POLICE v B [2017] NZHC 526

POLICE v B [2017] NZHC 526 [24 March 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000012[2017] NZHC 526BETWEEN NEW ZEALAND POLICEAppellantAND BRespondentHearing: 21 March 2017Counsel: PD Marshall and AB Richards for AppellantPL Borich and D Kara France for RespondentJudgment: 24 March 2017JUDGMENT OF DOWNS JThis judgment was delivered by me on Friday, 24 March 2017 at 11 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Law, Wellington.P Borich, Auckland.The issue[1] The respondent was charged with breaching a protection order in relation tohis estranged wife, and causing her harm through posting a digital communication.Judge Doherty found the first charge proved. However, the Judge concluded thesecond charge could not be sustained as the evidence was incapable of establishingthe respondent had caused the complainant "harm".1 The Harmful DigitalCommunications Act 2015 defines that term as "serious emotional distress". ThePolice seek leave to appeal on the basis the Judge erred in relation to this issue.2[2] This appears to be the first case to reach the High Court in relation to the offence provision, s 22 of the Harmful Digital Communications Act.3Background[3] The respondent and complainant separated in May 2015. On 25 June thatyear the complainant obtained a temporary protection order against the respondent.That order was made final on 28 September 2015. All other relevant events occurredin August 2015.[4] On 4 August the complainant went out with another man. The next day therespondent sent that man a text message, a screenshot of which he sent to thecomplainant. The message asked if the man had fun with "my wife", and remarkedthe man was not the complainant's type. The complainant called the respondent. Hetold her: "I know where you went, where you parked your car and where you weresitting". The respondent described the car she had been in, the man she had beenwith and his address. The respondent said he had waited outside the man's home andthen left. He later admitted to the Police following the complainant and hercompanion, at least for a short distance.[5] The respondent and complainant met later that month at a park. He told herhe had lots of photographs of her. The respondent said he would post photographs of1 R v B [2016] NZDC 23957.2 Criminal Procedure Act 2011, s 296.3 District Court cases include Police v Tamihana [2016] NZDC 6749 and Police v Kelly [2016]NZDC 12912. For helpful commentary, see Dr David Harvey, "Prosecutions under the HDCAct", ADLS, 26 August 2016.the complainant online if she did not stay away from other men. The respondent alsotold her to "cancel" the protection order. Unsurprisingly, the complainant said shefelt as if the respondent was blackmailing her. She said she was scared and anxious.[6] On 29 August a friend of the complainant, J, received a Facebook notificationsomeone was following her. J clicked on the link to the notification. She describedfinding "not very nice pictures" of the complainant. J took a screenshot and sent it tothe complainant, asking what was happening. The complainant recognised the twoimages in the screenshot as ones she had taken (of herself) after separating from therespondent. The complainant said both were personal. She did not know how therespondent had either. The complainant was very upset at what had happened. Shecontacted Facebook. And, made a prompt Police complaint. More about the imagesand the complainant's distress later. The respondent admitted posting the imageswhen interviewed by the Police. He was charged.[7] At the conclusion of the prosecution case, the respondent applied to bedischarged pursuant to s 147 of the Criminal Procedure Act 2011 on the basis theevidence could not sustain either charge. Judge Doherty reserved his decision. TheJudge later concluded there was sufficient evidence to sustain the breach ofprotection order charge. And, His Honour ultimately found that charge proved. Butafter carefully examining the Harmful Digital Communications Act, the Judgereached a different conclusion in relation to the charge under that enactment.[8] The Judge was satisfied there was sufficient evidence to establish therespondent had posted a digital communication with intent to cause the complainantharm, and that communication would cause harm to an ordinary reasonable person inthe complainant's position. In reaching these conclusions, the Judge considered thecommunication constituted an intimate visual recording in terms of the enactment.4However, the Judge concluded the evidence could not establish the communicationcaused harm as defined by the Act.4 Harmful Digital Communications Act 2015, s 4.A précis of the rival cases[9] Mr Marshall contends the Judge erred in two respects. First, by applying language other than the statutory language in relation to serious emotional distress. Second, and alternatively, by concluding the evidence could not establish that distress.[10] Mr Borich rejects both submissions and characterises the first as "a straw man". As to the second, Mr Borich contends the evidence disclosed only a low levelof emotional distress, particularly in the absence of corroborative "physical factors"such as incapacity to eat or sleep. He submits the Judge did not err.Leave[11] The appeal requires leave.5 Responsibly, Mr Borich did not contest leave, which I grant.The Harmful Digital Communications Act[12] As its name suggests, the Harmful Digital Communications Act seeks to deter, prevent and mitigate harm caused to individuals by digital communications; and provide victims of harmful digital communications with a quick and effectivemeans of redress.6 The Act established both civil and criminal regimes. Central toeach is the term "harm" which, pursuant to s 4, "means serious emotional distress".Civil regime[13] The Act requires the Approved Agency to,7 among other things, assess,investigate and resolve complaints about harm caused by digital communications.8Once the Approved Agency has had a reasonable opportunity to assess a complaintand decide what action to take, a complainant may apply to the District Court for anorder the defendant take down material; cease the (offending) conduct; notencourage others to engage in similar communication; publish a correction; give a5 Criminal Procedure Act 2011, s 296.6 Harmful Digital Communications Act, s 3.7 Now NetSafe.8 Harmful Digital Communications Act, s 8.right of reply to the complainant; or publish an apology.9 The District Court mustnot grant an order unless satisfied:10(a) There has been a threatened serious breach, serious breach, or repeated breach of one or more communication principles; and(b) The breach has caused, or is likely to cause, harm to an individual.[14] Ten communication principles are set out in s 6 of the Act. A digital communication should not, for example, disclose sensitive personal facts about anindividual; be threatening, intimidating or menacing; indecent or obscene; or be usedto harass an individual. In performing functions or exercising powers under the Act,the Courts and Approved Agency must take account of the communicationprinciples;11 and act consistently with the rights and freedoms contained in the NewZealand Bill of Rights Act 1990.12Criminal regime[15] The Act creates two criminal offences:(a) Failing, without reasonable excuse, to comply with an order of the District Court pursuant to the Act.(b) That in issue—causing harm by posting a digital communication.[16] The latter is committed when:(a) The defendant posts a digital communication with the intention itcause harm to a victim.9 Harmful Digital Communications Act, s 19(1).10 Section 12(2).11 Section 6(2)(a).12 Section 6(2)(b).(b) Posting that communication would cause harm to an ordinaryreasonable person in the position of the victim.13(c) Posting that communication causes the victim harm.[17] In determining whether a post would cause harm, the Court may take into account any factors it considers relevant, including: the extremity of language; age and characteristics of the victim; whether the digital communication was anonymous, repeated, true or false; and the context in which the communication appeared.14 The maximum penalty is a two-year term of imprisonment or $50,000 fine.15[18] The Act draws heavily on expedited work of the Law Commission in response to growing concern about the impact of information technology.16 The Law Commission advocated criminalisation in relation to digital messages that wouldcause "substantial emotional distress", while confining that proposal to messages that were "grossly offensive, or of an indecent, obscene or menacing character, orknowingly false", and limiting the applicable maximum penalty to a term of threemonths imprisonment.17 It follows the offence enacted in s 22 is more serious than that proposed by the Commission. And unlike the Commission's offence, that ins 22 is content-neutral (providing the post would cause harm to an ordinaryreasonable person in the victim's position, and does so).[19] The Law Commission saw harm as "pivotal" to its report.18 Notably, it emphasised harm extended to "a full range of serious negative consequences which13 Section 4 of the Act defines broadly the phrase "posts a digital communication". It matters notwhether the information about the victim is truthful. An intimate visual recording is captured by the definition, and in turn broadly defined. As observed, the Judge was satisfied the communication constituted an intimate visual recording.14 Harmful Digital Communications Act, s 22(2).15 Section 22(3). The maximum penalty for a body corporate is a fine of $200,000.16 Law Commission Harmful Digital Communications: The adequacy of the current sanctions and remedies (Ministerial Briefing Paper, August 2012, Wellington) (Law Commission Paper).17 At 144–145.18 At [1.26].can result from offensive communication, including physical fear, humiliation,mental and emotional distress".19 Its report continued:20Not all harms arising from communications are proscribed by law. The criminal law has typically been concerned with protecting citizens fromcommunication harms which invoke fear for physical consequences, eitherpersonal or proprietary, or which are obscene or harmful to children. Thecivil law, in the past, also typically shied away from protecting emotionalharm as such. However, as we demonstrate later, in both civil and criminalspheres the law has been moving towards recognition and protection of thatsort of harm. We recognise that within the community at large and withinyounger demographics particularly, the threshold for when a communicationcauses the level of distress that can be described as "harmful" and when itsimply causes annoyance or irritation may sometimes raise difficult issuesat the margins. But we have reached the view that when the level ofemotional distress can be described as significant the law has a role to play.[20] The Commission asked whether difficulties would arise in proving acommunication had caused, or was likely to cause, substantial emotional distress. Itthought not:21Proof of significant emotional distress may be thought to be problematic.Usually it will be sufficiently demonstrated by the nature of thecommunication itself: much of the material coming before the tribunal islikely to be of such a kind that it would clearly cause real distress to anyreasonable person in the position of the applicant. This blendedobjective/subjective standard is reflected in the Harassment Act whichrequires, as a condition of making a restraining order, that the behaviourcauses distress to the applicant, and is of such a kind that would it causedistress to a reasonable person in the applicant's particular circumstances.The Privacy Act requirement that an interference with privacy must causedamage including "significant humiliation, significant loss of dignity orsignificant injury to the feelings of the complainant" appears not to havebeen problematic.[21] All of this leads to five observations about the definition of harm as serious emotional distress. First, the definition is exhaustive. Consistently with its legislative history, the Act is concerned only with emotional harm, and more particularly, serious emotional distress.[22] Second, and again consistently with its legislative history, the Act eschews minor emotional distress—indeed all distress falling short of that amounting to serious emotional distress. This reflects the criminal nature of the sanction (in s 22)19 Law Commission Paper, above n 16, at [1.26].20 At [1.27] (footnotes omitted).21 At [5.56].and New Zealand's ongoing commitment to freedom of expression, as affirmed by s 14 of the Bill of Rights Act. However, and as Judge Doherty observed, the Act does not equate harm with mental injury, nor insist upon the establishment of an identifiable psychological or psychiatric condition. The offence is complete when the defendant causes the complainant serious emotional distress.[23] Third, that determination is part fact, part value-judgment.22 The Law Commission appears to have recognised as much.23 So too the legislature given its adoption of a somewhat elastic concept, and its articulation of permissive factors in the context of whether the post would cause harm to an ordinary reasonable personin the position of the complainant.24[24] Fourth, in determining whether serious emotional distress has been caused, I incline to the view consideration should be given to obvious factors such as the nature of the emotional distress; its intensity; duration; manifestation; and context,including whether a reasonable person in the complainant's position would havesuffered serious emotional distress.[25] Fifth, doubt attaches to whether interpretation or application of the phrase"serious emotional distress" is much helped by reference to a dictionary or thesaurus.I have avoided both for this reason. As the Court of Appeal observed inStockco Ltd v Gibson:25 we doubt that much is to be gained by using synonyms of statutory language. In the end the statutory words ["quote ordinary course of businessof the seller"] are everyday terms having common meaning and arereasonably clear in their own right. The hard part is applying them to thefacts of the case. We do not think that the exercise is greatly assisted byapplying the facts to similar but not identical wording.Or as Cooke P warned in Telecom Corporation of New Zealand Ltd v Commerce Commission, it is "a dangerous method of statutory interpretation to substitute words22 As when, for example, the issue is whether the complainant has sustained grievous bodily harm, meaning really serious bodily harm, in the context of s 188 of the Crimes Act 1961; seeR v Waters [1979] 1 NZLR 375 (CA).23 Law Commission Paper, above n 16, at [5.56].24 Harmful Digital Communications Act, s 22(2).25 Stockco Ltd v Gibson [2012] NZCA 330, (2012) 11 NZCLC 98-010 at [44].which the legislature has not in fact chosen".26 For this reason, reference to broadly similar offence provisions in cognate jurisdictions is also of little assistance to the task at hand.27 Elaboration upon or truncation of the statutory language is unhelpful. In short, the phrase "serious emotional distress" is a broad compendious expression that means what it says.The defendant's communication and complainant's reaction[26] The communication posted by the respondent used a name similar to thecomplainant's Facebook username. The communication contained two images of thecomplainant, albeit most of her face is not in either. The larger image shows thecomplainant lying on a bed, or more accurately, the lower part of her face, unclothedright shoulder, upper right arm and part of her bottom or leg. The complainant maybe naked. (The complainant said she thought she was when she took the photographbut could no longer recall by the time of the hearing.) In the lower left-hand cornerof this image is a smaller image showing the complainant's upper body and lowerhalf of her face. She is wearing only a bra. The image focuses on the complainant'sbreasts, particularly her cleavage. (When speaking to the Police about the images,the respondent described the complainant as naked.)[27] The complainant's friend, J, said the communication contained links topornographic websites. Mr Borich put to J she could not say, definitively, the linkswere to sites of that nature. She answered:I saw the pictures that was [sic] related to the link, I saw it was porn, spellingthat says porn, I think that's enough to know that I would not like to open it,something like that in my phone.There was no further cross-examination on point.[28] J was asked for the complainant's reaction to the forwarded screenshot. Shesaid the complainant was "shocked, she was very shocked". J elaborated somewhat.She said the complainant was "very depressed, she was almost crying and I had to go26 Telecom Corporation of New Zealand Ltd v Commerce Commission [1992] 3 NZLR 429 (CA) at 434.27 For example, see Criminal Justice and Courts Act 2015 (UK), s 33.and be with her because she was very depressed". The topic was not furtherexplored by the prosecutor or Mr Borich.[29] The complainant was asked in evidence-in-chief how the communicationaffected her. She said:A. Well, my profession I'm a registered [redacted] and I do have a – youknow like a status in the professional world. I have very caring familyback home, I have nieces and so many families around me, it wouldhave been a big huge embarrassment for them to see those pictures, theywere not intended to be seen by anyone and it caused a lot of emotional– I was very upset for a long time, I was stressed, what if my familysaw it, so it actually caused a lot of frustration, anger, I was anxious,medically I felt unfit to work for a few days because I was just, I wasjust really upset, and what if my son saw it and my son is actually onmy Facebook so yeah it was a big deal for me.Q. Did you miss some work?A. Pardon?Q. Did you miss some days of work?A. I might have at that time, I can't recall. I know I was going through alot yeah.Q. What sort of place do you [redacted, work] at?A. I work for [redacted], I work with the elderly people.[30] This topic was explored only once in cross-examination. Mr Borich askedwhether the complainant missed work because of the communication. She replied:I can't recall because it's been a year already, I missed work a lot last yearwhen I separated so I can't recall specifically at that time.The Judge's conclusion[31] The Judge concluded the evidence could not sustain serious emotionaldistress. His Honour's reasoning on this point follows:28[72] It is not enough to prove that the digital communication would cause harm to an objective person. The prosecution must establish that thecommunication did, in fact, cause harm to the victim.28 R v B, above n 1.[73] I have found that discovering the post of the photographs resulted in[the complainant] being frustrated, angry, anxious and very upset and thatshe considered taking time off work (although she did not recall that she didso). The only other evidence was from [J] who reported that at the time sheviewed the post, [the complainant] almost cried and appeared "verydepressed" and required someone to be with her for support. I hasten to addthis was not a clinical diagnosis but a lay person's description of what sheobserved. [The complainant] did not elaborate on her frustration, anger,anxiety or upset. [J] did not elaborate on what she mean by "depressed" nordescribe [the complainant] as exhibiting feelings of serious anxiety orinsecurity. What [J] meant by [the complainant] needing "someone to bewith her for support" was not elaborated upon. While the evidence clearlypoints to some degree of emotional distress, it is not sufficient to satisfy meit has reached the threshold of serious emotional distress (as explored aboveat paragraphs [52]–[60]). I do not overlook the fact that [J's] observation,while proximate to the time of discovery of the post, is not necessarilydeterminative of the distress of [the complainant]; the distress may havemanifest itself later. Nor have I ignored the notion that an inference mightbe drawn that the needing of support itself meant [the complainant] wassuffering serious emotional distress. But the absence of specific evidence asto the root cause of her need is a telling factor against the drawing of such aninference.[74] The prosecution need only prove that the electronic communication caused harm; not that it caused harm immediately. Whether harm in the form of serious emotional distress was caused is a matter of fact. The prosecution has not led cogent evidence to this effect. Such evidence couldhave been provided by more detailed and specific evidence from [thecomplainant] as to her reactions, feelings or physical symptoms and theirduration or by expert evidence, such as the evidence of a psychologist orcounsellor. However, none has been led.[75] On this basis, I consider that the prosecution has not established aprima facie case that the complainant in fact suffered harm as defined in s 4.Analysis[32] The appellant contends the Judge supplanted different types of emotional distress for the statutory language rather than applying the statute itself. Or, as Mr Marshall puts it: the Judge did not treat those categories as merely examples. Rather, inthe appellant's submission, he treated those emotions as necessaryprerequisites to a finding of emotional distress. In relation to [J], forexample, despite her describing the complainant as "very depressed", theJudge focused instead on the fact she had not described the complainant as"exhibiting feelings of serious anxiety or insecurity". Similarly, the Judgeindicated the complainant's evidence was insufficient because she had "notelaborate[d] on her frustration, anger, anxiety or upset".In adopting this approach, the Judge dispensed with the broad statutorylanguage ("harm means serious emotional distress") and substituted anarrower – and extra-statutory – formulation in its place ("a serious response of grief, anguish, anxiety or feelings of insecurity").[33] I reject this submission. The Judge had earlier concluded serious emotional distress did not require mental injury or a recognised psychiatric disorder, but rather, something more than trivial emotional distress.29 And, the Judge was cognisant thedefinition of harm sought to balance two competing concerns: "the serious effects of calculated emotional harm, and the importance of maintaining free speech".30 HisHonour's remarks in connection with the evidence need to be read with theseobservations in mind.[34] In any event, there is nothing to suggest the Judge reformulated the statutoryinquiry. The Judge's observations about the types of distress the complainant suffered were just that—observations. And the Judge described exactly why, in hisview, harm could not be established: "While the evidence clearly points to somedegree of emotional distress, it is not sufficient to satisfy me it has reached the threshold of serious emotional distress".31[35] However, I reach a different conclusion in relation to the appellant's secondsubmission the Judge erred in concluding the evidence could not establish harm.32The Judge considered more detailed evidence was required in relation to this ingredient, as the evidence had not crossed the threshold from emotional distress to serious emotional distress. But this is because the Judge approached the issue by isolating the various descriptions of how the complainant felt, rather than—as required—assessing the evidence in its totality.[36] To elaborate, the complainant's unchallenged evidence was that she sufferedconsiderable emotional distress. She said "I was very upset for a long time; stressed it actually caused a lot of frustration, anger, I was anxious, medically I felt unfit to29 R v B, above n 1, at [55].30 At [56].31 At [73].32 There is high authority the sufficiency of evidence in the context of a discharge application is, without more, a question of law; see Haw Tua Tau v Public Prosecutor [1982] AC 136 (PC) at 151–152, which was cited with approval in Trompert v Police [1985] 1 NZLR 357 (CA) at 359 and R v Flyger [2001] 2 NZLR 721 (CA) at [19].work for a few days because I was just, I was just really upset". J's unchallenged evidence was to like effect. She said the complainant was "very shocked" and "very depressed". Doubt attaches to whether, in an age of hyperbole, the term "depressed" was advanced as conforming to that term's medical meaning, but even then, J'sevidence was capable of buttressing the conclusion the complainant had suffered serious emotional distress in consequence of the respondent's unsolicited digitalcommunication.[37] Mr Borich resisted this analysis on the basis the record disclosed only "a reasonably low level of upset". But again, this is to ignore the totality of theevidence on the issue. Mr Borich also submitted there was little or no evidence "of physical factors" to support the testimony of shock, depression, upset etc. Thisargument overlooks the absence of any trial challenge to the evidence, and tends also to blur the distinction between physical and emotional harm when the legislature has chosen to focus exclusively on the latter.[38] To employ the formulation advanced at [24], the complainant described various forms of emotional distress including frustration, anger, anxiety and humiliation. Her testimony was capable of implying she considered these emotionsto be reasonably intense. As to duration, the complainant said these endured for "a long time". While it would have been helpful if the parties had explored what thecomplainant meant by that—a long time can mean very different things to different people—it is again relevant this description went unchallenged by the respondent. The complainant also said her emotional distress had a physical manifestation: incapacity for work for a period of days, or at least apparent incapacity. The complainant could not recall whether she had taken time off work. The Judge, however, said the complainant considered taking time off work, although she did notrecall doing so. This is not quite what the complainant said.[39] Furthermore, the Judge had no apparent regard to context. The evidence established the respondent had threatened to post photographs of the complainantonline if she did not stay away from other men and "cancel" the protection order.The complainant said that threat made her feel scared and anxious. The question ofharm needed to be assessed in light of these events and more particularly, the complainant's fear and anxiety.[40] Mr Borich stressed the photographs were not especially revealing, at least in an age in which explicit material is often little more than a click away. He also submitted the photographs might not have been online for long. Both submissionsare well made but do not greatly advance the respondent's case, because:(a) The images were personal. And, the complainant intended them to be private.(b) Both show the complainant in a state of undress in circumstances amounting to an intimate visual recording as defined by the Act.(c) The respondent obtained the images without the complainant'sknowledge and consent. He then posted them, again, without thecomplainant's knowledge and consent—and all with the apparent aimof causing her harm.(d) The complainant essentially said that is what she suffered.[41] Moreover, it should not be overlooked the respondent's communicationcontained links to apparently pornographic websites. Whether the links were to sites of this nature is not the point; most people would not want their images seemingly associated with pornography.[42] It follows the complainant's emotional response was consistent with how areasonable person would feel in these circumstances, in turn a useful cross-check (analogous to s 22(2)) on whether the evidence was capable of establishing harm as serious emotional distress.[43] In summary, the Judge erred by failing to consider the unchallenged evidence in its totality, and without reference to context.33 Approached correctly, the evidence33 The Judge also made a minor factual error in relation to the complainant's incapacity for work.was capable of establishing harm as defined by the statute for the reasons expressed above.Result and consequential orders[44] The appeal is allowed. Judge Doherty's decision to discharge the respondentis quashed. The charge is to be retried in the District Court, and is remitted there for that purpose.34 Because the complainant has already testified (and been cross-examined), there is merit in the case continuing before Judge Doherty if scheduling permits that course. However, I make no formal order in this respect.[45] The parties invited my attention to name suppression. The respondent's namewas suppressed by the District Court until the conclusion of trial. The duration of that order is open to doubt, given this appeal. And, Mr Marshall expressed concernabout the position of the complainant as she still shares the respondent's surname.[46] The issue of name suppression is more appropriately a matter for the District Court, particularly as the case will continue there. However, this judgment has been framed so as to avoid identification of the complainant or respondent...Downs J34 Criminal Procedure Act 2011, s 300(1)(b)(ii).