A v Police HC Auckland CRI 2007-404-349

[2008] NZHC 497

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-349

A

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 April 2008

Counsel:         A G F C Bouchier for Appellant

S N B Wimsett for Respondent

Judgment:      14 April 2008

ORAL JUDGMENT OF RANDERSON J

Solicitors:           Meredith Connell, PO Box 2213, Auckland

Counsel:            A G F C Bouchier, PO Box 26354, Epsom, Auckland

A V POLICE HC AK CRI 2007-404-349  14 April 2008

Introduction

[1]      On 8 May 2007 the appellant was convicted by Judge Treston on a charge of disorderly behaviour in a public place contrary to s 4 (1)(a) Summary Offences Act

1981.   The sole issue taken on  appeal is whether the place where the  incident occurred was a public place as defined by s 2 Summary Offences Act.

Background Facts

[2]      The Judge found that on 4 November 2006 the appellant had been taken to the Emergency Department at the Auckland Public Hospital.   There was evidence from a police constable that she arrived and saw the appellant in the detoxification room within the Emergency Department.   The appellant was yelling and swearing (without provocation) at the hospital staff.   This continued, the constable said, for about 20 minutes.

[3]      The evidence establishes  that  the  appellant  was  within  the detoxification room with nurses attending on her from time to time.  The door to this room was closed but there were security guards outside the door.   There is very little other evidence available to flesh out these bare facts.  It is not clear, for example, whether the appellant was free to go or even if, in her intoxicated state, she had the capacity to leave.

Submissions

[4]      For the appellant, Mr Bouchier submitted that the appellant had been placed there for her own safety and that the room in question was designed as a secure facility.  He likened the room to a detoxification cell at a police station.

[5]      For the respondent Mr Wimsett submitted to the contrary.  He submitted that the room in question was a place used by members of the public and it did not matter whether they were invited or placed there by members of the medical or nursing staff at the Emergency Department.

[6]      He referred the Court to a decision of Jeffries J in Caithness v Police (1986)

2 CRNZ 201 and to an unreported decision of Penlington J in Sayers v Police HC ROT AP 25/89 11 May 1992.

[7]      The definition of “public place” in s 2 of the Act states:

public place means a place that, at any material time, is open to or is being used by the public, whether free or on payment of a charge, and whether any owner or occupier of the place is lawfully entitled to exclude or eject any person from that place; and includes any aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle carrying or available to carry passengers for reward.

[8]      It is clear, as Jeffries J pointed out in Caithness, that the definition is very wide and that the application of the definition to particular circumstances is the critical question.   Although Jeffries J referred to the public “congregating” in the place in question, that comment must, in my view, be read in the context of the case before  him  which  dealt  with  members  of  the  public  attending  a  Parliamentary banquet by invitation.

Discussion

[9]      I am satisfied that it is not necessary for the purposes of the definition of public place for  the  place  in  question  to  be  one  where  members  of  the  public congregate.  It is sufficient if members of the public go there from time to time even if that is by invitation or, as in the present case, by being placed there.

[10]     Here, the Emergency Department itself is undoubtedly a public place for the purposes of the definition in the Summary Offences Act.   It is a place to which members of the public resort in case of sickness or injury.   They may do that voluntarily or they may be taken there by others for treatment.

[11]     In this case, it appears the appellant was, in view of her state of intoxication, taken to the Emergency Department for examination.   She was then placed in the detoxification room for her safety so her condition could be monitored by the attending staff.  It was while she was in the detoxification room that the disorderly conduct took place.

[12]     I am satisfied this was a public place because it was a place which “was being used by the public”.  In my view, it does not matter that the appellant had not entered the room voluntarily but was placed there by the nursing staff.  It is reasonable to infer from the evidence that the detoxification room was, although a separate room, part of the Emergency Department and accessible from that Department.  In ordinary circumstances one would have expected the appellant would have been free to leave the Emergency Department although, in this case, she may not have had the physical capacity to do so in view of her intoxicated state.

Result

[13]     In all the circumstances, I am satisfied that the offence did occur in a public place as defined and that the appellant was properly convicted.  The appeal against

conviction is dismissed.

A P Randerson, J Chief High Court Judge