Brown v Police [2012] NZHC 1342; [2012] NZFLR 631 (14 June 2012)

Last Updated: 13 July 2012

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2012-406-12 [2012] NZHC 1342

DOUGLAS HOWARD BROWN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 7 June 2012

Counsel: L A Murdoch for the Appellant

S K O'Donoghue for the Crown

Judgment: 14 June 2012

_{JUDGMENT OF MALLON J}

Contents

Introduction ....................................................................................................................................... [1] Background facts ............................................................................................................................... [2] District Court decision ...................................................................................................................... [9] Leave to appeal out of time..............................................................................................................[11] The offence of criminal harassment............................................................................................... [14] Two specified acts? .......................................................................................................................... [20] Mr Brown’s intention or knowledge? ............................................................................................ [27]

_{Result ................................................................................................................................................ [35]}

BROWN v NEW ZEALAND POLICE HC BLE CRI 2012-406-12 [14 June 2012]

Introduction

[1] Mr Brown appeals against his conviction on a charge of criminal harassment under ss 8(1)(b) and 8(2) of the Harassment Act 1997.[1] Mr Brown’s appeal was filed out of time. He therefore also seeks leave to appeal out of time. Mr Brown no longer pursues his appeal against sentence.

Background facts

[2] The charge arose out of two incidents. The first incident took place on

12 April 2011. On that day the complainant, Mrs Kortegast, was at home inside her house with her two children (aged three and one). Her evidence was that she heard her dog barking and looked outside. She saw that Mr Brown was at the gate of her property with his dog. Mr Brown was a neighbour who lived about four houses down on the same side of the street. Mrs Kortegast’s evidence was that her dog had his paws on the gate on the property and was barking. She said that she saw Mr Brown kick the gate. She went outside. She said that Mr Brown swore at her a couple of times about her dog, and he said to her that he would put rat poison on the property which would take care of the dog. Mrs Kortegast’s evidence was that she did not feel safe with this threat about poison on her property, her husband out, and being at home with two young children. She therefore complained to the Police.

[3] In his evidence, Mr Brown said that Mrs Kortegast’s dog was constantly barking. He said that on this occasion he wanted to get an identification of the dog so that he could make a complaint. For this purpose he put his hands on the gate, but he then leapt back when Mrs Kortegast’s dog jumped at the gate. He said that Mrs Kortegast came out of the house and seemed very upset. He said that he told her he was going to make a complaint to Animal Control. He denied that he kicked

_{the gate or that he said anything about rat poison.}

[4] In response to Mrs Kortegast’s complaint, Sergeant Porter served a letter dated 12 April 2011 on Mr Brown. The letter advised Mr Brown that he was being warned that should he “continue to harass the occupants of” Mrs Kortegast’s property he would be arrested and charged with criminal harassment. The letter referred to ss 8(1)(b) and 8(2) of the Harassment Act 1997. Sergeant Porter said in his evidence that, at the time of serving Mr Brown, he explained Mrs Kortegast’s feelings to Mr Brown because Mr Brown could not understand how there had been any harassment. He said that he went through suggestions to protect himself from a future incident. This included suggesting that Mr Brown walk his dog on the other side of the road and that he not stop at the address or look at it.

[5] After this there was a period of no contact at all between the parties for some months. Then, on 19 July 2011, the second incident took place. On this occasion Mrs Kortegast’s evidence was that she was in the house when she heard her dog barking outside. She said that she looked outside and could see Mr Brown standing outside her neighbour’s house on the side closest to Mr Brown’s house. She said that Mr Brown had his dog with him. She said that Mr Brown was staring at her dog which was at her gate at the end of her driveway. She said that she went outside and called the dog, at which stage Mr Brown started walking again. She said that she was pulling her dog inside and did not look at Mr Brown again until she was at the end of the driveway leading back into her house. She said that Mr Brown was walking very slowly past the house (which she described as “turtle pace” and “creeping along”), looking straight ahead with a smirk on his face. She said that he did not say anything to her or look at her. She went inside the house and locked the door. When she looked outside she could see that Mr Brown walked at a normal pace once he had passed the house.

[6] In his evidence, Mr Brown admitted that he was walking his dog on his way to the park on the date in question, but denied that he took any special interest in the Kortegasts’ property. He said that he often let his dog off its lead, and he may have merely stopped to bring the dog back so he could put a lead on it. He said that he tried to avoid eye contact with Mrs Kortegast and to ignore the dog. He said he was sorry that Mrs Kortegast felt intimidated and nervous and he “certainly didn’t wish

to give that impression to her, or anyone else”. He recalled that he had walked on

the other side of the road on the way back from the park.

[7] Mrs Kortegast’s evidence was that she felt nervous and quite threatened and intimidated by this incident. (She said that she still felt intimidated by Mr Brown at the District Court hearing, even though she no longer lived at the same address.) Mrs Kortegast reported the July incident to the Police. A police officer went to Mr Brown’s property and talked to Mr Brown. Mr Brown admitted that he had walked on the same side as the Kortegast’s property, and said that “It was a free country and he could do what he wanted to do”. Mr Brown was charged with harassment.

[8] The information served on Mr Brown alleged harassment on 19 July 2011 under s 8(1)(b) and 8(2) of the Harassment Act 1997 in that Mr Brown harassed Mrs Kortegast “with intent to cause [her], given her personal circumstances, to reasonably fear for her safety”. The information made no reference to the April date.

District Court decision

[9] The District Court Judge convicted Mr Brown of the harassment charge. The decision summarised the evidence and then, by way of reasons, said this:

[11] As to the 19th of July he said, well, he had been walking his dog. He may have stopped to catch up with it, or to bring it back, so he could put a lead on it, that he had no particular interest in the Kortegast’s property and although the dog was barking he moved away and did not do anything.

[12] I do not accept that explanation at all following the long and careful explanation of the situation by Sergeant Porter. Mr Brown knew full well that he had to avoid the Kortegast’s property because of Mrs Kortegast’s fear that was engendered by that first meeting in April. Clearly she feared either for herself or for any other person on the property and, in evidence, she said that if he went ahead with the rat poison threat there would be an obvious danger to her children. She was nervous of Mr Brown personally and she said she still felt that nervousness when she was giving evidence today, in Court.

[13] In light of all that Mr Brown had, for the best part of three months, avoided the Kortegast’s side of the road and had stayed away. That complied with the agreement for behaviour reached with Sergeant Porter.

[14] Now, on the 19th he did not. He was on the Kortegast’s side and the description given by Mrs Kortegast was of a man who was eyeballing the dog and creating the same presence that was there on the other occasion and the only purpose for that could be to cause Mrs Kortegast, in her circumstances, as had been explained to him, a reasonable fear for her safety; and she did fear for her safety. She contacted the police accordingly.

[15] I am satisfied that this charge is made out in all its particulars and

Mr Brown will be convicted.

[10] Mr Brown was ordered to appear for sentencing in six months if called, to

pay $25 in witnesses’ expenses and to make a contribution of $150 to costs.

Leave to appeal out of time

[11] Mr Brown filed his appeal as a self-represented litigant on 19 April 2012 without the benefit of legal advice. It is accepted by Mr Brown that he should have filed his appeal by 21 February 2012. The grounds for his application for leave, supported by an affidavit from Mr Brown, are that his desire for an appeal was not followed up by his lawyer because she was on maternity leave, he was unaware of the time limit on appeals, and it took some time to obtain legal aid.

[12] The respondent opposes Mr Brown’s application for leave to appeal out of time. It submits that, as the appeal was not filed until approximately three months after the date of the conviction, Mr Brown had ample time to clarify the procedure for filing an appeal. It further submits that the likelihood of success on appeal is slim.

[13] The Court has the power to extend the time for bringing this appeal.[2] There has been some explanation for the delay. I turn to consider the merits of Mr Brown’s

_{appeal because they are relevant to whether leave to appeal should be granted.}

The offence of criminal harassment

[14] The offence of criminal harassment is set out at s 8(1) of the Harassment Act

1997:

8 Criminal harassment

(1) Every person commits an offence who harasses another person in any case where—

(a) The first-mentioned person intends that harassment to cause that other person to fear for—

(i) That other person's safety; or

(ii) The safety of any person with whom that person is in a family relationship; or

(b) The first-mentioned person knows that the harassment is likely to cause the other person, given his or her particular circumstances, to reasonably fear for—

(i) That other person's safety; or

(ii) The safety of any person with whom that person is in a family relationship ...

[15] Section 8(2) provides that a person convicted of the offence is liable to imprisonment for a term of up to two years.

[16] The Act defines a number of the terms. “Harassment” is defined in s 3 as follows:

3 Meaning of “harassment”

(1) For the purposes of this Act, a person harasses another person if he or she engages in a pattern of behaviour that is directed against that other person, being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months.

(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 separate occasion, or different types of specified acts:

(b) The specified acts need not be done to the same person on each separate occasion, as long as the pattern of behaviour is directed against the same person.

[17] “Specified act” is defined in s 4. So far as is presently relevant it provides:

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:

(a) Watching, loitering near, or preventing or hindering access to or from, that person's place of residence, business, employment, or any other place that the person frequents for any purpose:

...

(d) Making contact with that person (whether by telephone, correspondence, or in any other way):

...

(f) Acting in any other way—

(i) That causes that person (“person A”) to fear for his

or her safety; and

(ii) That would cause a reasonable person in person A's particular circumstances to fear for his or her safety.

...

[18] Under s 2 “safety” is defined to include a person’s mental well-being.

Section 5 sets out the meaning of an act “done to” a person.

[19] Combining these sections, to prove criminal harassment there must be:

(a) “a pattern of behaviour that is directed against that other person”.

That requires that there be a “specified act” (as defined) on at least two separate occasions which are done “to the other person” (as defined); and

(b) those acts must be done with the intent or knowledge set out in s 8(1).

[20] Counsel for Mr Brown submits that the information did not set out an offence of harassment because it referred to only one date, when the offence requires a pattern of behaviour that includes doing any specified act on at least two separate occasions within a period of 12 months. Counsel for Mr Brown submits that the information should be dismissed on this basis. The respondent agrees that the information was in error and seeks to amend the information.

[21] It appears that the prosecution did not appreciate that the offence required that there be at least two specified acts. The letter of warning from the police came after only one incident, yet said that Mr Brown would be charged if he “continue[s] to harass” the occupants of the address. That incorrectly implied that Mr Brown had already harassed Mrs Kortegast when at that stage there had been no pattern of behaviour as s 3 requires.

[22] This error followed through to the disclosure made to Mr Brown’s counsel. That disclosure consisted of a statement by Mrs Kortegast to the police and her brief of evidence. The statement and the brief referred only to the 19 July 2011 incident. At the hearing, when Mrs Kortegast began to give evidence of what had occurred in April, counsel for Mr Brown raised a concern that there had been no disclosure of that incident. She said that she was aware of an incident in April, she had asked Mr Brown about it, but as described by Mr Brown it was nothing like Mrs Kortegast’s evidence. The Judge ruled that he would hear the evidence from Mrs Kortegast, then he would take a break to allow counsel to obtain instructions.

[23] As counsel was given the opportunity to obtain instructions on what was a straightforward matter, it is difficult to say that Mr Brown was in any way prejudiced by the error in the information. However, following on from this error, it is not at all clear that the Judge turned his mind to whether the first specified act was proven. In his decision he notes that “Mr Brown was charged then with harassment, there being two incidents of a similar nature within 12 months.” But this comment is directed to whether a charge could be brought, not what had to be proven in respect of a charge. The Judge summarised the evidence on the April incident, but he did not make any

express findings on that incident. His findings were focussed on the July incident (refer [12] and [14] of his decision as set out above). So far as the April incident is referred to, its relevance is seen as being the background context in which to assess whether in July Mrs Kortegast feared for herself or others on the property (refer [12] of his decision) and as to Mr Brown’s purpose in July (refer [14] of his decision).

[24] This focus on the July incident may be why the Judge did not expressly resolve the conflict of evidence between Mr Brown and Mrs Kortegast as to whether Mr Brown threatened to throw poison into Mrs Kortegast’s yard. This was one of the appeal grounds. However counsel on appeal accepted that the Judge must have preferred Mrs Kortegast’s evidence, even though he did not give reasons for this, because he found that relevant to the second incident (refer [12] of his decision).

[25] Turning to whether on the evidence the prosecution proved two specified acts, the respondent submits that the April incident was “[m]aking contact with” Mrs Kortegast (s 4(1)(d)). I agree. There is no dispute that Mr Brown spoke to Mrs Kortegast about her dog. That is a form of contact, when the section specifies that contact can be by telephone, correspondence or any other way. The Judge implicitly found that in this contact Mr Brown threatened to throw rat poison on the property. I will proceed on this basis because, for reasons that follow, it does not affect the result of this appeal.

[26] The respondent submits that the July incident was “loitering near” Mrs Kortegast’s place of residence (s 4(1)(a)). On the basis of Mrs Kortegast’s evidence I agree that Mr Brown’s actions qualify as “loitering”. Mr Brown had stopped to look at the dog, and although he resumed his walk as soon as he heard Mrs Kortegast call to the dog, he did so at a turtle pace. For the purposes of whether there was a “specified act” done to Mrs Kortegast, it does not matter that Mr Brown did not know whether Mrs Kortegast could see him, nor that he did not look at or see her. The Judge rejected Mr Brown’s evidence that he was putting his dog back on his lead. In the absence of any other reason for walking slowly past Mrs Kortegast’s house, his actions were obviously directed at her.

[27] The information charged that Mr Brown harassed Mrs Kortegast with intent to cause her to reasonably fear for her safety. That wording is an amalgam of s 8(1)(a)(i) and s 8(1)(b)(i) although the information referred only to s 8(1)(b) and s 8(2). I will proceed on the basis that the prosecution intended to allege both of these alternatives. The wording did not, however, allege that Mr Brown harassed Mrs Kortegast with intent to cause her to fear for the safety of a member of family (s 8(1)(a)(ii)) or with knowledge that it was likely to cause her to reasonably fear for the safety of a member of her family (s 8(1)(b)(ii)).

[28] Unless the particulars of the information were amended to also refer to s 8(1)(a)(ii) and/or s 8(1)(b)(ii), the prosecution was therefore required to prove that Mr Brown intended that the harassment (the two proven specified acts constituting the pattern of behaviour) were intended to cause Mrs Kortegast to fear for her safety (s 8(1)(a)). Alternatively the prosecution was required to prove that Mr Brown knew that the harassment was likely to cause Mrs Kortegast to reasonably fear for her safety (s 8(1)(b)). This was not the approach of the District Court Judge. In finding the charge proven, the Judge focussed on Mrs Kortegast’s fear of her own safety in the July incident (refer [14] of his decision). However when considering the April incident he referred to her evidence that rat poison would involve a danger to her children (refer [12]).

[29] Turning first to the evidence about the April incident, Mr Brown’s focus was on the dog whose constant barking had annoyed him. Mr Brown made no threat to harm Mrs Kortegast. It is unclear why the threat of rat poison on her property would cause Mrs Kortegast to fear for her own safety. Moreover, it is clear that Mr Brown did not know or intend at the time that his actions had this effect. That was why Sergeant Porter spent some time explaining this to him.

[30] If the particulars were to be amended to allege that Mr Brown intended or knew that his actions would cause Mrs Kortegast to fear for the safety of her children my view would be the same. Mr Brown made no threat to harm her children and no mention was made of them. It was not established in the evidence that he even knew

at this time that Mrs Kortegast had children. Mrs Kortegast’s evidence was that the children were inside the house during the April incident, Sergeant Porter did not say whether Mr Brown was aware during their conversation that Mrs Kortegast had children, and Mr Brown was not asked in his evidence if he knew whether she had young children. The only evidence from Mr Brown on this topic was in respect of the July incident where he said that he thought he may have seen out of the corner of his eye that Mrs Kortegast had a child in her arms. In my view, therefore, it is not a safe inference that Mr Brown had the requisite intent or knowledge at the time of the April incident. Mrs Kortegast may in fact have feared for her safety or that of her children, but that is not the test.

[31] Turning then to the July incident, Mr Brown may have intended or known that his actions would cause Mrs Kortegast to have concern for her dog. But the offence requires that he intended to cause her to fear for her safety (or potentially that of her children) or that he knew it was likely to cause her to fear for her safety (or potentially her children), not that of the dog. His own evidence was that he had no such intention or knowledge (refer [6] above).

[32] The respondent relies on the evidence from the police officer about the discussion he had with Mr Brown. This helped Mr Brown to appreciate that Mrs Kortegast was fearful. Mr Brown accepted this in his evidence, saying that the officer had told him that he had to “put yourself in the other person’s shoes and realise that your actions are frightening her”. Mr Brown said that he came around eventually. If the July incident had been similar to the April incident then, as a result of the conversation with Sergeant Porter, I agree that Mr Brown would have known that his actions were likely to cause Mrs Kortegast to be frightened for her dog and her children (if he had been made aware of them), and herself (although there would then be a question as to whether that was reasonable).

[33] But the July incident was different. The incident on that day has to be described as minor. The evidence was that Mr Brown had stopped at the neighbour’s property and not directly in front of Mrs Kortegast’s house. It was not established that he knew that he could be seen when he had stopped to look at the dog and it seems unlikely that he would have known or intended that he be seen. Even on

Mrs Kortegast’s version of events, Mr Brown moved as soon as he heard her call for the dog, he did not look at her, he did not say anything and he kept walking, albeit very slowly. In doing all of this he was complying with Sergeant Porter’s suggestions. In my view, it is not a safe inference on these facts that Mr Brown intended to, or must have known that he would, engender feelings of fear in Mrs Kortegast (for herself or her children) when he walked past her house on 19 July

2011.

[34] Accordingly in my view, although two specified acts were proven, the evidence did not prove the requisite knowledge or intention in respect of either specified act. The charge should therefore have been dismissed.

Result

[35] Leave to appeal out of time is granted. The appeal is allowed. Mr Brown’s

conviction and sentence are quashed.

Mallon J

Solicitors:

Gascoigne Wicks, Blenheim for the Appellant

Office of the Crown Solicitor, Nelson for the Respondent

---

[1] This is a general appeal which is heard by way of rehearing: Sections 115 and 119 of the Summary Proceedings Act 1957. The approach set out in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 applies.

[2] Section 123(1) of the Summary Proceedings Act 1957. The principles relevant to whether leave should be granted are set out in Cleggs Ltd v Department of Internal Affairs HC Auckland M1032/84, 5 September 1984.