Haggerty v R [2022] NZHC 1019 (12 May 2022)

Last Updated: 30 May 2022

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2022-412-1 CRI-2022-412-2 [2022] NZHC 1019

BETWEEN	JASON PAUL HAGGERTY Appellant
AND	THE QUEEN Respondent

Hearing:	9 May 2022
Appearances:	L Andersen QC for Appellant P A Norman for Respondent
Judgment:	12 May 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 12 May 2022 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

HAGGERTY v R [2022] NZHC 1019 [12 May 2022]

• [1] Mr Jayden Haggerty was convicted of a charge of blackmail¹ following a judge-alone trial in the Dunedin District Court.² He was sentenced to four months’ community detention, 12 months’ intensive supervision and ordered to pay reparation of $1,200.³ Mr Haggerty now appeals his conviction for blackmail on the basis the trial Judge erred in finding the ingredients of the charge proved.

Background

• [2] The complainant met Mr Haggerty in January 2020 at a local gym where she worked part-time. A relationship developed which largely involved both parties communicating with each other electronically using text messaging, Snapchat and Instagram. Their relationship was one primarily conducted remotely but they would see each other at the gym and once went out for dinner. During the course of this relationship they sent each other explicit pictures of themselves.

• [3] The relationship broke down as a result of the complainant learning details of Mr Haggerty’s domestic situation that she had not previously been aware. At some stage in the week prior to the communications that gave rise to the blackmail charge, the complainant spoke to her manager about Mr Haggerty and he was trespassed from the gym. It is not entirely clear when Mr Haggerty was trespassed, other than it was before the first communication from Mr Haggerty to the complainant which featured in the evidence. This was sent via Instagram on 19 June 2020 at 9.36 pm. The message read:

U need to talk to me about why iv been trespassed from the gym! If u don’t u leave me with no chose, u know what Iv got I don’t wanna do that but u

leave me with No option[.]

• [4] The complainant subsequently “unfollowed” him on Instagram. On Saturday 20 June, Mr Haggerty messaged the complainant at 8.03 pm:

Mr Haggerty (H): Now u fucking blocked me on insta as well! Well fuck you then! I was going to write you a letter saying good bye but now I won’t even waste my fucking time!

¹ Crimes Act 1961, ss 237 and 238 — maximum penalty 14 years’ imprisonment.

² Mr Haggerty had earlier pleaded guilty to unrelated charges of assault on a person in a family relationship and intentionally exposing a young person to indecent material.

³ R v Haggerty [2022] NZDC 1236.

Complainant (C): I haven’t blocked you? H: Deleted me?

H: I could see your posts earlier and now I can’t

C: I haven’t blocked you jayden? And I can’t delete you on insta C: Maybe its because I unfollowed you

C: Like I said I just need some time to think

H: Doesn’t mean u should unfollow me! Well good bye [emoji of middle finger]

H: Maybe I’ll just post some screenshots of you on my page C: Would you really be that low?

H: Yeah 100 percent

H: Wanna c?

C: I’m calling the police

H: They can’t do Anuthjing until I do it

H: Shouldn’t of crossed me [complainant’s nickname]! Iv got nothing to lose

C: Are threatening me? Jayden please don’t do that to me

H: U didn’t mean to block me out from everything! U even started following Liam again and unfollowed me! Thanks for nothing

C: I can re follow you if that’s what you want

H: Don’t waste ya fucking time! Damage is done!

H: Oh and did you tel your work mates about me? I seen him run down too you after I left?

C: Please tell me you haven’t posted anything.

C: No I didn’t he just seen my mood change because I was anxious about talking to you in person

H: U must of said somthing if knew that then!

C: He has been my boss for 7 years so he notices when my mood changes H: U were ages away from him

H: Don’t lie

C: It’s a small store Jayden

C: I was at the checkout when you arrived H: Don’t lie or j will post ya pics

H: Do u think u will have a job when people see you sending ya boobs wile in store?

C: I’m not lying to you Jayden

C: Why are you wanting to do this to me. ...

• [5] Importantly, there is then a later message that night at 9.52 pm on Instagram⁴ from Mr Haggerty to the complainant. It reads:

So now Uv called the police and blocked my number?? Tell me y I shouldn’t post them photos if that’s how ur going to be towards me! Add me back on Snapchat ASAP please[.]

District Court decision

• [6] Judge Phillips found the elements of blackmail were established. The Judge considered Mr Haggerty made direct threats to the complainant that if she did not do certain things he would post the intimate pictures on social media. The Judge held the purpose of that threat was to cause her to act in accordance with his will and have her reconnect with him on social media. Judge Phillips stated:

• [21] ... He clearly wanted to have the relationship that they had previously and which he clearly enjoyed, re-established. That is, an ability to contact each other regularly through the various social websites or interlocking communication apps that are available and thus, as I see it, re-obtain for himself his relationship with her which he clearly valued. It is an important factor, I think, in his overall continuing good mental health and of course the loss of his ability to go his gym (sic) was a major blow to that good mental health which he considered she had actioned and put in place through the manager or the other person she worked with. He was attempting by saying, “Either get it sorted or the pictures are published”.

• [22] I consider that the two elements of blackmail are made out. He made direct threats to her, that if she did not take the certain steps that he wanted her to take to his advantage, to publish photographs on the same social media platforms that they once jointly had used which would cause her distress. That threat, he hoped, in my view, would cause her to act in accordance with his will and re-establish him as a participant in her social media website.

⁴ The complainant explained in her evidence this message was sent on Mr Haggerty’s new Instagram account, the complainant having previously “unfollowed” him on Instagram. This is corroborated by the screenshot of the message that shows it came from “jayden_h77” who has zero followers and zero posts. Underneath the message it states “jayden_h77 wants to send you a message ... Do you want to let jayden_h77 send you messages from now on?”

The appeal

• [7] The main plank of Mr Haggerty’s appeal was a submission the evidence fell short of showing he made threats with the intention of making the complainant act against her will and to obtain a benefit from her. Mr Andersen QC, on behalf of Mr Haggerty, argued it had not been established that Mr Haggerty had the required intention to prove a charge of blackmail because he did not make the threats for the purpose of either continuing the relationship or regaining access to the complainant’s social media accounts, as alleged.

• [8] Mr Andersen argued there was no evidence Mr Haggerty was trying to make the complainant have a relationship with him against her will or was trying to force her to provide access to her social media accounts. It was emphasised that no offence was committed simply by making the threats in the absence of the prosecution being able to prove Mr Haggerty sought to obtain a specific benefit by overbearing her will. Mr Andersen submitted the trial Judge failed to identify exactly what it was that Mr Haggerty wanted the complainant to do against her will. In that regard, he noted that Mr Haggerty had rejected the complainant’s offer to be re-followed on her Instagram and submitted the Judge’s lack of reasons in relation to finding this element of the charge proved of itself showed the Judge had erred in his conclusion the charge had been proved.

• [9] Mr Andersen contended the trial Judge was confused about the chronology of the text messages and that not all of the messages between them during this period had been disclosed. Specifically, Mr Andersen suggested the Judge had not appreciated the sequence of events that had led to the charge which had started with Mr Haggerty being trespassed from the gym. He further argued the Judge erred in concluding the complainant had decided to remove Mr Haggerty from her social media at the outset and that she only unfollowed him on Instagram and Snapchat, the latter of which he maintained was not a social media platform.

Analysis

• [10] The blackmail charge faced by Mr Haggerty alleged that, on 20 June 2020, he:

threatened expressly to disclose ... digital photographs about [the complainant] with intent to cause her to act in accordance with the will of Jayden Haggerty in making the threat and to obtain a benefit namely continuing a relationship[.]

• [11] Section 237 of the Crimes Act 1961 provides:

237 Blackmail

(1) Every one commits blackmail who threatens, expressly or by implication, to make any accusation against any person (whether living or dead), to disclose something about any person (whether living or dead), or to cause serious damage to property or endanger the safety of any person with intent—

(a) to cause the person to whom the threat is made to act in accordance with the will of the person making the threat; and

(b) to obtain any benefit or to cause loss to any other person.

(2) Everyone who acts in the manner described in subsection (1) is guilty of blackmail, even though that person believes that he or she is entitled to the benefit or to cause the loss, unless the making of the threat is, in the circumstances, a reasonable and proper means for effecting his or her purpose.

(3) In this section and in section 239, benefit means any benefit, pecuniary advantage, privilege, property, service, or valuable consideration.

(emphasis added)

• [12] The elements of the charge as they apply in the context of this case required the prosecution to prove that Mr Haggerty:

(a) made a threat to disclose intimate images of the complainant;

(b) with the intention of causing the complainant to act in accordance with his will; and

(c) with the intention of obtaining the benefit of continuing their relationship and regaining access to the complainant’s social media accounts.

• [13] No issue arises regarding the first element. It is not disputed that Mr Haggerty made a threat to disclose intimate images of the complainant. However, the second and third elements are contested.

• [14] In addressing those ingredients of the charge, I consider the trial Judge made two important findings regarding the nature of Mr Haggerty and the complainant’s relationship. The first was that it primarily involved electronic communications. They engaged with each other over a period of some three months, exchanging texts, using Snapchat and at times Instagram. As the complainant explained, they became “close” and it was an important friendship to her. The second is that when the relationship broke down, as a result of the complainant learning details of Mr Haggerty’s personal situation, she decided to distance herself from him. As the Judge noted, because of the nature of their relationship, the way to do that was to remove or limit Mr Haggerty’s ability to be involved with her through “social media”.

• [15] On his appeal, Mr Haggerty challenged the Judge’s finding that the threat was made with the intention to make the complainant act in accordance with his will by having her reinstate him on her social media accounts and allow their relationship to continue. The suggestion is made that Mr Haggerty’s communications, in which he threatened to disclose the intimate images, were made with the intention of being allowed back into the gym, or an intention that was not otherwise discernible and that he was simply acting in anger or out of spite.

• [16] The evidence clearly demonstrated the complainant did not want to continue the relationship with Mr Haggerty. She deleted him on Snapchat and unfollowed him on Instagram. It is apparent that when their relationship broke down she sought, as the District Court Judge found, to distance herself from him. Mr Haggerty’s first communication on the Friday was likely to have been a response to him being banned from the gym, but the catalyst for the Saturday night texts appears to have been the complainant unfollowing him on Instagram. Her offer to “refollow” Mr Haggerty during one of the subsequent exchanges and his response — “Don’t waste ya fucking time! Damage is done!” — standing in isolation points, as Mr Andersen submitted, to his threats being acts of revenge rather than an effort to obtain a benefit. However, the complainant’s reaction must be viewed in light of the threat that had already earlier

been made and the overall effect of what he said during the course of all their communications that night.

• [17] A difficulty for Mr Haggerty is that his last message that Saturday night included a statement that his number had been blocked by the complainant. That was followed by a threat to post the photographs as a result of the way the complainant had acted towards him, and a demand she “Add me back on Snapchat” as soon as possible. When read against the earlier texts that night, I consider Mr Haggerty’s intent, at least in that last message, was plain. He was requiring the complainant to restore his access to the complainant’s Snapchat account. The consequence for not doing so would be the release of the intimate photographs. Mr Haggerty appears to have been incensed at the complainant’s actions and acted to restore the type of relationship he had previously enjoyed with her. There is little logic to Mr Haggerty threatening to post intimate photographs on the internet in an endeavour to retain that relationship but it is tolerably clear from that last blunt text that in his distressed state this is what he was seeking to achieve.

• [18] Mr Haggerty essentially confirmed under cross-examination that his threat to post the photographs was for the purpose of making the complainant comply with his demand that he be able to access her via the social networking sites. Mr Haggerty was cross-examined on the messages he sent on the night of 20 June in response to being unfollowed on Instagram (what he initially referred to as being “blocked”):

17. Can you just explain what you mean by: “If that’s how you’re going to be towards me,” what did you mean when you said that?

A. I believe I was just how she’d block me and stop talking.

Q. You were angry that she’d blocked you?

A. Yes.

...

17. And, so from your point of view you were, to say the least, unhappy that [the complainant] had blocked you?

A. I was upset.

Q. At that point you wanted her to add you back on, didn’t you?

A. Yes.

Q. And that’s why you said: “Add me back on Snapchat asap please”?

A. Yes.

Q. And when you say: “Tell me why I shouldn’t post them photos,” that relates to your dissatisfaction with her blocking you, doesn’t it?

A. I believe so.

...

Q. So the two are connected, you’re unhappy that she’s blocked you on Snapchat, you want her to add you back, if she doesn’t you’re saying you’re going to post photos. You accept that’s the thrust of your message?

A. Yep.

• [19] Later Mr Haggerty was asked:

Q. So is it fair to say you’re using this, using the existence of these photos to I guess get your own way or to get her to do what you want her to do?

A. In a way.

• [20] Mr Haggerty essentially admitted he was upset about the complainant having taken steps to limit his electronic access to her and, as a result, threatened to post the intimate photographs. I accept Mr Andersen’s submission that a threat by Mr Haggerty to do so simply because of how unhappy he was with the situation would not be sufficient to prove the charge. However, Mr Haggerty also admitted he wanted to maintain contact with the complainant. Moreover, he tacitly accepted when questioned on the point that he sought to maintain those lines of communication and sustain at least some type of relationship with the complainant by threatening to disclose explicit images of her.

• [21] It follows that I consider there was sufficient evidence upon which the District Court could conclude that Mr Haggerty made his threat to disclose the photographs in an endeavour to pressurise the complainant to act in accordance with his will and provide him with access to the complainant’s social media sites in order to continue some form of relationship with her.
• [22] I accept Mr Haggerty’s initial message on the Friday night appears to be a reaction to having been trespassed from the gym and that his implicit threat about the photos in that message appears to relate to that grievance. However, that does not advance Mr Haggerty’s argument. The fact he may have wished to achieve other outcomes does not exclude the objective for which the threat was deployed the following evening — to restore electronic access to the complainant. In any event, a closer examination of the Friday Instagram message reveals that, while Mr Haggerty’s grievance at that time was with being trespassed from the gym, the threat was made in order to get the complainant to talk to him about what had occurred. As with the texts the following night, Mr Haggerty’s objective was to restore his ability to communicate with her using the forms of media they had previously employed during their relationship.

• [23] I do not consider the trial Judge was confused as to the sequence of events or that he misunderstood the chronology of how events unfolded. The Judge was cognisant of there being no conclusive evidence as to the timing and circumstances of Mr Haggerty being trespassed from the gym. His focus was on the communications that took place on the Friday and Saturday evenings, and his analysis, as with mine on the appeal, was on whether the elements of the charge had been proved as a result of those exchanges.

• [24] A further point taken by Mr Andersen was that Snapchat does not fall into the category of social media platforms but is simply a messaging app. I doubt whether the label “social media”, as it is used both in the body of the charge or more generally, is a term of art. The platforms utilised by Mr Haggerty and the complainant were indeed the means by which they communicated, which she sought to bring to an end and which Mr Haggerty wished to continue. I do not consider anything turns on the description of the electronic way in which they were able to access each other. In any event, there was expert evidence that both Instagram and Snapchat are social networking sites, which was not challenged at trial.

• [25] Evidence was adduced from a digital forensic analyst employed by the police. He referred to the Snapchat and Instagram accounts as social media accounts or social networking sites akin to Facebook that provide a platform to their users to share

information via websites or applications and content such as pictures, videos or status updates. It was noted that additionally many of these platforms allow for both public and private communication. Anyone with an account registered on the platform can navigate to a person’s page and see their public data. Some platforms allow users to select whether they wish to share publicly or just to friends. Snapchat was given as an example of such a site. In terms of sharing content, the analyst stated:

Users can request to become friends or some cases followers of a person’s profile on these platforms, Once this request is granted you will gain more access to content they share. When you are granted this access, you gain access to more information about the person and what they share with their “friends”, and often gain the ability to directly communicate and send private messages to that person for example Facebook. Account settings on some platforms provide functionality on how your profile behaves, for example Instagram accounts can be public or private if they are public anyone with an account could follow them, if the account is private they need to be approved by the account owner.

These platforms also provide the functionality for users to block other users. Blocked accounts lose the privilege of being able to view content that the user shares or posts; blocked accounts cannot send messages or requests to the user and in some cases, blocked accounts cannot even use the user’s profile.

• [26] There was also some confusion as to whether the complainant had blocked Mr Haggerty or “unfollowed” him. However, I do not consider anything turns on that distinction. The use of texts, Snapchat and Instagram were the means by which the complainant and Mr Haggerty could communicate with each other. The settings that applied to these sites is not entirely clear from the evidence but the short point is that during their relationship Mr Haggerty could access the complainant using these forms of electronic communication. It was that contact the complainant sought to bring to an end or, at least, limit. Mr Haggerty wished to maintain the status quo.

• [27] The reference in the charge to social media accounts was intended to describe the means by which Mr Haggerty was able to engage with the complainant which included using Instagram and Snapchat. It is not apparent, nor was it suggested, that Mr Haggerty was under any misapprehension as to the particulars of the charge. Nor was it suggested that he did not understand the allegation he faced related to his use of threats in order to secure for himself the benefit of retaining the relationship he had with the complainant by being able to electronically communicate with her.

Conclusion

• [28] Being satisfied there was sufficient evidence upon which to find the elements of the charge of blackmail proved and that the Judge did not err in reaching his conclusion to that effect, the appeal against conviction must be dismissed.

Sentence Appeal

• [29] Mr Andersen advised the sentence appeal would only be pursued if the conviction appeal was successful. It was submitted Mr Haggerty’s sentence would have to be adjusted to accurately reflect he only stood convicted of the remaining unrelated offences to which he had pleaded guilty. With the conviction appeal having been dismissed it follows the sentence appeal also fails.

Result

• [30] The appeals against conviction and sentence are dismissed.

Solicitors:

Crown Solicitor, Dunedin