Farquhar v Police HC Dunedin CRI-2011-412-000001

[2011] NZHC 417

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2011-412-000001

BRUCE SCOTT FARQUHAR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 April 2011

Counsel:         Appellant in person

R D Smith for Respondent

Judgment:      8 April 2011

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on Friday, 8 April 2011 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, PO Box 803, Dunedin. Email: [email protected]

Copy to:

B S Farquhar, 14 Mulford Street, Dunedin.

FARQUHAR V NZ POLICE HC DUN CRI-2011-412-000001 8 April 2011

[1]      Following  a  defended  hearing  on  24  September  2010,  Judge  Holderness found Mr Farquhar guilty on a charge laid under s 21(1)(e) of the Summary Offences Act 1981.[1]   This makes it an offence to confront a person in a public place knowing that such conduct is likely to reasonably intimidate that person.

[1] NZ Police v Farquhar DC Dunedin CRN-0901-2006-061, 12 October 2010.

[2]      On 8 December 2010 the Judge refused an application by Mr Farquhar for an order discharging him without conviction.[2]   He made a non-association order under s 112 of the Act, and directed that the order was to remain in force for a period of 12 months from that date.  He imposed no other penalty on Mr Farquhar.

[2] NZ Police v Farquhar DC Dunedin CRI-2009-012-6037, 8 December 2010.

[3]      Mr Farquhar now appeals against conviction.

Facts

[4]      The background leading up to the charge is somewhat unusual.  Mr Farquhar came into contact with the complainant, Mr Robinson, as a result of the fact that Mr Farquhar was the accused in two jury trials in the District Court in late 2006 or early 2007.   At that time Mr Robinson worked for the Crown Solicitor’s firm in Dunedin, and he conducted both of Mr Farquhar’s trials on behalf of the Crown.  He also appeared on behalf of the Crown when Mr Farquhar applied for bail at some stage during the criminal proceedings.

[5]      The first trial resulted in Mr Farquhar being acquitted on a charge of injuring with intent to cause grievous bodily harm, and convicted on the lesser charge of injuring with intent to injure.  He was sentenced to 18 months imprisonment on that charge.  Mr Farquhar pleaded guilty to a charge of common assault at the beginning of the second trial, and he was acquitted by the jury of the remaining charges that he faced in that trial.  He did not receive any uplift in his sentence as a result of his conviction on the assault charge.

[6]      Mr  Farquhar  harbours  very  strong  feelings  about  the  way  in  which

Mr Robinson conducted the criminal proceedings against him.   He believes that

Mr Robinson acted as a “tyrant”, and that his tyrannical behaviour has resulted in Mr Farquhar and his family being the victims of a grave miscarriage of justice. Mr Farquhar made his antipathy towards Mr Robinson known on three separate occasions after being released from prison.  The second of those led to the charge that is the subject of the present appeal.  The third encounter is of no consequence because it passed essentially unnoticed by Mr Robinson.

[7]      The first encounter between the two men occurred shortly after Mr Farquhar was released from prison.   On this occasion Mr Robinson was walking down the street when he looked up to see Mr Farquhar walking towards him.   Mr Farquhar walked up to Mr Robinson and made an offensive comment to him.  Mr Robinson was concerned about the incident, but was prepared to ignore it and not to lay a complaint in respect of it.

[8]      The  next  incident  occurred  on  7  October  2009.    The  Judge  accepted Mr Robinson’s  version  of  events  regarding  this  incident,  which  occurred  as Mr Robinson was walking in a southerly direction along George Street in central Dunedin.  When he arrived at the intersection of George Street and Moray Place, he stopped on the corner and waited for the traffic lights to change so that he could cross the road on the pedestrian crossing.

[9]      Mr Robinson then heard someone yell out “ya faggot”.  This caused him to look up, and he then saw Mr Farquhar a few metres away.  He immediately realised that the words had been directed to him.  Mr Farquhar then called Mr Robinson “a cock”, “a wanker” and “a dickhead”.  Mr Robinson described Mr Farquhar as using all of these terms with a real venom and a real anger behind them.  Mr Robinson said that Mr Farquhar used these words on several occasions, and in circumstances where other pedestrians were in the area.

[10]     Mr Robinson was careful not to make eye contact with Mr Farquhar.  This approach must have worked, because Mr Farquhar appeared to lose interest in him and walked away.   Mr Robinson said that he felt very intimidated by the incident and,  after  discussing  it  with  a  senior  member  of  the  police,  he  laid  a  formal complaint about it.

[11]     Mr Farquhar advanced four grounds on appeal:

(a)       The  circumstances  giving  rise  to  the  charge  were  not  sufficiently serious to warrant a charge of intimidation being laid;

(b)      Mr Farquhar had no intent to intimidate the complainant;

(c)       The Judge ought to have acceded to Mr Farquhar’s request to have the

assistance of a McKenzie friend;

(d)      The Judge ought to have discharged Mr Farquhar without conviction.

(a) A charge should not have been laid

[12]     Those who have the authority to initiate prosecutions retain a discretion as to whether or not to lay a charge in any given case.  As I advised Mr Farquhar during the hearing, the courts have the power to intervene in extreme cases where the exercise of the discretion amounts to an abuse of process.   Generally speaking, however, the discretion to prosecute is not amenable to review.

[13]     In the circumstances of the present case it was clearly open to the Police to lay the charge that they did.

(b)  No intention to intimidate

[14]     Mr Farquhar says that he never intended to intimidate Mr Robinson.   He submits that his intention was simply to vent his feelings about Mr Robinson in a manner that left Mr Robinson no room for misunderstanding.  He views his actions as amounting to a form of protest that s 14 of the New Zealand Bill of Rights Act

1990  protects  under  the  umbrella  of  freedom  of  expression.    Mr Farquhar  also submits that he was not intending to gain anything out of his conduct, and that this removes an essential element of the offence with which he was charged.

21   Intimidation

(1) Every person commits an offence who, with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated,—

...

(e)   Stops, confronts, or accosts that other person in any public place.

[16]     As Judge Holderness noted, Asher J analysed the ingredients of this offence in Gillespie-Gray v Police.[3]    Asher J held[4]  that the elements of the charge were as follows:

[3] Gillespie-Gray v Police HC Auckland CRI-2006-404-123, 22 September 2006.

[4] At [7].

(a)       One person confronts another;

(b)      The confrontation occurs in a public place; and

(c)       The person confronting knows that his or her conduct is likely to cause the other person reasonably to be frightened or intimidated.

[17]     Asher J also held[5] that, in order to establish the element of confrontation, the prosecution must prove the occurrence of a face to face meeting having an element of disagreement or hostility.  In the present case there was ample evidence to confirm that Mr Farquhar stopped in front of Mr Robinson, and that the two men were involved in a face to face meeting in which Mr Farquhar was openly antagonistic and hostile towards Mr Robinson.

[5] At [9].

[18]     Although  Mr  Robinson  said  that  he  felt  intimidated  by  Mr  Farquhar’s conduct, that state of affairs was not an essential element of the charge.  In order to prove the charge, the prosecution needed only to prove that Mr Farquhar knew that his conduct in confronting Mr Robinson was likely to reasonably cause Mr Robinson

to be frightened or intimidated.

[31]  Having weighed the evidence of the complainant, and having regard to the evidence of the defendant, I am satisfied that, when the defendant confronted the complainant and harangued him in the manner which I find he did, the defendant knew that his conduct was likely to cause the complainant reasonably to be intimidated.

[32]  I base this conclusion on the words which I am satisfied the defendant directed at the complainant, the angry tone of the defendant’s raised voice, and his action in stopping to face the complainant at close quarters while uttering the abuse comments.

[33]  I find that a degree of actual intimidation occurred and that, as a result, the  complainant  decided  not  to  again  let  the  matter  lie  but  instead  to complain to the police.

[20]     I consider that the evidence justified the Judge reaching these conclusions. The  confrontation  occurred  in  circumstances  where  both  parties  were  fully conversant with the circumstances and nature of their earlier dealings.   That fact, coupled with their physical proximity and the words and tone that Mr Farquhar used, were sufficient to permit the Judge to conclude that Mr Farquhar knew that his actions were likely to frighten or intimidate Mr Robinson.

[21]     Mr Farquhar’s actions also fell well outside the ambit of legitimate protest. The right to freedom of expression is not absolute.  As Asher J noted in Gillespie- Gray,[6] it must give way to other rights, including the right to privacy and the right to feel secure when one is walking in public places.  Mr Farquhar’s actions amounted to physical and verbal harassment that deprived Mr Robinson of his right to walk peaceably on the streets of the city.

[6] At [21].

(c) Refusal to allow a McKenzie friend

[22]     At the commencement of the hearing in the District Court Mr Farquhar did not seek the assistance of a McKenzie friend.  Approximately 42 minutes into the hearing, however, the transcript records that Mr Farquhar announced the arrival of his McKenzie friend.   The Judge took the view that Mr Farquhar had already demonstrated that he was perfectly capable of defending the charge without the

assistance of a McKenzie friend.  For that reason he declined to allow Mr Farquhar to have that assistance.

[23]     As I explained to Mr Farquhar during the hearing, litigants do not have an automatic or absolute right to a McKenzie friend.  In the present case, the transcript demonstrates that Mr Farquhar was cross-examining the complainant with considerable vigour and a reasonable level of skill.  In those circumstances the Judge was entitled, in my view, to conclude that Mr Farquhar was not entitled to the assistance of a McKenzie friend.   That is particularly so given the fact that the proposed  McKenzie  friend  did  not  arrive  until  well  after  the  hearing  had commenced.

(d)  Section 106 discharge

[24]     Section 106 of the Sentencing Act 2002 permits the Court to discharge a defendant without conviction even after he or she has pleaded or been found guilty. In exercising its discretion under that section, however, the Court is guided by s 107 of the Act, which provides:

107 Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[25]     Mr   Farquhar’s   argument   on   this   point   was   that   the   offending   was insufficiently serious to warrant the entry of a conviction.   He is concerned that persons who look at his criminal record will gain the impression that he is prone to intimidate others for personal gain. As I advised Mr Farquhar during the hearing, the general public does not have access to official records listing criminal convictions.  It is therefore highly unlikely that anyone will be looking at Mr Farquhar’s previous convictions without a legitimate reason for doing so.

[26]     Mr Farquhar frankly acknowledged that he has approximately 18 previous convictions.  These include convictions for assault, injuring with intent to injure and permitting premises to be used for the cultivation of cannabis.  When I questioned

him regarding the likely effect of a conviction for intimidation, he was unable to point to any adverse consequences other than that to which I have just referred.

[27]     The fact that the Judge did not impose any penalty on Mr Farquhar suggests that he viewed Mr Farquhar’s conduct as being at the lower end of the range in terms of seriousness.  Nevertheless, there were concerning aspects to it.   In particular, it was deliberate and it caused the complainant to be concerned for his safety.  In those circumstances  I  do  not  consider  that  the  Judge  erred  in  declining  to  discharge Mr Farquhar without conviction.  The entry of a conviction was not disproportionate to the gravity of Mr Farquhar’s offending.

Result

[28]     None of the grounds that Mr Farquhar has advanced on appeal has succeeded. The appeal is accordingly dismissed.

……………………………..

Lang J