Braithwaite v New Zealand Police HC CHCH CRI 2008-409-000058

[2008] NZHC 2430

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-000058

ROBERT ALLAN GEORGE BRAITHWAITE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 July 2008

Counsel:         Appellant In Person

K Basire for Respondent

Judgment:      29 July 2008

JUDGMENT OF PANCKHURST J

Introduction

[1]      Mr  Braithwaite  appeared  in  a  traffic  court  on  27  February  2008  before Justices of the Peace (Mrs F Cox and Mr J O’Hara) in relation to charges of failing to stop at a yellow traffic signal and failing to produce his driver’s licence for inspection without delay.  The appellant defended himself.  The case was a straight- forward one.  The informant’s evidence was from Constable Paul Beaver who said that he observed the appellant turn right through a light-controlled intersection when the signal had turned yellow.  Upon stopping the appellant he was not in possession

of his driver’s licence, when required to produce it.

ROBERT ALLAN GEORGE BRAITHWAITE V NEW ZEALAND POLICE HC CHCH CRI 2008-409-000058

29 July 2008

[2]      Mr Braithwaite gave evidence in his own defence.  The Justices then retired to consider their decision and returned to the court after a delay of several minutes. One of the Justices proceeded to deliver an oral judgment.

[3]      Partway through that process Mr Braithwaite interrupted and continued to do so for a time, until he was eventually removed from the court.   The Justices considered that Mr Braithwaite’s behaviour was contemptuous, that he had not responded to warnings and that the only available course was to place him in the cells.

[4]      The conclusion of the oral decision was therefore delivered in the defendant’s absence.    This  included  the  imposition  of  fines  totalling  $350  and  court  costs totalling $60.00.

[5]      It seems that Mr Braithwaite was taken to the cells at about 11.15 am.   At about 4.00 pm he was brought back to the court.  At this time he was represented by a duty solicitor.    She made  submissions  concerning  the  contempt  allegation  on Mr Braithwaite’s behalf.

[6]      After hearing counsel the Justices held that Mr Braithwaite was guilty of contempt in the face of the Court and fined him $400, with court costs of $30.00.  In delivering  this  decision  the  Justices  said  that  the  appellant  had  come  close  to receiving a sentence of seven days imprisonment.

An appeal to this Court

[7]      Mr Braithwaite filed a notice of appeal in person.   In form it is an appeal against the contempt conviction alone, but I shall treat it as an appeal against the sentence as well.  Mr Braithwaite commenced to advance submissions in the belief that the traffic matters were also the subject of a conviction appeal.  He believed this to be the case in part because of advice from the District Court registry that enforcement of the traffic fines would not take place, while the present appeal was unresolved.

[8]      However, the notice of appeal does not extend to the traffic convictions.  Nor had the evidence from the defended hearing been typed back.   The decision itself was available to me, since it not only provided a record of the Justices’ decision but also referred to the appellant’s removal from the court as that decision was delivered.

[9]      Mr Braithwaite’s submissions comprised essentially his account of the events which led to his being placed in the cells.  He began by explaining that while the Justices were in retirement (before delivering their decision) he had remained in court, as had the court-taker and others, including some police officers.   He maintained that in the course of a personal conversation the officers used bad language, the words “f…… wanker”, in an audible manner and in the presence of at least one female.  He took exception to this by asking the officers to desist.

[10]     With reference to delivery of the decision, Mr Braithwaite accepted that he had interrupted.  He said that one Justice had remarked to him that he had an anger management problem.  At some point he referred to the bad language of the officers, which  had  occurred  during  the  Justices’  retirement.    He  acknowledged  that  at another point he had gestured and said “Oh f…”, which led to his being handcuffed and taken to the cells.

[11]     After hearing the appellant’s account I indicated to him that I could not reconcile what he had told me with the typed record of the Justices’ oral decision. This indicated that immediately following the first paragraph of the decision (comprising only a description of the charges, and the provisions under which they were laid), he was taken to the cells.  The record contained this:

Defendant removed from the court – contempt.

Then followed the reasons for the decision and the pronouncement of the penalties. Mr Braithwaite disputed the accuracy of this.

[12]     A  further  problem  arose  with  reference  to  the  contempt  decision  itself, delivered later that afternoon.   With reference to  the  underlying conduct  which occasioned the contempt finding the Justice said this:

You will have had it explained to you what we are concerned about (what happened earlier that we charged you with contempt for).   You wilfully interrupted the proceedings of the Court, you wilfully and without lawful excuse disobeyed an order, a direction of the Court, in the course of the hearing and you used obscene language at the time that we were delivering the decision.

We gave you a number of warnings and quite clearly your behaviour was below standard.  Your behaviour was very argumentative when the decision was being given.  As I say, it is important for the dignity of the Court for this Court to be respected.

[13]     These observations are helpful in identifying the nature of the conduct which preceded Mr Braithwaite’s removal from the court.   Ideally, a description of the actual behaviour, rather than its import, would have been of assistance.  Contempt in the face of the Court ordinarily occurs spontaneously and it may be difficult, I accept, to capture it in the form of a written record.   To meet that difficulty it is necessary for the Judge or Justices to set out as part of the contempt decision a clear description of the contemptuous behaviour.   Otherwise, a Judge sitting on appeal does not have evidence, or findings, which adequately disclose the nature of the contempt.

[14]     In  light  of  these  two  difficulties  I  raised  with  the  appellant  and  with Ms Basire whether the recording of the Justices’ first decision should be brought up to this Court, so that I might better appreciate the timing and nature of the contempt. Mr Braithwaite embraced this suggestion and Ms Basire had no objection to it either, provided of course the tape-recording was still available.

[15]     In the end result, the appeal hearing concluded on the note that I would call for the tape-recording, listen to it and depending on the contents reconvene the appeal hearing, if that course was necessary.

A transcript of the oral decision

[16]     Fortunately, it proved to be the case that the tape-recording was available. Upon listening to it it was soon apparent that the record of the delivery of the decision was inaccurate as to when Mr Braithwaite was taken to the cells and also incomplete, at least in the sense that no endeavour had been made to type back the content of the appellant’s interruptions, where they were audible.

[17]     My associate has, therefore, prepared a further transcript of the delivery of the decision.   I have also listened to the tape recording in order to have a better appreciation of the relevant events.  The following transcript does not purport to be completely accurate.  The appellant’s interruptions meant that people were speaking over one another and, as can be seen, a number of those present in the court became involved in the ensuing dialogue.

Mrs Cox commences:

Mr Robert Allan George Braithwaite has been charged under s3(1)(c) of the Land Transport Act 1998 in that he failed to produce his licence for inspection without delay after being required to do so by an enforcement officer.  He has been further charged under s 40 of the Land Transport Act 1998 under Rule 4, Offences and Penalties Regulations 1999 and 3.1(1) and 3.2(4) Road User Rules, that he failed to stop at a yellow traffic signal.

B  -  I suppose I’ve been charged with that have I?

Mrs Cox  -  You have been charged with that.

B  -  I say it’s a waste of time, it is a waste of time even coming,

Mr O’Hara  -  Just be quiet please. B  -  I have been charged with that. Mr O’Hara  -  Sit down.

Mrs Cox  -  We haven’t given you the decision yet.

B  -  Fine me, so what’s the difference?

Sgt Murray  -  That’s not the decision (inaudible)

Mrs Cox  -  This matter that’s come to court, we’ve had a lot of evidence and it’s quite obvious to us that Mr Braithwaite has an anger management problem.

B  -  [laughs].  What is it? Jesus Christ.

Mr O’Hara -   If you cannot behave yourself in court you can be arrested and charged with contempt of court in which case you will be taken into custody.  Now I suggest to you to keep quiet and listen.   If you persist you will be charged with contempt of court.

B  -  Its pretty (inaudible).

Mr O’Hara  -  Be quiet.

The matters at issue here today are concerning the orange traffic light.  All the other evidence that we’ve listened to really has little relevance to this particular matter.

The charge has been that Mr Braithwaite failed to stop at an orange light.   A careful and prudent driver should approach a controlled intersection so that if a traffic signal changes from green to yellow, or from yellow to red, he can stop safely and unless the vehicle is within 28 metres of the limit lines of the intersection when travelling at 50 km/h.  At 50 kilometres a vehicle travels 15 metres per second. With a four second phase of yellow light a vehicle has a distance of

60 metres to stop.

B  -  Sorry, at 5 metres,

Mr O’Hara  -  Be quiet please.

Mrs Cox -  The defendant admitted …

B  -  Oh mate, how can you defend yourself when you can’t talk?

Mrs Cox  -  Look, you’ve had your chance to have a turn.  (interrupts).  Look, if you don’t be quiet we will have you arrested.

B  -  Oh good as gold.

Mrs Cox continues:

The defendant admitted that he only saw the yellow light at five metres before he entered the intersection.

Constable Beaver, in his evidence, said that the defendant entered the intersection  just  as  the  yellow  light  changed  to  red.    From  the evidence we conclude that the defendant was not paying due care and attention as he approached the intersection or he would have seen the yellow light well before five metres from the intersection.

(Inaudible interjection from Mr Braithwaite).

Quite obviously he had 60 metres to see the yellow light and to stop. For these reasons we find the charge proved.

On the second charge, that he did not carry his driver’s licence with him, the defendant admitted in court today that he was not carrying his licence.   He admitted that under oath.   A driver is required to produce his licence when asked to do so.  So we find that charge is proved as well.

B  -  Excuse me, do you have 28 days to produce your licence or something if you didn’t have it?  I mean, what happened to commonsense,

Mr O’Hara  -  Just be quiet please.

Female voice -  Can I just talk to him?

Mr O’Hara  -  No, you cannot.  Just be quiet please.

B  -  I can’t even turn around and question it. Talk among Justices re placing B in custody.

B  -  It’s like you guys travel at 60 ks down a 50 k zone but no-one arrests you and you turn around and say “wanker” and “fuck” in front of …
Mrs Cox  -  Will you arrest this man?  Arrest him now and take him down to the cells, thank you.  [B protesting throughout].

B  -  For what though?

Mrs Cox  -  For being disrespectful in the court.

Mr O’Hara   -   Mr Braithwaite, you will be taken down to the cells and held in custody.  You will be given the opportunity to see the Duty Solicitor.

B  -  These people are saying “fuck” and “wanker” …

Mrs Cox  -  No, you’ve been saying it.

B  -  She’s a witness to that.  I just asked them to be quiet.

Mr O’Hara  -  Take him away please.

B  -  So is that alright for them to say that sir?

Mr O’Hara  -  Take him away please.

B  -  Can I just ask a question?  Is that alright for them to say that?

JP -  Not in front of us.  It’s you who has been disrespectful.

B  -  Can she (inaudible) that?

Mr O’Hara  –  I asked you to be quiet please.  Take him away please.

Mrs Cox completed the oral judgment;    fines and costs imposed in defendant’s absence.

[18]     With the benefit of listening to the tape recording (including the time while the Justices were in retirement), it is apparent that the court taker was a woman.  She was also the person whom the appellant considered had been exposed to bad language.   It was his allegation of the use of bad language during the retirement which finally resulted in his arrest and removal to the cells.

[19]     I shall approach this exercise on the basis of the Justices’ decision in the late afternoon in which they described the contemptuous behaviour (see para [12]), but also have regard to the record of the hearing provided by the tape recording, as now captured to a large extent in the transcript carried into this judgment.

[20]     Mr Braithwaite contended that his behaviour was not contemptuous.   I at least accept that in making submissions to me he honestly endeavoured to recount the relevant events as he remembered them.   As can be seen from the transcript, some aspects of his submissions are confirmed.  He was not removed until towards the end of delivery of the oral decision.  Mr Braithwaite was indeed told that he had an anger management problem.  He did make reference to bad language, which he attributed to others.

[21]     Although these aspects are confirmed, so are some additional matters.  There were a number of interruptions from Mr Braithwaite.  He was warned, at least twice, that if he continued to interrupt he was at risk of being arrested and removed to the cells.   The interruptions continued, although there were two short periods during which Mrs Cox was not interrupted in delivery of the decision.  Then, the appellant voiced his complaints about the alleged bad language during the recess, and he was arrested and removed.

[22]     I agree with the Justices’ view that Mr Braithwaite’s behaviour constituted contempt in the face of the Court.   Section 206 of the Summary Proceedings Act

1957 defines contempt to include wilful interruption of the proceedings of the Court, other misbehaviour in court or wilful disobedience of a direction of the Court in the course of a hearing.  Mr Braithwaite did wilfully interrupt delivery of the decision, otherwise misbehaved, and disobeyed directions of the Justices to desist.  Thereby, in terms of s206 he rendered himself liable to a sentence of three months imprisonment or a fine of $1000.

[23]     In Morris v The Crown Office (1971) All ER 1079 (CA) the rationale of the contempt jurisdiction was explained, being to enable courts to safeguard the public

interest in the due and proper administration of justice.   The dignity of judicial officers is not the focus.  Rather the concern is to ensure that courts are placed to immediately and effectively cope with interruption and disobedience so that the work of the Court is not impeded and, ultimately, the rule of law is not imperilled. The Court of Appeal described the power as one to be used sparingly and only in serious cases.

[24]     Accepting there was  contempt in the face of the Court, was the penalty imposed on the appellant clearly excessive?  In the course of the contempt decision the Justices described Mr Braithwaite’s behaviour as “below standard” and “very argumentative”.   I agree with, and adopt, these descriptions.  But was his conduct such as to warrant the assessment that it was “a very serious case”?

[25]     And, in imposing a fine of $400, was due weight given to the circumstance that the appellant had already spent about five hours in the cells?  The duty solicitor referred to this aspect in her submissions.  She also explained that the appellant is a self-employed painting contractor and that his business operation was affected on account  of  his  absence.    These  impacts  were  not  expressly  mentioned  in  the contempt decision.

[26]     Absent a tape recording of the relevant offence, I doubt that I would have been persuaded to differ from the assessment of the Justices.  Having listened to the recording I am bound to respectfully disagree with their evaluation of the seriousness of the contempt.  Undoubtedly, Mr Braithwaite behaved badly.  A calming influence was required.  Matters were not helped when most of those present became involved in the dialogue.

[27]     I regard it as significant that the bad language used by the appellant was not directed at the Justices, but rather used in their presence.   His use of those words arose in the context of what had allegedly been said during the retirement.   There was no logic to this and Mr Braithwaite’s approach was ill-advised.  But it remains relevant to consider how matters arose.

[28]     Contempt may occur in a variety of circumstances.  Truly serious contempts concern situations where the administration of justice is affected;  whether through the impact on witnesses, jurors or others, or on account of the disruption which is caused.  With reference to the present contempt an observation in the authoritative

text, Arlidge Eady and Smith on Contempt (3rd ed), at para 10-34 is apposite:

Judges need to have a degree of tolerance towards emotional displays of frustration or anger, and to be aware of the problem of stress for a defendant

… when a finding of guilty is announced … .

The present was hardly a case involving particular stress.   But, equally, the appellant’s outbursts were met with a decisive response;  culminating in his being handcuffed, removed from the court and imprisoned for a period of hours.

[29]     The  main  issue  is  whether  a  fine  was  warranted,  in  addition  to  this deprivation of his liberty.  An apology was also tendered at the second hearing.  In the end result I am driven to the view that it was excessive to impose a fine of $400, given the nature of the breach, the fact that an apology was given, and, most importantly, the time spent in custody.

Result

[30]     The appeal against the contempt finding is dismissed.  However, the appeal against sentence is allowed, in that the fine and order to pay court costs are quashed.

Solicitors:

Appellant - Mr R A G Braithwaite, 9 Ottawa Road, Wainoni, Christchurch 8061. Raymond Donnelly & Co, Christchurch for Respondent