B v Police HC Blenheim CRI 2006-406-01-2

[2007] NZHC 434

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2006-406-01-02

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 April 2007

Appearances: Appellant in Person

Judgment:      4 May 2007 at 9.30 am

RESERVED JUDGMENT OF MILLER J

[1]      Mr B   was convicted in the District Court at Kaikoura on two charges of offensive behaviour under s.4 of the Summary Offences Act 1981.  He represented himself, and now appeals against conviction and sentence.

The District Court decision

[2]      Judge Couch recorded that there was a history of difficulties between Mr B   and his neighbour, who operates a business known as the Kaikoura Hair Gallery.  On 24 April 2006 Mr B   got up on a ladder and looked through the rear window of the salon.  His vantage point was such that he could see a basin and

associated area where customers had their hair washed as they lay back.

B V NEW ZEALAND POLICE HC BLE CRI 2006-406-01-02  4 May 2007

[3]      Mr B   was observed and it  appears that  Jane Hill, the salon owner, complained to the police.   Constable Burdon visited Mr B   and verified for himself that by standing on the ladder he could see clearly into the back of the salon, observing the basin and shampooing chair.  The constable took the ladder from the fence against which it had been leaning, instructed Mr B   not to put it back, and warned him against repeating his behaviour.  Senior Sergeant Payne wrote a letter of warning to Mr B   and delivered it in person on 27 April.

[4]      On 28 April an employee at the salon, Melissa Reinke, looked through the salon window and saw Mr B  , apparently on the ladder, looking at her through the window.  She said he was holding a camera.  Another person in the salon, Wendy Smith, verified that Mr B   was on a ladder peering over trees.  The first charge was brought in respect of the incident on 28 April.

[5]      The second charge related to an incident on 6 September 2006 and concerned a large white sign, with nothing written on it, fastened to a pole on or near the boundary between Mr B  ’s property and the salon.  Ms Hill decided to write on it, advertising cheap haircuts.  She manoeuvred her vehicle underneath the sign and Ms Reinke stood on the vehicle to write on the sign.  While she was doing this, Mr B   came to the front of his property, standing in a position which she estimated as 2m away from her, and began taking photographs.  He refused to stop when she asked him to do so.  He continued this behaviour in the presence of Ms Hill when the latter was called by Ms Reinke, and laughed and cackled at them when they complained.

[6]      Mr  B   was  charged  with  criminal  harassment  but,  after  hearing  the police evidence, Judge Couch concluded that the police had failed to show that the harassment was intended to cause another person to fear for their safety as required under s.8 of the Harassment Act.   He delivered a ruling in which he amended the informations so that they alleged offensive behaviour under s.4 of the Summary Offences Act.

[7]      Mr B  , who was self represented, was given the opportunity to plead and maintained  his  denials.  He  had  begun  to  give  evidence  when  the  ruling  was

delivered, but after the charges were amended he changed his mind and elected not to further question the police witnesses or give or call evidence himself.

[8]      Section 4 of the Summary Offences Act relevantly provides:

(1)     Every person is liable to a fine not exceeding [$1,000] who,—

(a)     In or within view of any public place, behaves in an offensive or disorderly manner; or

(b)       In any public place,  addresses  any words  to any person intending to threaten, alarm, insult, or offend that person; or

(c)    In or within hearing of a public place,—

(i)     Uses any threatening or insulting words and is reckless whether any person is alarmed or insulted by those words; or

(ii)        Addresses any indecent or obscene words to any person.

(2)     Every person is liable to a fine not exceeding [$500] who, in or within hearing of any public place, uses any indecent or obscene words.

[9]      The Judge held:

[19]      The  elements  of  the  charge  of  offensive  behaviour  are  that  the defendant behaves in an offensive manner and that he does so in or within view of a public place.  The behaviour must be shown to be offensive in the legal sense, that is it must be behaviour which would be considered by an ordinary and reasonable New Zealander to be such which wound the feelings of or arouse real anger or resentment or disgust or outrage in the mind of the type of person actually subjected to it.   While it is not necessary for the behaviour to actually have one of those unpleasant effects  on somebody exposed to it, the presence of that consequence is a good practical test of whether it is legally offensive.

[20]      In this case there is no doubt that Ms Reinke did find the defendant’s behaviour offensive in that sense on both occasions and that on the second occasion Ms Hill actually found it offensive in that sense also.  In addition, I find on an objective basis that such behaviour would be considered by an ordinary and reasonable New Zealander to be offensive in that sense.

[21]      As for the second element, it must be established that the behaviour took  place in  or  within  view  of  a  public  place.    As  to  the  event  of  6

September, there can be no doubt about that because Ms Reinke and Ms Hill were on a public road and the defendant at the time in question was close to the front of his property and therefore in clear view of the road.

[22]      As to the events on 28 April, I am satisfied that those events also took place within view of a public place.  This was effectively established by the evidence of Mrs Smith who said that, on 24 April, she was able to see the

defendant from the road standing on the ladder looking at the rear of the salon property.   I am certain that if it was within view of the road on 24

April, it was also within view of the road on 28 April.

[10]     He accordingly found the charges proved beyond  reasonable  doubt.    Mr B   was convicted and on each charge, the Judge imposed a fine of $300 and costs of $130.

The appeal

[11]     Mr B   filed written submissions,  in which he went  through answers given  in  evidence,  baldly  characterising  many  of  them  as  “perjury”  or  “idiot answer”.  It is clear that he accepts few if any of the Judge’s findings of fact.

[12]     At the hearing, Mr B   filed further and very detailed submissions; a list of respects in which the transcript had been falsified, a list of ‘faulty statements’ by the Judge, a document called ‘further points’ and a document headed ‘summary’. There was not time for him to take me through each of the documents, and he was content to leave me to review them.  That I have done.

[13]     The submissions left no stone unturned, however small or irrelevant.   Mr B   claimed, although he was conducting his own defence, that he could recall the hearing almost verbatim.  But none of the errors in the transcript, if such they are, is material to the question of Mr B  ’s guilt.  Nor is there any substance to his criticisms of the Judge, who was scrupulously courteous and fair towards him while insisting that his questions of witnesses kept to the point.  The evidence supports the Judge’s findings, and the seven witnesses corroborate one another’s accounts.   On the one point of substance that Mr B   raised – whether he could see the basin from his vantage point  – I have considered the police photographs produced in evidence.  I agree that it is difficult to see the basin through them, but those taken from his position depict something that appears from other photographs to be the basin.  The witnesses were questioned closely about it, and explained that a blind had recently been installed, and that sunlight may have affected the photographs.   Mr B   complained that he wanted to interrogate another witness, Mr Austin, who gave a statement but was not called; however, he knew that he had to summons

witnesses whom he wanted to call and had not been told by the police that they intended to call Mr Austin.  Nor is there anything to show that Mr Austin’s evidence would have assisted Mr B  .  His case, in essence, is that everyone who had the opportunity to do so has falsified the evidence or the record of it, from the Judge, the typists who prepared the transcript, the Registrar, the two police witnesses, to the five lay witnesses.  Nothing in the transcript or the rulings and decision of the Judge substantiates this remarkable proposition, and I have no hesitation in rejecting it.

[14]     It was open to the Judge to conclude that the behaviour was offensive, and sufficiently so to warrant the intervention of the criminal law.   His approach was consistent with the judgment of the Court of Appeal in R v Rowe [2005] 2 NZLR

833.

[15]     Although Mr B   did not take the point, I have considered whether it was fair to him to amend the charges, and conclude it was.  His defence focused on the question whether he behaved in the manner described, and not its legal implications. The Judge explained what he had done, and why.   He then gave Mr B   the opportunity both to reconsider his decision to give evidence and to further question police witnesses.

Sentence

[16]    Mr B   appealed the sentence but did not address it in his written submissions.   The behaviour was not particularly offensive,  but  it  was repeated despite the police warning, and their fine on each charge was substantially less than the maximum of $1,000.  I decline to interfere with the sentence.

Decision

[17]     The appeal is dismissed.

"In accordance with r 540(4) I direct the Registrar to endorse this judgment with a delivery time of

9.30 am on the 4th day of May 2007."

F Miller J

Solicitors:

Crown Solicitors Office, Blenheim