation to or affecting the trial; and, if so, did either of the states of affairs at [12](a) or (b) above arise in consequence?19

[14]   In relation to [12](a), whether an error, irregularity, or occurrence in or in relation to or affecting the trial “has created a real risk the outcome was affected”, the Supreme Court has confirmed:20

That question ‘requires consideration of whether there is a reasonable possibility another verdict would have been reached’. If the answer to that question is ‘no’, that is the end of the matter and the appeal will be dismissed. If the answer to that question is ‘yes’, … the appeal court then asks whether it is sure of guilt. If the answer is ‘no’, the appeal will be allowed. If the answer is ‘yes’, the court determines the error did not in fact create a real risk that the outcome was affected and the appeal will be dismissed.

[15]   In relation to [12](b), whether the error, irregularity, or occurrence “has resulted in an unfair trial or a trial that was a nullity”, contrary to the defendant’s absolute right to a fair trial,21 requires an assessment of the circumstances of the trial as a whole. As the Supreme Court said in Condon v R:22

A verdict will not be set aside merely because there has been irregularity in one, or even more than one, facet of the trial. It is not every departure from good practice which renders a trial unfair … it is at the point when the departure from good practice is ‘so gross, or so persistent, or so prejudicial, or

17     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13];

Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38]-[40].

18     Criminal Procedure Act 2011, s 232(4).

19     Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [24].

20     Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [67].

21     Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [77].

22 At [78].

so irremediable’ that an appellate court will have no choice but to condemn a trial as unfair and quash the conviction as unsafe.

Relevant provisions of the Telecommunications Act 2001

[16]   Section 3 of the Act provides that the “main purpose of this Act is to regulate the supply of telecommunications services”. Telecommunications service and telecommunication are defined in s 5 of the Act:

telecommunications service means any goods, services, equipment, and facilities that enable or facilitate telecommunication

telecommunication means the conveyance by electromagnetic means from one device to another of any encrypted or non-encrypted sign, signal, impulse, writing, image, sound, instruction, information, or intelligence of any nature, whether for the information of any person using the device or not

[17]The relevant offence provision, s 112 of the Act, provides:

112Misuse of telephone device

(1)Every person commits an offence who, in using a telephone device, uses profane, indecent, or obscene language, or makes a suggestion of a profane, indecent, or obscene nature, with the intention of offending the recipient.

(2)Every person commits an offence who—

(a)uses, or causes or permits to be used, any telephone device for the purpose of disturbing, annoying, or irritating any person, whether by calling up without speech or by wantonly or maliciously transmitting communications or sounds, with the intention of offending the recipient; or

(b)in using a telecommunications device, knowingly gives any fictitious order, instruction, or message.

(3)Every person who commits an offence against subsection (1) or subsection (2) is liable on conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000.

[18]Telephone device is defined in s 5 of the Act:

telephone device means any terminal device capable of being used for transmitting or receiving any communications over a network designed for the transmission of voice frequency communication

[19]Network is also defined in s 5 of the Act:

network means a system comprising telecommunication links to permit telecommunication

[20]Telecommunication link is also defined in s 5:

telecommunication link means any line, radio frequency, or other medium used for telecommunication

[21]   Telecommunications device, used in the separate offence in s 112(2)(b), is not defined in the Act.

Grounds of appeal

[22]The basis of the appeal is that the Judge erred in that:

(a)Mr Swannell did not use a “telephone device”;

(b)his communications were in writing, not voice as required by law;

(c)the language was not obscene; and

(d)the   conduct   was   protected   under   the    New   Zealand   Bill    of Rights Act 1990 (NZBORA) and required misuse of the “network”.

Issues

[23]The issues raised for determination are:

(a)Is a mobile phone, tablet or desktop/laptop computer a “telephone device”?

(b)Does the offence only apply to spoken communications?

(c)What are the NZBORA protections in relation to misusing a telephone device?

(d)Does expression on a telephone device further need to misuse the “network”?

(e)Was the language obscene?

[24]   Issues (a) and (b) overlap and I deal with them together. Likewise, issues (c) and (d) overlap and I deal with them together. Before doing so, I mention the further evidence on appeal.

Further evidence on appeal

[25]   The respondent obtained expert evidence in the form of a statement from Inspector Lankshear from Police National Headquarters addressing general technical background. I received this statement de bene esse. I address its admission below.

[26]   Inspector Lankshear explained the recent and fast changing evolution of telecommunications technologies. Initial telecommunication services required an electrical signal to be sent along a dedicated path – manually and later automated. Mobile phones led to cell phone towers and mobile switching technologies. Progression into a digital world led to packet switch networks which is now the dominant type of telecommunication network. A dedicated circuit is no longer required. Data packets can take multiple paths to arrive at the same destination – encoding enables them to arrive and be reassembled for smooth voice or other communication. External applications such as Messenger and WhatsApp provide a telecommunications service over the top of the traditional telecommunications network operators.

[27]   As a result, he explained, network operators have slowly retired old technologies, such as the copper network. Fibre optic cables use light to transmit information, and mobile technologies use radio waves. Old and new devices and technologies transmit telecommunications, but we have shifted away from having dedicated networks for specific communications. We now have multi-use networks for all communications – voice, text and internet traffic.

Telephone device and non-voice communications

[28]Mr Clee, for Mr Swannell, submitted the Judge did not establish:

(a)which type of terminal device was used;

(b)what a network designed for transmission of voice frequency communication is; and

(c)whether any of the assumed terminal devices were capable of being used for transmitting or receiving any communications over such a network.

[29]   Therefore, he submitted, it was not possible to establish the elements of the offence which requires use of a “telephone device”.

[30]   I accept the Judge found the messages could have been sent by a phone having a Messenger app or a desktop computer or a tablet, without distinguishing between these devices. Indeed, the officer in charge extended this list of possible devices to a laptop computer.23 Therefore, the conviction depends on all such devices being a “telephone device” for the purposes of the offence. Mr Clee said he was not suggesting it was necessary to identify the telephone device in each case, but that would be the effect unless each type of device is a “telephone device”.

[31]   This appears to be the first case where it is necessary to address whether       s 112(1) of the Act applies to messages sent from a device using the internet rather than a mobile network. Jacks v Hastings District Court was an interim name suppression appeal.24 The Court of Appeal did not need to address whether messages sent by email could be caught by s 112. McLachlin v Police was an appeal to this Court after conviction under s 112(2)(a). It concerned faxes – and it was not in dispute that Mr McLachlin used a telephone by sending faxes.25 Lawson v Police was also an

23     He also accepted that he did not know whether the device was connected to a cellular network or some type of internet connection.

24     Jacks v Hastings District Court [2005] NZAR 736 (CA).

25     McLachlin v Police HC Auckland CRI-2010-404-106, 29 June 2010 at [8].

appeal to this Court after conviction under s 112(2)(a). It concerned text messages and use of a telephone was not in issue.

[32]   Mr Clee also referred to Burling v Police,26 a conviction and sentence appeal involving a guilty plea in respect of charges under s 112(2)(a). Ms Burling created a false profile in Facebook in the name of the victim who had been one of her school teachers. Ms Burling placed a number of inappropriate comments on the Facebook page as though they had been posted by the victim. The summary of facts did not specify what type of “telephone device” was allegedly used. It might well have been a computer. Brewer J said:

Is a computer a telephone?

[31]      This ground of appeal  comes  from  the  wording  of  the  charge.  To found a conviction, Ms Burling must have “used a telephone device”.  The definition of “telephone device” is:27

Any terminal device capable of being used for transmitting or receiving any communications over a network designed for the transmission of voice frequency communication.

[32]      It is clear that this definition, when read with s 112 of the Act, is directed towards the traditional telephone and by extension to mobile devices such as cellphones. There is nothing in the summary of facts to say how it was that Ms Burling accessed the internet so as to create the false Facebook profiles. Mr Ellis submits that if this was done by computer then the computer may or may not have been capable of a  voice  frequency communication.  He submits that Ms Burling could have defended the charges on these grounds.

[33]      In my view, this ground of appeal cannot succeed. Ms Burling, who was assisted by counsel, pleaded guilty to the charges. In doing so, it must be taken that she admitted the essential legal ingredients of each charge. It does not matter that the summary of facts does not specify the type of telephone device which Ms Burling used. Ms Burling did not plead guilty to the summary of facts which is no more than an outline of the prosecution’s case and which is not binding on her.

[33]   Mr Clee submitted the view that the definition extends to mobile devices does not appear to be based  on technical  analysis of  voice frequency communication.  He submitted it was not the focus of submissions and should not be considered a binding view. Given the guilty plea, Brewer J did not need to determine whether a

26     Burling v Police [2015] NZHC 2526.

27     Telecommunications Act 2001, s 5.

computer could be a “telephone device”. In any event, it is necessary in this case to consider the statutory definition.

[34]   In this case, as the Judge said, it is clear from the screenshots that the device was capable of both receiving written and voice messages. The screenshots show missed video calls between Mr and [Ms S]. The issue is whether this suffices to be a “telephone device”.

[35]   Turning to the limbs of the statutory  definition  of “telephone device”,  as  Ms Best submitted for the respondent, there can be no question that, irrespective of the exact nature of the device, it was a terminal device which was capable of being used to transmit or receive communications. The issue concerns the remaining limb of the definition of “telephone device”; that is, “over a network designed for the transmission of voice frequency communication”.

[36]   Mr Clee emphasised the reference to “voice frequency communication” in the definition. Voice frequency is not defined in the Act. Mr Clee submitted voice frequency is a technical term in telephony – a spectrum band between 300hz and 4300hz. He submitted the New Zealand network designed for voice frequency communication is Spark’s Analogue Telephone Network. He referred to Spark’s TNA 102 document “Characteristics of the Spark Analogue Telephone Network Customer Interface”, which included:28

4.0.1 Time Division Multiplex (TDM)

TDM was used in the first digital transmission systems, and was the dominant technology for voice networks up until the beginning of the 21st century. In a conventional TDM network, the analogue voice signal is band limited to 3100 Hz (300 – 3400 Hz)…

[37]Mr Clee also referred to Spark’s disclaimer in this document, which included:

It must be stressed that the Spark Voice network is designed for telephony. While it generally supports basic data and facsimile transmission, these functions require specific network implementations and the performance is likely to vary from place to place depending upon how service is delivered.

(Counsel’s emphasis)

28     Access Standards Spark NZ Limited Wellington NEW ZEALAND October 2017.

[38]   By contrast, Mr Clee submitted, a cellular phone operates entirely on data and at a far higher frequency range. He submitted it is not capable of being used for transmitting or receiving any communications over a network designed for the transmission of voice frequency communication. It is only capable of transmitting over a network designed for cellular data. To transmit any communication on an analogue network it requires “specific network implementations”. He submitted this is no longer a network “designed for voice frequency communication” but a network designed for multiple technologies. In relation to a computer with a modem as a terminal device, Mr Clee submitted a computer may only be a telephone device in a limited circumstance when sending data. He accepted a computer with a modem using a dial up connection or ADSL could be defined as capable of transmitting over the voice communication frequency. That uses the traditional copper network.29 However, he submitted these are outdated and that a computer with a modem for broadband or wireless connection is not capable of transmitting or receiving over voice communication frequency. He submitted that if Voice Over Internet Protocol (VOIP) was used,30 for example Skype calling a copper landline, it would again be a case that it is no longer a network designed for voice frequency communication but one designed for multiple technologies.

[39]   It can be seen that these submissions stray into technical evidence. In these circumstances,  I  have  had  regard  to  the  respondent’s  expert  statement. Inspector Lankshear is a subject matter expert. While the statement is not fresh in that it could have been adduced in the District Court, it is credible and cogent. Indeed, the technical position is not in dispute and Mr Clee ultimately had no issue with the statement.

29     He noted ADSL was traditionally the most widely available form of broadband in New Zealand as it uses the legacy copper network and phone lines to connect a property to the internet.

30     VoIP is the technology that allows phone calls to be made over the internet instead of traditional phone lines, by converting voice into digital data packets.

[40]   On the further, but related, issue of whether s 112(1) applies to non-voice communications, Mr Clee submitted the offence applies only to spoken communications, not written messages. He submitted the wording and history of the legislation  is  directed  towards  spoken  and  not  written  language.   He contrasted s 112(1) with s 112(2), and with the repealed s 113(1) which provided:

113Indecent telephone calls for pecuniary gain

(1) Every person commits an offence against this Act who, in using a telephone device, uses or causes to be used indecent or obscene language, or makes or causes to be made a suggestion of an indecent or obscene nature, for the purpose of obtaining commercial gain.

[41]   In particular, Mr Clee relied on the reference to “telephone calls” in the heading of this previous s 113. He submitted it is unlikely s 113 could have applied to a written message. He submitted this was also the intention in the similarly worded s 112(1). He submitted s 112(1) could be contrasted with s 112(2)(b) which refers to “telecommunications device” rather than “telephone device”. As indicated, “telecommunications device” is not defined in the Act, but Mr Clee referred to the definition of this term in the Telecommunications (Interception Capability and Security) Act 2013 (the TICSA):

telecommunication device—

(a)means any terminal device capable of being used for transmitting or receiving a telecommunication over a network; and

(b)includes a telephone device

[42]In the TICSA, “telephone device” has the same meaning as in the Act.

[43]   Mr Clee submitted a “telecommunications device” in s 112(2)(b) is clearly broader than a “telephone device” in s 112(1) and (2)(a), although he acknowledged that s 112(2)(a) refers to “transmitting communications or sounds” which would include written form such as fax (which were sent using sounds). He submitted the different use of “telephone device” and “telecommunications device” in s 112 indicates that Parliament intended different offences for different types of devices. He submitted that had Parliament intended for s 112(1) and (2)(a) to apply to telecommunications devices, Parliament could have said so.

[44]   Turning to legislative history, Mr Clee submitted the definition of a relevant device was narrowed in the Act. In the previous Telecommunications Act 1987, the predecessor definition was of “telephone station”:

“Telephone station” means any terminal device capable of being used for transmitting or receiving any communications over a network designed for the transmission of voice communications; but does not include any apparatus capable of being used to switch any communication to any other apparatus:

[45]Mr Clee submitted that by amending this definition to refer to voice frequency

communications in the Act, it removed cellular technology.

[46]   Mr Clee also referred to the Law Commission’s report, The News Media Meets the ‘New Media’, which addressed free speech abuse options for reform:31

8.14In this regard we draw attention to three provisions in particular where we think the existing drafting would benefit from amendment to make it clear beyond doubt that they cover communication in cyberspace. Perhaps they would be so interpreted now, but there is advantage in spelling it out beyond doubt.

…

8.17The second is  section  112  of  the  Telecommunications Act  2001. It prohibits the use of a “telephone device” to convey disturbing, annoying or irritating messages. There is currently some doubt as to what the boundaries of “telephone device” are. As currently defined it is “any terminal device capable of being used for transmitting or receiving any communications over a network designed for the transmission of voice frequency communication”. Whether this applies to any communication via computer is not absolutely clear, particularly since the advent of wireless.

8.18We think that should be clarified. If communication via computer is to be covered, consideration will need to be given to the interface of this provision with the Harassment Act 1997. But there is merit in so providing: to do so would mean there would be a clear route for prosecuting deeply disturbing conduct of the kind referred to in paragraph 7.58 above.

[47]Mr Clee found no evidence this was ever clarified.

31 Law Commission | Te Aka Matua O Te Ture, The News Media Meets the ‘New Media’, Rights, Responsibilities and Regulations in the Digital Age, Issues Paper 27, December 2011, Wellington, New Zealand, chapter 8 at 8.17-8.18.

[48]   Beginning with the definition of “telephone device” itself, I acknowledge there is reference to “voice frequency communication” in the definition. However, on its face this relates to the nature of the network design. The definition requires the device to be capable of use for “communications over a network designed for the transmission of voice frequency communication”. As Ms Best submitted, the words “designed for” in the definition do not denote exclusivity. On the plain words of the definition, the fact that modern networks are designed for more than voice frequency communication is not disqualifying, at least where audio remains a core function. On this basis, the definition is not limited to devices using the traditional copper network. The definition would not exclude modern devices that are also internet capable and capable of transmitting non-voice communication (such as VOIP). Messenger has an audio and video call function, as well as messaging.

[49]   Turning to the statutory purpose and history, I do not consider the addition of “frequency” in the definition from 2001 supports Mr Swannell’s argument. It did not change the network design focus in the relevant part of the definition. If anything, it supports the modernisation of the definition.  Also, given the network design focus,  I do not consider the addition excluded  mobile  networks  from  the  definition  as Mr Clee submitted. Legislation applies to circumstances as they arise,32 which has been said to express a principle of fundamental justice, that the law be relevant to changing conditions.33 As Lord Steyn has said, unless they reveal a contrary intention all statutes are to be interpreted as “always speaking statutes”.34 The addition of the word “frequency” does not indicate Parliament intended for the definition to apply only to traditional copper networks and not to calls made using mobile phones.

[50]   On the other hand, however, I acknowledge the use of the different term – “telecommunications device” in s 112(2)(b) – may suggest that Parliament intended for “telephone device” to retain the meaning it had before digital technological developments. As noted, “telecommunications device” is not defined in the Act but is defined in the more recent TICSA. But I am reluctant to use the more recent definition

32     Legislation Act 2019, s 11.

33     Crown Health Financing Agency v P [2009] 2 NZLR 149 (CA) at [317] per Baragwanath J. See also Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1 at [12] per Elias CJ.

34     McCartan Turkington Breen (A Firm) v Times Newspapers Ltd [2001] 2 AC 277 (HL) at 296, citing R v Ireland [1998] AC 147 (HL) at 158 D-G.

in the TICSA to interpret Parliament’s earlier intention in the Act. Accepting that the definition of “telecommunications device” is wider than that of “telephone device”, it does not follow that “telephone device” is limited as Mr Swannell argues. Similarly, I  do  not  consider  the   absence   of   legislative   clarification   following   the   Law Commission’s report assists in determining the intent in the Act in 2001.

[51]   I also acknowledge that s 113 in the Act, repealed in 2018, which also relates to use of a “telephone device”, used the term “telephone calls” in its heading. However, while that may have been an aid to interpreting the now repealed s 113, it cannot simply be imported to interpret s 112.

[52]   Stepping back, I consider the definition of “telephone device” can and should (in the absence of a clear contrary intention) embrace a wider range of devices than those used to make telephone calls over traditional (copper) networks. What matters is whether the device is capable of being used for transmitting or receiving communications over a network designed for the transmission of voice frequency communications. That extends to cellular networks and VOIP. The community would expect no less in today’s environment where such different networks are used interchangeably. Section 112 should not be read restrictively given the changing nature of telecommunications. Otherwise, s 112 would soon be largely redundant.

[53]   I conclude the Judge did not err in being sure that Mr Swannell used a “telephone device” to send the messages.

[54]   Having addressed Mr Clee’s submissions about voice communications in the context of the meaning of “telephone device”, I consider there is little room for further argument that s  112  applies only to spoken language  and not written language.     As Ms Best submitted, “use” of a device in s 112 is plainly broad enough to encompass written language as well. As indicated, the reference to “telephone calls” in the heading of the now repealed s 113 may have been an aid to interpreting that section but cannot simply be imported to interpret s 112. The heading of s 112 is “Misuse of telephone device”.

[55]   I conclude the Judge did not err in finding that s 112(1) applies to written messages.

NZBORA and impact on the network

[56]   Mr Clee submitted the Judge erred by failing to consider NZBORA and the purpose of the Act. Given the charge involves personal expression, he submitted it must involve a misuse that impacts on the integrity of the network for an imprisonable offence to apply. He referred to overloading the network.

[57]   I accept there is an element of expression involved in an offence involving use of language, which engages the right of freedom of expression affirmed in s 14 of NZBORA.35 That requires interpreting the offence created by Parliament in accordance with s 6 of NZBORA, which requires that a provision capable of impacting on rights must be given a meaning consistent with such rights, if it can.36 Here, the offence applies only to the use of profane, indecent, or obscene language, or suggestions of a profane, indecent, or obscene nature, with the intention of offending the recipient. Those words must be given meaning consistent with freedom of expression insofar as they can, but freedom of expression does not require reading into the offence impact on the integrity of the network. That would be an unnatural interpretation. Nor is it supported by the legislative history. As indicated above, the relevant reference to network occurs only in the device definitions as a “device capable of being used for transmitting or receiving any communications over a network designed for the transmission of voice [frequency] communication”.

Obscene language

[58]   Mr Clee submitted the Judge erred in finding the  language was obscene.    He submitted that obscene language has a sexual element, and this fits with the other types of proscribed language being “profane” and “indecent” and the fact that a “suggestion” of this nature suffices.

35 This provides that everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

36 See for example Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1 at [14] per Elias CJ (a case concerning the offence of behaving in an offensive manner under s 4(1)(a) of the Summary Offences Act 1981).

[59]   I do not accept that the offence in s 112(1) is limited to sexual language or suggestions. The words of the section “profane, indecent, or obscene” plainly indicate otherwise. As the Judge found, the language used was obscene.

Conclusion

[60]   I am satisfied that no miscarriage of justice has occurred. The Judge was correct to reject  the  narrow definition of  “telephone device”  and narrow  scope of s 112(1), and to find the charge proved.

Result

[61]The appeal is dismissed.

Gault J