E v R HC Invercargill Cri-2007-425-24

[2007] NZHC 1470

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2007-425-000024

E

v

REGINA

Hearing:         16 October 2007

(Heard at Queenstown)

Appearances: S G Vidal for Appellant

S McKenzie for Crown

Judgment:      14 December 2007

RESERVED DECISION OF HON. JUSTICE JOHN HANSEN

The appeal against conviction is dismissed on each charge.

REASONS

[1]      On 26 June 2007 Judge Saunders convicted the appellant of one charge of insulting language and one charge of resisting the police.  He was fined $500 and

ordered to pay Court costs of $260. He appeals against conviction.

E V R HC INV CRI-2007-425-000024  14 December 2007

Background

[2]      On  3  March  2007  the  appellant  attended  a  concert  at  a  winery  near Queenstown.   There were approximately 3000 people in attendance, with policing being attended to by five officers.  It appears that in the course of the evening the various bars at the venue were closed.  Just before 9 p.m. the appellant approached two of the officers.  He addressed them, presumably sarcastically, by thanking them for ruining his night.  When they enquired how, he responded that he was displeased with them for having closed the bar early and that he could no longer obtain alcohol. He expressed the view that the police officers must enjoy ruining people’s fun.  He was asked to move on.  He responded to the two officers, in their recall, as follows:

[Constable McLeod]

He then said to us, I suppose you are going to have group sex with my girlfriend now and rape her using batons and whatever else you like to use, and that it was something we had done before and we would get away with again… he was told to leave and he called us a rapist again…

[Constable Lilley]

I told him to go away… He said that, we are all just rapists anyway, so he said to us the police we’re all just rapists anyway.   From there he said, I better go and protect my girlfriend so you don’t all have group sex with her with your batons and handcuffs.

[3]      There are only slight discrepancies between these statements, which were accepted by the District Court Judge as having been made and referred to recent events involving police officers in the North Island.

[4]      A sergeant, Sergeant Newell, observed the exchange but did not hear what was  said.    He  enquired  of  the  constables  as  to  what  happened  and  decided  it warranted intervention.   He arrested the appellant for offensive language.   As the appellant was being escorted to a police van he resisted, becoming increasingly violent as he was moved towards the exit.  He dug his feet into the ground and flailed his arms around.  As a consequence, he was ultimately handcuffed and placed in a van which was used as a detention point.  The evidence is that the handcuffs were removed when he was placed in the van.

[5]      The appellant exercised his right to silence but submissions were made on his behalf as to whether or not the actions complained of, in the light of the Supreme

Court’s decision in Brooker v Police [2007] 3 NZLR 91, could amount to behaviour that was subject to sanction by way of arrest under s4 of the Summary Offences Act

1981.   The appellant’s argument centred on a suggestion that if the behaviour comprises an expression of opinion it is not sufficient if it merely annoys or even wounds the feelings of the person addressed, unless it is disruptive of public order.

[6]      Judge Saunders addressed the test under s4(1)(b) as follows:

[11]      The test as I understand it therefore involves an  examination  of whether or not the behaviour is disruptive of public order as such.  It is not a matter of simply looking at the words concerned and deciding whether they would  offend  the  person  to  whom  the  words  are  addressed.    I  have considered the situation in which the words were uttered.   The situation clearly was a concert where there were a number of people present.  While persons may not necessarily have overheard the exact words, the particular sentiments expressed were quite clearly designed to inflame the situation rather than the [sic] ameliorate the position.   The defendant was to some extent intoxicated, but I am satisfied that he had enough of his wits about him to know what he was saying at the time that he uttered the words to Constable Lilley.

[12]     I am satisfied that in those circumstances in time and place that the matter was addressed, that it was and could be seen as disruptive of public order and accordingly I find that these words were firstly uttered in a public place,  the  words  were  in  themselves  designed  or  intended  to  insult  the officer, and that it was in a situation where given the particular time, place and circumstances, it could be seen as disruptive of public order.

[7]      On that basis he found the charge proved and accordingly concluded it was also appropriate for Sergeant Newell to arrest the defendant.   He also found the resisting arrest charge proved.

Submissions

[8]      The appellant submits that his words and actions do not amount to insulting language, and it flows from that his arrest was not lawful.   He submits the Judge erred on a number of matters.  The first is a claim of evidential conflicts.  The second is in terms of the offence of resisting arrest.   The complainant complains that on being grabbed by the sergeant he was told he was under arrest for offensive language and he denied having said anything offensive, or doing anything wrong.  It is said his rights under the New Zealand Bill of Rights Act 1990 (NZBORA) were breached by his being arrested, put on the ground and handcuffed and detained in the prison van

from about 8.45 p.m. until just after 11 p.m.  It is also suggested by the appellant that he was left in the van handcuffed.

[9]      In terms of Brooker the appellant submitted that the Judge erred in failing to consider and carry out the careful balancing act required between the appellant’s rights under s14 NZBORA and s4 of the Summary Offences Act.   Essentially the submission was that the behaviour did not cross the line requiring criminal intervention due to public disorder.

[10]     For the respondent, it was submitted that the appellant appears to accept the offending occurred in a public place.   Ms McKenzie submitted it was open to the Judge to conclude that the words had been addressed to a person and it was appropriate for the Judge to conclude that the appellant intended to insult or offend the officers when the offending took place.  She relied on the evidence that the Judge accepted, indicating the officers were offended and insulted by the comments.

[11]     The respondent further submitted that Brooker had little relevance to this case because Brooker was dealing with offensive behaviour, while this was dealing with insulting language.  Ms McKenzie accepted that in Brooker the Court said in order to be liable there had to be a disruption to public order.  However, she referred to an earlier  decision  of  the  Court  of  Appeal  in  Cotorceanu  v  Police  CA289/86,  25

November 1987 which found an element of public order was not needed for liability to arise under s4(1)(b).  It was argued that Brooker did not overrule that decision as the Courts were addressing different issues in respect of similar but separate charges.

[12]     In relation to the resisting arrest, the Crown referred to Oosterman v Police [2007] DCR 131, particularly the findings of the High Court that the key issue is whether a defendant has an honest belief that he or she was resisting the exercise of excessive force by the police.  The respondent submitted that sufficient evidence had been put forward at the hearing to convict the appellant, and the District Court Judge had made no errors of fact on this point.

Discussion

[13]     The evidential conflicts referred to by the appellant are in my view minor. There are some discrepancies of detail between the version of events as recounted by each of the officers, but when looked at overall they are consistent.  They certainly do not impact on the officers’ credibility and the factual findings of the Judge were open to him.  Furthermore, at [4] the Judge has made a specific finding of what was said to the officers.  That paragraph adequately catches the character and the tenor of his comments as reported by both Constables McLeod and Lilley.  In my view it is not necessary to determine the exact words, it is the overall tenor and context that is important.

[14]     Section 4(1)(b) of the Summary Offences Act provides that every person is liable to a fine, who:

in any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person.

[15]     In  this  case  it  is  clear  the  words  were  uttered  in  a  public  place.    In submissions  the  appellant  implied  that  because  no  members  of the  public  were present in the sense the words were heard, the place was not public.  This incident took place during a concert at a winery, attended by 3000 people.   It is clearly a public place, and that satisfies the requirement of the section.   The words were addressed to the two constables, in particular Constable Lilley whose name appears on the information.

[16]     Finally, the words must be addressed intending to threaten, alarm, insult or offend.

[17]     In a  sense the Crown is right in that Cotorceanu was not overruled by the Supreme Court in Brooker, which is unsurprising given it dealt with a different section.  In that case the Court stated:

We do not see any occasion to read into s4(1)(b) any such element or gloss as suggested and submitted by Mr Johnson.   Its wording is plain and unambiguous … para (b) … is … a specific provision to protect any person in any public place from being addressed and thereby subjected to words which are intended to threaten, alarm, insult or offend that person.   Such

behaviour might conceivably lead to a disturbance and disorderly behaviour but in the plain unambiguous wording of the legislation we see no occasion to import the qualification or gloss which Mr Johnson seeks to impose.  The legislation, in our view, by creating it an offence to address words in a public place with such an intent, namely, to threaten, alarm, insult or offend a particular person is designed to protect persons in public places from such verbal abuse and thereby to preserve public order which is the purpose of that part of that Act.

[18]     However, it must be recognised that since that decision the NZBORA has been enacted by Parliament.

[19]     In Brooker, the Chief Justice considered the word ‘insult’ must be associated with the words ‘alarm’ and ‘threat’. She stated at [46]:

Such  a  standard  for  disorderly  behaviour  is  I  think  consistent  with  the scheme of s 4(1) of the Summary Offences Act. Where criminal liability attaches under s 4(1)(b) to words addressed to another person, they must be intended to “threaten, alarm, insult, or offend that person”. Where criminal liability attaches under s 4(1)(c) the words themselves must be “threatening or insulting” and they must be used recklessly as to whether they cause any person  to  be  “alarmed  or  insulted  by  those  words”.  In  each  of  these provisions, the word “insult” is associated with “alarm” and “threat” and must comprehend comparably serious effect. The effects of alarm or apprehension of threat therefore provide some measure for what behaviour is disorderly, given that the penalty for the three offences under s 4(1) is the same. The culpability provided for would not be comparable if the effect produced by disorderly behaviour is simply annoyance or embarrassment.

[20]     Blanchard J noted little guidance could be obtained from pre-Bill of Rights

Act cases, and in discussing s4 noted, at [53]:

For conduct to come within s 4 it must have a public element. Under para (a), it is not enough that the conduct is offensive or disorderly. It must have occurred  in  or  within  view  of  a  public  place.  Under  para  (b),  words addressed to a person intending to threaten, alarm, insult or offend them must have been said in a public place. Under para (c), if threatening or insulting words were used with recklessness as to whether they caused alarm or insult, they must have been so used in or within hearing of a public place; so must any indecent or obscene words addressed to a person. Mere use of indecent or obscene words, without the relevant intent and not addressed to any person, is punishable under subs (2) only if done in or within hearing of a public place, and then subject to a maximum fine of only $500. The behaviour intended  to  be  proscribed by  s  4(1)  is  thus  less  serious  than conduct which is likely to cause a breach of the peace but more blameworthy than the mere utterance of indecent or obscene words in or within hearing of a public place.

[21]     The final judgment for the majority was that of Tipping J, who framed the test as follows:

[90]      Any modern test for determining when conduct is disorderly must be capable of application both to ordinary cases and to those that are less simple because aspects of the rights and freedoms affirmed by the Bill of Rights are engaged. With that in mind I would reformulate earlier tests in the following way. 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. Unless that is so, the conduct will not warrant the intervention of the criminal law. If it is so, the public has a legitimate interest in proscribing the behaviour, and thereby protecting citizens from it. In this way public order is protected.

[91]     The involvement of one of the rights and freedoms affirmed by the Bill of Rights is likely to influence the level of anxiety and disturbance which a reasonable member of the public should be expected to bear. In the present case it is the right to freedom of expression which is  involved. Section 5 of the Bill of Rights provides that this freedom should be limited only to an extent that is reasonable and can be demonstrably justified in a free and democratic society. The level of anxiety or disturbance which citizens are expected to bear should be consistent with that legislative mandate. In a case like the present the application of the disorderly conduct test requires the Court to balance the competing interests of those exercising their right to freedom of expression, and more particularly their freedom to protest, against the legitimate interests and expectations of those affected by that exercise.

[22]     The Chief Justice’s comments are wider than those of both Blanchard and Tipping JJ.  It would appear from the citation of Blanchard J, above, that the public element under para (b) arises from the words having been said in a public place.  In the  case  of  Tipping  J,  it  appears  he  is  referring  to  an  offence  under  para  (a). However, post-NZBORA it would appear that the Court of Appeal’s decision in Cotorceanu may be too broadly stated.

[23]     While McGrath J dissented on the outcome of the appeal, he discussed the right to free speech at some length.  He observed that:

[118]    The first societal interest that is in conflict with freedom of speech in the present case is that of protecting public order. As the heading to ss 3 to 8 of the 1981 Act indicates, the disorderly behaviour offences are concerned with this interest. The heading also signals that the disruptive impact of the behaviour is required to be of a nature and extent that it infringes public order before the offence of disorderly behaviour is committed.

[119]    Public order protects the community’s expectations of enjoyment of tranquillity  and  security  from  disruptive  behaviour  in  certain  situations. There  is  a  necessary  public  element  to  disorderly  behaviour  which  is

expressed in s 4(1)(a) and requires that the behaviour in issue takes place in, or within view of, a public place. The public element of the offence of disorderly behaviour excludes conduct which takes place within the private sphere. That element is, however, satisfied if the conduct is visible from a public place, even if the disruption or harmful impact is felt exclusively by a single person who is on private premises. Criminalisation of such conduct as disorderly behaviour is a legitimate end in the interest of public order.

[120]    Infringement   of   public   order   necessarily   involves   a   serious interference with community standards of behaviour, in the sense that the behaviour goes beyond what a society respectful of democratic values can be expected to tolerate.   The right to express dissenting opinions concerning official action or policy is central to democratic values. It will be rare that expressions of opinion which have no tendency seriously to upset their audience will be categorised as sufficiently intruding on public order. It is not necessary, however, that the conduct is likely to produce a physical response or other reaction resulting in a breach of the peace before the behaviour may properly be found to be disorderly. In any particular situation self-discipline, apprehension or the good judgment of affronted persons may control their overt response to a manner of behaviour which, objectively, they should not have to tolerate

[24]     Thomas J, in his extensive dissent, agreed that offences under ss 3 and 4 are against public order, but was of the opinion this part of the offence is satisfied by virtue of it having been committed within view or hearing of a public place.   He considered it unnecessary to add an element of degree or intensity to prove public disorder falling short of violence.  He stated:

[190]    The majority have emphasised that the offences under ss 3 and 4 are offences  against  “public  order”.  Certainly,  this  is  so.  It  says  so  in  the heading.  All  offences  are  circumscribed  by  the  requirement  that  the offending occur “in or within view of any public place” or “in or within hearing of a public place”.   As s 4 is aimed at setting standards of public order, the breach of which will attract the criminal law at the lower end of the sentencing scale, the “public order” element of the offences is satisfied if the offending takes place in a public place, or within view or hearing of a public place. The question under s 4(1)(a), then, is whether the behaviour is disorderly and therefore fails to meet the standards of public order which Parliament has sought to protect in enacting the section.

[191]    It is an error to seek, in effect, to graft on to the provision an added element requiring the degree or intensity of the behaviour to be such as to provoke public disorder falling short of violence. If the behaviour is disorderly, it is against public order by virtue of being within view of a public place, and it is inappropriate to seek to elevate the threshold of disorderly  conduct  by  reading  some  added  significance  into  the  words “public order”.

[25]     Accepting for present purposes that the effect of Brooker indicates a change from Cotorceanu by introducing an element of public disorder, it is necessary to

determine whether or not the appellant’s behaviour could be seen as encompassing such an element.  In my view this requires that there must be a level of insult as to raise the prospect of public disorder.

[26]     In  Brooker  the  Chief  Justice  found  the  comments  of  the  High  Court  of Australia in Coleman v Power (2004) 209 ALR 182 instructive. Although in a different statutory scheme and focusing on constitutional implications of provisions similar to the old s3D of the Police Act, the precursor to ss 3 and 4 of the Summary Proceedings Act, the issue was similar. In that case a member of the public staged a protest in the course of which he accused a particular constable of corruption. Gleeson CJ, although in the minority, discussed the nexus of insulting language and freedom of speech as follows:

[9]       It is open to parliament to form the view that threatening, abusive or insulting speech and behaviour may in some circumstances constitute a serious interference with public order, even where there is no intention, and no realistic possibility, that the person threatened, abused or insulted, or some third person, might respond in such a manner that a breach of the peace will occur. A group of thugs who intimidate or humiliate someone in a public  place  may  possess  such  an  obvious  capacity  to  overpower  their victim, or any third person who comes to the aid of the victim, that a forceful response to their conduct is neither intended nor likely. Yet the conduct may seriously disturb public order, and affront community standards of tolerable behaviour. It requires little imagination to think of situations in which, by reason of the characteristics of those who engage in threatening, abusive or insulting behaviour, or the characteristics of those towards whom their conduct is aimed, or the circumstances in which the conduct occurs, there is no possibility of forceful retaliation. A mother who takes her children to play in a park might encounter threats, abuse or insults from some rowdy group. She may be quite unlikely to respond, physically or at all. She may be more likely simply to leave the park. There may be any number of reasons why people who are threatened, abused or insulted do not respond physically. It may be (as with police officers) that they themselves are responsible for keeping the peace. It may be that they are self-disciplined. It may be simply that they are afraid. Depending upon the circumstances, intervention by a third party may also be unlikely.

…

[12]     Concepts of what is disorderly, or indecent, or offensive, vary with time and place, and may be affected by the circumstances in which the relevant conduct occurs. The same is true of insulting behaviour or speech. In the context of legislation imposing criminal sanctions for breaches of public order, which potentially impairs freedom of speech and expression, it would be wrong to attribute to parliament an intention that any words or conduct that could wound a person’s feelings should involve a criminal offence. At the same time, to return to an example given earlier, a group of

thugs who, in a public place, threaten, abuse or insult a weak and vulnerable person may be unlikely to provoke any retaliation, but their conduct, nevertheless, may be of a kind that parliament intended to prohibit.

[27]     It seems to me that there was little likelihood in this case of the appellant’s comments engendering a violent reaction from the people they were directed at, even though they were grossly offensive and insulting.  But that is only by virtue of their position and authority which meant they were inherently unlikely to react in a violent way.  In that sense it could be said the appellant’s behaviour would not have resulted in public disorder in a concrete sense.  As Gleeson CJ noted further in Coleman:

[16]      The fact that the person to whom the words in question were used is a police officer may also be relevant, although not necessarily decisive. It may eliminate, for practical purposes, any likelihood of a breach of the peace.16 It may also negate a context of victimisation. As Glidewell LJ pointed out in Director of Public Prosecutions v Orum, it will often happen that  “words  and  behaviour  with  which  police  officers  will  be  wearily familiar will have little emotional impact on them save that of boredom”. But police officers are not required to be completely impervious to insult. A public accusation of corruption made about a police officer to his face, even in the context of a political protest or demonstration, is a form of conduct that a magistrate is entitled to regard as a serious contravention of public order by contemporary standards of behaviour. There was no challenge in the Court of Appeal, or, as I followed the argument, in this court, to that aspect of the magistrate’s decision.

[28]     Whether  or  not  the  appellant’s  behaviour  involved  an  element  of  public disorder is inextricably linked with whether the words could be considered insulting. The  House  of  Lords,  in  Brutus  v  Cozens  [1973] AC 854 held that the word

‘insulting’ in s5 Public Order Act 1936 UK was an ordinary word of the English language which was not used in any unusual sense.  They said it was not necessary, helpful or appropriate for the Court to supply any definition of it.   In Coleman, Gummow and Hayne JJ commented:

[193]    Again, as indicated earlier, “abusive” and “insulting” words can be understood as anything that is intended to hurt the hearer. But in the context of this provision “abusive” and “insulting” should be understood as those words which, in the circumstances in which they are used, are so hurtful as either they are intended to, or they are reasonably likely to provoke unlawful physical retaliation. Only if “abusive” and “insulting” are read in this way is there a public purpose to the regulation of what is said to a person in public.

[29]     I am satisfied that the words expressed by the appellant were insulting in both their ordinary sense and in the sense I believe is now required under the section.  The

appellant was implying that both Constables Lilley and McLeod would personally indulge in behaviour that involved serious criminal offending.  It is an offence that is aggravated when it involves elements of kidnap and brutality.  The comments were calculated to hurt the personal feelings of the constables, and the conclusion that it did was inevitable.  If similar insults had been directed at members of the public a physical reaction was highly likely.  The character of the words was beyond what any person should be expected to bear.

[30]     Are  such  utterances  then  protected  by the  right  enshrined  in  s14  of  the NZBORA or, to paraphrase Tipping J, was the conduct complained of in all the circumstances of the case including location, time and place, at a level beyond which a reasonable citizen should be expected to bear?  If it is, there is a legitimate interest in proscribing the behaviour and protecting citizens from it, thus protecting public order.

[31]     McGrath  J’s  first  observation  on  the  right  of  freedom  of  expression  in

Brooker was:

[114]   Freedom of expression is a right which is basic to our democratic system. As the Supreme Court of Canada has said:

“The core values which free expression promotes include self- fulfilment, participation in social and political decision making, and the  communal  exchange  of  ideas.  Free  speech  protects  human dignity   and   the   right   to   think   and   reflect   freely   on   one’s circumstances and condition. It allows a person to speak not only for the sake of expression itself, but also to advocate change, attempting to persuade others in the hope of improving one’s life and perhaps the wider social, political, and economic environment.” [RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd [2002] 1 SCR

156 at para [32]]

[32]     In this case the appellant’s comments can only be characterised as attempting to insult and rile the police officers.  It was for no other purpose.  He was not trying to advocate change or persuade others in the hope of improving his life or anyone else’s.   He was not trying to influence wider social, political or economic environment.  His comments were not even social commentary.  They were aimed at particular officers, and arose out of the appellant’s dissatisfaction with the disruption to his supply of alcohol.

[33]     I accept the topical nature of the insults, but I do not consider that to be a mitigating factor.  If his comments had been to the effect that his trust in the force had been diminished by the behaviour of a minority of officers in the North Island it could be considered differently.  But clearly he was angry at not being able to access more alcohol, and the insulting comments were designed to offend and aggravate the officers with the undoubted prospect of public disorder.

[34]     I also accept that police officers, by virtue of their office and exposure, are of course required to put up with being exposed to a higher degree of invective and abuse.   But in this case the comments in my view cross the line.   There are no indications that the grossly inappropriate behaviour of the small number of officers permeates the entire force, and the public at large generally accepts that the police force  is  made  up  of  a  majority  of  dedicated  and  professional  officers.    The appellant’s comments were insulting and there is a justified limitation in proscribing their use.  I do not consider that in a fair and democratic society his comments could be seen as anything other than insults.

[35]     It  follows  that  all  of  the  necessary  elements  required  by  the  Summary Offences Act were proved  beyond  reasonable  doubt.    The  District  Court  Judge correctly identified and applied the test under s4(1)(b) that is required.

[36]     I accept that an inquiry balancing the appellant’s s14 NZBORA rights against the public interest protected by s4 of the Summary Offences Act is required.   In Brooker at [59] Blanchard J stated:

…  The Court must ask itself whether treating the particular behaviour in the particular circumstances as disorderly constitutes a justified limitation on the defendant’s exercise of the right in question. As a result, public order will less readily be seen to have been disturbed by conduct which is intended to convey information or express an opinion than by other forms of behaviour. The manner in which the defendant chose to exercise the right and the time and place are of course relevant to that inquiry.

[37]     In  this  case  I  am  satisfied  that  while  the  District  Court  Judge  did  not expressly undertake this balancing exercise, this Court is in a position to do so.  I am satisfied the appellant’s right to convey information and express an opinion does not protect him from a conviction for the insulting language used in these circumstances.

[38]     It follows that the appeal against conviction for breaching s4(1)(b) of the

Summary Offences Act must fail.

[39]     It further follows that the appeal against resisting arrest must also fail.  The submission the police did not tell him he was under arrest for an appropriate offence is without merit.  The marginal note to s4 of the Summary Offences Act indicates the section is aimed at “offensive behaviour or language”, so the appellant was given an accurate indication of the offence he was suspected of having committed.  There is also no requirement that a person must be arrested for the offence for which they are eventually convicted.   Brooker is such a case.   The defendant in that case was originally arrested for loitering with intent to intimidate, although he was finally convicted of offensive behaviour.

[40]     Neither do I think that this arrest is affected by the appellant’s NZBORA rights. The appellant resisted violently, no doubt in an intoxicated state.  The time he was left in the van was reasonable in all of the surrounding circumstances at the time.  Furthermore, I am satisfied on reading the evidence that the handcuffs were in fact removed before he was placed in the van.  Sergeant Newell was not asked when they were  removed,  and neither  was Constable McLeod.   Constable  Lilley was asked,  and  although  he  was  not  certain  as  to  who  removed  the  handcuffs,  his evidence was that they were in fact removed.

[41]     Accordingly, the appeal against conviction on this charge is also dismissed.

Solicitors:

Queenstown Legal Chambers, Queenstown

Crown Solicitor, Invercargill