A v Police HC Auckland CRI-2004-404-393

[2007] NZHC 1565

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2004-404-393

CRI-2006-404-136

A

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 January 2007

Appearances: A G Speed for Appellant

A R Burns for Respondent

Judgment:      19 January 2007 at 12:45 pm

RESERVED JUDGMENT OF COURTNEY J

This judgment was delivered by me on

19 January 2007 at 12:45 pm pursuant to r 540(4) of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

Solicitors:           Meredith Connell, P O Box 2213, Auckland

Fax: [phone]

Counsel:            A G Speed, P O Box 941, Auckland

Fax: [phone]

A  V NZ POLICE HC AK CRI-2004-404-393  19 January 2007

Introduction

[1]      In my judgment 25 October 2006 I dismissed Mr A’s appeal against conviction on a charge of disorderly conduct under s 3 Summary Offences Act 1981.   Mr A now seeks leave under s 144 Summary Proceedings Act 1957 to appeal against that decision.

[2]      Under s 144(2) leave may only be granted in relation to a question of law and the Court must be satisfied that the question of law is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.  The purpose and application of s 144 was considered in R v Slater [1997] 1 NZLR 211 at 215:

Section 144 was not intended to provide a second tier of appeal from decisions   of   the   District   Court   in   proceedings   under   the   Summary Proceedings Act.   Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss (2) and (3) are met and leave to appeal is granted.  Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

[3]      The   circumstances   giving   rise   to   Mr   A’s   conviction   are described in my earlier decisions 4 September 2006 and 25 October 2006.  Briefly, however, an altercation with noise control officers and police culminated in Mr A   ’s son approaching police carrying a machete and a meat cleaver and being shot by the police.   Mr A    picked up the weapons, intending to dispose of them safely.  He ignored police commands to drop the weapons and was arrested.

[4]      I held that conduct likely to elicit a forceful response from the police could amount to behaviour that was “likely …to cause violence” for the purposes of s 3.  I also held that Mr A   ’s subjective intentions regarding the weapons did not affect the objective as to whether his behaviour was disorderly.

[5]      Mr Speed submitted that two questions of law arise that justify granting leave to appeal:

a)       Whether, in respect of a charge of disorderly conduct under s 3 the phrase “likely in the circumstances to cause violence” contemplates a violent arrest of the appellant by the police;

b)Are  the  subjective  intentions  of  the  appellant  are  relevant  in determining whether his actions were disorderly?

First question of law - “likely to cause violence”

[6]      In  written  submissions  in  support  of  the  application  counsel  initially suggested that the offence under s 3 could not be proven if the arrest itself was the source of the violence because, if that were so, the elements of the offence would not have existed prior to the arrest.  This must be right.  However, my decision involved the likelihood of violence prior to an arrest being made i.e. the possibility of a forceful police response to Mr A   ’s continued handling of the weapons in the face of police commands to drop them.   I held that those circumstances were likely to lead to a forceful police response for the purposes of disarming Mr A   , before any attempt was made to actually arrest him.   As noted, I considered that a forceful police response could satisfy the phrase “likely…to cause violence”.

[7]      During oral submissions Mr Speed submitted that the Crown was required to prove that there were persons other than the police involved or likely to be involved in the violence in order for s 3 to be satisfied.   Mr Speed submitted that s 3 was aimed at situations involving members of the public and that it was inconsistent with that purpose to view a police response to an individual’s conduct as falling within the section.  Mr Burns responded that the words “likely in the circumstances to cause violence” should be read widely and that the fact that violence might be justified by law did not detract from the nature of the conduct.

[8]      There is no authority on this particular point.   Given the wide range of circumstances in which s 3 is applied and the likelihood of a similar incident involving only an individual and the police occurring again, I think that submission to the Court of Appeal is appropriate to confirm the ambit of s 3.

Subjective intention of appellant

[9]      Mr A   ’s second ground is that his subjective intentions in picking up the weapons should have been taken into account in determining whether the conduct was disorderly.  Mr Speed accepted that whether the conduct is disorderly is to be determined objectively but said that there must be a mental element present and proven as part of the offence.  Mr Burns submitted that intention was only relevant to the appellant’s decision to act in that way.   If the conduct was deliberate then whether the motivation was well-intentioned or not is not relevant.

[10]     The proper approach to determining whether conduct is disorderly or not is well established and was explained in Melser v Police [1967] NZLR 437 (CA). I do not consider that Mr Speed’s argument, which would run counter to the approach taken by the Court of Appeal in Melser, is tenable or would justify consideration by the Court of Appeal.

Conclusion

[11]     I grant leave for Mr A    to appeal to the Court of Appeal in respect of the following question:

Is a forceful response by the police towards an individual, in the absence of members of the public, capable of amounting to behaviour that is likely to cause  violence  against  persons  or  property  to  start  or  continue  for  the purposes of s 3 Summary Proceedings Act 1981.

[12]     Leave is declined in respect of Mr A   ’s second ground.

P Courtney J