R v Partha Iyer [2016] NZDC 23957

Published 29 November 2016

Posting a harmful digital communication — Harmful Digital Communications Act 2015, s 22 — Interpretation Act 1999, s 5 — whether there was a case to answer — Criminal Procedure Act 2011, s 147(4)(b) — breach of protection order. The defendant, who was charged with posting a harmful digital communication and breaching a protection order, sought to have the charges dismissed on the basis that there was no case to answer (s147(4)(b)). The charge under the Harmful Digital Communications Act arose after the defendant posted semi-nude pictures of his wife on Facebook in the context of a relationship breakdown. It was established there was a case to answer for breaching a protection order as the defendant had used intimidatory behaviour towards the complainant which amounted to psychological abuse. For a charge to be made out under the HDCA, the prosecution needed to establish that the defendant posted a digital communication on the specified date with intention to cause harm to the complainant, that posting the communication would cause harm to an ordinary reasonable person in her position and that positing the photographs did cause harm by way of serious emotional distress to the complainant. This charge was dismissed as the element relating to actual harm caused was not made out on the evidence. With reference to the Interpretation Act the Judge was satisfied that the definition of harmful digital communication within the HDCA was intended to be broad and that the overall effect of definitions in the Act suggested that uploading photos to the account constituted the posting of a digital communication. Element two relating to the timing of the offence was made out on the evidence. The Judge stated that intention to elicit a serious response of grief, anguish, anxiety or feelings of insecurity would qualify as intention to cause harm for the purposes of the charge. Here it was only necessary for the Judge to be satisfied that the prosecution had made out a prima facie case for intention to cause harm, this was satisfied on the facts. Considering whether the post would cause harm to an ordinary reasonable person in the complainant's position the Judge examined factors in s 22(2) and determined that the factors present in the case meant the element was satisfied, particularly given the overall context of the particular relationship. When determining whether serious emotional distress had been caused the Judge found that on the evidence that the distress caused did not meet the threshold of serious emotional distress. Thus the prosecution failed to satisfy the element that the complainant suffered harm as defined in s 4. Judgment Date: 28 November 2016. * * * Note: names have been changed to comply with legal requirements. * * *