D v Police HC Wanganui CRI-2008-483-15

[2009] NZHC 417

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2008-483-15

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 March 2009

Counsel:         Appellant in person

H C Mallalieu for respondent

Judgment:      7 April 2009

RESERVED JUDGMENT OF DOBSON J

[1]      In a decision given at the conclusion of a one day hearing in the District Court  at  Marton  on  2  May  2008,  District  Court  Judge  Radford  convicted  the appellant (Ms D  ) on two charges.  The first (in chronological sequence) was a charge of misuse of a telephone under s 112(1) of the Telecommunications Act

2001.   That arose out of language used by Ms D   in a series of telephone calls to the Police on the evening of 29 November 2007.  The second charge was of disorderly behaviour under s 4(1)(a) of the Summary Offences Act 1981.  It related to Ms D  ’s conduct on the same evening, after a fire appliance from the Bulls

Fire Station, and members of the Police, attended at her residential address in Bulls.

D V NEW ZEALAND POLICE HC WANG CRI-2008-483-15 7 April 2009

[2]      Judge Radford’s oral decision included a thorough review of the evidence, leading to his conclusion that both charges had been made out.  On the conviction for misuse of a telephone, Ms D   was sentenced to supervision for a period of nine months, on the condition that she was to take such counselling as is directed by the Probation Officer.  On the conviction under the Summary Offences Act, she was convicted and discharged.

[3]      Ms D    represented  herself,  both  in  defending  the  charges  in  the District Court, and on argument of her appeal.   I have carefully considered the 75 pages of transcript, together with Ms D  ’s criticisms of omissions from it, collated after she was given access to the tapes from which the transcript is taken.  In reliance on her listening to the tapes, she has noted where there were omissions, and the occasional inaccurate transcription.   Those criticisms are of limited relevance, given that the Judge was not depending on the transcribed version, but rather his own notes and impressions of the evidence as it unfolded before him on the day.  So far as my own consideration of the evidence is concerned, I have had regard to the corrections and additions, but am bound to conclude that they do not make any material difference on any of the grounds of appeal.

[4]      At  the  outset  of  his  judgment,  Judge  Radford  expressed  regret  that Ms D   had not sought legal advice.  Whilst he recognised her as a very clever woman who was able to think about a range of issues very deeply, he was concerned that she had not been able to distinguish the relevant from the irrelevant in presenting her case, and recorded the view that she appeared to suffer “from some form of thinking disorder”.  In the context of the other observations about her attributes, this is certainly not a criticism about her intelligence, but is an observation relevant to her ability to focus on the issues that were material to the challenge to the Police case against her.   Having carefully reconsidered the course of the whole District Court hearing and its outcome, and having observed Ms D   present her own appeal, it seems likely that part of Ms D  ’s disappointment at  the  outcome  was because she saw this observation as a slight on her mental capacity.  I am satisfied that the Judge did not intend any such slight, and the far more confined relevance of his observation was that her closeness to the issues and lack of legal training meant that the hearing did not proceed with a logical focus on only the matters that were

relevant.  Ms D  ’s sensitivity on the point is understandable, given that the Police personnel dealing with her telephone calls on the evening in question treated her as either or both mentally disordered and intoxicated.  Her own perception was that she was affected by alcohol, stress and sleep deprivation.

Charge for misuse of telephone

[5]      Ms D   had had ongoing contact with the Police over a period of years.  One major topic appears to have been difficulties in her relationship with her estranged husband.  She perceives the Police to have been unjustifiably sympathetic towards him, to have adopted double standards when considering her complaints against him, relative to their preparedness to act against her.  A major frustration was the perceived failure by the Police to take seriously threats she perceives to have been made personally against her.  On the night in question, she was obsessed with an apparent entry she treated as being in respect of her on the internet website Google, implying or stating that she was going to be the subject of attack.

[6]      In a string of telephone conversations, she sought the assistance of the Police to  identify the source of  this  apparent  Google  reference.    In  the  course  of  the conversations, she also ended up speaking to the Fire Service.   She denied in the District Court, and before me, that she had initiated  a call to the Fire Service. Rather, she suggests that she was transferred to the Fire Service, either deliberately or by accident, in the course of one of the calls she made to the Police.  Subsequent to the hearing, I have listened to the recording of all the calls.  It is not clear from the outset of her discussion with the Fire Service whether she deliberately and separately called them, or was transferred.   In the course of the conversation, she was asked whether she had placed the call, and she replied in terms that she had made the call.

[7]      Section 112(1) of the Telecommunications Act provides that every person commits an offence who, in using a telephone device, uses profane, indecent, or obscene language, or makes a suggestion of a profane, indecent, or obscene nature with the intention of offending the recipient.

[8]      Consistently with the approach commonly adopted by the criminal law to establishing intention on the part of an accused person, the matter is not analysed on the basis of reconstruction of the subjective intention of the defendant at the time. That would routinely impose an unrealistic burden on the prosecution.  Rather, the necessary mental element of what an accused person intended as a consequence of their  actions  may  be  established  by  a  process  of  objective  attribution  of  what logically follows as the intention that can safely be attributed to the conduct in question.

[9]      In  responding  to  the  present  appeal,  Mr  Mallalieu  cited  the  decision  of Tipping J in Whittaker v Police HC CHCH AP347/93 8 December 1993, which related to a prosecution under the predecessor of the present s 112, namely s 8(1) of the Telecommunications Act 1987.   There, it was recognised that if the words, allowing for context, were calculated or apt to offend, then it is not a long step from that to a finding by inference that the intention in using them was indeed to offend.

[10]     Here, Ms D   took two points.  First, that it was a necessary element of the charge for the Police to establish that the persons she was speaking to in the relevant telephone conversations were in fact offended, and secondly that she did not use the words that she did in the conversations intending to offend the recipients.

[11]     The first of these arguments cannot be correct.   Although it may go to the context, the subjective reaction of the particular recipient of an allegedly illegal telephone call cannot be determinative as to whether the language was profane, indecent or obscene.  That is a matter for the Court to assess and to decide, having regard to all the context in which the words are used.  Accordingly, Ms D  ’s criticism of the failure by the Police to call the recipients of the calls, when their contribution to those calls and what they heard her saying was all recorded on a compact disk available to the Court, cannot constitute a material deficiency in the proof by the prosecution.

[12]     As to the second element, I adopt the objective means of attributing intention to  Ms D  ,  in  all  the  circumstances  in  which  the  conversations  occurred. Having played through the compact disk recording of all the conversations since

hearing argument on the appeal, I have considered more than an hour of dialogue. The recordings reveal significant mood swings on Ms D  ’s part.   At times she is relatively lucid and rational, at others clearly irrational.   On at least two occasions she makes comments that could imply an intention to harm herself.  The Police staff responding to her calls were always very sensitive to this prospect, and on occasions when her comments trigger the need for it, Police staff asked how she was feeling and whether she had an intention to harm herself.  On most occasions that led to a very forthright rejection of the notion.

[13]     With all but one exception, the Police staff responding to her calls dealt with her courteously and as constructively as they could.   In the eighth of the calls, a female telephone operator transfers the call part way through to a male Police officer who is distinctly more assertive than all the other Police staff responding to her. That male officer tells Ms D   to “wash your mouth out”, and also observes, in a tone that could be taunting her, “look over your shoulder, we are your worst nightmare”.   This comment is made a number of calls after Police operatives had acknowledged the lodging of her concern, and advised Ms D   that Police staff would call on her at her home as soon as they could.

[14]     In the second of the calls, Ms D   says that the extent of her frustration “brings me to the point of swearing”.  She then says “you people fuck me off”, and follows that with a repetitive chant of the word “fuck” a significant number of times. In  the  fifth  conversation,  Ms D    describes  a  named  Police  officer  as  a “faggot” and, after checking that the conversation is being recorded, asks why that officer “couldn’t go and fuck any partner, not the father of my three children”.  In the sixth conversation, she makes further reference to her husband being involved in various forms of homosexual sex, in lurid terms.   In the seventh conversation she names three Police officers as gay men and says that Police officers should not “fuck members of society for favours”.

[15]     In a further conversation, she suggested the attitude she was encountering from the recipient of the call suggested it was okay for the Police to arrest her and molest her in the back of the car.

[16]     The majority of these outbursts led to calm, but firm, responses to the effect that  Ms D    should  not  use  such  abusive  language.    On  a  number  of occasions, there was a threat to discontinue the conversation if the abuse continued, and when it did the Police did just that.  There was also a recurring theme by the various Police officers, concerned that Ms D   was wasting Police time and prejudicing the resources of the emergency 111 service by making calls that were not genuine emergencies.  One of the officers pointed out to her that it is an offence to waste Police time, and another warned her that if she kept ringing the emergency line, the Police would come around to her house and arrest her.

[17]     Part of Ms D  ’s explanation for the use of this language is that she considered it was necessary to shock the recipients of the calls into taking notice of her, but she did not see that being achieved necessarily by causing offence to them. As to the strength of the language used, she urged that the Court should recognise that much stronger language is acceptable today than was the case a generation ago. She  cited  a  New Zealand-made  television  drama,  “Outrageous  Fortune”,  as  an example where the use of language that might lead to criminal charges 10 years ago is aired without any formal complaint.

[18]     Making every possible allowance for the liberality of language treated as acceptable  in  New  Zealand  society  in  2009,  it  is  simply  not  credible  for Ms D   to argue that the profane and abusive language that she used would not be found offensive by the Police personnel who were exposed to it.

[19]     Once that point is recognised, then it is similarly untenable for Ms D   to assert that she used the words without intending that they would cause offence to the recipients.  Making every allowance for a belief on her part that members of the Police are sufficiently routinely exposed to such language as to be inured to the impact of it, and also making allowance for the context in which she could expect the recipients of the calls to appreciate her high level of frustration and annoyance with her predicament, it is still simply not credible to claim that she could have used the words without intending that they cause offence.  Acknowledging that she used the words to gain a reaction, a woman of her intelligence must have appreciated that the reaction she generated was caused because her words would inevitably be offensive

to members of the Police.  Accordingly, the appeal against this first conviction must be, and is, dismissed.

Charge for disorderly behaviour

[20]     As a result of the telephone calls to the Police and the Fire Service, a fire appliance from the Bulls Fire Service attended at  Ms D  ’s  home  on  the evening of 29 November 2007.  Some five or ten minutes after it arrived, Police also arrived.  The tenor of the evidence is that Ms D   was highly agitated for the entire period between the arrival of the fire appliance, and her subsequent arrest and removal in handcuffs from the property to be taken to the Palmerston North Police Station.  In the period up to her arrest, she was observed leaning out a window of her property, yelling so loudly that it was difficult for witnesses to understand what she was saying.  She came out of her house and asked a range of questions of the Fire Service personnel, and sat or knelt for a period of up to two, or possibly three, minutes in front of the fire appliance.   This was in an apparent attempt to record distinctive features of the fire appliance.  At various times she was abusive to at least some and potentially all of those attempting to deal with her.

[21]     The Judge found that, at least when she was on the ground in front of the fire appliance, the top half of Ms D  ’s dress had slipped down to her waist, revealing her bra so that she was otherwise bare to the waist.   Ms D   was particularly trenchant in her criticisms of this finding.  She argued that it was against the weight of evidence, and was insistent on her own accurate recollection as being that she was only in part disrobed because one strap of her dress was broken.

[22]     On this, as on numerous parts of Ms D  ’s submissions in relation to the evidence, her submissions are selective.  Although the Judge’s analysis does not identify the witnesses whose evidence he preferred on particular points, there were at least two witnesses whose recollection that the whole of Ms D  ’s dress had dropped to her waist was not compromised in her cross-examination of them.  There were other witnesses who accepted they did not see her disrobed to this extent.

[23]     Ms D  ’s explanation for the somewhat unusual enquiries she made of the Fire Service personnel, and for her kneeling on the road in front of the fire appliance, is that she was concerned that she would be wrongly blamed for the fire appliance having unnecessarily attended her property.  She claims that she was still conducting a telephone conversation with the Police about her belief that she had not called the fire appliance and that the Police officer who took that particular call recommended that she get the names of the Fire Service personnel and particulars of the  appliance,  so  as  to  be  able  to  provide  a  complete  explanation  of  the circumstances at a later point in time.  Hence, on her version, the questioning of the Fire Service personnel who were reluctant to provide her with their names.  It was also the explanation for crouching in front of the fire appliance, in an attempt to make some record of what was distinctive about it.  No explanation was given as to why she could not simply record the vehicle’s registration number.

[24]     The second charge was laid under s 4(1) of the Summary Offences Act which provides that 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.

[25]     In Brooker v Police [2007] 3 NZLR 91, the Supreme Court reviewed the meaning and application of this provision. In that case, Blanchard J observed that “offensive” and “disorderly” are not synonyms, and reasoned:

[55]     Both  words  bear  their  ordinary  meanings  in  everyday  speech. Behaviour which is offensive is behaviour in or within view of a public place which is liable to cause substantial offence to persons potentially exposed to it.  It must, in my view, be capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind actually subjected to it in the circumstances in which it occurs [O’Brien v Police HC AK AP219/92 12 October 1992 Blanchard J.]

[56]     Disorderly behaviour is not necessarily offensive in that way.  It is behaviour which disturbs or violates public order.  To fall within s 4(1)(a) it must be behaviour in or within view of a public place which substantially disturbs the normal functioning of life in the environs of that place.  It 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 its duration or a combination of both those factors.

[26]     McGrath J observed:

[130]    …The offence of disorderly behaviour must be restricted to conduct that amounts to a sufficiently serious and reprehensible interference with the rights of others to warrant the intervention of the criminal law.

[27]     In Brooker, the appellant was also reacting to what he considered to be unfair Police conduct towards him. Knowing that a particular constable had been on night duty, he knocked on the door of her home at 9.00am until she opened the door and told him to go away. He only retreated as far as a grass verge of the road outside her residence where he sang songs in a normal singing voice and played his guitar while displaying a placard referring to Police conduct. Mr Brooker was charged with intimidation, but at trial the District Court Judge amended the charge to one of disorderly behaviour. He was convicted and having appealed unsuccessfully to the High Court and Court of Appeal, was granted leave to further appeal to the Supreme Court on whether his conduct was capable of being disorderly. By a majority of three to two, the Supreme Court upheld his appeal, having regard to the level of noise, the duration of the incident, the time of the day and the purpose of Mr Brooker’s protest. In all of those circumstances, the majority found that the conduct could not be said to have been disorderly.

[28]     In the present case, Judge Radford’s consideration on the point is reflected in the following reasoning:

[15]     …The disorderly behaviour here is not just the defendant sitting in front of the fire engine with her clothing partially removed but the circumstances  in  which  that episode  occurred.    I find  factually  that  the defendant was, from the time of the arrival of the fire engine, screaming abuse, using obscenities, behaving irrationally, that she did go outside with her clothing disarrayed, that she did sit down in front of the fire engine and that she did swear at people.  I also find that her behaviour was irrational in the sense that she was demanding the names, marital status and number of children of the fire fighters.   That is the behaviour which I have to have regard to.   In my view, reasonable members of the community would say that that is behaviour which requires the law to step in.   It is notable, of course, that the degree to which the law needs to step in in cases of this nature is modest because the offence itself is a fine only offence.   I find, therefore,  that  the  Prosecution  have  made  out  the  requirements  of  that charge, and she will be convicted.

[29]     With respect to the learned District Court Judge, I consider it appropriate to reconsider whether the duration of this conduct, and the context in which it occurred,

is a sufficiently serious and reprehensible interference with the rights of others to warrant the intervention of the criminal law (per McGrath J in Brooker).

[30]     There appears to have been no evidence that Ms D  ’s conduct from and outside her house materially affected any of the other residents in the neighbourhood.  So far as the Fire Service personnel are concerned, she called two of the fire crew of three as defence witnesses.  One said he turned away from her and sat in the appliance because Fire Service staff are told to avoid confrontation, and because he did not like people “in his face”.  The Chief Fire Officer appears to have borne the brunt of dealing with her.  He clearly found her abusive and frustrating. Part of that would no doubt be the annoyance at being called out on a false alarm, only to be confronted by a woman who was acting quite irrationally.  Ms D   sitting or kneeling in the road in front of the fire appliance, partly disrobed, would also have appeared obstructive, even if only for a relatively short period of time.

[31]     It is not possible to be precise about the extent of abusive language used, although the female Police officer was clearly subjected to repeated abusive taunts, both  before  and  after  Ms D    was  placed  under  arrest  for  misuse  of  the telephone.   Her abusive and obscene language is not something those confronted with it should be expected to tolerate.  The Police and Fire Service personnel had all responded  in  good  faith  to  what  was  perceived  to  be  a  citizen’s  concerns. Ms D   may not accept that she invited them, but nonetheless they were there in  response  to  concerns  about  her.    This  was  not  an  organised  protest,  but  an irrational reaction to their visit which got out of hand, in a suburban setting.

[32]     My clear impression of the cumulative impact of these aspects of her conduct during  the  visit  by the  Fire  Service  and  the  Police  brings  it  within  the  notion Blanchard  J  contemplated  in  Brooker  of  behaviour  substantially  disturbing  the normal functioning of life in the vicinity.  There was, on any view, a disturbance of what can be presumed to be the good order of the street in which Ms D   resides.   Although there in the course of their duties, the Fire Service and Police officers are nonetheless affected members of the public and they cannot reasonably be expected to endure that conduct (cf Brooker at [56], quoted in [25] above).

[33]     Accordingly,  whilst  I  evaluate  the  criteria  for  finding  her  behaviour disorderly from a somewhat different perspective than that adopted by the District Court Judge, I come to the same conclusion.  Accordingly, the appeal on the second charge must also be dismissed.

Dobson J

Solicitors:

Tamblin D  , 8a Holland Crescent, Bulls

Crown Solicitor, Wanganui for respondent