Ghent v Police - [2014] NZHC 3282

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000298 [2014] NZHC 3282

BETWEEN
MARK JAMES PATRICK GHENT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 December 2014

Appearances:

S Rollo for Appellant
H Musgrave for Respondent

Judgment:

17 December 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 17 December 2014 at 3.30 pm, pursuant to Rule 11.5 of the
High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: C Morrall, Christchurch
Meredith Connell, Auckland

Copy to: S Rollo, Christchurch

GHENT v NEW ZEALAND POLICE [2014] NZHC 3282 [17 December 2014]

Introduction

[1] Mark Ghent was charged with:

(a) obstructing a police officer in the execution of his duty: s 23(a), Summary Offences Act 1981; and

(b)refusing to give his name and address to a police officer: s 52(1)(c) of the Land Transport Act 1998.

[2] Following a defended hearing in the District Court at Waitakere Judge J Bergseng delivered a reserved decision in which he found both charges proved.1 On the obstruction charge Mr Ghent was convicted and fined $200 with Court costs
$130.00. On the refusal to provide particulars he was convicted and discharged. Mr

Ghent appeals against both convictions.

The obstruction charge

[3] On 26 September 2012 Mr Ghent was driving a motorcycle in Henderson. Sergeant Thornley saw him overtaking a vehicle through an intersection. The Sergeant activated his lights and siren and pulled Mr Ghent over on Te Atatu Road. The Sergeant then noticed Mr Ghent was wearing a Hell’s Angel’s patch. The Sergeant asked Mr Ghent to provide his particulars and licence. Mr Ghent provided his licence but a stand-off between the two followed. Mr Ghent filmed the incident using his cell phone.

[4] Sergeant Thornley initially asked Mr Ghent to remove his helmet to confirm his identity. Mr Ghent partially lifted his helmet, but not fully, so the Sergeant asked him to take his helmet off properly. After initially refusing to do so, Mr Ghent eventually complied. Sergeant Thornley then returned towards his patrol car to run checks about Mr Ghent’s licence and vehicle. Mr Ghent followed the Sergeant closely. In colloquial terms, Mr Ghent got in the Sergeant’s face. The Sergeant asked Mr Ghent to return to his motorbike so he could carry out the checks without Mr Ghent’s interference. The Sergeant was also concerned for his safety. After

directing Mr Ghent to stand by his motorcycle, and Mr Ghent’s refusal to comply, Sergeant Thornley pushed Mr Ghent in the direction of his motorcycle. The Sergeant warned Mr Ghent on several occasions that he would be arrested for obstruction if he did not move before finally arresting him for obstruction.

The failure to provide details charge

[5] Approximately two and a half months later on 13 December 2012 Mr Ghent was with a group of fellow motorcyclists at the Shell Service Station at Westgate, Henderson. Constable Brown was directed to attend the service station.

[6] There were about 10 to 12 members of the group. Mr Ghent was one of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 3282
Decision Date: 17 December 2014

CaseChat Overview and Summary

Mark Ghent appeals against two convictions: obstructing a police officer and refusing to provide his name and address to a police officer. The District Court found both charges proved and convicted Ghent accordingly. Ghent's appeal concerns two primary issues: whether his actions constituted obstruction under the Summary Offences Act 1981, and whether the police officer had a legitimate basis under the Land Transport Act 1998 to request his particulars. The court examined the evidence, including video footage and witness testimonies, to determine if Ghent's conduct obstructed the police officer's duties and if the officer's request for particulars was justified under the Act.

On the obstruction charge, the court held that Ghent's confrontational behaviour and refusal to comply with the officer's direction to stand away made it more difficult for the officer to carry out his duties. The court concluded that Sergeant Thornley's request for Ghent to move away was reasonable and lawful, considering the context and the officer's safety concerns. Ghent's rights under the New Zealand Bill of Rights Act 1990 did not entitle him to refuse a lawful and reasonable direction. Thus, the appeal against the obstruction charge was dismissed.

Regarding the refusal to provide particulars, the court found that the predominant purpose of the police officer's interaction with Ghent was intelligence gathering rather than enforcing the Land Transport Act. Although the officer requested Ghent's particulars when he was on a road and about to drive off, the court was left with a reasonable doubt that the predominant purpose shifted from intelligence gathering to Land Transport considerations. The court concluded that the officer's dominant purpose to gain intelligence about the gang could not justify Ghent's arrest for refusing to provide particulars. Therefore, the appeal against the conviction for refusing to provide particulars was allowed, and that conviction was quashed.

Orders