Walker v Police
[2025] NZHC 1403
•30 May 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-453
[2025] NZHC 1403
BETWEEN JAMES WALKER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 May 2025 Appearances:
P Eastwood for the appellant
O Kazmierow for the respondent
Judgment:
30 May 2025
Reissued:
18 August 2025
JUDGMENT OF BLANCHARD J
[Appeal against conviction]
This judgment was delivered by me on 30 May 2025 at 2.00 pm Registrar/Deputy Registrar
WALKER v NEW ZEALAND POLICE [2025] NZHC 1403 [30 May 2025]
Solicitors:
Peter Eastwood Barrister, Auckland Meredith Connell, Auckland
[1] Mr Walker appeals against a decision of Judge A M Manuel in the District Court at Waitakere dated 20 March 2024,1 in which he was found guilty of a charge of criminal harassment.2 The harassment was by unwanted electronic contact with the complainant in the form of social media and emails between 7 July 2022 and 2 March 2023.
[2] Mr Walker pleaded not guilty. The Judge’s decision followed a hearing before her sitting alone on 14 and 20 March 2024.
[3] Mr Walker was sentenced to 18 months’ intensive supervision. In addition, the Judge made a restraining order under s 16 of the Harassment Act 1997 for a period of two years.3
Principles of the Harassment Act
[4] Under s 8 of the Harassment Act, it is an offence for one person to harass another if the harasser knows that the harassment is likely to cause the other person, given their particular circumstances, to reasonably fear for their safety.4
[5]Under s 2, safety of a person “includes that person’s mental well-being.”
[6]Under s 3(1):
… a person harasses another person if he or she engages in a pattern of behaviour that is directed against that other person, being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months.
[7]The meaning of “specified act” is found in s 4. It includes:
1 New Zealand Police v Walker [2024] NZDC 6531.
2 Harassment Act 1997, s 8. Maximum penalty two years’ imprisonment.
3 New Zealand Police v Walker [2024] NZDC 16917 at [21]–[22].
4 Harassment Act, s 8(1)(b)(i).
(a) contact with the other person whether by telephone, correspondence, electronic communication, or in any other way;
(b)giving offensive material to the other person; and
(c)acting in any other way that causes the person to fear for their safety and that would cause a reasonable person in their particular circumstances to fear for their safety.
The District Court decision
The Judge’s decision contained the following background:5
[9] The parties were never in a relationship. Long ago the defendant had been in a relationship with the complainant’s older sister and he had met the complainant who was a child or young woman at the time. From about 2018 he developed an obsession with her. During the timeframe in question, she was living on the Gold Coast and he was living in West Auckland. The complainant was active on social media posting about fitness, wellness, lifestyle, travel and so forth. She posted on Facebook, TikTok and Instagram. The posts were intended for general viewing. The defendant watched them and fantasized that the complainant was communicating with him directly and about having an intimate relationship with her.
[10] The bundle of documents included dozens upon dozens of communications sent by the defendant from his address at [redacted] to an email address for the complainant. The complainant gave evidence that she blocked the defendant on Facebook but was unable to do so on TikTok or Instagram. She blocked him on her email account and his communications were sent to spam but because of her level of concern about the content of the emails, she continued to read them just to keep an eye on them.
[11] … The communications include letters, photos and links to other sites. They were often long but could be short. Sometimes several, or even many, communications were sent in a single day. The topics ranged far and wide including, for example, the earth being flat, ruminations on vaccines and dietary matters, weight training and movies and the sky and celestial bodies. The communications were mystical and declamatory. They were Biblical in tone very often and at times included passages from the Bible. The defendant was preoccupied with themes of good and evil. His writing style typically included capitals mid sentence and exclamation marks.
[12] Over and over he told the complainant that she was beautiful, that he loved her and she was his soulmate and future wife. He wanted to have an intimate relationship with her. He wanted to have a child with her and suggested a name for their child together. Some of the emails included bad
5 New Zealand Police v Walker, above n 1.
language. Some were sexually graphic. He described masturbating while fantasizing about her. He referred specifically to his own ejaculate. He sent photographs which illustrated this activity as well as scantily clad photos of himself to her.
[13] As well as declaring his love, there were sinister or threatening overtones to the communications at times. The complainant was described as a troublemaker, having the devil’s smile and being led on by a demon. The defendant lamented the time and energy he spent on his obsession with her and was jealous of her intimate relationships.
[14] The complainant gave evidence about the distressing effect that the communications had upon her. Indeed any reasonable person in her shoes would have been distressed by them. She feared for her safety.
[15] It was suggested to her in cross-examination that she need not have read them after they were sent to spam. I regard this as unrealistic. The complainant was scared of what the defendant would do. She needed to monitor them.
[9]Mr Walker accepted all elements of the charge except two:
(a)he disputed that the communications, in terms of their content and quantity, amounted to criminal harassment; and
(b)he disputed that he had the requisite knowledge.
[10] The Judge found against Mr Walker on both these points,6 and therefore his defence failed.
Appeal principles
[11] Mr Walker must satisfy the Court that a miscarriage of justice has occurred.7 Under s 232(2) of the Criminal Procedure Act 2011, a miscarriage of justice means any error, irregularity or occurrence in the trial that has created a real risk that its outcome was affected or resulted in an unfair trial. In the case of the latter, for the Court to allow the appeal, the error must be “so gross, or so persistent, or so prejudicial, or so irremediable” that the Court must quash the conviction.8
6 At at [11]–[15] and [16]–[38].
7 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].
8 Condon v R [2006] NZSC 62, [2007], 1 NZLR 300 at [78], citing Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].
The appeal
[12] There are two grounds of appeal. The first is that the Police failed to establish that the harassment was likely to cause the complainant, given her particular circumstances, to reasonably fear for her safety. The second is that Mr Walker did not have the requisite knowledge.
Whether it was reasonable for the complainant to fear for her safety
[13] Mr Walker’s argument on appeal is that the complainant could not reasonably fear for her safety because Mr Walker lives in the Auckland region, whereas the complainant lives on the East Coast of Australia. But it is very easy to travel from New Zealand to Australia. Further, as I have said, under s 2, safety includes the complainant’s mental well-being. For these reasons, it was entirely reasonable for the complainant to fear for her safety. This ground of appeal therefore fails.
Whether Mr Walker had the requisite knowledge
[14] As I have mentioned, the Police needed to prove that Mr Walker knew that his harassment was likely to cause the complainant, given her particular circumstances, to reasonably fear for her safety. To reach the conclusion about this, the Judge carried out a careful review of the communications between Mr Walker and others, namely the complainant, her sister, and police officers.9 Having carried out this review, the Judge was left in no doubt that Mr Walker knew that his communications to the complainant were likely to cause her to reasonably fear for her safety.10
[15] It appears that, in the hearing before the Judge, it was suggested that Mr Walker may not have had the requisite knowledge because of his mental health. But no evidence of mental health issues was provided to the Court.11
[16] Now, on appeal, Mr Walker seeks to rely on evidence concerning his mental health. Specifically, he seeks to rely on a report dated 8 May 2025 by a clinical
9 New Zealand Police v Walker, above n 1, at [20]–[36].
10 At [37].
11 At [19] and [37].
psychologist, Dr Barry Kirker, which indicates that Mr Walker “does appear to have psychiatric issues.”
[17] The Police oppose Dr Kirker’s report being adduced as evidence on appeal. Further, if the report is admitted, the Police submit that the report does not establish that an error occurred in trial or that the trial was unfair in its absence.
[18] Evidence can be admitted on appeal if it is sufficiently fresh, credible and cogent.12 The Police accept that Dr Kirker’s report is credible, but they say it is neither fresh nor cogent and therefore it should not be admitted on appeal.
[19] I decline to admit Dr Kirker’s report. I agree with the Police that the report is not fresh. It could, with reasonable diligence, have been obtained for the trial. I also agree with the Police that the report is not cogent. I say this for two reasons. First, the report does not make any actual diagnosis of Mr Walker. It does no more than suggest possible psychiatric disorders that he may have. Second, the report does not say that, if Mr Walker did in fact have any of the possible psychiatric disorders, it would mean he was unable to form the requisite knowledge.
[20] The argument for Mr Walker on appeal relies entirely on Dr Kirker’s report. As I have declined to admit the report into evidence, the appeal must fail.
Result
[21]The appeal is dismissed.
Blanchard J
12 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; R v Bain [2007] UKPC 33,
(2007) 23 CRNZ 71 at [34] and [103]; and Ieremia v R [2020] NZSC 143, [2021] 1 NZLR 168
at [36].
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