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…

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.

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Details

Case: [2025] NZHC 2124
Decision Date: 31 July 2025

CaseChat Overview and Summary

Kevin James Swannell appeals against his conviction for misusing a telephone device, which followed a Judge-alone trial and judgment in the District Court at Papakura. The appeal raises issues concerning the technical requirements of the offence and freedom of expression, and whether the language used was in fact obscene. The central issue was whether the device used to send the messages was a "telephone device" as defined in the Telecommunications Act 2001, and whether the offence applies to written communications. The court concluded that the definition of "telephone device" can and should encompass modern devices that are internet capable and capable of transmitting non-voice communication, such as VOIP. The court also found that the offence applies to written messages. The court rejected the argument that the language used was not obscene, finding the language used was indeed obscene. The appeal was dismissed as no miscarriage of justice had occurred.

Orders