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Kronfeld v Police [2016] NZHC 2277 (26 September 2016)

Last Updated: 23 May 2018

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-9 [2016] NZHC 2277

_{JUDGMENT OF MANDER J}

[1] The appellant, Margaret Kronfeld, faces charges of intentionally accessing a computer system, misuse of a telephone, and criminal harassment. The prosecution is reliant upon telecommunications records obtained from Telecom as a result of the execution of a production order.

[2] Ms Kronfeld challenged the admissibility of this evidence alleging the application made in support of the production order was deficient and its content insufficient to satisfy the requirements of the Search and Surveillance Act 2012. Judge Turner found the production order had been validly issued and ruled the evidence

_admissible.¹ _{Ms Kronfeld appeals that decision.}

¹ Police v Kronfeld [2016] NZDC 7717.

Background

[3] On 22 May 2014, the complainant contacted the Dunedin police alleging she had been receiving “hang up” telephone calls and concerning text messages and emails from an unknown person or persons.

[4] Because of the volume and nature of these communications the complainant reported the matter to Telecom. This resulted in Telecom blocking several numbers and cancelling several SIM cards. However, the calls and text messages continued. Because of privacy considerations, Telecom was not able to provide information to the complainant about the identification of the alleged caller. On the day the complainant made her complaint to the police she had received an email from Telecom advising the subscriber of a private number had been issued “a warning” in relation to the contact but Telecom was unable to take the matter further.

[5] The complainant advised police she was uncertain as to who was responsible for the communications. She thought it likely the person or persons responsible were associated with a woman with whom her husband had an affair in 2013. The calls and messages had commenced soon after she had become aware of the relationship.

[6] As a result of the complaint the police applied for a production order which was issued that day. The following day the order was executed on Telecom. This resulted in the police taking possession of Telecom’s investigation file and other records detailing communications between [the complainant’s] mobile phone number and other phone numbers for the period 8 May 2014 to 22 May 2014.

[7] As a result of this information being made available further production orders and warrants were obtained and the police obtained evidence which ultimately resulted in Ms Kronfeld being charged.

Jurisdiction for appeal

[8] The appeal arises from a pre-trial admissibility ruling that the evidence obtained as a result of the production order is admissible.² Section 215 of the Criminal

² Criminal Procedure Act 2011, ss 78 and 79.

Procedure Act 2011 (CPA) provides that a defendant with the leave of the first appeal Court may appeal against an order as to the admissibility of evidence. While Ms Kronfeld’s application in the District Court was couched as having been made pursuant to s 30 of the Evidence Act 2006, it is clear Judge Turner’s decision was made procedurally under s 79 of the CPA and therefore is appealable by leave of this Court under s 215(2)(a).³

The appeal

[9] Ms Kronfeld brings her appeal on the basis Judge Turner erred in fact and law by:

(a) adopting an erroneous definition and standard of proof in respect of the element of “fear for safety” pursuant to s 8 of the Harassment Act 1997 (Harassment Act); and

(b) failing to adequately assess the evidence said to support Ms Kronfeld’s intent to cause the complainant to fear for her safety or the safety of a member of her family (s 8(1)(a)), or Ms Kronfeld’s knowledge that it was likely to cause the complainant to reasonably fear for her own safety or the safety of a family member (s 8(1)(b)).

[10] Ms Kronfeld submitted these alleged errors individually and cumulatively amount to an error of law by the District Court when it found the requirements of s 72 of the Search and Surveillance Act 2012 (SSA) were met.

The law

[11] Section 74 of the SSA provides:

Issuing officer may make production order

An issuing officer may make a production order against a person if satisfied, on an application made under section 71, that the conditions, specified in section 72, for making the order are met.

³ R v Kalu [2007] NZCA 487 at [36]. The Court of Appeal reached this jurisdictional conclusion in the context of ss 344A and 379A of the Crimes Act 1961 (the precursors of ss 101 and 215 of the CPA), but the reasoning extends to s 79 of the CPA in the case of Judge-alone trials.

[12] It was accepted before the District Court that the formal requirements of s 71 were met and no issue arises in that regard on the appeal.

[13] Under Section 72 the conditions for making a production order are that there are reasonable grounds to:

(a) suspect that a specified offence has been committed, or is being committed, or will be committed; and

(b) to believe that the documents sought by the proposed order— (i) constitute evidential material in respect of the offence;

^and

(ii) are in the possession or under the control of the person against whom the order is sought, or will come into his or her possession or under his or her control while the order is in force.

[14] It is not disputed the records obtained as a result of the execution of the production order constituted evidential material nor that they were other than in the possession or control of Telecom.

[15] The offence specified in the production order application was one of criminal harassment. Section 8 of the Harassment Act provides:

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 other 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 other person is in a family relationship.

[16] Harassment is defined in s 3(1) as follows:

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.

[17] The term “specified act”, in relation to a person, is defined in s 4. The relevant paragraphs are:

(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, electronic communication, 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.

First ground - evidence of “a fear for safety”

The argument

[18] Ms Kronfeld submitted that in order for there to be sufficient grounds for the production order to be granted the issuing officer would need to be satisfied there was sufficient evidence to support each element of the offence. Ms Kronfeld submitted that insufficient evidence had been provided in the production order application to establish the necessary intent or knowledge required by ss 8(1)(a) or (b). Specifically, she submitted that the evidence relied upon by the police to establish a reasonable

suspicion that Ms Kronfeld intended to cause the complainant fear for her safety or that of her children, or alternatively to establish that she knew her actions were likely to cause the complainant to reasonably fear for her safety or that of her family, fell short of the threshold required for the charge of criminal harassment.

[19] Ms Kronfeld submitted Judge Turner erred by concluding that the content of the application was sufficient. Ms Kronfeld was critical of the approach taken by the Judge to the inclusion of what she described as highly prejudicial but incorrect information relating to the complainant’s children, and a further erroneous particular relating to the date on which telephone calls made to the complainant had “peaked”.

[20] In support of this ground of appeal Ms Kronfeld referred to the judgment of Duffy J in NR v District Court at Auckland which considered the meaning of “fear for safety” as it is used in the Harassment Act.⁴ The term “safety” is defined to include “mental wellbeing”. Duffy J reviewed several cases which held that feelings of anger, annoyance or upset will not qualify as causing a fear for mental wellbeing.⁵ In particular, Ms Kronfeld stressed the observation made in that case, that fear for one’s safety under the Harassment Act was not intended to include fear of an invasion of privacy or damage to reputation by the disclosure of information which a person may wish to keep secret and which if revealed would cause unhappiness, anger, annoyance and emotional upset but would not usually be harmful to a person’s wellbeing.⁶

[21] Ms Kronfeld sought to draw on those observations as being relevant to the circumstances of the present case, and that the text messages referred to in the application give rise to a strong inference or suspicion the author of the messages was threatening to disclose information about the affair. She submitted the complainant’s only concern was that this would become public knowledge. Ms Kronfeld submitted such fears were insufficient to constitute a “fear for safety”, including a fear for one’s

_{“mental wellbeing”.}

⁴ NR v District Court at Auckland [2014] NZHC 1767.

⁵ C v G [1998] DCR 805, as cited with approval in Beadle v Allen [2000] 14 NZFLR 639 (HC);

Kern v District Court at North Shore [2014] NZHC 896, [2014] NZAR 699.

⁶ Above n 4, at [52].

Decision on first ground

[22] In the circumstances of the present case, a precondition to the making of a production order is that the issuing officer is satisfied there are reasonable grounds to suspect the offence of harassment under s 8 of the Harassment Act had been committed.

[23] To be satisfied there are reasonable grounds to suspect a specified offence has been committed does not require proof to any particular standard. The issuing officer is required to make up his or her mind on reasonable grounds and reach a judicial view on the matter.⁷

[24] Reasonable suspicion has been variously defined as “a reasonable ground of suspicion upon which a reasonable [person] may act”.⁸ That is something that is “possible or likely”.⁹ Circumstances giving rise to speculation or concern are not sufficient, however, thinking it likely that a situation exists will meet the threshold.¹⁰

All relevant factors are to be considered cumulatively, rather than by way of individual dissection of particular matters.¹¹ Judge Turner referred to a number of these formulations when identifying the test to be applied before undertaking his assessment of whether the information provided in the application provided reasonable grounds for the issuing officer to suspect the offence of criminal harassment had been committed.

[25] The Judge then addressed himself to each of the elements of the s 8(1) charge, including that the suspect either intended or had knowledge the harassment would cause the complainant to fear for her safety or for a family member. In addressing essentially the same submission which Ms Kronfeld made on appeal regarding the sufficiency of the application, Judge Turner described Ms Kronfeld’s contention as

_{being misguided, relying as it did on the meaning of “fear for safety” considered in}

⁷ Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [96]; R v

Leitch [1998] 1 NZLR 420 (CA) at 428; R v White [1988] NZCA 55; [1988] 1 NZLR 264 (CA) at 268.

⁸ Police v Anderson [1972] NZLR 233 (CA) at 242.

⁹ R v Sanders [1994] 3 NZLR 450 (CA).

¹⁰ Rimine v R [2010] NZCA 462; R v Laugalis (1993) 10 CRNZ 350 (CA).

¹¹ Steeman v R [2011] NZCA 553 at [9]; Reid v R [2012] NZCA 201 at [12]-[13].

NR v District Court at Auckland which was focussed on the requirement for the conduct to be harmful to a person’s mental wellbeing.

[26] Ms Kronfeld, in support of her submission, was critical of a lack of direct evidence from the complainant about her fear for her safety and that of her family, and argued the police were under a duty to provide the best evidence available, rather than leaving it to the issuing officer to have to draw what she described as “speculative inferences”.

[27] I do not consider Ms Kronfeld’s submission to be persuasive. The application refers to the complainant having received some 148 nuisance calls, texts or emails, culminating in some 37 nuisance hang up calls and malicious texts on a single day. The inquiries with Telecom are reviewed and the information the telecommunications company was able to provide detailed. The complainant is referred to as becoming increasingly fragile in her mental state and is described as feeling powerless. The inquiry made of the complainant by the police as to why she believed this may be happening to her, is reported as her believing the person or persons responsible were associates of a female with whom her husband had an affair the previous year. The dates and nature of the texts are referred to as appearing to corroborate that belief.

[28] A number of examples of the texts are provided in the application. These include, “rumours confirmed”, “move on”, “lying”, “told truth?”, “lies”, “deception”, “double life”. Of particular concern were the examples provided of “found your website lots of email addresses for me to have fun with”, “found your family facebook”, “my instructions are to find your children”, “making progress locating children”.

[29] I do not accept the submission the complainant’s primary concern was disclosure of her husband’s affair, nor that the relevant fear for her safety or that of her family was limited to the extended definition of safety including “mental wellbeing”. There is no reference in the application to the complainant being concerned about disclosure of her husband’s affair. The complainant was asked why she thought she may be receiving these communications, and it was in answer to that inquiry that she provided her view in support of the identification of the person possibly responsible.

[30] The necessary reasonable suspicion did not rest on the complainant’s fear of loss of reputation or invasion of privacy. The charge of criminal harassment requires proof of a person’s intention that the harassment cause the other person to fear for their safety or that of their family. Alternatively, that the person knows the harassment is likely to cause the other person to reasonably fear for their or their family’s safety. There is no requirement for the person to actually hold such a fear. The focus is on the state of mind of the person alleged to have committed the offence.

[31] While the impact of the communications on the complainant may be a relevant consideration as part of an assessment of all the circumstances when considering whether the police had reasonable grounds to suspect this was the sender’s intention or knowledge, as with all criminal charges the issue of mens rea depends upon drawing inferences from the actions of the suspect.

[32] Judge Turner assessed the application as providing the issuing officer with reasonable grounds to suspect the person engaging in the behaviour had the requisite state of mind. In that regard, he made particular reference to the text messages which referred to the complainant’s family, including purportedly from a third party who had been instructed to find the complainant’s children, and who informed the sender of the progress being made towards that objective. Those messages could reasonably be interpreted as from a third party specifically engaged to target the children.

[33] I accept the Crown’s submission that the reasonable suspicion of criminal harassment having been committed did not rest upon the definition of “safety” in the sense of “mental wellbeing”, but extended to the wider concern for the safety of the complainant’s children.

[34] The case relied upon by NR v District Court at Auckland was concerned with the general “catch-all” category within the definition of “specified acts” of harassment contained in the Harassment Act, which requires proof of some other action, other than making contact by telephone or electronic communication, which must cause a person to fear for his or her safety. Proof of such an effect is not required where the specified act relied upon is making contact with the person, as in the present case.

[35] NR v District Court at Auckland was a civil harassment case. Ms Kronfeld sought to draw parallels with that case by emphasising that the complainant in the present case never said she felt fearful for herself or her children. It was submitted the application did not meet the “criminal standard” but had been approached as if it was a civil case. The purpose of that submission is not readily apparent to me because ultimately the necessary statutory requirements of the SSA must be applied. Categorisation of the present case as being “civil” in nature does not advance the argument.

[36] In my assessment a reasonable inference available to the issuing officer was that it was likely or possible the messages were intended to cause the complainant to fear for the safety of her children. Alternatively, there were reasonable grounds to suspect, or to think it likely, the author of the messages knew the communications were likely to cause the complainant to reasonably fear for either her safety and/or for that of her children. This is particularly so having regard to those texts which specifically referred to her children.

[37] Ms Kronfeld was rightly critical of the inclusion of two erroneous pieces of information in the application. Based on a misinterpreted text message, “Tanya, 2.5”, the application incorrectly claimed the complainant had a two and a half year old daughter named Tanya. In fact, the youngest of the complainant’s children is in her final year at high school. The application also stated the phone calls had “peaked on the 30^th of May”, when in fact they had peaked on 21 May. Ms Kronfeld submitted this information was highly prejudicial.

[38] The difficulty for Ms Kronfeld is that Judge Turner was well aware of these errors when making his assessment of the validity of the warrant. He approached the misleading information in an entirely orthodox way. The Judge acknowledged the errors demonstrated a lack of care by the police in the preparation of the application, but noted there was no suggestion the complainant had deliberately set out to mislead the issuing officer. Importantly, after putting that material to one side, the Judge found there to be sufficient other material before the issuing officer on which to suspect the commission of an offence of criminal harassment.

[39] Judge Turner recognised that the erroneous reference to the complainant having a daughter aged two and a half would have reinforced in the mind of the issuing officer the complainant’s fear for the safety of a family member. However, independent of that piece of information, he was satisfied the material overall was sufficient. In any event, as I have already observed, the focus is not on the state of mind of the complainant but that of the suspect. In my view, the approach taken by Judge Turner, putting the erroneous information to one side and assessing the balance of the content of the application, was correct. The conclusion reached was open to the Judge and is one with which I agree.

[40] Ms Kronfeld was also critical of the way the Judge assessed her submission regarding the delay between the timing of the communications and the making of the application. The communications commenced in late January 2014, and the complainant did not approach the police until 22 May 2014. I do not consider the Judge made any error in his approach to that issue. The police did not delay the commencement of its criminal investigation and sought a production order within a reasonable period of receiving the complaint. Furthermore, the delays by the complainant are explained by the steps she took to deal with the matter through Telecom prior to making her complaint to the police. It was only after she had exhausted that avenue that the complainant approached the police.

Second ground - Ms Kronfeld’s intention or knowledge

The argument

[41] Ms Kronfeld submitted Judge Turner erred in assessing whether the evidence reached the subjective standard required to show Ms Kronfeld’s mens rea. In a submission that was more in amplification of the first ground of appeal rather than an independent ground in its own right, Ms Kronfeld submitted in the absence of explicit threats to the complainant’s safety something more was required in the information contained in the application to show Ms Kronfeld’s intention or knowledge the messages or calls would cause the complainant to fear for her safety.

[42] It was submitted Judge Turner had erroneously relied upon the number or volume of calls and communications alleged to have been made as demonstrating

knowledge that a fear for safety would be engendered. Ms Kronfeld submitted such an approach did not provide sufficient evidence of criminal harassment.

[43] In respect of both this ground of appeal and the first, Ms Kronfeld relied upon a decision of this Court, Brown v Police,¹² to submit that specified acts must not only be reasonably likely to cause a fear for the safety of the complainant or her family, but that there must also be evidence to show that was her intended result or that she knew of its likelihood.

Decision on second ground

[44] Brown v Police involved two incidents in respect of which the appellant had been convicted of criminal harassment. In April 2011, irritated by the constant barking of the complainant’s dog, the appellant leaned over the complainant’s fence and informed her he would report the dog to animal control. He was alleged to have kicked the fence and threatened to put rat poison on the property to “take care of the dog”. Mallon J held the appellant did not know or intend at the time for his actions to cause the complainant to fear for her or her children’s safety. No threat to harm the complainant or her children had been made. It was not established he even knew she had children.

[45] In July 2011, the appellant stood with his dog outside the complainant’s neighbour’s house staring at the complainant’s dog before walking very slowly passed the complainant’s house. Mallon J held it was not established the appellant even knew he could be seen at that time by others, and that it seemed unlikely he would have known or intended that he be seen. As a result, no safe inference could be drawn that the appellant had the requisite knowledge or intent at the time of either incident. The facts of Brown v Police are markedly different from the circumstances of this appeal.

[46] In the present case it was clear from the information contained in the application the suspect knew the complainant had children and was intentionally setting out to identify them. It was reasonable to conclude from the communications

_{the children were being targeted. In contrast to Brown, there were not two incidents}

¹² Brown v Police [2012] NZHC 1342, [2012] NZFLR 631.

of harassment separated by a three month hiatus but some 148 nuisance calls, texts and emails over a four month period. Several of these messages referred specifically to the complainant’s children.

[47] There was therefore an available reasonable inference that Ms Kronfeld intended this harassment to cause the complainant to fear for her or her children’s safety. As already observed, a similar finding is available that Ms Kronfeld knew the harassment was likely to cause the complainant to reasonably fear such harm. At the very least there was a basis upon which that could be reasonably suspected.

[48] Contrary to Ms Kronfeld’s submission, Judge Turner’s consideration of the cumulative threatening impact of Ms Kronfeld’s communication does not reduce the s 8(1) mental elements to “mere numbers” or render them void. The sheer volume and incessant nature of unwelcome communications and the persistence of sending the communications, notwithstanding Telecom having blocked several numbers and cancelled SIM cards, were all validly part of the Court’s assessment of the inference of intention and/or knowledge on the part of the suspect.

Balancing exercise

[49] Because I have concluded Judge Turner made no error in his assessment that the production order had been validly issued and the evidence therefore admissible, it is not necessary for me to carry out the balancing exercise under s 30(2)(b) of the Evidence Act 2006.

Result

[50] The appeal is dismissed.

[51] I make an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.

Solicitors:

Andrew Speed Barrister, Auckland

RPB Law, Dunedin