C v Police HC Auckland Cri-2005-404-426

[2006] NZHC 1268

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-404-000426

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 October 2006

Appearances: Ms S Abernethy for appellant

Ms K Hogan for respondent

Judgment:      20 October 2006

(ORAL) JUDGMENT OF LANG J

[on appeals against conviction and sentence]

Solicitors:

Crown Solicitor, P O Box 2213, Auckland

Counsel:

Ms S Abernethy, P O Box 56-438, Auckland

C V NZ POLICE HC AK CRI-2005-404-000426  20 October 2006

[1]      Ms C   appeals against her conviction in the District Court at Auckland on two charges of confronting a person in a public place namely Newmarket, knowing that her conduct was likely to reasonably intimate those persons.   She also appeals against the imposition of a sentence of 80 hours community work on those charges.

[2]      Ms C   was also convicted in the District Court on a charge of loitering with intent to intimidate.    In a judgment delivered on 19 August 2006 Harrison J upheld an appeal against conviction by one of Ms C  ’s co-offenders on this charge.    He found that, on the evidence adduced in the District Court, it was not open to the learned District Court Judge to find that the elements of this charge had been proved.   The Crown concedes the appeal so far as it relates to this charge.   Ms C  ’s conviction and sentence on that charge are accordingly quashed.

Factual background

[3]      The remaining charges against Ms C   follow an incident that occurred on Easter Sunday, 10 April 2004.     On that day several protestors went to the shop premises of Belucci Clothing in Newmarket.    They stood outside the shop using a loud-hailer, whistles and a siren.    They also chanted and screamed to attract the attention of passersby.   This went on for approximately three hours until eventually the owner of the shop shut the premises.

[4]      Two of the persons who worked in the shop, Ms Wong and Ms Paice, then left the shop to walk to their cars.     They were immediately surrounded by the protestors, who walked in close proximity to them down Broadway.     The two complainants elected not to return to their cars because of their fear that they would be attacked or that their vehicles would be attacked.   They therefore changed their destination and walked through the Rialto Mall to the Lone Star Bar.    Throughout their journey they were surrounded by the group of protestors, one of who was Ms C  .   The protestors continued to shout and scream at the two complainants.   One of the protestors, Ms Gillespie-Gray, was also carrying a sign and at some stage she touched one of the complainants with the sign.

[5]      The seriousness of the situation was such that a security guard elected to accompany the two complainants from the shop to their vehicles.   He was obliged to tell the protestors to keep their distance, and to clear a path for the two complainants to walk along the street.

[6]      The complainants said that they were extremely frightened and that they feared for their personal safety.    When they eventually reached the sanctity of the bar, the protestors dispersed.     By that stage the two complainants were clearly extremely distressed by the experience of the previous few minutes.

[7]      During the hearing in the District Court Ms C   accepted that she was one of the group that followed the complainants to the bar.     She said that she was walking behind the complainants.    She also said that she did not notice that they appeared to be intimidated or distressed by what was happening.

The decision in the District Court

[8]      In the District Court, Her Honour Judge Henwood found that the elements of the charges had been established in relation to each complainant.   She accepted that Ms C   was involved in the incident, and she also accepted that the actions of the protestors must have been designed to intimidate the two complainants.   She found also that they must have known that their actions would intimidate them.

[9]      In  reaching this  conclusion  the Judge rejected  Ms  C  ’s  claim  that  in walking  down  the  street  with  the  complainants  she  was  doing  no  more  than exercising her right to protest.   She contended that that right was enshrined within the right to freedom of expression contained in the New Zealand Bill of Rights Act

1990.     Judge Henwood found that the protestors had overstepped the mark by personally accosting the two complainants.   Whilst the Judge accepted that there is a right to free expression protected by the New Zealand Bill of Rights Act, she was also of the opinion that a protestor may transgress the criminal law once his or her conduct “becomes so confrontational that it  is  likely reasonably to  intimidate  a person”.

[10]     I am handicapped in considering the sentence that was imposed upon Ms C   by the fact that the Judge’s sentencing notes are not available.     I have, however, been assisted by material provided by the prosecutor who appeared when Ms C   and her co-offenders were sentenced.    In reporting to the police on the sentence imposed upon Ms C  , Mr Woolford said that Judge Henwood “regarded Ms C   as a principal player and described her behaviour as quite intimidating”. The fact that the Judge imposed the most severe sentence on Ms C   also suggests that she quite clearly saw Ms C   as the leader of the group of protestors.

Grounds for appeal

[11]     On  appeal  Ms  Abernethy advanced  three  principal  grounds.      First,  she contended that the protest was no more than a reasonable expression of the right to exercise freedom of expression.   Secondly, she argued that a key ingredient of the charge had not been established because the prosecution had not established that Ms C   confronted the complainants face to face.    Thirdly, she submitted that the learned District Court Judge ought to have discharged Ms C   without conviction.

Freedom of expression

[12]     As I indicated to Ms Abernethy during the hearing, I take the same view on this point as did Asher J when Ms Gillespie-Gray appealed against her convictions: Gillespie-Gray v Police HC AK CRI 2006-404-123 22 September 2006.    I accept that the freedom of expression in s 14 of the New Zealand  Bill of Rights Act includes the right to impart information and opinions.    However, s 5 of the Act provides:

5     Justified limitations

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in  this  Bill  of  Rights  may  be  subject  only  to  such  reasonable  limits prescribed by law as can be demonstrably justified in a free and democratic society.

[13]     I agree with Asher J that the right to freedom from intimidation is one of the reasonable limits anticipated by s 5.    I also agree that the following statement of principle by William Young J in R v Brooker (2004) 22 CRNZ 162 at [29]:

On the other hand, it is right to remember that the rights and freedoms affirmed by the New Zealand Bill of Rights Act are not the only ones which are deserving of legal protection.   Rights to privacy are an obvious example and so too is what might be regarded as an associated right too feel secure in one’s home.   The rights to freedom of expression and peaceful assembly do not trump all other rights, interests and obligations:   see Jeffrey v Police (1994) 11 CRNZ 507 (HC) and Police v Beggs [1993] 3 NZLR 615 (HC).

[14]     In referring to these principles Asher J said in Gillespie-Gray (at [21]):

To this it could be added that there is an associated right to feel secure in one’s place of work, and when one is walking.   This right is not subject to the right of a person who has strong beliefs communicating these by intimidating actions, in breach of s 21(1) of the Summary Offences Act

1981.     I do not accept that the New Zealand Bill of Rights Act 1990 provides a defence or in some way mitigates such intimidating conduct, so

that the criminal law will not intervene.

[15]     In her submissions before me Ms Abernethy contended that Ms C   had not crossed the line and that she should be subject to the sanctions of the criminal law.    I cannot accept this argument.    It seems to me that the protestors may well have been within their rights in protesting outside the shop.    When they diverted their attention to the complainants personally, however, I consider that they crossed the line and that the criminal law was entitled to intervene at that point.   Their right to protest at that stage gave way to the rights of the complainants to walk peaceably down the street.

[16]     Moreover, I consider that the manner in which the protest continued during the  walk  down   Broadway  was,  of  its  type,   a  severe  infringement   of   the complainants’ rights.   They were entitled to walk to their cars unimpeded by others. Instead they were surrounded by a noisy group who engaged in behaviour that must have been terrifying.   The complainants had no cause to be subjected to that kind of behaviour.    I have no hesitation in concluding that Ms C   and her co-offenders cannot rely on the provisions of the New Zealand Bill of Rights Act to justify the behaviour in which they engaged on 10 April 2004.

Confronting

[17]     Section 21(1)(e) of the Summary Offences Act 1981 provides:

[21    Intimidation

(1)       Every person commits an offence who, with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated,—

…

(e)    Stops, confronts, or accosts that other person in any public place.

[18]     The relevant ingredients of any charge laid under this section for present purposes are:

a)       That a person confronts another;

b)       In a public place; and

c)       The person confronting the other person knows that his or her conduct is likely to  cause the other person reasonably to be frightened or intimidated.

[19]     I  propose  to  adopt,  as  did  Asher  J  in  Ms  Gillespie-Gray’s  appeal,  the definition of “confront” from the New Zealand Oxford Dictionary 2005.    It is as follows:

1a.   face in hostility or defiance. b face up to and deal with (a problem, difficulty, etc). 2 (of a difficulty etc.) present itself to (countless obstacles confronted us). 3 (foll. By with) a bring (a person face to face with (a circumstance). b set (a thing) face to face with (another) for comparison 4 meet or stand facing.

[20]     In advancing this aspect of the appeal Ms Abernethy relied on the following passage from the judgment of Asher J (at [9]):

[9]       What is involved is a face to face meeting, either between persons who are stationary or moving, which has an element of disagreement or hostility.  In relation to the mental element of knowing that conduct is likely to cause the other person to be reasonably frightened or intimidated, such knowledge is subjective.   The Court must be satisfied beyond reasonable doubt that the person did know.  However, such knowledge can be inferred from conduct.

[21]     Ms  Abernethy contended  that  Ms  C   could  not  be  convicted  on  this charge because the prosecution had failed to prove that Ms C   was involved in a

“face to face meeting” with the complainants.    She based this submission on Ms

C  ’s evidence that at all material times she was behind the two complainants.

[22]     I have no  hesitation  in  rejecting this  argument.     Ms  C   deliberately became involved in a group of persons that surrounded the two complainants.   She continued to remain part of that group from beginning to end.    There is evidence also that she was encouraging the others in their actions.    In those circumstances I have no doubt that she was at the very least a party to the offending of those who were in front of the complainants.

[23]     In the circumstances of this particular case I do not consider that it makes any difference that  Ms  C   was  immediately behind  the  complainants  rather  than directly in front of them.    The important thing is that the complainants knew that they were surrounded on all sides by Ms C   and her associates.   That in my view is sufficient to amount to a confrontation.    I do not consider that a person needs necessarily to be directly in front of another person in order to confront them.

[24]     I have no hesitation, either, in accepting that there was ample evidence before the learned District Court Judge to enable her to conclude that those who formed the group must have known that their conduct was likely to cause the two complainants to be frightened or intimidated.

[25]     For these reasons this aspect of the appeal cannot succeed either.

Discharge without conviction

[26]     In the District Court, Ms C   did not ask the sentencing Judge to discharge her without conviction under s 106 of the Sentencing Act 2002.   She advances this aspect of the appeal on the basis of medical evidence that she now wishes to adduce. The Crown opposes the introduction of this evidence, because it was available at the time of the hearing in the District Court and in that sense cannot be seen as new or fresh evidence.   I propose, however, to allow the evidence to be adduced because I consider that, had it been available in the District Court, it may have had a material effect on the sentence that was imposed on Ms C  .

[27]     Ms Abernethy explains that up until now Ms C   has not wanted other people to know about her medical condition, and in particular the fact that she suffers from a serious liver impairment.   The medical certificate makes it clear that this problem is severe and that there is no cure.     The doctor who prepared the certificate says that Ms C   could not undertake community work.

[28]     Given that Ms C   did not seek to be discharged without conviction in the District Court, it is not surprising that the Judge did not deal with this issue during the sentencing hearing.   Had it been raised, however, I have no doubt that the Judge would not have acceded to it.   She gave careful consideration to the parts played by Ms C   and all of her co-offenders.     She also differentiated between them in imposing sentence.     Some were discharged without conviction and others were fined.  Ms C   was the only person who was sentenced to community work.

[29]     I consider that the Judge dealt with each of the persons who were appearing for sentence in accordance with her perception of their culpability.     Using that approach, it is clear that she viewed Ms C   as being the most culpable of all of the persons who were appearing before her.

[30]     There  is  also  another  issue,  and  that  relates  to  Ms  C  ’s  previous convictions.   Relevant for present purposes is the fact that Ms C   was convicted in June 2000 on a charge of wilful damage and in August 2000 on a charge of disorderly behaviour.    On the charge of wilful damage she was sentenced to pay reparation amounting to $2,350 and was ordered to perform 40 hours of community service.   I was told from the bar today that the latter charge arose as a result of Ms C  ’s participation in another protest.    The wilful damage charge was laid as a result of damage that was apparently done to a window.

[31]     Ms C   contends that the consequences of a conviction on the present charge would be out of all proportion to the gravity of the charge itself.    I cannot accept this submission.   This was a serious incident in which, as I have already said, the rights of the complainants were grossly abused.    Whilst no physical violence may have occurred it is quite clear that significant psychological and emotional

damage was inflicted.    I do not consider that a conviction on the present charge could be said to be out of proportion to the gravity of the offending itself.

[32]    Ms C   also contends that the consequences of a conviction may be particularly severe for her, because she may find it difficult to obtain employment involving children.   She also points to the fact that she only became involved in the protest on 10 April 2004 because of her genuine beliefs regarding the cruelty to animals that is inherent in the fur trade.   I need to place these arguments, however, in the context of the fact that Ms C   already has two previous convictions, one of which is for behaviour of a similar type to that which has resulted in the present charge.   I would have thought that Ms C   would have learned her lesson from the charge of wilful damage in June 2000.   The fact that she has been prepared to again become involved in protest action of a semi-violent nature is a matter of obvious concern.   I do not consider that either of these grounds would have been sufficient to have persuaded the learned District Court Judge that she should have discharged Ms C   without conviction.

[33]     Moreover, I consider that it is important that a conviction be entered.   If Ms C   chooses to become involved again in protests of this type,it will be important for the Court to be able to see from her criminal record that she has two previous convictions for such behaviour.

[34]     For these reasons I cannot accede to Ms Abernethy’s submission that Ms

C   should be discharged without conviction.

[35]     I am, however, prepared to alter the sentence that is imposed on her based on the medical evidence that is now to hand.    Ms C   says that she is unable to perform community work because she never knows when she will be well enough to carry out such work.   For that reason she cannot commit herself to any fixed times or dates for the performance of community work.

[36]     In those circumstances it is necessary to impose another sentence upon her. Ms Abernethy submitted that a simple conviction and discharge should be sufficient to mark the Court’s disapproval of her conduct on this particular occasion.   I do not,

however, consider that this would be appropriate, particularly given the fact that Ms Gillespie-Gray has been required to pay fines in relation to the same incident.   Ms C  ’s involvement in the incident was at least as culpable as Ms Gillespie-Gray’s. Although an argument can be made for imposing a more severe sentence on Ms C   than that which was imposed on Ms Gillespie-Gray, I propose to extend to Ms C   the indulgence of treating her in the same manner as Ms Gillespie-Gray.

Result

[37]     The appeal against sentence is allowed to the extent that the sentence of community work is quashed.    In its place I impose a fine of $250 on each charge. In addition, Ms C   is ordered to pay Court costs of $130 on each charge.    The appeals against conviction are, however, dismissed.

Lang J