Fabling v Police

[2021] NZHC 363

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-361

[2021] NZHC 363

BETWEEN

KERRY FABLING

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	2 March 2021
Counsel:	P Eastwood for Appellant C Purdon for Respondent
Judgment:	3 March 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 3 March 2021 at 3:00 pm Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Auckland) for Respondent

FABLING v POLICE [2021] NZHC 363 [3 March 2021]

Introduction

[1]                 Mr Fabling appeals his convictions for wilful trespass,1 offensive language2 and behaving in an offensive manner.3 Convictions were entered by Judge DJ McDonald following a Judge-alone trial on 7 August 2020.4

[2]                 Mr Fabling represented himself at the trial but was represented on this appeal by Mr Eastwood, who has taken the brief on a pro bono basis. Partly for that reason, I heard oral submissions rather than further adjourning the appeal so that written submissions could be filed.

[3]                 Mr Fabling was a man of no fixed abode. As a result, he was a prolific user of the public libraries of Auckland. His behaviour at times was not in keeping with that expected of a person using a public library. Eventually, he was given a written trespass notice which related to seven public libraries in Auckland, including the Mt Albert library and the Mt Roskill library.

Wilful trespass

[4]                 The first conviction appealed against is a conviction for wilful trespass on     3 April 2019 at the Mt Albert library.

[5]                 Unfortunately, all the evidence called at the trial by the prosecution related to the Mt Roskill library and the date was 3 March 2019. The Judge identified the discrepancy in the date and, during his judgment, amended the date of the offence in the charging document to 3 March 2019. The Judge considered that no prejudice could arise from this amendment because all of the evidence related to the date of 3 March 2019.

[6]                 The Judge did not, however, appear to have recognised the discrepancy in place. In his judgment he referred only to the Mt Albert library. Accordingly, the Judge convicted Mr Fabling of wilfully trespassing at the Mt Albert library on 3 March

1      Trespass Act 1980, s 4(4) and 11(2)(a).

2      Summary Offences Act 1981, s 4(1).

3      Summary Offences Act 1981, s 4(1)(a).

4      Police v Fabling [2020] NZDC 3486.

2019. There was no evidence that Mr Fabling did so. The place of the alleged trespass was central to the charge.  The  conviction cannot stand, and this is recognised by  Mr Purdon for the Crown. I will not order a new trial.

Using offensive language and behaving in an offensive manner

[7]                 The two remaining convictions appealed against are using offensive language and behaving in an offensive manner.

[8]                 The charges related to an incident  at  the Epsom  library.  Two  librarians,  Ms Bathgate and Mr Ali, were tasked with serving Mr Fabling with a trespass notice. Mr Fabling became angry. He shouted abuse directed towards Mr Ali. I will not record here what Mr Fabling said. It is set out in Judge McDonald’s decision. The words used were categorically and obscenely racist. Mr Fabling also told Mr Ali:

That is why people like you got shot in Christchurch.

[9]                 Mr Eastwood relied on Mr Fabling’s evidence that he did not say all of the things that Mr Ali and Ms Bathgate gave evidence about. I am of the clear view that it was open to Judge McDonald to prefer their evidence to that of Mr Fabling.

[10]             Mr Eastwood, with some hesitancy, advanced a submission which I paraphrase as being that the comments in question offended more against political correctness than the general mores of society. He submitted the court should take a stand against that.

[11]             I do not  accept  Mr  Eastwood’s  submission.  Indeed,  I  totally  reject  it.  Mr Fabling’s comments were deeply offensive and completely contrary to the established mores of our society.

[12]             The charge of offensive behaviour was related to the charge of using offensive language. It focused on the manner in which Mr Fabling conducted himself while confronting Mr Ali and Ms Bathgate in a public library where members of the public were present. I have no doubt that the Judge was entitled to find the charge proved.

Decision

[13]             Mr Fabling’s appeal against his conviction for wilfully trespassing at the     Mt Albert library is allowed. His conviction is quashed. The sentence (to come up if called upon within six months) is also quashed. There will not be a new trial.

[14]             Mr Fabling’s appeals against his convictions for using offensive language and behaving in an offensive manner are dismissed.

Brewer J