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Brooker v Police

Brooker v Police

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IN THE SUPREME COURT OF NEW ZEALAND
SC 40/2005
[2007] NZSC 30
ALLISTAIR PATRICK BROOKER
v
POLICE
Hearing:7 December 2005

Court:Elias CJ, Blanchard, Tipping, McGrath and Thomas JJ
Counsel:A P Brooker in Person

T Arnold QC and J Davidson for Crown

A J F Wilding as Amicus Curiae

Judgment:4 May 2007

JUDGMENT OF THE COURT

A.The appeal is allowed.

B.The appellant’s conviction is set aside.

REASONS

Para No

Elias CJ  [1]
Blanchard J  [51]
Tipping J  [71]
McGrath J  [98]
Thomas J  [149]

ELIAS CJ
[1]       Allistair Patrick Brooker was convicted of disorderly behaviour for his actions when making a public protest in the street outside the house of a police constable. His appeal concerns the meaning of “behaves in [a] disorderly manner” under s 4(1)(a) of the Summary Offences Act 1981:
4        Offensive behaviour or language
(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; …

[2] The protest constituted expressive behaviour protected by s 14 of the New Zealand Bill of Rights Act 1990:[1]
14 Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
[1]Mr Brooker was expressing a grievance. Such action engages freedom of expression for reasons given in RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd [2002] 1 SCR 156 at para [32] per McLachlin CJ and LeBel J in relation to picketers. See also Irwin Toy Ltd v Quebec (Attorney General) [1989] 1 SCR 927 at p 978 per Dickson CJ, Lamer and Wilson JJ.

[3] Section 14 is enacted to “affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights”,[2] which provides in art 19:
1.Everyone shall have the right to hold opinions without interference.
2.Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3.The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a)For respect of the rights or reputations of others;
(b)For the protection of national security or of public order (ordre public), or of public health or morals.
[2]As the long title to the Act provides.

[4] Under s 6 of the New Zealand Bill of Rights Act, s 4(1)(a) of the Summary Offences Act must be given a meaning consistent with the right to freedom of expression in s 14 of the New Zealand Bill of Rights Act, if it can be given such…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NZSC 30
Decision Date: 4 May 2007

CaseChat Overview and Summary

The Supreme Court of New Zealand considered the appeal of Allistair Patrick Brooker, who was convicted of disorderly behaviour for protesting outside the house of a police constable. Brooker argued that his actions were protected under the New Zealand Bill of Rights Act 1990, which guarantees the right to freedom of expression. The Court was required to decide whether Brooker's conduct constituted disorderly behaviour under s 4(1)(a) of the Summary Offences Act 1981, and if so, whether his actions were protected by the right to freedom of expression. The Court found that the lower courts had misconstrued the meaning of "disorderly behaviour" and had not sufficiently addressed whether Brooker's behaviour was disruptive of public order. The Court held that disorderly behaviour under s 4(1)(a) of the Summary Offences Act 1981 is behaviour seriously disruptive of public order, and not simply causing annoyance to someone else, even if serious. The Court allowed the appeal, set aside the conviction, and quashed the conviction.

Orders