Lawson v Police [2018] NZHC 2842 (1 November 2018)

Last Updated: 8 November 2018

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI 2018-443-25 [2018] NZHC 2842

BETWEEN	SONJA MAREE LAWSON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	30 October 2018
Counsel:	N P Bourke for Appellant S J Simpkin for Respondent
Judgment:	1 November 2018

_{JUDGMENT OF SIMON FRANCE J}

[1] Ms Lawson appeals a conviction, entered following a guilty plea, for an offence under s 112(2)(a) of the Telecommunications Act 2001.¹ Although represented by counsel Ms Lawson has filed documentation in support of other grounds counsel feels unable to advance.

Preliminary issue – recusal

[2] At the start of the hearing Mr Bourke advised that Ms Lawson had informed him that she objected to me presiding. The lateness of the advice meant he was unclear as to the reason. However, it seems that I have had involvement in some matter with

_{Ms Lawson in May of this year concerning which she had made a complaint.}

¹ _{New Zealand Police v Lawson [2018] NZDC 28762.}

LAWSON v POLICE [2018] NZHC 2842 [1 November 2018]

[3] I cannot recall the May event and know of no complaint. The information provided afforded no basis on which I should decline to hear the appeal and accordingly I declined the application.

Background

[4] Ms Lawson has a long-standing grievance with the Minister of Social Development. As a consequence of past events, she has been trespassed from all Ministry premises. Ms Lawson is subject to restrictions in how she may communicate with the Ministry. She is required to ring a particular number and leave a message. It is said the Ministry will then respond. It is such a phone call by Ms Lawson that gave rise to the present charges.

[5] On 27 June 2018 Ms Lawson rang and left what can only be described as a profane and abusive message. I have listened to the recording and it is clear

Ms Lawson is upset. The call begins with Ms Lawson saying she wants to make a complaint. It appears that because of past dealings Ms Lawson insists on calls from the Ministry going to a dedicated phone number which is not her general phone. The complaint was that the Ministry had allegedly called the wrong number. It seems from the call that Ms Lawson believes this is deliberate, either to annoy her or to provide information but in a way, she may not receive. The Ministry person who allegedly made the call, MM, is abused in insulting and profane terms.

[6] A background issue is that it seems the Ministry has used made up names for its staff dealing with Ms Lawson, presumably as a safety measure. The later part of the call makes it plain Ms Lawson believes MM to be a made up name.

[7] After the complaint Ms Lawson identifies a list of items, such as a washing machine, she does not have and believes she is entitled to. She says what she wants to happen in relation to this. This manner of description masks the language and tone of the call.

[8] The third phase is that Ms Lawson talks about shooting MM. This is repeated and then Ms Lawson dares the listener to refer the threat to the Police. She then opines that will not happen because of course MM is not a real person.²

[9] Ms Lawson was indeed charged with threatening to kill. However, at an early call of the matter, there having been prior discussions with the prosecutor, that charge was dropped and two others substituted. They were charges of speaking threateningly and the misuse of a telephone charge under the Telecommunications Act.

[10] After hearing submissions, Ms Lawson was discharged without conviction on the threatening language charge. On the misuse of a telephone charge a conviction was entered and Ms Lawson was ordered to come up for sentence if called upon. It is that conviction which is appealed.

Appeal

[11] As noted, grounds are advanced on her behalf by Mr Bourke in relation to those he feels able to and by Ms Lawson by way of written material.

[12] Mr Bourke submits Ms Lawson could not be convicted of the charge under s 112(2)(a) because it requires an initial purpose to the call of disturbing, annoying or irritating. He submits it is plain Ms Lawson wanted to ring for assistance and was annoyed, but her purpose in calling was not to disturb, annoy or irritate.

[13] Mr Bourke next submits that there has been a failure to disclose. It has been noted in previous litigation that in 2012 the Police advised the Ministry Ms Lawson was harmless and would not act on her threats. It is submitted the existence of this police opinion should have been disclosed as it was relevant to the threatening to kill charge, and also to what was the dominant purpose of the call.

[14] Finally, Mr Bourke advances a sentence appeal which is an application for a discharge without conviction. He submits it is plain the fact of a conviction because of conduct towards the Ministry impacts greatly on Ms Lawson. It increases her sense of victimisation. Ms Lawson fears the sentence of coming up if called places a weapon in the Ministry’s hands. It is acknowledged her fears in relation to it are subjective and personal to her but are felt nevertheless. A discharge without conviction would be a merciful outcome.

[15] Ms Lawson submits she was unwell on the day and felt pressured to plead to get matters over with. She felt there was time pressure, was feeling sick, in pain and generally unwell. Accordingly, she pleaded guilty when she did not want to.

[16] Ms Lawson reasserts the call was to complain about a failure to return calls and the need for assistance. The abuse and threats were products of accompanying frustration but not the purpose of the call.

[17] The respondent submits there is no basis to allow Ms Lawson to withdraw her guilty plea, nor any basis on which the existing outcome can be said to be manifestly excessive.

Decision

[18] Ms Lawson seeks to appeal a conviction entered after a guilty plea. This is permissible – s 232(5) of the Criminal Procedure Act 2011 specifically contemplates it. It is, however, no easy task as the circumstances in which a Court will allow such an appeal are limited.³ The circumstances commonly recognised are:

(a) a misunderstanding of the true nature of the charge;

(b) where on the admitted facts the appellant could not be guilty;

(c) where the plea has been induced by a pre-trial ruling that is in error;

and

(d) where the appellant pleaded guilty on the basis of defective advice from counsel.

[19] Overlaying all this is of course the statutory test (s 232(2)(c) of the Criminal

Procedure Act) of a miscarriage of justice occurring for any reason.

[20] I turn first to the issue raised concerning s 112(2)(a) of the Telecommunications

Act 2001. It is a difficult provision that has been the subject of considerable analysis.⁴

It provides:

112 Misuse of telephone device

(1) Every person commits an offence who, in using a telephone device, uses profane, indecent, or obscene language, or makes a suggestion of a profane, indecent, or obscene nature, with the intention of offending the recipient.

(2) Every person commits an offence who—

(a) uses, or causes or permits to be used, any telephone device for the purpose of disturbing, annoying, or irritating any person, whether by calling up without speech or by wantonly or maliciously transmitting communications or sounds, with the intention of offending the recipient; or

(b) in using a telecommunications device, knowingly gives any fictitious order, instruction, or message.

(3) Every person who commits an offence against subsection (1) or subsection (2) is liable on conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000.

[21] The current state of the authorities requires that the purpose of the use of the telephone device be one of disturbing, annoying or irritating any person. In other words, that is the reason the call was made. In Spooner v Police,⁵ Fisher J suggested it need be the dominant purpose while in Kazakos v Police,⁶ Fogarty J suggested that was an unnecessary gloss on the statutory words and the inquiry was simply whether it was the purpose of the call.

⁴ Spooner v Police (1992) 8 CRNZ 666 (HC); and Kazakos v Police HC Christhchurch

CRI-2009-409-130, 11 November 2009.

⁵ Spooner, above n 4, at 670.

⁶ Kazakos, above n 4, at [6].

[22] The object of the present appeal was initially a retrial, it being submitted that there is an arguable defence to the charge and Ms Lawson should be permitted to withdraw her plea in order to advance it. The focus of the defence would be that the purpose of the call was not to insult or annoy. Rather, it was to make a complaint, and seek action on the matters that she considered herself entitled to assistance with. The language and insults occurred but were not the purpose of the call as required by the authorities.

[23] I enquired of the prosecution what evidence it would lead in support of the charge. Ms Simpkin advised it would consist of the call itself, and Ms Lawson’s statement. Concerning the statement, other than admitting it was her on the phone, I consider the content neutral on the original purpose of the call.

[24] Ms Simpkin suggested the prosecution may also have led propensity evidence, being three 2013 convictions for this offence. Without knowing the content and context of those calls made five years ago it is difficult to assess whether they would say anything about the purpose of this call, but I doubt it. Mr Bourke observes, and I agree, that countering any such evidence would be a long history of Ms Bourke contacting the Ministry to seek provision of what she believes she is entitled to, and I would add also a history of making complaints to the Ministry about its treatment of her. The background history, therefore, would at the least be as supportive of

Ms Lawson’s defence as any propensity evidence would be of the prosecution.

[25] In the end, it would turn on an assessment of the call. On that issue, a Judge sitting alone would be in no different position from me sitting on the appeal. I am satisfied that the context and content of the call would fall well short of making out the prosecution case that the purpose of the call fell within s 112(2)(a) of the Telecommunications Act. It was, as I have said, a call made in anger to complain and to demand assistance. The tone and language is subsidiary to that.

[26] It follows that not only do I consider Ms Lawson had an arguable defence, I am satisfied the charge could not succeed on the evidence. The appeal must therefore be allowed and the conviction quashed.

[27] I conclude by observing that this does not leave the authorities powerless to act in relation to this. The circumstances of the call would appear to fit comfortably within s 112(1) and I am unclear why that was not charged.

[28] Although hesitant to add another view on s 112(2)(a), I am not at all convinced it was intended for this type of situation. Section 112(1) deals with inappropriate language being spoken by the person who is using the phone. Subsection (2)(a), putting to one side the purpose requirements, describes calls where:

(a) no speech occurs; or

(b) communications or sounds are wantonly transmitted.

[29] It is, I suggest, a debateable interpretation of statutory words to read “transmitting communications” as an expression covering speaking. It is an expansive interpretation of a provision imposing criminal liability. It is also unnecessary given s 112(1). The more likely target of s 112(2)(a) are calls where the caller does not speak, but instead is either silent or transmits something like a recording or an annoying sound. In other words, the role of s 112(2)(a) is to deal with situations where the caller does not say anything.

[30] Since I have concluded the appeal must be allowed on the basis of the authorities as they are, it is not necessary to go beyond these observations.

[31] The appeal is allowed and the conviction quashed.

[32] At the hearing Ms Lawson sought name suppression. It had not been sought prior. The basis for it, as I apprehend, would be that cases involving Ms Lawson are apt to attract local publicity and this is upsetting for her. I have no doubt all that is so, but it is not a situation that meets the high statutory test and the application is declined.

Simon France J