Daylight v Police - [2012] NZHC 3337

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-000184 [2012] NZHC 3337

BETWEEN JACK ALEXANDER DAYLIGHT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 10 December 2012

Counsel: Appellant in Person
K Mills for the Respondent

Judgment: 11 December 2012

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 11 December 2012 at 3.00 pm
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:
JA Daylight: 107 Kiwi Road, Point Chevalier, Auckland 1022
S Magnussen: s.magnussen@me.com
K Mills: kate.mills@meredithconnell.co.nz

DAYLIGHT V POLICE HC AK CRI 2012-404-000184 [11 December 2012]

[1] Mr Daylight has appealed against a conviction for using obscene words in a public place, contrary to s 4(2) of the Summary Offences Act 1981.

[2] Mr Daylight was convicted and discharged by Judge Harvey, following a defended hearing in the Auckland District Court on 27 March 2012.

[3] The time for appealing expired on 24 April 2012. The notice of appeal was only filed on 5 June 2012, some six weeks out of time. On 27 September 2012, Ms Magnussen, who was acting for Mr Daylight, sent an email to the Registrar stating that Mr Daylight had signed the appeal in time, but that she had inadvertently overlooked filing it. On 28 September 2012, Woolford J directed Mr Daylight to file an application for leave to appeal out of time, together with an affidavit explaining the late filing of the notice of appeal. Nothing was filed by or for Mr Daylight.

[4] Ms Magnussen prepared and filed submissions on Mr Daylight’s behalf. She did not, however, appear when the appeal was called before me. Mr Daylight told me that she was not available. There was, however, no counsel appearing on instruction, nor was there an application for leave to withdraw. The position is unsatisfactory. I explained to Mr Daylight that he could apply for an adjournment to appoint alternative counsel, or seek legal aid for that purpose. He assured me that he was happy to proceed and to represent himself.

Background

[5] Mr Daylight was protesting at an army parade that was being held in Queen Street, Auckland, on 3 December 2011. The army was being presented with a charter by the Mayor of Auckland. Soldiers were assembled on parade outside the Town Hall. They were then to march down Queen Street. There were several hundred supporters of the army and members of the public present.

[6] Mr Daylight was also present. He was holding a sign which read “Brother – Put the gun down or turn it around – Frag the war”. Several other anti-war protestors were there.

[7] Mr Daylight took up a position on Queen Street, about three metres from the end of the ranks of soldiers who were being inspected. The army was shortly due to close ranks and march through the area where Mr Daylight was standing.

[8] A member of the police, Sergeant Best, approached Mr Daylight and asked him to return to the kerb.…

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.

Continue reading Daylight v Police

Details

AGLC: Daylight v Police [2012] NZHC 3337
Case: [2012] NZHC 3337
Decision Date: 11 December 2012

CaseChat Overview and Summary

The appellant, Mr Jack Alexander Daylight, appealed against his conviction for using obscene language in a public place, contrary to section 4(2) of the Summary Offences Act 1981. The conviction arose from an incident in which Mr Daylight was protesting at an army parade in Auckland on 3 December 2011. After ignoring police requests to move from his position, he was arrested and subsequently used obscene language. Mr Daylight was convicted by Judge Harvey in the Auckland District Court on 27 March 2012 and subsequently discharged. The appeal was filed out of time, but Mr Daylight sought leave to appeal out of time on the basis that his counsel had neglected to file the notice of appeal.

The primary legal issue for the court to decide was whether the appeal should be allowed to proceed out of time. The court was required to consider whether there were special circumstances justifying the late filing of the notice of appeal, whether the appeal was likely to succeed if leave were granted, and whether a miscarriage of justice would result if leave were not granted. The court also had to determine whether the language used by Mr Daylight was obscene in the circumstances in which it was used.

The court found that the appeal should not be allowed to proceed out of time. The court found that there were no special circumstances justifying the late filing of the notice of appeal, as it appeared to be due to the neglect of Mr Daylight's counsel. The court also found that the appeal was unlikely to succeed, as the language used by Mr Daylight was obscene in the circumstances in which it was used. The court found that the word used by Mr Daylight was offensive to contemporary standards of propriety in the community, particularly given the large number of people present and the public nature of the event. The court found that the appeal was not likely to succeed and that there was no miscarriage of justice in the case.

Final Orders: The appeal is dismissed. Mr Daylight is to pay the costs of the appeal.

Orders