E v Police HC Whangarei CRI 2009-488-20
[2009] NZHC 1928
•24 July 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2009-488-20
E
Appellant
v
THE POLICE
Respondent
Hearing: 22 July 2009
Appearances: R Bowden for appellant
A Hyndman fior respondent
Judgment: 24 July 2009
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 2.00 pm on Friday 24 July 2009
Solicitors:
R Bowden, Whangarei
Crown Solicitor Whangarei
E V POLICE HC WHA CRI 2009-488-20 24 July 2009
[1] Mr E appeals against his conviction in the Whangarei District Court on
26 September 2008, on a charge of behaving in a threatening manner that was likely to cause violence against persons to start, two charges of resisting constables in the execution of their duty, and two charges of assaulting constables with intent to obstruct them in the execution of their duty.
[2] The appellant was subsequently sentenced to community work and supervision; there is no appeal against sentence.
Background
[3] At about 1.30 am on the morning of 23 June 2008, the appellant was in a public carpark in Vine Street, Central Whangarei. On the police case he was behaving in a disorderly manner. There was evidence that a number of revellers tend to gather on Vine Street on a Saturday night,. A number of intoxicated people were milling around at that time of night.
[4] The appellant was admittedly drunk. He was shouting, calling out abuse and on the police evidence, performing a black power salute. He was also calling out the words “Yo, fuck, yo”. The police officers at the scene considered that the appellant was behaving in a disorderly manner. On several occasions he was warned to desist. When he failed to do so he was arrested. In the course of his arrest he was said both to have assaulted two constables and to have resisted two in the execution of their duty.
The District Court judgment
[5] Judge Duncan Harvey summarised the evidence in the following way:
[23] After hearing the evidence I am satisfied as follows. The defendant was in the Vine Street carpark and, despite his evidence, I am satisfied that he did raise his hands in the air, he did call out, “Yo, fuck, yo”, and that this was not his parting gesture to a friend. I found that evidence quite simpl6y unbelievable. I find that the defendant did walk over to the police car and
while he may not have actively obstructed the officers, he was making a noise and he was behaving in a way that in my view was likely to inflame others in the area. He was warned on at least three occasions to desist but he ignored those warnings.
[24] I am satisfied that he did hit the top of the police car with his hand. I am satisfied of that simply because Constable King said in evidence that it was that action that finally decided him that the defendant had to be arrested. I am satisfied, and the defendant acknowledges, that once he was placed under arrest he did not submit, he struggled hard while on the ground, and I find that he did intentionally bit Constable Abbott’s knee. It is simply incredible to suggest that Constable Abbott put his knee in the defendant’s mouth when he opened it to take a breath.
[25] I am also satisfied that once he was placed in the patrol car he did kick out with his feet in the direction of Sergeant Rouse and I am satisfied that he spat in Sergeant Rouse’s face.
[6] Throughout the District Court hearing the appellant faced a charge of behaving in a disorderly manner. At that point he did not face a charge of behaving in a threatening manner likely in the circumstances to cause violence to persons to start. The latter charge was substituted for the disorderly behaviour charge. The formal amendment took place during the course of delivery of the Judge’s reserved decision, the Judge having earlier indicated an intention to amend the information. Mr Bowden did not oppose the amendment.
[7] The background to the amendment was this. At the conclusion of the evidence Mr Bowden submitted that, in the light of the decision of the Supreme Court in Brooker v Police [2007] 3 NZLR 91, the appellant’s proved behaviour could not amount to disorderly behaviour. Judge Harvey cited several passages from the judgments in Brooker and said that, despite his own instincts, he was unable to conclude that the appellant’s proved behaviour met the threshold established by Brooker. In that case, Blanchard J at [56] described disorderly behaviour as behaviour that caused:
… 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.
[8] At [90] of Brooker, Tipping J said that:
Conduct in a qualifying location is disorderly if, as a matter of time, place and circumstance, it causes anxiety or disturbance at a level which is beyond what a reasonable citizen should be expected to bear.
[9] In ruling that the police had not established disorderly behaviour, Judge
Harvey said:
[35] The defendant’s behaviour must be set against a backdrop of Vine Street at 1.30 am on the Saturday night. As was confirmed in the evidence, there were a number of intoxicated people milling around at that time of night. I think that would be stretching the new definition of disorderly behaviour to say that in those particular circumstances the defendant’s conduct could be described as causing substantial disturbance to persons in the environs of that place at the time in question. There is insufficient evidence before me to determine that the behaviour caused anxiety or disturbance at a level which is beyond what a reasonable citizen would be expected to bear.
[36] To the contrary I suspect that the defendant’s behaviour was not unlike the behaviour of many others in the street and certainly it would be stretching it to say that it was causing anxiety or disturbance.
[10] Nevertheless, the Judge considered that the evidence established the alternative offence of behaving in a threatening manner that is likely in the circumstance to cause violence against persons to start, and he convicted the appellant on the substituted charge.
The appellant’s argument
[11] Mr Bowden advances three arguments on behalf of the appellant. His principal contention is that, having determined that the charge of disorderly behaviour could not succeed, the Judge could not properly find the appellant guilty on the amended charge, because they were, in effect, co-extensive.
[12] His second argument is that there was, in any event, insufficient evidence to justify a conviction on the amended charge. Finally, in the event that the appeal against the charge of behaving in a threatening manner succeeds, the remaining charges must also fail, because the police officers concerned could not be said to have been acting in the execution of their duty.
Discussion
[13] Mr Bowden’s primary argument entails a consideration of ss 3 and 4 of the
Summary Offences Act 1981. They relevantly provide:
3 Disorderly behaviour
Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who, in or within view of any public place, behaves, or incites or encourages any person to behave, in a riotous, offensive, threatening, insulting, or disorderly manner that is likely in the circumstances to cause violence against persons or property to start or continue.
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;
[14] In Brooker at [31] Elias CJ held that the word “disorderly” must bear the same meaning in ss 3 and 4. As a matter of ordinary statutory interpretation the expression “threatening … manner” cannot be taken to bear the same meaning as “disorderly manner” in s 3. It must also, therefore, connote different behaviour from behaving in a “disorderly manner” under s 4. Moreover, it is an ingredient of the s 3 offence (but not the s 4 offence), that the behaviour concerned “ … is likely in the circumstances to cause violence against persons or property to start or continue”.
[15] The Judge considered that a charge of behaving in a threatening manner under s 3 had been made out. He said:
[38] Vine Street at that hour of the morning is full of people affected to a greater or lesser extent by alcohol. I have the evidence of two constables, both of whom said that Vine Street can be a dangerous place and when someone begins to behave as the defendant was behaving on this night, there is a real need to ensure that the behaviour is stopped quickly. The reason for that is obvious.
[39] It is quite clear that sadly there are sections in our community that are only too willing and able to have a go at the police given the slightest provocation. It is for this very reason that the police felt the need to deal with the defendant because they realised that if he continued with that behaviour he was likely to attract others and with them could come trouble. The defendant’s behaviour was indeed in my view likely to cause trouble. The trouble that it was likely to cause was that others would become
involved and if that occurred there was, in my view, a very real risk that violence would break out.
[40] I simply cannot accept that a person is able to behave in the way that the defendant was behaving and yet not be liable to be arrested. Not only in this case was the defendant making a nuisance of himself and calling out abuse, but he was performing the salute that has been referred to as the Black Power salute. He was also calling out, “Yo, fuck, yo”. It is not difficult to imagine those actions attracting the type of people who would be likely simply to have a go at the police for no other reason than they are police officers in a dangerous area in the early hours of the morning. The Black Power salute coupled with the words, “Yo, fuck, yo”, were threatening.
[16] Mr Bowden submits that it was not open to the Judge to convict on the amended charge as a matter of law. I disagree. The Judge’s expressed reasons encapsulate the difference between the s 3 and s 4 charges. Judge Harvey considered, correctly in my view, that the evidence did not meet the test for disorderly behaviour articulated by Tipping J, centred as it is on the need to establish anxiety or disturbance at a level which is beyond what a reasonable citizen should be expected to bear. The Judge found that what the appellant did was not capable of causing anxiety or disturbance. On the contrary, it is to be inferred, the appellant’s behaviour might well have been a source of entertainment and hilarity for those persons (many of whom were intoxicated) gathered in the vicinity.
[17] But the inquiry in respect of the s 3 offending is quite different. It is focused not on the question of whether those nearby could be expected to endure what the appellant was doing, but upon an assessment of the likelihood that the appellant’s threatening behaviour would cause violence against persons to start.
[18] Section 3 is specifically aimed at violence: R v Ali’imatafitafi [2007] NZCA
329 at [47]. I am unable to accept Mr Bowden’s argument that the Judge, having determined that a s 4 charge could not succeed, was precluded in law from entering a conviction on the substituted s 3 charge.
[19] I turn to Mr Bowden’s second contention which was that there was no evidence upon which the Judge could find that the appellant’s behaviour was “ likely in the circumstances to cause violence against persons or property to start …”. I reject that submission. As Ms Hyndman points out, there was evidence from several witnesses as to the risk of violence. Sgt Rouse said:
Yeah, his behaviour was very vociferous and, um, he was definitely drawing attention to himself, encouraging, from my point of view, encouraging behaviour which wasn’t appropriate at the time.
Do you remember what he was doing or saying? … Um yeah, yes. The gang chanting he was yelling to the best of my analysis was, “Yo, fuck, yo”, Your Honour, with a punched hand in the air.
Now who was he doing that to? … Um, facing towards the police but he was doing it to everybody around the area.
Now you’ve mentioned some alcohol? … What I believed is alcohol.
Why do you say that? … Um, most people carry alcohol, drink alcohol and that’s what we look for.
Why in that particular area sergeant do you look for alcohol? … Because it’s a centre hub for trouble unfortunately on a Friday, Saturday night.
[20] Constable King said in evidence:
He, again he’s punched his hand in the air. He has then followed us over to the patrol car which was parked at the start of the carpark, near the front entrance to the carpark off Vine Street and continued yelling abuse and generally being obstructive and causing a scene.
How do you mean he was obstructive? … He kept getting in the way, um, of what we were doing. We were telling him to back off. Um, as you can imagine Vine Street can be quite a dangerous place with a lot of intoxicated people. I was trying to get the group of people to back away from us to ensure our safety. He seemed to be inciting the people around him to keep coming and keep gathering around us.
What was he doing to incite them – what was he saying or doing? … Um, like I say he was punching his hand in the air. The gang gestures and being argumentative, not backing away from us, trying to get in it, yeah in between us and the male that was arrested.
[21] Constable Abbott said:
Because of the situation on Vine Street, um, we just wanted to take him into custody, get him off the street and we took him into custody.
What was the situation you are talking about? … Um, unfortunately in Vine Street when situations like this occur it tends to rile a lot of other people up and, um, there was a large group of people around us and we didn’t need them getting involved with it either.
[22] A little later, during the course of cross-examination, the following exchange occurred during the course of Constable Abbott’s evidence:
And I’ll accept that his actions may have been annoying, but do you accept that he didn’t in fact have any impact on the people in Vine Street that night?
… It’s Vine Street Mr Bowden, and a lot of things impact on the people in
Vine Street.
You make it sound like a war zone constable… Yeah, it can be though, that’s the – it can be and it takes one person to wind the rest of them up.
[23] Mr Bowden argues that in this case the Judge did not have evidence of incipient responsive violence of the sort that occurred in Olds v Police [1986] 1
NZLR 637 where the (offensive) behaviour concerned consisted of demonstrations against a South African tennis player on anti-apartheid grounds. There was evidence that the demonstrations had provoked some spectators at a tennis tournament to claw at the wire fence which separated them from the appellant and her associates.
[24] I accept that there is no evidence in this case of attempted violence by those in the vicinity of the appellant, but the test under s 3 is whether such violence was “likely” to have been caused by the appellant’s behaviour. The Judge was entitled to accept the evidence of three police officers who thought violence was likely to ensue. I do not therefore accept Mr Bowden’s second argument.
[25] His third point depended on the success of his earlier arguments. It is therefore unnecessary to consider it further.
Result
[26] The learned District Court Judge was entitled to convict the appellant for the reasons he gave. Accordingly, the appeal is dismissed.
C J Allan J
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