Benvenuti v Police HC Wellington CRI-2011-485-08

[2011] NZHC 1012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-485-08

DEAN BENVENUTI

Appellant

v

THE NEW ZEALAND POLICE

Respondent

Hearing:         21 June 2011

Counsel:         B Crowley for Appellant

J A Ongley for Crown

Judgment:      21 July 2011

JUDGMENT OF WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 3:30pm on the 21st July 2011.

DEAN BENVENUTI V THE NEW ZEALAND POLICE HC WN CRI-2011-485-08 21 July 2011

Background and appeal

[1]      Mr Benvenuti is a runner.  He runs regularly up Mt Kaukau.  He was on a personal crusade to stop dog owners walking their dogs off-lead on the Mt Kaukau tracks which practice, it is accepted, is in breach of the Wellington City by-laws. Mr Benvenuti  regularly  remonstrated  with  offending  dog  owners  about  their unlawful behaviour in this respect.   In the latter stages of his crusade (before the matter came to court in a form I will shortly describe) he filmed his exchanges with recalcitrant dog owners.

[2]      This activity led him to being charged with three counts of intimidation under s 21(1)(e) of the Summary Offences Act 1981, and one count of disorderly behaviour under s 4(1)(a) of that Act.

[3]      Mr Benvenuti defended one intimidation charge with the understanding that the  result  in  that  representative  case  would  dictate  his  stance  in  the  other  two charges.  He also defended the disorderly behaviour charge before two Justices of the Peace.

[4]      Mr Benvenuti  was  found  guilty  by  His  Honour  Judge  Harrop  on  the representative intimidation charge.  He was also found guilty by Dame Dawn Lamb, and Mr I Symonds on the disorderly behaviour charge.  Mr Benvenuti subsequently pleaded guilty to the remaining intimidation counts as expected.

[5]      His   Honour   Judge   Harrop   sentenced   Mr Benvenuti   on   all   counts. Mr Benvenuti was convicted and ordered to appear if called upon within 12 months. He now appeals against conviction and sentence – the latter on the basis that he should have been discharged without conviction under s 106 if indeed he was guilty.

Intimidation appeal

[6]      The test count on the intimidation charges related to events on Mt Kaukau on

27 February 2010.   While running the tracks to the summit of Mt  Kaukau, the appellant came upon Kim Nickol and her friend Julia Grange.  Mrs Nickol had two

dogs with her and Ms Grange one.  None were on leads.  The appellant challenged them.  He recorded the exchange on a video camera that he carried with him.  It was a brief and terse exchange lasting for no more than perhaps two minutes.

[7]      Mr Benvenuti twice came across the pair again at a later stage on another part of the track network and these much briefer exchanges are also recorded, but it was common ground before me (as it was before Judge Harrop) that the first and primary exchange should be my focus.

[8]      That exchange was transcribed (all agreed accurately) by junior counsel for the  appellant.    I  also  had  an  opportunity  to  view  the  video  footage  –  as  did Judge Harrop.  I found it helpful.  Since I lack the technological dexterity to attach electronically that footage to this judgment, the agreed transcript will have to suffice.

DB:        Excuse me you have to put your dogs on a lead up here, did you know?

Ladies:     Oh really.

DB:        Yep you should talk to the council if you don‟t know that.

Ladies:     Is that why you are taking photos?

DB:        Yes I‟ll be reporting this to the council.

Ladies:     You‟re the one that got charged aren‟t  you.   Yeah you follow

people. You‟re a dick aren‟t you.

DB:        Beg your pardon? Ladies:      You‟re a dick.

DB:        Can I take that dogs number please? Ladies:     One says yeah sure, the other says piss off. DB:  OK.

Ladies:     Piss off.

DB:        You said yeah sure.

Keep him away from me, that‟s not on a lead is it.

Ladies:     Why don‟t you kick him like you do the rest.

DB:        Do you have evidence of that?

Ladies:     Yes you are so known.

DB:        Good why don‟t you put your dogs on a lead then?

Ladies:     Get a life, he doesn‟t need to be on a lead he is far more civil and

far more welcome than you are.

Mr Benvenuti carries on running.

[9]      The police must show that Mr Benvenuti: (a)   “accosted” Mrs Nickol;

(b)      in a public place;

(c)       knowing that his conduct was likely to cause Mrs Nickol reasonably to be frightened or intimidated.[1]

[1] Asher J in Gillespie-Gray v Police HC Auckland CRI 2006-404-123, 22 September 2006, describes the elements in this way in respect of a charge of intimidation by confrontation. The same approach is applicable to the accosting context here.

[10]     As this is a general appeal under s 115 of the Summary Proceedings Act

1957, I have the responsibility of arriving at my own assessment of the merits of the case.[2]   If I conclude that Judge Harrop‟s decision was wrong, I must act on my own view.[3]

[2] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].

[3] At [3]. If Judge Harrop had a particular advantage, for example in assessing credibility, I would be hesitant to conclude that his findings were wrong. But this is not one of those cases.

[11]     In  this  case  the  issues  are  whether  Mrs  Nickol  was  “accosted”  by  the

appellant, and whether he did so with the required state of mind.

Accosted

[12]     His Honour Judge Harrop addressed this question in the context of a no-case- to-answer application made at the conclusion of the police case.  His Honour found that  accost  meant  to  approach  another  for  a  purpose.    He  considered  that  this involved two features:  physical proximity and some kind of interaction between the

parties.     He  found  that  both  features  were  present  in  this  case.     Unlike

Ronald Young J in Pennington v Police,[4] Judge Harrop did not feel that there was an element of unpleasantness inherent in the term accost, but, in his final judgment, he found  that  there  was  unpleasantness  anyway  in  the  way  the  complainant  and Ms Grange reacted to the appellant‟s approach, and in the way the appellant filmed them.

[4] [2000] NZAR 634 (HC).

[13]     Counsel for the appellant argued that the threshold adopted by Judge Harrop was too low.  He argued that accost meant more than merely to approach.  Referring specifically to the Pennington decision,[5] counsel argued that a degree of unpleasantness was required in the interaction, and, despite Judge Harrop‟s conclusion, when one views the video footage – the best evidence of the exchange – there is in fact no unpleasantness at all – at least not on the appellant‟s part.

[5] At [10].

[14]     I do not know whether Ronald Young J intended to elevate this idea of unpleasantness to an element of the offence in its own right, but I certainly agree that to „accost‟ is not merely to „approach‟ – particularly so in the context of criminal proceedings.  I note that the New Zealand Oxford Dictionary defines “accost” as “to

approach and address (a person), esp. boldly”.[6]   I think emphasis can and should be

placed on “boldly” in the criminal context.   This is more consistent with the surrounding verb alternatives in s 21(1)(e) – viz “stops, confronts”.  There is a sense of interfering in the activities of others in those terms that is reflected also in the particular Oxford dictionary gloss I have selected in terms of accost.   In addition, this stronger meaning is more consistent with the mental element in the charge – knowing that the other person in the exchange might reasonably be frightened or intimidated.  That of course does not mean that the mental element is made out once an  accost  is,  but  it  does  underline  the  fact  that  the  exchange  or  transaction  in question ought to be out of the ordinary run of social interaction.

[6] The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005) at 7.

[15]     I consider therefore that accost should be taken to mean approach or address in a way or in terms that are bold.  I think it is useful to ask whether the conduct in

question was inappropriately intrusive when seen in context.

[16]     In this case, the appellant did approach Mrs Nickol and address both her and

Ms Grange – but was the approach bold, and was it intrusive?

[17]     In my view, it is not intrusive or bold merely to approach citizens to tell them that they are breaking a by-law.   On the contrary, such approaches (if polite and reasonable) ought to be seen as entirely appropriate civic behaviour.  After all, both the complainant and Ms Grange admitted they were behaving unlawfully by not restraining their dogs.

[18]     Having said that, the introduction into this transaction of a video recording device does markedly change the context and tone in my view.  Mr Crowley argued the camera was merely for the purposes of making a record either of the dog registration tags or the exchange itself, but in my view having viewed the footage for myself, there is an undeniable element of pressure on the dog owners being brought into the exchange by virtue of the camera.   It is not common place for ordinary citizens who do not know one another to record their transactions in  this way. Rather, the camera made the appellant‟s intervention bold.   And it was certainly intrusive when viewed objectively.

[19]     I would hold therefore that it was the introduction of that new element that transformed the appellant‟s action from a mere approach to the more significant accosting.  Although for different reasons, I agree with His Honour Judge Harrop to this point.

Mental element

[20]     Did  the  appellant  know  that  Mrs  Nickol  would  reasonably  have  been frightened  or  intimidated  by  his  exchange  with  her?     Her  evidence,  that  of Ms Grange, and the video record together confirm the following points:

(a)       the appellant was polite throughout, but his tone, in context, could be described as quietly officious;

(b)the complainant and Ms Grange responded aggressively.  They were clearly annoyed at being challenged in this way;

(c)      they found the appellant‟s use of a camera intrusive and “creepy” – particularly in the context of a relatively isolated bush track.  But they did not go so far as to say they were afraid for themselves or their dogs.  On the contrary they knew the appellant was a crusader on the question of uncontrolled dog walking, and that he had been in trouble before with the law for his behaviour in this regard.  They knew he was being very careful in what he said and did.

[21]     Judge Harrop in his judgment explored the possibility that Mr Benvenuti may have been guilty if he was reckless in relation to whether Mrs Nickol was frightened or intimidated by his conduct.   Counsel before me were agreed that this approach was in error.

[22]     The Crown argued nonetheless that the learned Judge‟s conclusion was open to him on the basis of the way in which Mr Benvenuti filmed the two women. Counsel argued, and the women stated in evidence, that they found this intimidating.

[23]     I must say that having had the rare advantage in an appeal of seeing the video footage and having reviewed the notes of evidence, I find that submission and the evidence of the women quite unconvincing in that respect.  Mrs Nickol was firm and annoyed  at  Mr Benvenuti‟s  intrusion.    But  she  appeared  far  from  frightened  or intimidated.  In other words the introduction of the video camera into an otherwise civil but terse exchange was not sufficient to transform that exchange into a frightening or intimidatory one.   It would be different if the filming had a sexual, stalking, or voyeuristic element to it but it clearly did not and neither Mrs Nickol nor Ms Grange perceived it that way – at least not given the tone of their responses.

[24]     In my view, it is obvious that the appellant used the video recorder for two evidential  reasons  –  first,  to  show  Mrs  Nickol  and  Ms  Grange  were  actually breaching the by-law; and second, to demonstrate his own moderation because he

had been in trouble with the police earlier over his approaches to people walking dogs on Mt Kaukau.

[25]     Two things follow from the foregoing:

(a)      the complainant and Ms Grange were not frightened or intimidated in fact; and

(b)the appellant did not use the video camera knowing that either the complainant or Ms Grange would reasonably be frightened or intimidated.  In fact such an effect was unlikely to have been in his contemplation at all.

[26]     Nor do I accept Judge Harrop‟s reasoning that the appellant‟s behaviour was “coercive”, in the sense of bullying, such that the appellant‟s conviction should be upheld on that basis.   On my view of the video footage, I cannot infer any threat from the appellant, and certainly none that would warrant criminal sanction.  While his attention may have encouraged the complainants‟ compliance with the bylaw, that in itself is not properly coercive behaviour for the purpose of this charge.  There has to be something more.

[27]     I quash the conviction accordingly. As Crown counsel accepted that the other two intimidation charges ought to follow the same result, it is in order for me to quash all three convictions under s 21(1)(e) of the Act.

Disorderly behaviour

[28]     The  appellant‟s  conviction  for  disorderly behaviour  arose  out  of  another incident on Mt Kaukau, on 12 November 2009.

[29]     The prosecution evidence was that the appellant confronted two dog owners: Dr Shirtcliffe   and   Ms   Owens.      Dr   Shirtcliffe   was   walking   with   friends. Dr Shirtcliffe‟s dog was off-lead, five to 10 metres ahead of Dr Shirtcliffe and her friend, Ms Styles.   The appellant ran towards the Dr Shirtcliffe‟s  dog, from the

opposite direction.   The appellant lunged at and grabbed the dog by the collar, to check its registration number.  The appellant and Dr Shirtcliffe exchanged words, at close distance, jostling over the dog.   Dr Shirtcliffe said that she was upset and shaken.  Dr Shirtcliffe and Ms Styles both called 111.

[30]     The appellant then ran towards Ms Owens and her dog, which was also off- lead, a short way down the path.  Ms Owens was not part of Dr Shirtcliffe‟s group of friends, but had caught up to them.  She said that the appellant lunged at and grabbed her dog by the collar in an attempt to obtain its registration number.  The appellant ended up following Ms Owens and the others, for approximately 100 metres, until he succeeded in getting the registration number.  He then ran off.  Ms Owens said she was scared during this encounter.

[31]     The appellant gave evidence in his defence.  He said that Dr Shirtcliffe‟s dog was  20  metres  ahead  of  Dr  Shirtcliffe  up  the  track,  and  he  couldn‟t even  see Ms Styles at that point.  He said that Dr Shirtcliffe‟s dog came up to him and nuzzled against him.   He then took hold of the collar to read the registration number.   He waited for Dr Shirtcliffe to approach, and spoke to her politely, but that Dr Shirtcliffe was defensive and started yelling at him.  He denies any jostling.  He said he ran on for about 200 metres before he came across the next group, including Ms Owens. He said that he again politely requested the dog‟s registration number but was met with  verbal  abuse,  and  aggression,  from  the  women.    He  denied  following  the women, and instead said that they followed him, forcing him to head back up the track.   He said that he was able to reach down and read the registration tag from Ms Owens‟ dog without touching it, and that after doing so he left.

[32]     There were other issues of detail, but those are the material points.  The court did not have the advantage of a video recording of the exchange in this case.

[33]     The  Justices  of  the  Peace  convicted  the  appellant.    They  observed  the differences in the evidence between Dr Shirtcliffe, Ms Styles and Ms Owens on the one hand, and the appellant on the other, and held that the charge of disorderly behaviour was proved beyond reasonable doubt.   In doing so, they did not  say whether they rejected the appellant‟s version of events, or whether the charge was

established no matter which version applied.  The alternatives are important.  They provide significantly different bases for conviction.

[34]     There must be a serious question therefore about whether the Justices applied the correct test as set out in Brooker v Police[7] and more recently in Morse v Police[8].

[7] [2007] NZSC 30, [2007] 3 NZLR 91.

[8] [2011] NZSC 45.

[35]     Disorderly behaviour is behaviour that objectively and sufficiently disrupts public order.[9]   Whether or not that test is met on the facts is the more difficult question, and the Supreme Court in both Brooker and Morse divided in its guidance. Elias CJ asked whether behaviour interfered with the use of public space, through intimidation, bullying, or the creation of alarm or unease at a level that inhibits recourse to the place.[10]    Blanchard J asked whether behaviour substantially disturbs the normal functioning of life in the environs  of that place.[11]    Tipping J  asked whether behaviour causes anxiety or disturbance at a level which is beyond what a reasonable citizen should be expected to bear.[12]    Disorder cases are always intensely contextual.  They will usually involve questions of degree.  In such cases the facts are everything. As the Chief Justice said in Brooker:[13]

The victimisation or bullying inherent in a sustained and intrusive targeted protest against a particular home is likely to disrupt public order in the sense of causing alarm or perception of threat.   But a peaceful protest or picket which is simply annoying or embarrassing and which does not seriously interfere with the use of the neighbourhood by others does not become disorderly simply because it is conducted in a residential street.

[9] Brooker at [24] per Elias CJ, at [56] and [63] per Blanchard J, at [93] per Tipping J.

[10] Brooker at [45]; Morse at [2]. See also Morse at [71] per Tipping J, at [103] per McGrath J, at [127] per Anderson J.

[11] Brooker at [56]; Morse at [62].

[12] Brooker at [90]. See also Morse at [26] per Elias CJ, at [68] per Tipping J, at [103] per McGrath J. Blanchard uses similar language at [56] in Brooker where he says that behaviour “must cause a disturbance of good order which in the particular circumstances of time and place any affected members of the public could not reasonably be expected to endure because of its intensity or duration or a combination of both those factors.”

[13] At [47].

[36]     A relevant circumstance in this case is that the appellant was bringing to the complainants‟ attention their acknowledged breaches of Dog Control legislation, and was attempting to identify the complainants and their dogs in order to report those

breaches to the Council.  The actions taken by the appellant will need to be carefully

assessed.  In my view, the assessment may be finely balanced, and may turn on the resolution of the material discrepancies between the prosecution and defence evidence.

[37]     I  cannot  resolve  those  discrepancies  on  appeal.    They  raise  issues  of credibility.   Accordingly, the appellant‟s conviction is quashed and a rehearing is

directed.  I recommend that the case is reheard by a District Court Judge.

Williams J