B v Police HC Auckland CRI 2008-404-149

[2008] NZHC 1195

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-149

BETWEEN  B

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         28 July 2008

Counsel:         Mr G B  , Appellant's father

A Bradley for Respondent

Judgment:      28 July 2008

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland
Copy to:

Appellant in person

B V NEW ZEALAND POLICE HC AK CRI 2008-404-149  28 July 2008

[1]      Mr B    appeals  against  conviction  on  a  charge  of  disorderly behaviour, brought under s 4(1)(a) of the Summary Offences Act 1981.  The appeal was brought primarily on the basis of procedural irregularities, but a substantive issue  has  also  arisen  which  I  have  discussed  with  counsel  for  the  Crown,  Ms Bradley.

[2]      Mr B   has been called away urgently due to an illness suffered by his grandmother.   His father has attended today to express his son’s apologies.   I am grateful to him for taking the time to do so.

[3]      As a result of my discussions with Ms Bradley, I have formed the view that

Mr B  ’s appeal should be allowed in any event.

[4]      Mr B   was tried before two Justices of the Peace in the District Court at Waitakere.   The charge arose out of an incident outside a domestic dwelling at Westpark Drive, Massey.   The Tactical Policing Unit had been called to that residence, after midnight on 26 January 2008.   A number of intoxicated  young people were on the street.

[5]      During Police attempts to quell the activities of the young people, one of the police officers arrested a man for urinating in a public place.   It appears that Mr B   was a friend of this man.  It is unclear whether he saw the incident.  What is clear is that he acted inappropriately by yelling at the Police in obscene terms.  Even after having been given a warning, it appears he persisted.   On the basis of his conduct, the Police arrested Mr B   for disorderly behaviour.

[6]      A number of procedural problems arose in the District Court.  Mr B   was self represented, though he had a McKenzie Friend present.   It appears that the processes generally used with McKenzie Friends may not have been explained fully or implemented as they should have been.

[7]      Problems arose during the course of the hearing when Mr B   asked “What is disorderly behaviour?”  One of the Justices unhelpfully responded “What would

you suggest to be disorderly behaviour?”   Further exchanges occurred which led ultimately to Mr B   leaving the hearing and the Justices finding him guilty in his absence.  He was convicted and fined $250 with costs of $130.

[8]      As it happens the law relating to disorderly behaviour can be quite complex. In Brooker v Police [2007] 3 NZLR 91 (SC), five members of the Supreme Court took 288 paragraphs of a judgment to explain the legal concepts and constitutional aspects of the charge and to apply them to the facts of the case.

[9]      One of the points that comes out of that judgment is well made by the Chief Justice.  It is relevant to this case because, at one point, one of the Justices referred to the offence as “minor” and suggested that Mr B    was “just trying to create difficulty for the Court”.

[10]     Elias CJ made the point that, while the offence is one properly characterised as minor, it is nevertheless a criminal offence.  A person thought to be behaving in a disorderly manner may be arrested without warrant.   The existence of the offence impacts directly on personal freedom and liberty and has the capacity to be a tool to control unpopular and unwelcome speech: at para [34] of Brooker.

[11]     The procedural irregularities are such that they cause me to believe that the conviction is unsafe.  In addition there are a number of seriously arguable issues as to whether the charge was substantively proved, having regard to what is said in Brooker. I accept, however, what Ms Bradley has put to me, namely, that I should not make any determination on the Brooker point in the absence of full argument. Nevertheless, the issues arising from that case add to my uncertainty about the safety of the conviction.

[12]     I do  not  consider  any  benefit  to  society  would  follow  from  requiring  a rehearing.  For that reason, I do not propose to remit the prosecution for a further hearing.

[13]     For the reasons I have given, the appeal against conviction and sentence is

allowed.  The conviction and the sentence imposed in consequence are set aside.

P R Heath J