Easton v Police

[2013] NZCA 98

IN THE COURT OF APPEAL OF NEW ZEALAND

CA654/2012
[2013] NZCA 98

BETWEEN  BENJAMIN MORLAND EASTON
Applicant

AND  NEW ZEALAND POLICE
Respondent

Court:             Ellen France, Harrison and Stevens JJ

Counsel:         Applicant in person
M H Cooke for Respondent

Judgment:      10 April 2013 at 2.15 pm

(On the Papers)

JUDGMENT OF THE COURT

The time for filing the application is extended but the application for special leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

1. On three occasions in June 2010, the applicant, Benjamin Easton, took action to disrupt work being undertaken to reintroduce a bus route through Manners Mall in central Wellington.  On 16 June, he removed a work site barrier erected around the site of the work being carried out.  That formed a charge of endangering public safety under s 12 of the Summary Offences Act 1981.  A second charge under s 12 resulted when, on 21 June, Mr Easton removed a warning sign from near the area of the work.  Finally, on 22 June, Mr Easton staged a protest at the intersection of Manners Mall and Victoria Street which involved him striking the roadway repeatedly with a sledgehammer.  This incident gave rise to a charge of disorderly behaviour under s 3 of the Summary Offences Act.

2. Mr Easton was convicted of these three charges after a hearing before a Judge alone.[1]  Judge Davidson dismissed two other charges, of obstruction and intentional damage.  Mr Easton appealed unsuccessfully to the High Court and, subsequently, the High Court declined leave to appeal to this Court.[2]  Mr Easton now seeks special leave to appeal to this Court under s 144(3) of the Summary Proceedings Act 1957.

Basis of proposed appeal

[1]      New Zealand Police v Easton DC Wellington CRI-2010-085-3976, 8 April 2011.

[2]Easton v New Zealand Police HC Wellington CRI-2011-485-41, 30 August 2011 [High Court appeal]; Easton v New Zealand Police HC Wellington CRI-2011-485-41, 13 September 2012 [High Court leave refusal].

1. Mr Easton’s application for special leave does not specifically frame a question of law.  However, we understand he wants to argue that the defence of necessity was available to him.

Discussion

1. Special leave to appeal under s 144(3) can only be granted if there is a question of law that is of general or public importance or which, for some other reason, ought to be submitted to this Court.  This Court has emphasised the importance of these requirements and the reasons for them.[3]  We are satisfied that the proposed appeal does not meet these requirements.

   [3]      R v Slater [1997] 1 NZLR 211 (CA) at 215.

2. The first point we note is that necessity was not raised at trial.  Rather, the focus in terms of the two charges of endangering safety was whether the prosecution had proved an absence of reasonable excuse.  The Judge was satisfied the prosecution had done so. 

3. Secondly, it is plain that on the facts as the Judge found them, the matters relied on by Mr Easton are not sufficient to establish a defence of necessity.

4. This Court in Kapi v Ministry of Transport defined a defence of necessity as requiring the following elements:[4]

   … at least a belief formed on reasonable grounds of imminent peril of death or serious injury.  Breach of the law then is excused only where there was no realistic choice but to act in that way.  Even then the response can be excused only where it is proportionate to the peril.

   [4]Kapi v Ministry of Transport (1991) 8 CRNZ 49 (CA) at 57; see also the summary in AP Simester and WJ Brookbanks Principles of Criminal Law (4th ed, Brookers, Wellington, 2012) at [13.2.2]; and Law Commission Some Criminal Defences with Particular Reference to Battered Defendants (NZLC R73, 2001) at [217].

5. There is a debate about the availability of the defence in New Zealand.[5]  However, the proposed appeal does not raise that issue or any broader legal question about the scope of the defence.[6]  Mr Easton says his actions were justified by his firmly held belief that the reintroduction of buses into Manners Mall would be detrimental to public safety.  As MacKenzie J says, Mr Easton feels that his objections “have fallen upon deaf ears and that he had no alternative but to express his protest in other ways”.[7]  That subjective view, no matter how fervently held, cannot be sufficient to constitute necessity. 

   [5]      R vHutchinson [2004] NZAR 303 (CA) at [43]; and see R v Akulue [2013] NZCA 84.

   [6]      See for example R v Hutchinson, above n 5, at [54].

   [7] High Court appeal, above n 2, at [7].

6. We add that, as we understand it, there is no challenge to the finding that the matters raised did not amount to a reasonable excuse under s 12.  It is not logical to suggest that something may constitute necessity when it does not meet the threshold for reasonable excuse.[8] No different issues are raised in relation to the proposed appeal concerning the charge of disorderly behaviour.

Result

[8] A point made by MacKenzie J at [8].

1. The application is out of time.  No objection was raised to our extending the time for filing the application and we order accordingly.  For the reasons we have given, the application for special leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent