Daylight v Police
[2012] NZHC 3337
•11 December 2012
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: [email protected]
K Mills: [email protected]
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. The officer told Mr Daylight that he would be in the way of the parade. Mr Daylight replied that it was a free country, and that he could stand where he wanted.
[9] The officer again advised Mr Daylight that he was going to be in the way of the parade, and that he should move. The officer tried to explain this to Mr Daylight two or three times.
[10] There were some murmurings in the crowd because Mr Daylight was standing in front of the soldiers and various people wanted to take photographs. They wanted to know why the police could not simply move Mr Daylight along.
[11] The police again asked Mr Daylight to move. Again, he refused. Mr Daylight was then arrested, at which point he shouted, “fuck off” to Sergeant Best. Sergeant Best warned Mr Daylight about his language. Mr Daylight replied that he was already under arrest, asked what more the officer could do, and then yelled out loudly, “fuck, fuck, cunt, bitch”.
[12] The yelling was not specifically directed at the police officer, the soldiers or members of the public. However, there was a good crowd present.
Judge’s Decision
[13] Judge Harvey considered that the language used by Mr Daylight was:
the uttering of an indignant and childish person who was… expressing himself in what could be the most offensive terms to emphasise the point that the police could not do anything else to him.
The Judge went on to ask himself whether the language used was obscene. He referred to various cases which had been cited to him, and noted that, to be obscene,
language must offend against the contemporary standards of propriety or decency within the community. He noted that it was not necessary to prove that anybody was offended and that, in the present case, there was no evidence in this regard. The Judge concluded that in context, the word “bitch” was not obscene, that “fuck” was borderline, and that “cunt” was obscene. He expressed the view that it was unfortunate that Mr Daylight had allowed himself to descend to such an appalling level, and made the observation that “the real strength of language is its skilful use, not the blunt instrument of obscenity”.
Appeal Out of Time
[14] As noted above, the appeal was filed out of time. This Court, however, has a discretion to extend the time prescribed for the filing of a notice of appeal, pursuant to s 123 of the Summary Proceedings Act 1957. The approach to the exercise of discretion conferred by that section is set out in Cleggs Limited v Department of Internal Affairs:[1]
[1] Cleggs Limited v Department of Internal Affairs HC Auckland M1032/84, 5 September 1984.
(a) The onus is on the appellant to show that there are special circumstances why the conviction and sentence should not stand;
(b) The discretion is given to avoid miscarriages of justice;
(c) All of the circumstances of the particular case should be considered in deciding whether sufficient grounds have been shown; and
(d)One of the matters which must be established is that there is a real likelihood that the appeal would succeed if leave were given.
[15] Further, some explanation as to the reasons why the appeal has been filed late should be given.[2]
[2] Virendra v Police HC Wellington CRI-2011-485-74, 27 September 2011 at [6].
Analysis
Are there special circumstances why the conviction and sentence should not stand?
[16] Mr Daylight seeks to appeal on the basis that Judge Harvey was wrong to find that the word “cunt” was obscene in all the circumstances. He says that he only used obscene language after he was arrested, and that he was not in complete control of his vocabulary at the time. He accepted that the word is “not very nice”.
[17] Ms Mills for the Crown submitted that the finding was available to
Judge Harvey on the evidence and at law, and that the appeal should be dismissed.
[18] Section 4(2) of the Summary Offences Act provides as follows:
4 Offensive behaviour or language
…
(2) Every person is liable to a fine not exceeding $500 who, in or within hearing of any public place, uses any indecent or obscene words.
(3) In determining for the purposes of a prosecution under this section whether any words were indecent or obscene, the court shall have regard to all the circumstances pertaining at the material time, including whether the defendant had reasonable grounds for believing that the person to whom the words were addressed, or any person by whom they might be overheard, would not be offended.
…
[19] The leading authority on obscene language is the decision of the Court of Appeal in Police v Drummond.[3] In that case, a conviction under s 48 of the Police Offences Act 1927 was upheld against a defendant who loudly shouted “fuck” several times in the presence of a large crowd assembled for an Anzac commemoration service in Cathedral Square in Christchurch. The Court noted that the offence is directed at the regulation of public behaviour, and that the test for
whether or not language is obscene is not whether it has a tendency to deprave or corrupt, but rather, whether it offends against contemporary standards of propriety or
decency in the community. The Court observed that a Court considering the matter
must have regard to current standards and setting in which the allegedly obscene words were used.
[3] Police v Drummond [1973] 2 NZLR 263.
[20] Section 4 of the Summary Offences Act is not identical to s 48 of the Police Offences Act 1927, but it covers much the same ground, and the observations made in Drummond have been adopted in considering s 4.[4]
[4] Jeffrey v Police (1994) 11 CRNZ 507 (HC).
[21] The Court must have regard to all the circumstances at the time. The nature of the occasion, the number of people within earshot, the volume and any degree of persistence or repetition are relevant circumstances. It is not necessary to prove that anybody was offended, but the degree of likelihood of offence is relevant to the Court’s assessment of what in the end is a question of degree. Similarly, it is not a necessary ingredient that the offender intended to offend anybody. [5]
[5] Rehutai v Police CA 206/81, 26 April 1982, per Cooke J.
[22] The law was helpfully discussed by Tipping J in Jeffrey v Police.[6] There, His Honour observed as follows:[7]
The question is whether the words used offend against contemporary standards of propriety in the community, bearing in mind all the circumstances in which they were spoken and the second aspect of ss.(3). The words in question will offend against contemporary standards of propriety in the community if any of those hearing them are likely to be offended. It is not necessary to prove that someone was offended, although proof of that may well be helpful in establishing what has to be proved. The degree of offence likely to be taken must be more than trifling. It must be sufficient to warrant the intervention of the criminal law. The test is objective. The Court has to consider the composition of the audience and the circumstances generally and decide, on contemporary standards, whether the word or words in question are obscene in those circumstances. In the end the Court has to make a judgment on behalf of society bearing in mind the onus and standard of proof.
[6] Jeffrey v Police.
[7] At 11.
[23] Here, having considered the matter against this test, I have not the slightest doubt that the word used by Mr Daylight offends against contemporary standards of propriety in the community.[8] The word was yelled loudly in a public place, in the
presence of a large number of people. The people present were members of the
public, who wanted to observe an army parade. While it is highly likely that women and young children were present, that is not decisive. Any right-thinking member of the public hearing the word used in the circumstances which applied would have been offended. Moreover, the degree of offence is likely to be more than trifling. I have no doubt but that considered by reference to contemporary standards, the use of the word in question was obscene in the circumstances that applied.
[8] Use of the same word was considered to be obscene in Pruden v Police HC Dunedin CRI 2009-
412-000032, 22 October 2009.
[24] I cannot see that there are any special circumstances why the conviction and sentence should not stand.
Miscarriage of Justice
[25] I cannot see that there has been any miscarriage of justice in this case.
The Circumstances
[26] Here, the circumstances explaining the delay in filing the notice of appeal appear to be that Mr Daylight’s counsel neglected to file the notice of appeal. However, no application has been made to file the appeal out of time. Nor is there any affidavit evidence in this regard, and notwithstanding Woolford J’s directions. I note that in her email sent to the Registrar on 27 September 2012, Ms Magnussen indicated that she would file an affidavit as required. She has not done so.
Likelihood of Success
[27] For the reasons I have already outlined, in my view, the appeal would not succeed, were leave to be granted.
Result
[28] In the end result, I am not persuaded that it is appropriate to grant leave to appeal out of time. Judicial directions have been ignored. There is no application for leave to appeal out of time, and there is no supporting affidavit. Moreover, and in any event, the appeal would have failed. It was patently inappropriate for
Mr Daylight to use the language that he used in a public place, and the language
which he used was obscene.
Wylie J