Easton v Police HC Wellington CRI-2011-485-41

[2011] NZHC 1385

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-485-41

BENJAMIN MORLAND EASTON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 July 2011

Counsel:         Appellant in person

S K Barr for Respondent

Judgment:      30 August 2011 at 12:15 PM

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 12.15pm on the 30th day of August 2011.

RESERVED JUDGMENT OF MACKENZIE J

Introduction

[1]      The appellant appeals against his conviction on two charges of endangering public safety, under s 12 of the Summary Offences Act 1981 (the Act), and one charge of disorderly behaviour likely to cause violence, under s 3 of the Act.

[2]      The incidents which were the subject of these charges (and two charges of obstruction and intentional damage that were dismissed), occurred on 16, 21 and

22 June in Manners Mall in central Wellington.  At that time, work was underway to

EASTON V NEW ZEALAND POLICE HC WN CRI-2011-485-41 30 August 2011

reintroduce a bus route through Manners Mall, which had for many years been closed to traffic as a pedestrian mall.  Mr Easton had, and continues to have, a very firmly  held  belief  that  the  reintroduction  of  bus  traffic  through  Manners  Mall presents a serious danger to public safety.   He felt compelled to take action.   On

16 June 2010 he removed a work site barrier which had been erected around the site of the work being carried out. That formed the subject of the first charge under s 12. On 21 June, he removed a warning sign from near the area of the work. That formed the subject of the second charge under s 12. On 22 June, he made a protest which is described in [11]. That formed the basis of the charge of disorderly behaviour under s 3.

The incidents of 16 and 21 June

[3]      CCTV  footage  of  both  incidents,  on  16  and  21  June,  showed  a  person removing the protective barrier and the notice.   The judge held, in terms which cannot be and are not challenged, that Mr Easton was the person shown removing the barrier and the notice.  He held that the risk of injury in the works site protected by the barrier and the notice, particularly a trip hazard due to the uneven surface, was obvious and that a common sense inference was that removal of the barrier and the sign, opening the hazardous site to foot traffic, amounted to circumstances likely to cause injury.

[4]      The judge then dealt with the question of whether the prosecution had proved an absence of reasonable excuse. He said, in respect of the 16 June incident:1

I turn to the issue of whether the informant has proved that the defendant acted without reasonable excuse. I cannot see any facts, or combination of facts, which might excuse or exculpate the defendant. The activity was done during a period of reasonably busy pedestrian traffic. The activity had the effect of exposing a hazardous work site. I cannot see how publicity or protest about the closing of pedestrian traffic through Manners Mall, and the opening of a bus route, provides any kind of excuse what so ever to expose members of the public to the risk of injury.

In his closing submissions, the defendant said the barriers themselves were unsafe. I suspect what he really meant was that the redevelopment itself was unsafe, and by scuttling it he was promoting public safety. Once again, when

some  objective  assessment is made, that cannot amount to a reasonable excuse.

The critical issue in the end is whether the informant has proved an absence of reasonable excuse. The defendant contended, in written submissions, that removal  of  the  barrier  did  not  endanger  safety.  In  a  general  sense  he submitted that his defence was one of the greater good, that some risk by removal of the barrier, was justified to bring the public’s attention to the greater risks associated with the closing of pedestrian traffic in the mall and the opening of a bus route.

I reject this completely. I cannot see how anything approaching a reasonable excuse is available on the evidence to the defendant. I am entirely satisfied that its absence has been proved by the informant to the requisite standard of proof beyond reasonable doubt.

[5]      As to the incident on 21 June he said:2

The essential allegation in relation to this charge is that on 21 June 2010, the defendant removed a warning sign from the same work site and, as such, injury was likely to result.

The evidence about this comes from both the CCTV footage of the incident, which clearly shows the defendant removing a sign, and from an email sent by him the following day, confirming his activity. The sign itself can be partially seen in the CCTV footage. It is the same sign as shown in Exhibit Q10, produced by the defendant. The sign reads as follows:

GOLDEN MILE IMPROVEMENTS

Work happening here is part of a wider project to improve the Golden Mile and provide a quicker, more direct bus route through the city. Please take extra care while we get the work done. It should be completed by mid-July 2011.

I am entirely satisfied, despite the defendant’s submission to the contrary, that  the sign must  be regarded as a  warning sign. The plain  words  are obvious, “Please take care while we get the work done”. In blunt terms, it warns  people  to  take  care.  It  might  be,  as  the  defendant  in  written submissions noted, that there are other signs which are clearer and with more direct and appropriate warnings. That submission, however, does not take away the plain meaning of the sign itself.

I am entirely satisfied, therefore, that the sign constitutes a warning sign.

For the same reasons as expressed in relation to the similar charge relating to the barriers, I am satisfied that the informant has proved an absence of reasonable excuse on the part of the defendant. I cannot see any fact, or combination of facts, which might excuse or exculpate his behaviour in removing the sign. Although, as he essentially contended, it might constitute some form of protest about the proposed works, that could not provide any form of excuse at all.

[6]      The essence of Mr Easton’s submission is that the judge did not address sufficiently Mr Easton’s contention that his actions were driven by necessity.  The common law does recognise that there may be, in appropriate cases, a defence of necessity, in the sense that the actions of an individual may be so constrained by necessity as to be made without true choice of action.   In Tifaga v Department of

Labour,3   Richardson J  noted  that  necessity  “has  come  to  be  used  to  denote  a

situation where circumstances face a person not with no choice at all but with the choice between two evils so that he can hardly be blamed if he chooses the lesser”. In Kapi v Ministry of Transport the Court of Appeal said: 4

We consider on the authorities cited to us that a defence of necessity, if available in New Zealand, requires at least a belief formed on reasonable grounds of imminent peril of death or serious injury.  Breach of the law then is excused only when there was no other realistic choice but to act in that way. Even then the response can be excused only where it is proportionate to the peril.

[7]      The basis upon which Mr Easton submits that his actions were justified by necessity is a strong and fervently held belief by him that the reintroduction of buses into Manners Mall would be detrimental to public safety.  He feels that his objections have fallen upon deaf ears and that he had no alternative but to express his protest in other ways.

[8] Judge Davidson did not expressly deal with the defence of necessity. He did not need to do so, because the matters relied upon by Mr Easton, if they were sufficient to establish a defence of necessity, would necessarily have amounted to a reasonable excuse under s 12. The judge dealt fully with that issue in the passage set out at [4].

[9]      In  the  course  of  his  judgment,  the  judge  commented  on  Mr Easton’s evidence, in terms to which Mr Easton takes objection.  Having reviewed the matter, I consider that the conclusions expressed in the passages I have cited are correct, and fully justified by the evidence.  I reach that view without attaching any weight to the comments which Mr Easton criticises.   I have no reason to doubt that Mr Easton

holds his beliefs firmly and genuinely.  The judge accepted that that was the case.

3      Tifaga v Department of Labour [1980] 2 NZLR 235 (CA) at 243.

4      Kapi v Ministry of Transport (1991) 8 CRNZ 49 (CA) at 57.

However, a genuinely and firmly held view that his actions were necessary in the interests of public safety is not sufficient to constitute a reasonable excuse for the purposes of s 12. The test is objective, not subjective.

[10]     The same applies if the matter is viewed from the perspective of necessity.  I do not doubt the strength of Mr Easton’s views on this matter.  However, that is not the test.   To found the defence of necessity, there must be a belief, formed on reasonable grounds of imminent peril of death or serious injury.  There was clearly no imminent peril from the presence of buses in Manners Mall, as the work to allow them was incomplete.   Any belief as to the existence of imminent peril must be formed on reasonable grounds.  The test is not what Mr Easton may have thought, but what a reasonable person would have thought.  When that test is applied, it is clear that the circumstances required for the defence of necessity are absent, for the same reason that the circumstances could not provide a “reasonable excuse” in terms of s 12, namely that the test is objective, not subjective.   For these reasons, the appeal in respect of the two charges of endangering public safety must be dismissed.

The incident of 22 June

[11]     At around 4.30pm on 22 June, Mr Easton staged a protest which he arranged to be recorded by video.  He prepared a notice to police which, among other matters, advised the police that he was undertaking emergency works under s 330 Resource Management Act 1991 between 4.30pm and 5pm at the intersection of Manners Mall and Victoria Street.  That work was said to be for three purposes;  to cause a traffic blockage so that the public would understand what may occur in the future, to demonstrate that the proposed bus lanes are too narrow and consequently hazardous, and to create a hazard on the intersection so that bus drivers may realise the need for particular caution.   He stated “I do these works under the jurisdiction of s 330

Resource Management Act and preparatory under the preamble [sic] Declaration of

Universal Human Rights”, copies of which he attached to his notice.

[12]     Judge Davidson described the events which occurred in these terms:5

Armed with a sledge hammer, pot of paint and megaphone the defendant went onto the intersection. The paint was water-based and designed so that the defendant could mark out the proposed bus lanes to support his argument they were too narrow. The megaphone was so that he could address members of the public. The sledge hammer was so that he could damage the roadway. The painting was largely unsuccessful. As well, his raised voice through the megaphone appears not to be able to have been heard clearly by any of the witnesses who gave evidence before me.

The defendant then began to strike the roadway repeatedly causing a number of dents. Traffic stopped almost immediately. The defendant on the footage can be seen approaching a bus and speaking to a driver. A crowd gathered quickly. Although various estimates of numbers were given by many of the witnesses the exact number is irrelevant. The crowd swelled quickly. Many are seen to be using cellphones to take photographs. A number of people can be seen running from areas further away to observe the events.

The evidence from the police officers was consistent. The initial report to the police communications centre was of a person damaging vehicles with a sledge hammer. The police response was appropriate and immediate. However,  even  the  limited  distance  from  the  Wellington  Central  Police Station to the intersection concerned proved difficult because traffic had become blocked almost immediately.

[13]     On the charge of disorderly behaviour under s 3 of the Act, the judge said:6

Another  constable,  Constable  Hall,  heard the  defendant say,  “Someone’s gonna get their head smashed in”. It is clear Constable Hall, quite understandably, misheard the defendant who, rather, said, “Who’s gonna get their head smashed in, your mother, your father, your sister, your brother”, a reference to the risk of injury at the intersection as a result of the redevelopment.  This  matters  not  a  jot.  The  combination  of  what  the defendant  was  doing  and  the  reference  to  someone  getting  their  head smashed in represented a real public disorder risk. No other interpretation is available.

It seems to me abundantly clear that the defendant’s actions come within the definition of disorderly conduct. It was activity which disturbed or violated public order. Time and circumstance obviously are important. This was 4.30 pm, rush hour on a week day. Many people would have been leaving work, intent on returning home. Traffic was held up considerably. I can see no other conclusion what so ever than that the defendant’s activity violated public order.

Equally, I can see no other conclusion than that violence against someone was likely to start. I have absolutely no doubt that the defendant did not have any violent intentions towards any person what so ever. Equally, the use of force by the police to detain and arrest the defendant is not, and cannot, be a factor. The critical feature is that some concerned member of the public could well approach the defendant and attempt to disarm and restrain him.

At that stage violence must have been a real likelihood. The defendant must have appreciated that risk. He had a sledge hammer, he was agitated, a crowd  had  gathered  quickly.  He  was  being  told  to  stop  but  did  not.  I conclude he knew the risk and continued.

[14]     The judge was best placed, having heard the evidence, to make the factual findings, and to assess the likelihood of violence.  His findings are fully supported by the evidence. There is no basis upon which they could be disturbed on appeal.

[15]     There are, for completeness, two aspects of the conviction on this count which justify further discussion.

[16]     The first relates to Mr Easton’s purported reliance on s 330 of the Resource Management Act 1991.   That confers certain powers on persons responsible for a range of works or resources.  Those powers enable the persons on whom the powers are conferred to take certain actions to deal with an emergency.  These powers have no relevance whatsoever to Mr Easton’s actions, as he is not a person on whom the powers are conferred.  Mr Easton’s strongly held views about the reintroduction of the bus lanes do not provide any legal basis for the invocation of these powers.

[17]     The second is that shortly after the District Court decision, the Supreme Court  delivered  its  judgment  in  Morse v Police.7      Mr Easton  submits  that  this decision, which was referred to by the judge at the first call of this appeal, provides additional  support  for  his  appeal.    I  have  carefully  reviewed  Judge Davidson’s findings, to consider whether these might be affected by the Supreme Court decision. There is nothing in that decision which suggests that a test different from that applied by  Judge Davidson  should  have  been  applied  in  this  case.    Morse  involved  a different offence, that of behaving in an offensive or disorderly manner in or within

view of any public place under s 4(1)(a) of the Act.  The offence under s 3 is more serious than that under s 4. That is evident from both the level of the penalty, and the description of the conduct and its consequences.  Under s 3, the disorderly behaviour must be likely in the circumstances to cause violence against persons or property to start or continue.  Here, the judge carefully considered that element.  The conclusion which he reached, namely that violence was a real likelihood, and that Mr Easton

must have appreciated that risk, was a conclusion properly founded on the evidence which he heard.   Mr Easton’s strongly held views about a possible risk to public safety  from  the  reintroduction  of  buses  to  Manners  Mall  cannot  provide  a justification or excuse for disorderly behaviour which is likely to cause violence.

[18]     In his written submissions, Mr Easton raised some other points which it is necessary to mention.  He asserted that no reference was made to the preamble to the Universal Declaration of Human Rights (which states that human rights should be protected by the rule of law), and that no reference was made to sovereignty and justiciable authority.  None of these matters required specific reference by the judge in  deciding  this  case.    The  relevant  principles  underlying  the  exercise  of  the summary jurisdiction of the Court did not require elaboration.

[19]     Mr Easton also referred to unrelated matters.  He referred to a decision of the Court of Appeal requiring payment of security for costs on an appeal.  That can have no relevance.  He also raised again issues of public safety relating to the Manners Mall bus lane.  Those matters are not, except to the extent that I have discussed in relation to the issues of reasonable excuse and necessity, relevant to this appeal.

[20]     For the  reasons  I have  given,  the appeal  against  conviction  on  all  three charges is dismissed.

“A D MacKenzie J”

Solicitors:         Luke Cunningham & Clere for Respondent

Copy to Mr Easton