Harmful Digital Communications Act case appealed in High Court

District Court judge didn't assess the evidence in totality.

High Court at Auckland released a decision in which a judge ruled that a woman was harmed after her ex-husband posted explicit images of her on Facebook, under the Harmful Digital Communications Act.

The decision follows an appeal by police against a conclusion by a District Court judge the offender should not be convicted because while there was intent to cause his ex-wife harm, there wasn’t enough evidence that harm was caused.

It is the first time a charge under the Harmful Digital Communications Act, which was passed in 2015, has been heard in the High Court.

The offender was charged with breaching a protection order against his wife and causing her harm through digital communications. Both husband and wife have name suppression.

In the District Court, Judge Colin Doherty found the respondent guilty of breaching the protection order but not the digital communications harm.

In a recently-released March court judgment, Justice Mathew Downs said the District Court judge erred by “isolating various descriptions of how the complainant felt, rather than — as required — assessing the evidence in its totality.”

Three months after the couple split in 2015, the woman began seeing another man but she said she was blackmailed by her ex-husband, who said he would post intimate images of her online if she did not stay away from other men and cancel the protection order.

It was later discovered by one of the complainant’s friends that the man had created a Facebook account that had “not very nice pictures” of the complainant, with hyperlinks to pornography.

She complained to the police and Facebook.

The respondent admitted posting the images when interviewed by the police.

Justice Downs said the woman’s unchallenged evidence was that she suffered considerable emotional distress.

She said she was “very upset for a long time; stressed … it actually caused a lot of frustration, anger, I was anxious, medically I felt unfit to work for a few days because I was just, I was just really upset.”

The respondent’s lawyer tried to argue the complainant was only “a reasonably low level of upset” but Justice Downs said this ignored the “totality of the evidence on the issue.”

Apart from causing her various forms of emotional distress, Justice Downs said the District Court judge “had no apparent regard to context.

“The evidence established the respondent had threatened to post photographs of the complainant online if she did not stay away from other men and “cancel” the protection order. The complainant said that threat made her feel scared and anxious.

“The question of harm needed to be assessed in light of these events and more particularly, the complainant’s fear and anxiety.”

The judge said there was merit in the case continuing.

Read the judgment here.

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