KRONFELD v NEW ZEALAND POLICE [2018] NZHC 66

KRONFELD v NEW ZEALAND POLICE [2018] NZHC 66 [7 February 2018]ORDER PROHIBITING PUBLICATION OF NAME AND IDENTIFYINGPARTICULARS OF COMPLAINANTIN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2017-412-28[2018] NZHC 66BETWEEN MARGARET DENISE KRONFELDAppellantAND NEW ZEALAND POLICERespondentDate of hearing: 7 November 2017, AVL hearing 14 December 2017Appearances: A G Speed and E M Gresson for AppellantR P Bates and R Smith for RespondentJudgment: 7 February 2018JUDGMENT OF NICHOLAS DAVIDSON J(APPEAL AGAINST CONVICTIONS)A. INTRODUCTION[1] This appeal is allowed in respect of one of four convictions entered in theDistrict Court, but is otherwise dismissed. This Court had the advantage of argumentwhich was not put before the District Court Judge.[2] Ms Kronfeld appeals against her convictions on one charge of criminalharassment by sending email messages to the complainant, "[Mrs X]", and threecharges of intentionally accessing a computer system without authorisation.1She earlier pleaded guilty to charges of sending fictitious messages, and making phonecalls but not speaking when the phone was answered.1 Police v Kronfeld [2017] NZDC 6769.[3] She appeals against all four convictions, and concurrent sentences of 120 hourscommunity work imposed in the District Court at Dunedin on those charges and othercharges to which she pleaded guilty.2 The appeal against sentence stands adjournedpending this judgment.[4] The setting for the prosecution is a personal relationship between the appellantand [Mrs X]'s husband, [Mr X], over several years, after they met as businesscolleagues. The relationship soured and the charges stem from the appellant's conductafter that time.[5] Charges were laid as follows:ChargeNoCRN Date of offence Offence Description Legislative Reference1Guilty plea15004006584 Between the 18thday of January2015 and the 9thday of March2015Used a telephone device for thepurpose of annoying by callingup without speech with theintention of offending therecipient [Mrs X]Section 112(2)(a)TelecommunicationsAct 20012Withdrawn15004006585 Between the 26thday of February2015 and the 5thday of April 2015Used a telephone device for thepurpose of annoying by [Mrs X]by creating 6 fake emailaccounts with google and usingthese false identities to send thevictim 25 emails with theintention of annoying therecipient [Mrs X]Section 112(2)(a)TelecommunicationsAct 20013Withdrawn15004006586 Between the 29thday of March2015 and the 31stday of March2015In using a telephone device sent9 emails using indecentlanguage with the intention ofoffending the recipient [Mrs X]Section 112(1)TelecommunicationsAct 20014Guilty plea15004006587 Between the 27thday of February2015 and the 5thday of April 2015In using a telecommunicationsdevice knowingly sent fictitiousmessages namely using 3 falseidentities to send 9 fictitiousemailsSection 112(2)(b)TelecommunicationsAct 20015FoundGuilty15004006588 On the 5th day ofApril 2015Harassed [Mrs X] by sendingemail messages having alreadyemailed her between the01.03.2015 and 01.04.2015intending that the harassment islikely to cause [Mrs X] giventheir particular circumstances toreasonably fear for their safetySection 8(1)(a)Harassment Act 19972 Police v Kronfeld [2017] NZDC 14371.6FoundGuilty15012002555 On or before the8th day ofJanuary 2016Intentionally accessed acomputer system, namely [X]without authorisation knowingshe was not authorised to accessthat computer systemSection 252(1) CrimesAct 19617FoundGuilty15012002556 On the 6th day ofFebruary 2015Intentionally accessed acomputer system, namely [X]without authorisation knowingshe was not authorised to accessthat computer systemSection 252(1) CrimesAct 19618FoundGuilty15012002557 On the 6th day ofFebruary 2015Intentionally accessed acomputer system, namely theparent portal of [X] schoolwithout authorisation knowingshe was not authorised to accessthat computer systemSection 252(1) CrimesAct 1961[6] As shown, the appellant entered pleas of guilty to charges one and four, andcharges two and three were withdrawn by leave at the end of the defended hearing inthe District Court.B. DISTRICT COURT JUDGMENT[7] The appellant's relationship with [Mrs X]'s husband, [Mr X], was unknown to[Mrs X] until about three years before it ended in early 2014. The Judge found thatMs Kronfeld sent, or caused to be sent, "an inordinate number of emails and texts to[Mrs X]". Schedules of documents were tendered as exhibits. They included emailsfor which the appellant created at least eleven fictitious addresses.[8] The procedural history of the prosecution includes a judgment of Mander J onappeal from a ruling as to the validity of a production order, made in the DistrictCourt.3 The complainant received 148 nuisance calls, texts or emails, including some37 nuisance hang-up calls and malicious texts in a single day. Mander J referred tosome of the texts including "rumours confirmed", "move on lying", "told truth?","lies", "deception", "double life", "found your website lots of email addresses for meto have fun with", "found your family Facebook", "my instructions are to find yourchildren", and "making progress locating children".3 Kronfeld v Police [2016] NZHC 2277, appeal from District Court decision Police v Kronfeld[2016] NZDC 7717.[9] Mander J addressed the distinction between criminal and civil harassment, andin particular a defendant's mens rea (intention) necessary to prove the charge ofcriminal harassment. His judgment was applied by the learned Judge and I too followit, as I will explain.[10] [Mrs X] gave evidence that she felt she was being taunted or played with, andthat Ms Kronfeld was constantly trying to frighten her and wanted her to beg. Shewas living in a "nightmare". She thought an email of 3 April 2015 was sent to frightenher. She said she had been constantly hassled, that it was "revolting and vile" and shewas concerned for her children. [Mrs X] was not challenged about the effect on herof the emails.[11] [Mr X] spoke of texts, emails and hang-up calls, and said they were frighteningbecause they seemed to be from an unknown person, or people, who were "harassing"him and [Mrs X].[12] The appellant accepted that the affair came to an end in February 2014. Shesent five emails on 5 April 2015 on which the criminal harassment charge is founded,but said she did not intend to cause [Mrs X] to fear for her safety, and that herbehaviour was not "normal" for her. Apart from wanting to annoy [Mrs X], she didnot know why she acted in this way. She did not turn her mind to the effect thatsending multiple such messages might have, but said she did not intend to causephysical or mental harm.Charge 5: CRN15004006588 – Criminal Harassment – s 8(1)(a) HarassmentAct 1997[13] The charge is that on 5 April 2015 Ms Kronfeld harassed [Mrs X] by sendingemail messages having emailed her between the 01.03.2015 and 01.04.2015 intendingthat such harassment was likely to cause [Mrs X] to reasonably fear for their safety.[14] The five emails read:A Email message 5 April 2015 at 8.50 pm from 'Tracey Hopkins'Subject: When he fucked you last.Content: What did you think about. Who else is he fucking?Who else he has fucked?B Email message 5 April 2015 at 8.57 pm from 'Tracey Hopkins'Subject: The last timeContent: He fucked you did you think who else is he fucking?Who else he has fucked?C Email message 5 April 2015 at 12.51 pm from 'Tracey Hopkins'Subject: Not Tracy HopkinsContent: Got a part time job. Don't like myself for doing thisjob. Am now supposed to text you rude messages.Sorry. Someone else can have this dirty sick job.D Email message 5 April 2015 at 1.02 pm from 'James Sillon'Subject: New jobContent: Hi got a part time job. Got sent a phone and two emailaddresses with list of emails to send to you both. Mansomeone hates you two. Wot the f did you two do.Thought you needed to know someone hates youboth.E Email message 5 April 2015 at 3.23 pm from 'Diane Milne'Subject: Thought of the day.Content: Respect yourself enough to walk away from anythingthat no longer serves you, grows you or makes youhappy.[15] The emails were designed by Ms Kronfeld to seem to come from three differentpeople, and arithmetically met the charge of criminal harassment, which requires thereto be at least two acts of harassment over a 12 month period.[16] The charge turned on the five emails, but referred to emails sent "betweenthe 01/03/2015 and 01/04/2015". The formulation of the charge in this way is thebasis for one ground of appeal. In the period 1 March to 1 April 2015, there were 20other emails. There were texts and malicious and fictitious phone calls, all part ofwhat the Judge described as Ms Kronfeld "orchestrating a premeditated, persistent,vile barrage and attack on [Mrs X]."[17] The primary issue for the Judge was the nature and intended effect of the emailssent on 5 April 2015. They did not make direct threats of violence or harm. CounselMr Speed for Ms Kronfeld submitted that they were no more than "rude" messages toget a reaction out of [Mrs X], and were not acts which reached the "fear of safety"threshold fundamental to criminal harassment. The Judge found the effect was" significantly more than mere emotional disturbance and was designed to be so".4[18] The Judge found it was clear that [Mrs X] had been "significantly affected byMs Kronfeld's actions which can only be described as a more extreme case of its type,a campaign that included Ms Kronfeld attempting to cover her tracks in a relativelysophisticated manner".5[19] The Judge did not accept Ms Kronfeld's evidence and found her neithercredible nor reliable in several respects. Despite the number of emails sent overseveral months she did not accept that her conduct was persistent. She said she wasnot in a rational state of mind, and was not her normal self, but she did not expand onthat. There was no evidence of medical or psychological impairment. At times shewas found to be evasive, lacking candour, and not wanting to assist the Court. Someexplanations she gave were "glib and self-serving". The Judge found that sheconducted a premeditated campaign, involving "some sophistication and deception,aimed directly at [Mrs X] over a sustained period of time". The Judge summed thisup at para [36]:The sustained nature of the contact, the deception involved and the crude, vileand offensive content of many of the communications paints a more accuratepicture of Ms Kronfeld's intent.[20] The Judge addressed the evidence of Ms Kronfeld's actions objectively, asrequired at law. The issue is not whether the complainant held a fear for her safety orher family's safety, but rather "the focus is on the state of mind of the person who isalleged to have committed the offence".6 He concluded that [Mrs X] was significantlyaffected by what had occurred and followed Mander J who said the Court was entitledto take into account all of the conduct, on all of the charges, to draw an inference as tothe state of mind of Ms Kronfeld when she sent the emails of 5 April 2015. Thatincluded having regard to the emails sent between 1 March and 1 April 2015. TheJudge found it proved beyond reasonable doubt that Ms Kronfeld intended to cause4 Police v Kronfeld, above n 1, at [33].5 At [34].6 Kronfeld v Police, above n 3, at [30].[Mrs X] to fear for her safety. The charge of criminal harassment was proved to therequired standard.Charges of accessing a computer system without authorisation – s 252(1)Crimes Act 1961Charge 6: CRN15001200555[21] The charge is that on or before 8 January 2015 the appellant intentionallyaccessed a computer system, namely [Mr [X]'s email account], without authorisationknowing she was not authorised to access that computer system. The charge is laid asa representative charge.Charge 7: CRN15012002556[22] The charge is that on 6 February 2015 the appellant intentionally accessed acomputer system, namely [Mr [X]'s email account], without authorisation, knowingshe was not authorised to access that computer system. This too is a representativecharge.Charge 8: CRN15001200557[23] The charge is that on 6 February 2015 the appellant intentionally accessed acomputer system, namely the parent portal of [X] School, without authorisationknowing she was not authorised to access that computer system, as a representativecharge.District Court decision[24] For charges six and seven, evidence was given that Ms Kronfeld's iPad showedthat the email account had been accessed, and she accepted that she had created at least11 different email addresses including one for "JJ Enright". The extract report fromMs Kronfeld's iPad was replete with emails to and from "JJ Enright", sent to [MrsX]'s work email address and a number of other people to enquire whether "JJ Enright"was related to them and [Mrs X].[25] The same iPad was used to make searches of [Mrs X]'s name, and forconnections between her name and employment. Information was retained to assistlater when loading forms and websites. The user of the iPad knew the password forthe email account as this was shown in the Google cache.[26] The Judge concluded that Ms Kronfeld obtained email addresses for [Mrs X]'sfamily members by accessing the email account. This enabled her to send the "JJEnright" emails. The password had been entered into the iPad on or before 8 January2015, the date of the alleged offence.[27] Ms Kronfeld accepted that she created the "JJ Enright" account. She said thatshe was given the password to Mr [X]'s account by [Mr X] in 2011 so she could accessthe account. She said that he wanted her to do so because he moved the computersystem to cloud storage, and he asked if they could use an email address that was notrelated to his work. She said the address was used for their private communications,and there was concern that if anything happened to them, they could be "sitting there",so he gave her the password. She was also worried that emails might be sent by himwhich may have been better left unsent.[28] [Mr X] said that the only time he gave an email password to Ms Kronfeld wasto access the iTunes account on his phone, while they were in his car. He used thesame password for his email address, but he did not give the password to her to accessthat address. Ms Kronfeld's explanation of why she was given the password was putto [Mr X]. He remembered no such discussion.[29] He did remember being concerned about personal emails, but said that herevidence as to why he gave her the password was a "bunch of lies". The Judgeaccepted [Mr X]'s evidence and rejected that of Ms Kronfeld. He found that while[Mr X] had been dishonest in his relationship with his wife, he was honest in hisevidence.[30] Even if Ms Kronfeld's evidence had been accepted, the relationship had longended and she was not given password access to the account to look for other emailaddresses or contact anyone in the address book, so her access was for an improperpurpose. It was nothing to do with furthering the relationship, or protecting it, but partof an orchestrated effort to undermine [Mr X]'s relationship with his wife and to"demean, belittle and harass [Mrs X]". This was deliberate and not inadvertent orreckless conduct.[31] The Judge said the only explanation given by Ms Kronfeld was that she hadbeen given the password in 2011, but she did not say that the reason she was given itapplied in 2015, at which time her access was unauthorised. The Judge held bothcharges were proved.[32] As to charge 8, Ms Kronfeld said that [Mr X] gave her the access code to theschool's parent portal in 2012, and he made something of a joke about the code. Sheaccessed the portal in 2015, a year after the relationship ended. [Mr X] said he did notgive her the code and the Judge accepted that evidence. There was no reason for herto access the portal, and Ms Kronfeld did not advance any reason other than to checkexam results. Even if the code was provided with any authorisation, actual or implied,that ceased when the relationship ended. The charge was proved.[33] Ms Kronfeld was thus convicted on all charges of unauthorised access of acomputer system.C. APPEAL – CRIMINAL HARASSMENT[34] Three issues are raised on appeal against conviction. One issue as advanced isupheld. The other two are dismissed. For completeness, all three are addressed.[35] The first issue is reflected in the pre-trial challenge to the charge as it wasformulated, and flows into this appeal. The charge particularises email messages senton 5 April 2015, "having already emailed her between 1 March and 1 April 2015" (seepara [5] above).[36] On 21 February 2017, the Judge ruled that the prosecution was "restricted tofive separate emails sent by three different entities on the same date", and he refusedto amend the charge to include the earlier range of emails, on the grounds that such anamendment would prejudice the defence.7 The Police case had been clearly etched byreference to the five emails of 5 April 2015, but referring for context to messages sentbetween 1 March 2015 and 1 April 2015.[37] The second issue is whether the fact some of the emails of 5 April 2015 areelements of other charges admitted, or withdrawn, constitutes duplicity, carrying therisk of double jeopardy to Ms Kronfeld, so that these emails cannot found proof ofcriminal harassment.[38] The third issue is whether the Judge erred by failing to properly apply the highthreshold test for criminal harassment under s 8(1)(a) of the Harassment Act 1997.Criminal harassment[39] The Harassment Act 1997 ("the Act") provides:8 Criminal harassment(1) Every person commits an offence who harasses another person in anycase where—(a) the first-mentioned person intends that harassment to causethat other person to fear for—(i) that other person's safety; or(ii) the safety of any person with whom that other personis in a family relationship; or(b) the first-mentioned person knows that the harassment is likelyto cause the other person, given his or her particularcircumstances, to reasonably fear for—(i) that other person's safety; or(ii) the safety of any person with whom that other personis in a family relationship.2 Interpretationsafety, in relation to any person, includes that person's mental well-being7 Police v Kronfeld [2017] NZDC 4723.[40] "Harassment" is defined as follows:3 Meaning of harassment(1) For the purposes of this Act, a person harasses another person if he orshe engages in a pattern of behaviour that is directed against that otherperson, being a pattern of behaviour that includes doing any specifiedact to the other person on at least 2 separate occasions within a periodof 12 months.(2) To avoid any doubt,—(a) the specified acts required for the purposes of subsection (1)may be the same type of specified act on each separateoccasion, or different types of specified acts:(b) the specified acts need not be done to the same person on eachseparate occasion, as long as the pattern of behaviour isdirected against the same person.(3) For the purposes of this Act, a person also harasses another personif—(a) he or she engages in a pattern of behaviour that is directedagainst that other person; and(b) that pattern of behaviour includes doing any specified act tothe other person that is one continuing act carried out over anyperiod.[41] A "specified act" is defined as follows:4 Meaning of specified act(1) For the purposes of this Act, a specified act, in relation to a person,means any of the following acts:(d) making contact with that person (whether by telephone,correspondence, electronic communication, or in any otherway):Issue 1 - Reference in charge to emails sent between 1 March 2015 and1 April 2015[42] Mr Speed submits that the Judge "combined" the acts of alleged criminalharassment in one charge, and the defence was prejudiced as it was unclear how theintent of the appellant in sending the five emails of 5 April 2015 was to be addressed.He submits that this "confused the actus reus elements of the charge", and refers toBlanchard J when he said:8It is necessary that distinctly identifiable acts of alleged offending be thesubject of separate charges where the accused may be prejudiced either at trialor on sentencing if they are combined in a single count.[43] He also refers to Anderson J's comments in Qiu v R:9Separate counts facilitate fairness in the conduct of the trial by focusingattention on matters of fact and law which can and need to be distinguishedfor the purposes of different counts. In the event of conviction, they assist thesentencing Judge by indicating the extent of culpability.[44] This element of appeal is misconceived as these statements do not negate acharge which refers to more than one act, where that is an element of the offence. Thecharge of criminal harassment requires at least two instances in a 12 month period.The charge here referred to five, all elements of the actus reus.[45] Otherwise, Mr Speed for the appellant says the date of the alleged offence is 5April 2015 and focus had to fall on the five emails that day, but the Judge said that the5 April 2015 emails should not be read in isolation. The prosecution approach andthat of the Judge is submitted to have cost the defence the opportunity to meet the casepresented, as any communication by the defendant could satisfy the test for criminalharassment. Mr Speed lays emphasis on para [40] of the judgment.[46] Counsel submits that His Honour convicted the defendant on all of the emailssent, including emails subject to charges which had been withdrawn and that thisconstitutes an unfairness which unseats the judgment. In essence, he submits that MsKronfeld did not know what she had to meet at trial, and the communications on whichthe prosecution relied to prove the charge.[47] He also submits that Ms Kronfeld did not have an opportunity undercross-examination to respond to each of the emails sent in the period 1 March to1 April 2015. Mr Bates' reply for the Police was to take the Court through thetranscript of evidence which showed that while not all emails in that range were the8 Mason v R [2010] NZSC 129, [2011] 1 NZLR 296 at [9].9 Qiu v R [2007] NZSC 51, [2008] 1 NZLR 1 at [8].subject of cross-examination, there was plenty of reference to individual emails. Anexample is the set of questions in response to which Ms Kronfeld accepted that sheused various false names.[48] The prosecution thus adduced the evidence of the emails sent on 5 April 2015and in the month before, and the Judge brought all these to account in his assessmentof the appellant's intent when she transmitted on 5 April 2015. I do not acceptMr Speed's submission that the prosecution was bound to put all the evidence of eachemail to the defendant when she gave evidence. She had the opportunity to respondto each of those emails said by the prosecution to be relevant to assessing her intentwhen she transmitted on 5 April 2015. There is no obligation on the prosecution to doso, and the risk should it not is that the defendant's evidence may remain unchallengedto create an element of doubt which undoes the prosecution case. That decision is forthe prosecutor, who may choose not to cross-examine a defendant because his or herevidence is thought to be without credibility, or because the prosecution evidencespeaks for itself so that there is no need. The real point is that Ms Kronfeld had theopportunity to respond to all the emails produced in evidence, and, of mostimportance, say what she intended by those she sent on 5 April 2015. She did not doso to any degree, but she was taken to some of them by the prosecutor. There is noobligation on the prosecution which extends beyond that.[49] The Judge's reference to the five emails not having to be "read in isolation"has attracted the appeal on this issue. He said:10The offence description relies on the combined effect of those emails andthose sent between 1 March and 1 April 2015. The five emails were on top ofmany other emails that are referred to in the description section of the chargingdocument. In addition, texts and malicious and fictitious phone calls were partof Ms Kronfeld orchestrating a premeditated, persistent, vile barrage andattack on Mrs X.[50] Mr Bates submits that the Judge correctly focused on the intention of theappellant, which is fundamental to the charge, in sending the five emails. The focuson the state of mind of the person alleged to have committed the offence accords withthe pre-trial ruling of Mander J. The Judge also said that: 1110 At [32].11 At [40].[a]s held by Mander J, I am able to take into account all of the conduct on allof the charges before the Court in drawing the inference that I have. Thecombination of my assessment of Ms Kronfeld's evidence and of all of theevidence before the Court is to find that the emails of 5 of April 2015 andthose sent between 1 March and 1 April 2015 are evidence of an intention tocause Mrs X to fear for her safety.[51] Mr Bates says the appellant knew that the earlier communications would beconsidered as evidence in assessing the intent of the appellant on 5 April 2015 andsubmits that all evidence which bore on that intent was relevant, or might be so.Discussion[52] This element of the appeal is the product of the way the charge was worded.There was no need to refer to the range of emails between 1 March and 1 April 2015.Those emails, like all Ms Kronfeld's communications before 5 April 2015, providedan evidential background for what is alleged on 5 April 2015.[53] Ms Kronfeld's case is that the 5 April 2015 emails had to be considered inisolation in assessing her intent that day. However, I agree with Mr Bates that theCourt may look at the earlier emails and communications when determining her intentin sending the five emails on 5 April 2015. This is consistent with s 6 of the Act whichreads:6 Object(1) The object of this Act is to provide greater protection to victims ofharassment by—(a) recognising that behaviour that may appear innocent or trivialwhen viewed in isolation may amount to harassment whenviewed in context; and(b) (2) (3) Any court which, or any person who, exercises any power conferredby or under this Act must be guided in the exercise of that power bythe object specified in subsection (1).[54] Harassment involves a pattern of behaviour that is directed against anotherperson, and the pattern lies in at least two separate acts within a period of 12 months.That does not mean separate days, or defined intervals. Twice is twice. Whenconsidering a recipient's mental well-being, it is not just the content of acommunication which fixes its intended effect, although that may suffice, but theregularity, volume and content of all communications which preceded or accompaniedit. The colour of the communications on 5 April 2015 is drawn from the full factualsetting which bears on them.[55] I find nothing duplicitous, or prejudicial to the appellant, in the chargingdocument referring to those emails sent between 1 March 2015 and 1 April 2015, asthe intent necessary to establish criminal harassment must be measured on5 April 2015, and will logically be viewed in the full context of communications andthat day and prior. This may cut both ways as the broader context may soften theimpact and intended effect of a communication, or support the prosecution case. Thisissue as a ground of appeal is dismissed.Issue 2 - Duplicity (double jeopardy)[56] Of the five emails sent on 5 April 2015, only email 46, under the name "JohnSirron" was not the subject of a separate charge. Emails 43 and 44 were part ofCRN15004006586, the withdrawn charge of sending nine emails using indecentlanguage with the intention of offending the recipient [Mrs X]. Email 45, sent by"Tracy Hopkins" is part of the charge of sending nine fictitious messages using threefalse identities under CRN15004006587 to which a guilty plea was entered. Email47, under the name "Dianne Milne" relates to the withdrawn chargeCRN15004006585 of using a telephone device for the purpose of annoying [Mrs X]by creating six fake email accounts with Google and using these false identities to send[Mrs X] 25 emails with the intention of annoying her.[57] The question is whether the appellant has been convicted of or been acquittedof another offence (here criminal harassment) arising from the same facts which foundthe criminal harassment charge. The Criminal Procedure Act 2011 ("CPA") provides:45 Special pleas(1) Only the following special pleas may be entered:(a) a plea of previous conviction:(b) a plea of previous acquittal:(c) a plea of pardon.(2) More than 1 special plea may be entered in relation to the same charge.(3) If the defendant enters any of the special pleas, the defendant mustprovide information about the conviction, acquittal, or pardon on whichthe plea is based.46 Previous conviction(1) If a plea of previous conviction is entered in relation to a charge, thecourt must dismiss the charge under section 147 if the court is satisfiedthat the defendant has been convicted of—(a) the same offence as the offence currently charged, arising from thesame facts; or(b) any other offence arising from those facts.(2) Subsection (1) does not apply if—(a) the defendant was convicted of an offence and is currently chargedwith a more serious offence arising from the same facts; and(b) the court is satisfied that the evidence of the more serious offencewas not readily available at the time the charging document for theprevious offence was filed.47 Previous acquittalIf a plea of previous acquittal is entered in relation to a charge, the court mustdismiss the charge under section 147 if the court is satisfied that the defendanthas been acquitted of—(a) the same offence as the offence currently charged, arising from the samefacts; or(b) any other offence arising from those facts.(emphasis added)[58] Section 46(2) has no application as the more serious offence of criminalharassment could always have been charged with the other offences, because the factswere known. However, if the emails of 5 April include emails the subject of othercharges, then the charge of criminal harassment arguably arises from the "same facts".[59] Mr Speed's submission is that there must be no ingredient of a charge, herecriminal harassment, which is also the subject of another charge where there has beena conviction entered or the charge was dismissed.[60] Section 26(2) New Zealand Bill of Rights Act 1990 ("BORA") provides that adefendant should not be subject to double jeopardy, meaning that a person acquittedof or convicted of an offence should not be tried or punished for it again. Section10(4) of the Crimes Act 1961 provides that no one is liable to be punished twice inrespect of the same offence.[61] Mr Bates recognises that s 45 CPA is concerned with special pleas, and whilethere was no such plea entered, the Police do not contest that s 46 CPA has application.Anyone entering a special plea carries an evidential burden, but the proper, andco-operative approach adopted by Mr Bates recognises s 26(2) of BORA above.[62] The jeopardy which Mr Speed asserts is that of Ms Kronfeld being convictedtwice, and punished twice, in respect of, emails for which she admitted guilt, or wherecharges were withdrawn and which charges he submits have to be treated as dismissed.This is the application of the old pleas of autrefois acquit and autrefois convict. Thereare four such emails in the five sent on 5 April 2015, if Mr Speed is right.[63] The point is critical because if four of the five emails should not have been thesubject of the harassment charge, as they were already the subject of other charges,either withdrawn so as to constitute a dismissal, or to which Ms Kronfeld pleadedguilty, then arguably there would be no two acts proving harassment within the fivealleged, leaving only one, and one does not suffice.[64] Mr Speed submits that ss 146 and 147 CPA apply to the withdrawn charges,which included emails 43, 44 and 47.146 Withdrawal of charge(1) The prosecutor may, with the leave of the court, withdraw a chargebefore the trial.(2) The withdrawal of a charge under this section is not a bar to any otherproceeding in the same matter.(3) A Registrar may, in respect of any offence other than a category4 offence, exercise the power under subsection (1) if the defendantconsents to the prosecutor withdrawing the charge.147 Dismissal of charge(1) The court may dismiss a charge at any time before or during the trial,but before the defendant is found guilty or not guilty, or enters a plea ofguilty.(2) The court may dismiss the charge on its own motion or on theapplication of the prosecutor or the defendant.(3) A decision to dismiss a charge may be made on the basis of any formalstatements, any oral evidence taken in accordance with an order madeunder section 92, and any other evidence and information that isprovided by the prosecutor or the defendant.(4) Without limiting subsection (1), the court may dismiss a charge if—(a) the prosecutor has not offered evidence at trial; or(b) in relation to a charge for which the trial procedure is the Judge-alone procedure, the court is satisfied that there is no case toanswer; or(c) in relation to a charge to be tried, or being tried, by a jury, the Judgeis satisfied that, as a matter of law, a properly directed jury couldnot reasonably convict the defendant.(5) A decision to dismiss a charge must be given in open court.(6) If a charge is dismissed under this section the defendant is deemed tobe acquitted on that charge.(7) Nothing in this section affects the power of the court to convict anddischarge any person.[65] Taken together, ss 146 and 147 allow withdrawal of a charge before trial, butdismissal is the correct course once trial is commenced. Mr Speed asked the Judge todismiss the charges "withdrawn" and submits the "withdrawal" should be treated as adismissal under s 147(2). If that is correct, given the plea of guilty to one charge,which was laid in part in reliance on email 45, there is only one email left (email 46),and one does not suffice.Discussion[66] The special pleas apply when the Court is satisfied that a defendant has been"convicted" of an offence or a charge has been dismissed arising from the "samefacts".[67] In Rangitonga v Parker, the Court was concerned with a previous acquittal.The provisions of the CPA in respect of a previous conviction are expressed in identicalterms.12 An offence arises from the same facts where there is a common punishableact or omission central to the previous and the "new" charge. In that case, the chargeof assault with intent to injure arose out of the same circumstances but not the samefacts as the charge of rape where the central punishable act involved sexual connectionwithout the complainant's consent.[68] In another case, the Court of Appeal set aside convictions and ordered a re-trialwhere an appellant had been convicted following a jury trial on charges of causinggrievous bodily harm with reckless disregard, and a charge of criminal nuisance.13The case involved knowingly infecting a complainant with HIV. The charges were notlaid in the alternative, and the appellant could not be convicted on both charges if theyarose out of the same act of unprotected sex. The Court emphasised that a special pleais now considered not against the elements of the charges, but the facts giving rise tothe charges.[69] Mr Bates refers to the charge involving email 45 under CRN 15004006587 towhich a guilty plea was entered. Section 112(2)(b) of the TelecommunicationsAct 2001 involves the use of a telecommunications device and sending fictitiousmessages. The central punishable act in the harassment charge is making contact withthe complainant in the specified manner, and Mr Bates accepts that the centralpunishable act for the telecommunications charge is the same email, so it could not berelied on to establish the separate charge of criminal harassment.[70] However, Mr Bates says a plea of previous acquittal does not apply in the caseof emails 43, 44 and 47, as those charges were withdrawn, and contests the submissionthat withdrawal of the charges in respect of those emails should be treated as anacquittal, or dismissal of the charges.[71] At a resumed AVL hearing on 14 December 2017, convened to address in moredetail the issue of double jeopardy, counsel addressed which emails of 5 April 2015survived the challenge that they were also facts of the charge admitted, or the chargeswithdrawn. The discussion and my conclusions arising, are as follows:12 Rangitonga v Parker [2016] NZCA 166, [2016] NZAR 768 at [36].13 Filitonga v R [2017] NZCA 492, [2017] NZAR 1667.Email 46[72] No challenge is raised to this email, which properly forms part of the charge ofcriminal harassment.Email 45[73] Mr Bates accepts that email 45 cannot be part of the criminal harassmentcharge, as it was part of charge CRN 15004006585 to which a guilty plea was entered.Emails 43, 44 and 47 – CRN 15004006585 and 15004006586[74] At trial, Mr Speed made a submission of no case to answer to these charges.The prosecution alleged these emails were unlawfully sent using a "telephone device".Mr Speed made a submission as to the meaning of "telephone device" and"telecommunication device". The Judge was invited to dismiss the charges and aftersome discussion, the prosecutor, at the suggestion of His Honour, withdrew thecharges as recorded in Ruling No 2 of 21 February 2017.14[75] Mr Bates resists withdrawal of the charges as a dismissal but otherwise saysemails 43 and 44 were scheduled to CRN 15004006586, but as the charging dateexpired on 31 March 2015, these two emails could never have been part of the charge.He says that meant there could never have been a conviction on those charges, inrespect of those emails, so there was no jeopardy to Ms Kronfeld.[76] Otherwise he submits that email 47 under CRN 15004006585 could have beenaddressed by the Court by way of an alternative charge, or amendment to the charge,so that dismissal would not have necessarily followed, and I should assume that coursewould have been taken.[77] The fact is Ms Kronfeld faced charges with these three emails as particularisedfactual elements. Whether the defence related to the meaning of a telephone device,or the emails did not correspond with the period charged, they were alleged facts onwhich the charges were brought. As a result, the correct outcome should have been a14 Police v Kronfeld, above n 7.dismissal of the charges. Absent an amendment or the charge being expressed in thealternative, I do not see how the practical suggestion of an experienced prosecutor cansave the day because for whatever reason, the charges should in law have beendismissed and that is an end to it.[78] I therefore conclude that the charge of criminal harassment cannot stand, asonly one email of 5 April 2015 has survived this appeal. The appeal on this ground isallowed and the conviction set aside. But for that conclusion the charge of criminalharassment would have been proven. I have rejected the first ground of appeal (Issue1) and also reject the third ground (Issue 3) as follows.Issue 3 - Section 8 threshold for criminal harassment[79] This element of appeal is redundant given the finding of double jeopardy, butI otherwise dismiss this ground for the following reasons.[80] Mr Speed submits that the Judge erred by not having proper regard to the highthreshold required to establish criminal harassment and that "by generalising all theevidence, diverted [himself] from the task at hand". He submits that the Judge did notturn his mind to the correct legal test in respect of the five emails of 5 April 2015, and"it was impossible to meet the required threshold".[81] Section 8(1) of the Act requires more than causing anger, annoyance or otheremotional disturbance as there must be an intent proven to cause fear for someone'ssafety. Mr Speed submits that the "charging of the five emails" of 5 April underdifferent and lesser charges meant that the Police thought some of the "harassing"emails were categorised by the prosecution as annoying or offensive, short of the s 8(1)standard. He submits that the five emails contained no threats of violence or harm andwere instead "rude", to annoy or offend, to elicit a reaction. The appellantacknowledged that she wanted to annoy the complainant, but she did not know "what[her] reasoning was", in sending the emails. She denied knowing that the complainantwould fear for her safety. She denied intending to cause physical or mental harm. Sheacknowledged that she was trying to give [Mrs X] the impression that someone was"hired to send these messages".[82] [Mrs X] referred to emails of 12 March, 1 April, 2 April, 3 April 2015 as in arange of "upsetting", "rude", "revolting and vile" and that she was "in a nightmare","constantly hassled" and "quite nervous". Mr Speed submits that in assessing[Mrs X]'s evidence, the Judge fell into error because none of the emails referred toand sent before 5 April 2015, were within the particulars of the charge and that theJudge focused on the complainant's reactions and therefore misdirected himself at law,as the focus is on the defendant's intention in sending the messages.[83] The Judge found that:15The sustained nature of the contact, the deception involved and the crude, vileand offensive content of many of the communications paints a more accuratepicture of Ms Kronfeld's intent.[84] He concluded:16The combination of my assessment of Ms Kronfeld's evidence and of all ofthe evidence before the Court is to find the emails of 5 April 2015 and thosesent between 1 March and 1 April 2015 are evidence of an intention to causeMrs X to fear for her safety.[85] The intention of an alleged harasser is crucial to a prosecution for criminalharassment. In R v D, the Chief Justice emphasised the need to direct attention to thesequence of events and their context, rather than to the "concern" caused to thecomplainant.17 The required intent must be assessed at the time of the incidents reliedon by the prosecution. In that case, the Court of hearing ruled as irrelevant evidenceabout the relationship between the complainant and the appellant, and the knowledgeof the appellant about the complainant's response to the sexually explicit material inher letters. That ruling prevented the appellant pursuing that line of cross-examinationof the complainant, and was held in error. In this appeal that is not the case, and isreally the reverse, as the Judge brought to account other emails for context, as part ofthe factual matrix.[86] Mr Bates emphasises that the sequence of events provides relevant contextwhen looking at the emails of 5 April 2015, including the relationship between the15 At [36].16 At [40].17 R v D [2000] 2 NZLR 641 (CA).complainant and the appellant, and the intended effect of the communications weredesigned to elicit from the complainant.[87] Proof of a charge under s 8 of the Harassment Act was addressed by theJudge when he cited Mander J's judgment. Although Mander J's remarks were in thecontext of a search warrant application, I consider they are a lucid distillation ofprinciple and I set them out in summary.18[27] The application refers to the complainant having received some148 nuisance calls, texts or emails, culminating in some 37 nuisance hang upcalls and malicious texts on a single day. The inquiries with Telecom arereviewed and the information the telecommunications company was able toprovide detailed. The complainant is referred to as becoming increasinglyfragile in her mental state and is described as feeling powerless. The inquirymade of the complainant by the police as to why she believed this may behappening to her, is reported as her believing the person or persons responsiblewere associates of a female with whom her husband had an affair the previousyear. The dates and nature of the texts are referred to as appearing tocorroborate that belief.[28] A number of examples of the texts are provided in the application.These include, "rumours confirmed", "move on", "lying", "told truth?","lies", "deception", "double life". Of particular concern were the examplesprovided of "found your website lots of email addresses for me to have funwith", "found your family facebook", "my instructions are to find yourchildren", "making progress locating children".[30] The necessary reasonable suspicion did not rest on the complainant'sfear of loss of reputation or invasion of privacy. The charge of criminalharassment requires proof of a person's intention that the harassment causethe other person to fear for their safety or that of their family. Alternatively,that the person knows the harassment is likely to cause the other person toreasonably fear for their or their family's safety. There is no requirement forthe person to actually hold such a fear. The focus is on the state of mind ofthe person alleged to have committed the offence.[31] While the impact of the communications on the complainant may bea relevant consideration as part of an assessment of all the circumstances whenconsidering whether the police had reasonable grounds to suspect this was thesender's intention or knowledge, as with all criminal charges the issue of mensrea depends upon drawing inferences from the actions of the suspect.[34] NR v District Court at Auckland was concerned with the general"catch-all" category within the definition of "specified acts" of harassmentcontained in the Harassment Act, which requires proof of some other action,18 Kronfeld v Police [2016] NZHC 2272.other than making contact by telephone or electronic communication, whichmust cause a person to fear for his or her safety. Proof of such an effect is notrequired where the specified act relied upon is making contact with the person,as in the present case.[43] Ms Kronfeld relied upon a decision of this Court, Brown v Police,to submit that specified acts must not only be reasonably likely to cause a fearfor the safety of the complainant or her family, but that there must also beevidence to show that was her intended result or that she knew of itslikelihood.[46] In the present case it was clear from the information contained in theapplication the suspect knew the complainant had children and wasintentionally setting out to identify them. It was reasonable to conclude fromthe communications the children were being targeted. In contrast to Brown,there were not two incidents of harassment separated by a three month hiatusbut some 148 nuisance calls, texts and emails over a four month period.Several of these messages referred specifically to the complainant's children.[47] There was therefore an available reasonable inference that MsKronfeld intended this harassment to cause the complainant to fear for her orher children's safety. As already observed, a similar finding is available thatMs Kronfeld knew the harassment was likely to cause the complainant toreasonably fear such harm. At the very least there was a basis upon which thatcould be reasonably suspected.[48] Contrary to Ms Kronfeld's submission, Judge Turner's considerationof the cumulative threatening impact of Ms Kronfeld's communication doesnot reduce the s 8(1) mental elements to "mere numbers" or render them void.The sheer volume and incessant nature of unwelcome communications andthe persistence of sending the communications, notwithstanding Telecomhave blocked several numbers and cancelled SIM cards, were allvalidly part of the Court's assessment of the inference of intention and/orknowledge on the part of the suspect.(Footnotes omitted).[88] Mander J did not have the evidence before him as did the Judge at hearing. Hewas dealing with a challenge to a search warrant. However, I regard Mander J'sobservations in his para [46] as going directly to the correct approach to proof of theintent and knowledge of Ms Kronfeld. As the Judge said, Ms Kronfeld knew [Mrs X]had children and was intentionally setting out to identify them, and the children werebeing targeted themselves, or for the purpose of harassing [Mrs X]. There were 148nuisance calls, texts and emails over a three month period and several of these referredspecifically to the children. Looking at the events of 5 April 2015 in this context takesthem far beyond "annoying" or "unsettling" behaviour. They represent a deliberateand persistent undermining of the complainant, striking her where she was mostvulnerable by reference to her husband's conduct with Ms Kronfeld and her interestin the complainant's children.[89] The Judge brought all evidence to account before finding the emails of 5 April2015, in the context of those sent between 31 March and 1 April 2015, were evidenceof an intention to cause [Mrs X] to fear for her safety, which is not limited to physicalharm. While the appellant said she did not intend to do more than annoy [Mrs X], itwas for the Judge to infer what was intended, and that is what he did, finding thesewere "sustained, crude, vile and offensive" communications which went directly totheir intended effect on 5 April 2015. While not considered a physical threat, in overallcontext they were messages from fictitious, unknown parties, with knowledge of thefamily, expressing hatred, and are sinister. They were insidious, and by 5 April 2015were the culmination of a sustained barrage intended to distress [Mrs X] and to createfear for her own mental health and wellbeing and that of her family. They were adripping tap which found expression in emails of 5 April 2015 for the purpose ofcharging. They were plainly intended to torment [Mrs X]. The Judge was right toconclude that these emails met the required standard of intended fear held by [Mrs X]for her mental safety. The Judge accurately and carefully applied the law to the facts,and this ground of appeal is dismissed.D. APPEAL - ACCESSING COMPUTER SYSTEM WITHOUTAUTHORISATION, CHARGE 6 (CRN15012002555), CHARGE 7(CRN15012002556) AND CHARGE 8 (CRN15012002557)[90] The charges are set out in para [5] above. Section 252 of the Crimes Act 1961provides:252 Accessing computer system without authorisation(1) Every one is liable to imprisonment for a term not exceeding 2 yearswho intentionally accesses, directly or indirectly, any computersystem without authorisation, knowing that he or she is not authorisedto access that computer system, or being reckless as to whether or nothe or she is authorised to access that computer system.(2) To avoid doubt, subsection (1) does not apply if a person who isauthorised to access a computer system accesses that computer systemfor a purpose other than the one for which that person was givenaccess.(3) [Repealed][91] Section 248 of the Act provides:248 InterpretationFor the purposes of this section and sections 249 to 252,—access, in relation to any computer system, means instruct,communicate with, store data in, receive data from, or otherwise makeuse of any of the resources of the computer systemauthorisation includes an authorisation conferred on a person by orunder an enactment or a rule of law, or by an order of a court or judicialprocesscomputer system—(a) means—(i) a computer; or(ii) 2 or more interconnected computers; or(iii) any communication links between computers or toremote terminals or another device; or(iv) 2 or more interconnected computers combined withany communication links between computers or toremote terminals or any other device; and(b) includes any part of the items described in paragraph (a) andall related input, output, processing, storage, software, orcommunication facilities, and stored data.[92] It must be proved that a defendant is not authorised to access the relevantsystem. Mr Speed submits the offence is concerned with "hacking" as that iscommonly understood, but that description has no settled meaning in law. It is not anecessary ingredient of the charge. The question of authority, whether express orimplied, is central to the offence because if there was authority or any doubt that adefendant was reckless as to his or her authority to access a computer system, there isno offence. The offence is one of accessing "without authorisation" knowing that heor she is not authorised to access, or being reckless as to their authority to access.[93] The appellant said that she had been supplied with a password to the relevantemail address, given to her by the complainant's partner. The Judge inferred thatwhoever had access to the accounts had used a password. The appellant had beengiven the password to access [Mr X]'s iTunes account in 2011. He also agreed to usethe email address to communicate with the appellant, and said he had changed it sothat his wife could not use it. The Judge referred to the evidence of the appellant thatthe only basis for thinking she had the right and ability to access the email account inJanuary 2015 was that she had been given the password in 2011, but that was for anentirely different purpose, to access [Mrs X]'s iTunes account. Mr Speed submits theJudge erred in law by not considering all evidence of authorisation.[94] Mr Bates' submission is that the only question before the Court is whether theappellant had authority to access the computer systems at the address she had beengiven in 2011, and the school portal. [Mr X] denied he provided her with the passwordto access his personal email account. He said he had changed it in 2014 and had notgiven the new password to her, but she may have seen him use it, to access an iTunesaccount, and gave evidence of an occasion when she sat in the car beside him andgrabbed his phone and asked for the password. She was trying to access the accountfor him. He did not know the passwords to his children's school portals, and they werenot provided to the appellant.[95] Mr Bates refers to findings of credibility, and in particular paras [35] and [36]of the judgment:[35] I do not accept Ms Kronfeld's evidence. I found her evidence to beneither credible nor reliable in many respects. Ms Kronfeld appearedto regard some questioning by Mr Sluis as something of a contest.Despite accepting that she sent multiple emails over months, she didnot accept it was persistent. Despite repeatedly saying she was not ina rational state of mind and not her normal self, Ms Kronfeld providedno explanation of that. There was no evidence before the Court of anymedical or psychological issues. Making due allowance for the effectof giving evidence, I considered Ms Kronfeld to be, at times, evasive.As a witness she lacked candour and I did not have an impression ofher wanting to assist the Court.[36] Her evidence was also inconsistent with evidence that is not indispute. I found some explanations to be glib and self-serving, forexample, "have you seen the size of me". Her brief explanation of notbeing rational or her normal self does not equate with the overallinference and impact of the evidence which is that this was apremediated campaign, involving some sophistication and deception,aimed directly at Mrs X over a sustained period of time. The sustainednature of the contact, the deception involved and the crude, vile andoffensive content of many of the communications paints a moreaccurate picture of Ms Kronfeld's intent.[96] The Judge expressly rejected the appellant's evidence about having beenprovided with a password for the account. The Judge also accepted that he had notprovided the code to the school portal account.Discussion[97] I accept Mr Bates' submission that after evidential enquiry, the Judge was fullyentitled to reach the conclusions which he did.[98] Just because Ms Kronfeld had been told the password to access hisApple iTunes account that did not constitute express or implied authority in order toaccess any other account, or access that account when any authority was spent.[99] Mr Speed attempted to argue that there needs to be some sort of active breakor cessation in the authority, but I do not accept that proposition. The prosecutionmust prove that the access alleged was unauthorised, and that may be because it wasforbidden, or factual circumstances had changed so that what was authorised access,had become unauthorised. This ground of appeal was advanced with less enthusiasmby Mr Speed. That was appropriate, as the appellant had no authority to access any ofthe email accounts, and the factual findings were well open to the Judge.E. DISPOSITION[100] The appeal against the conviction for criminal harassment is allowed and theconviction set aside. The appeal is dismissed in all other respects. Ms Kronfeld willbe sentenced in the context of this judgment and on the appeal against sentence, inrespect of charges 1, 4, 6, 7 and 8.[101] The appeal against conviction on the charge of criminal harassment hassucceeded on what is a technicality. The appeal was argued fully and precisely as toduplicity and the trial Judge did not have the same opportunity to address the issue. Ittook more than one hearing to identify all relevant considerations, and fully addressthem. Were it not for the technical approach to "withdrawal" of charges, the convictionwould have been secure, as the Judge's reasoning and consideration of the facts wasfaultless.[102] This judgment is thus the result of the way the charge was laid and theprosecution was conducted. The Judge made observations critical of the charging inthis case, as have I. Quite properly, by his Ruling (No 2),19 he restricted theprosecution case to the five emails of 5 April 2015 and this has proved to the advantageof the appellant. There were many other emails which could have founded the chargeof criminal harassment. Ms Kronfeld's conduct overall, reflected in the charges onwhich she has been found guilty and the appeal dismissed, and to which she pleadedguilty, remains to be readdressed at the sentencing appeal. A telephone conferencewith counsel will be arranged by the Registrar for this purpose..Nicholas Davidson JSolicitors:R P Bates, RPB Law, Dunedin / A G Speed, Barrister, Auckland19 Police v Kronfeld, above n 7.