ANNAND v NEW ZEALAND POLICE [2020] NZHC 3416

ANNAND v NEW ZEALAND POLICE [2020] NZHC 3416 [18 December 2020]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2020-412-000031[2020] NZHC 3416BETWEEN MICHELLE CAROLYN ANNANDAppellantAND NEW ZEALAND POLICERespondentHearing: 15 December 2020Appearances: Appellant in personR P Bates for RespondentJudgment: 18 December 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 18 December 2020 at 11.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate 18 December 2020Introduction[1] On 20 July 2020, after a defended Judge-alone trial,1 Michelle Annand wasconvicted of posting a digital communication with intent to cause harm.2 Ms Annandappeals her conviction on the following grounds:1 Police v Annand [2020] NZDC 16403.2 Harmful Digital Communications Act 2015, s 22.(a) the charge had already been dismissed under s 147 Criminal ProcedureAct 2011;(b) the victim did not suffer harm;(c) she suffered more harm than the victim;(d) she did not make any admission that she should not have sent thecommunication;(e) the conviction was contrary to her right to freedom of expression underthe New Zealand Bill of Rights Act 1990 (NZBORA); and(f) the fact of a conviction would prevent her proposed travels.3She does not appeal the sentence of 40 hours' community work and reparation in thesum of $250.Facts[2] During 2014 Ms Annand was involved in an ongoing dispute with herneighbour over the location of the boundary between their two properties in the remotesettlement of Waipori Falls near Clutha.[3] On 14 March 2018 Ms Annand sent an email to her neighbour's employer, theSouthern District Health Board. The email outlined her frustration about the boundarydispute, but also described her neighbour as evil, violent and destructive. The victimsays she was extremely embarrassed over the allegations that attacked her personaland professional character.Principles on appeal[4] Section 232 of the Criminal Procedure Act 2011 provides that the High Courtmay only allow an appeal against conviction if satisfied that the trial judge "erred in3 Ms Annand does not mention this directly in her submissions but has mentioned this in emails tothe Court.his or her assessment of the evidence to such an extent that a miscarriage of justicehas occurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.4Background to District Court decision[5] Ms Annand was initially charged with both trespass and posting a harmfuldigital communication. The trespass charge was dropped after Ms Annand wasconvicted of the harmful digital communication charge.[6] The charging document for the harmful digital communication charge wasfiled on 12 December 2018. There were numerous delays and several trial dates werevacated.5 Judge Crosbie issued a minute on 8 May 2020 noting that Ms Annand hadinitiated civil proceedings against the husband of the complainant in the criminalproceedings, and had signed an unconditional agreement to sell her house so she wouldbe leaving the community. The Judge noted the position reached at that point was ifMs Annand discontinued the civil proceedings and settlement of her house saleoccurred, the Police would withdraw the criminal charges.[7] On 25 May 2020 Judge Crosbie issued a minute confirming settlement of thehouse sale had occurred. He then noted the Police would withdraw the charges if thecivil proceedings were discontinued and the only impediment to both mattersresolving was if there was an application for costs in the civil matter. He asked therespondent's lawyer to advise the District Court whether the civil matter could bedismissed with no order as to costs.[8] On 4 June 2020 Judge Crosbie issued another minute noting the Police chargesremained in place as the respondent in the civil case did not agree to the civil claim4 Section 232(4).5 On 9 May 2019 no date was available due to backlog a nominal date of 6 June 2019 was allocated.On 6 June 2019 a trial date was allocated of 7 August 2019. On 7 August 2019 the matter couldnot be heard, and the trial was moved to the nominal date of 5 September 2019. On 2 September2019 a trial date was allocated of 4 November 2019. On 4 November 2019 the matter could notbe heard, and the trial was moved to the nominal date of 3 February 2020. On 27 February 2020the trial date was vacated.being discontinued with no order as to costs. Given the views of the victim in anattached memorandum from a victim's advisor the Judge was surprised the Police everadvised the charges would be withdrawn if the civil matter was resolved. He directedthe trial to proceed on 10 June 2020.District Court decision[9] Judge Rollo presided over a Judge-alone trial on 20 July 2020. The Judgefirst provided a brief overview of the background to the dispute which lead to the emailbeing sent.[10] The Judge then outlined the contents of Ms Annand's email, which touched onher grievances in relation to the boundary dispute and other issues,6 and went on tomake specific statements about the victim's fitness to work as a nurse. Ms Annandwrote that the victim attempted to humiliate her and she wondered if the victim'shusband had a "psych disorder". The Judge quoted these passages from the email:7 If her husband has a condition one would hope that she would want tocontain it but no, she seems to want to walk the loop-field as well. Maybe shehas gone "native".8 It may be really a question of her ethics and even the stateof her mental health what she has displayed to me along with her husband isvery unkind, violent and destructive behaviour and probably what I wouldrecognise as "evil" and I am not a Christian.Is this synonymous with being a nurse for the Southern District Health Board?I do not think so. It is unfortunate that I am inclined towards writing this, but[the victim and her husband] have put me in a situation whereby I do not evenlike to go to my own house as I do not know what damage they might do next.As it is they have gone far too far. Regards Michelle Annand.[11] Turning to the elements of the offence Judge Rollo noted Ms Annand acceptedunreservedly that she sent the letter but did not accept she wrote the letter to adverselyimpact the victim's career or to cause her emotional distress. Rather, she emphasisedshe wrote the letter to enforce her property rights and resolve the dispute over her land.6 Including the dumping of rubbish, the flow of raw sewage, trespass, vandalism, the approach ofother neighbours in relation to problems caused by the victim and the costs she has incurred inattempting to resolve the issue.7 Police v Annand, above n 1, at [18], quoting Ms Annand's email (footnote added).8 The victim is of Māori descent.[12] The Judge relied on the victim's evidence that she valued her position and hercareer emotionally and financially as she was the sole earner. The victim said shefound the contents of the letter extremely distressing, felt they were an untruedistortion of the reality and was deeply offended by the suggestion she had "gonenative" as a racial or ethnic slur. She was concerned about the impact of the letter onher employment and advancement although there was no apparent immediate impact.[13] From the evidence the Judge was satisfied the contents of the letter and thecircumstances in which it was sent caused the victim serious emotional distress. TheJudge was also satisfied that the email would cause similar harm to an ordinaryreasonable person in the position of the victim. Turning to whether Ms Annand postedthe communication with the intention to cause harm, the Judge felt Ms Annand'scomments to Constable Christie that she "recognised that she should not have involved[the victim's] workplace" was an acknowledgement that she knew the email wouldcause harm and had gone too far in sending it.[14] The Judge therefore found the evidence proved beyond reasonable doubt thatMs Annand posted the digital communication (the email) to the Southern DistrictHealth Board, it was intended to cause harm to the victim, that posting such an emailto an employer would cause harm to an ordinary reasonable person in the position ofthe victim, and it did cause serious emotional distress to the victim. Accordingly, shewas convicted on the charge.SubmissionsAppellant's submissions[15] Ms Annand has provided a comprehensive outline of the background to thedispute that gave rise to the email and her resulting grievances, in her submissions. Aswas covered in the District Court decision, she explained repeatedly that she wasdriven to write the letter because of the failure of the police and other agencies to helpher and because of the losses she has suffered including losing an earlier sale of herhouse and the wasted costs of engaging a surveyor to resolve the boundary dispute.She submits that after the settlement of her property sale the criminal charges wereformally dropped. She says she was notified by two lawyers to that effect, and it wasrecorded in the minute of 8 May 2020 by Judge Crosbie. Consequently, theprosecution should not have proceeded and she should not have a conviction.[16] Ms Annand also submits she never admitted she should not have sent themessage and she has evidence to that effect. She refutes the evidence fromConstable Christie about what she said to him saying "[d]oes he have a recording toback up his claim". She has attached several emails written to the secretary for theMinister for Police relating to pursuing the police for reparation.[17] In addition, Ms Annand does not believe labelling the victim as "evil" causedher harm as the victim continued "with her pursuits" and was an active member of thebody corporate at Waipori Falls. Ms Annand submits she that she was the one mostharmed by the actions of the victim and she should therefore not have a conviction.[18] Lastly, Ms Annand has mentioned she is concerned a conviction would affecther ability to travel.Respondent's submissions[19] Mr Bates, for the Police, submits during the hearing Ms Annand conceded shehad sent the communication to the victim's employer. Further, the Court rightlyaccepted the evidence from Constable Christie that Ms Annand stated she "knew Ishouldn't have involved her work."[20] Mr Bates submits that the Court was correct to find that in posting the digitalcommunication Mr Annand intended to cause the victim harm knowing the emailwould cause harm to an ordinary reasonable person and the charge was proved beyondreasonable doubt. Mr Bates reiterates there are no grounds for the conviction to be setaside.Analysis[21] Ms Annand's primary ground of appeal is that the charge was dismissed byJudge Crosbie on 8 May 2020 under s 147 Criminal Procedure Act. Section 147 states:147 Dismissal of charge(1) The court may dismiss a charge at any time before or duringthe trial, but before the defendant is found guilty or not guilty,or enters a plea of guilty.(2) The court may dismiss the charge on its own motion or on theapplication of the prosecutor or the defendant(6) If a charge is dismissed under this section the defendant isdeemed to be acquitted on that charge.[22] It is clear from Judge Crosbie's minute of 8 May 2020 that he did not dismissthe charges. In that minute Judge Crosbie merely recorded the position of the parties,as that had been relayed to him. The Judge stated "[t]he position that has been reachedtoday is that upon advice to the Court that the settlement has occurredMs Annandwill discontinue the civil proceedings and the police will withdraw the criminalcharges."9[23] The Police's assertion that they would withdraw the criminal charges subjectto the civil charges being dismissed appears to have been inconsistent with the viewsof the victim. Notwithstanding that, an issue as to costs arose in relation to the civilproceeding which prevented its discontinuance in another minute from 4 June whereJudge Crosbie noted he was "surprised the Police previously advised the chargeswould be withdrawn if the civil matter resolved" given the views of the victim. OnMs Annand's own evidence her lawyer advised her on 9 June to pay costs of $250 onthe civil matter to make the criminal matter go away.[24] Whether to lay or withdraw charges is a decision for the Police. It is concerningthat the Police represented to the Court and Ms Annand that they were in a position towithdraw the charges if the civil proceeding resolved, apparently without the supportof the victim, where withdrawal was inappropriate. In reliance on the Police's positionMs Annand withdrew her civil proceeding, seeking a restraining order. Ms Annandmay wish to address these issues with the appropriate independent authority.9 Police v Annand DC Dunedin CRI-2018-012-2821, 8 May 2020 at [3].[25] In any event, Judge Crosbie made the position clear to Ms Annand in hisminute on 25 May 2020 that both the civil and criminal charges would proceed if anorder as to costs was not resolved in relation to the civil hearing.[26] It is clear the charge was not dismissed on 8 May 2020 and this ground ofappeal cannot succeed.[27] I consider the balance of Ms Annand's grounds of appeal cannot support afinding that a miscarriage of justice occurred such that the conviction should bequashed. The Judge did not convict Ms Annand on the basis she accepted and agreedwith the evidence presented by Constable Christie. The Judge noted that she deniedmaking the statement to Constable Christie that she knew she shouldn't have involvedthe victim's work.[28] The Judge was presented with two contradictory accounts of the meetingbetween Ms Annand and Constable Christie and was required to decide which accountwas more credible. The notes of evidence indicate Ms Annand was given anopportunity to cross-examine Constable Christie on the evidence he gave. I considerit was open to the Judge to find Constable Christie's statement was reliable andcredible for the reasons given by the Judge, in particular, that it is likely such astatement was recorded by the Constable at the time it was made. Indeed, Ms Annandacknowledges in her submissions that "[m]y email to the DHB was inappropriate".This ground of appeal accordingly fails.[29] Ms Annand's next ground of appeal which is her belief that the victim did notsuffer harm, is also simply a challenge to a factual finding by the Judge after hearingevidence from both the victim and Ms Annand. He provided a comprehensiveexplanation as to why he considered the communication caused the victim emotionaldistress, including her evidence that she was shaken by the events and that she foundthe letter extremely distressing. This was a reasonable conclusion to reach based onthe available evidence and I do not reach a different view.[30] Ms Annand provided submissions as to the level of harm caused by the seriesof events leading up to her sending the harmful digital communication. Her evidenceprovided a comprehensive picture of the level of stress she was under and the factorswhich drove her to act in the way she did. The dispute between the victim andMs Annand appears complicated and acrimonious.[31] While that information forms part of the context in sending the email, the Judgewas aware of the background and took it into account both in deciding whether theelements of the charge were met, and in setting the length of the sentence. Many ofMs Annand's allegations as to the background of the dispute are strongly denied bythe victim. I have no doubt Ms Annand suffered harm from the dispute, but this doesnot mean it was not open for the Judge to find the elements of the charge were met.[32] In oral submissions, Ms Annand also claimed that the conviction breached theNZBORA in that it was contrary to s 14 which provides everyone has the right tofreedom of expression, including the freedom to seek, receive, and impart informationand opinions of any kind in any form. However, Ms Annand was prosecuted unders 22 of the Harmful Digital Communications Act. Section 4 of the NZBORA providesthat:4 Other enactments not affectedNo court shall, in relation to any enactment (whether passed or made beforeor after the commencement of this Bill of Rights),—(a) hold any provision of the enactment to be impliedly repealed orrevoked, or to be in any way invalid or ineffective; or(b) decline to apply any provision of the enactment—by reason only that the provision is inconsistent with any provision of this Billof Rights.[33] Thus, the right to freedom of expression does not prevent conviction under theHarmful Digital Communications Act.[34] I also note that Ms Annand also thought the NZBORA protected her personalproperty rights. There is no section in that Act to that effect. But importantly, theconviction did not have any bearing on Ms Annand's property rights. This ground ofappeal also fails.[35] Finally, Ms Annand says she is concerned about the effect this conviction mayhave on her ability to travel. Ms Annand is an accomplished artist and formerjournalist and wishes to travel overseas. However, Ms Annand has other minorcriminal convictions which have not prevented her from travelling and Ms Annandcould not say why this further minor conviction would materially alter her ability totravel overseas.[36] This factor does not meet the threshold for granting a discharge withoutconviction which is that the consequences are "out of all proportion to the gravity ofthe offending".10 This ground of appeal is also without merit.Conclusion[37] Accordingly, the appeal against conviction is dismissed.Solicitors:Crown Solicitor, DunedinCopy To: Ms Annand10 Sentencing Act 2002, s 107.