R v O'Sullivan [2018] NZDC 3506

Published 17 January 2019

Propensity evidence — harmful digital communications — level of specificity required — whether proposed evidence propensity evidence — Mahomed v R [2011] NZSC 52 — R v Martin [2013] NZCA 486 — Taniwha v R [2016] NZSC 123 — Evidence Act 2006, ss 7, 8, 40(1)(a), 43(3). The defendant faced charges of posting a digital communication (a Facebook post) with the intention to cause harm, and that the posting did cause harm. The Crown sought to have admitted as evidence previous Facebook messages from the defendant to the complainant. The Crown argued that the messages had a tendency to prove the defendant's intention to cause harm to the complainant. The Crown submitted that the messages had a probative value that outweighed the risk of prejudice to the defendant. The defendant submitted that there was distinction between private and public communications and that if it was decided the messages were propensity evidence, the prejudice against the defendant would outweigh any probative value. The court found that the proposed evidence was directly relevant to the defendant's intent and to whether the communication tended to cause harm, and to whether in fact it did cause harm. The messages provided crucial background to the relationship between the defendant and the complainant, and if not allowed to see them the jury would not be able to understand the alleged offending. The court found that the messages were admissible as propensity evidence. Judgment Date: 2 March 2018. * * * Note: names have been changed to comply with legal requirements. * * *