H v Police HC Auckland CRI-2007-404-328

[2008] NZHC 2254

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-328

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 April 2008

Appearances: J W Mackey for the Appellant

S N B Wimsett for the Respondent

Judgment:      1 April 2008

(ORAL) JUDGMENT OF DUFFY J

Solicitors:   J W Mackey P O Box 15522 New Lynn Auckland for the Appellant

Meredith Connell P O Box 2213 Auckland for the Respondent

H V POLICE HC AK CRI-2007-404-328  1 April 2008

[1]      On 12 October 2007 H   was convicted of the offence of disorderly behaviour in a public place under s 4(1)(a) of the Summary offences Act

1981.  He now appeals against that conviction.

[2]      I have been helped in this case by the assistance of both counsel.   I am particularly indebted to the Crown for the responsible attitude it has displayed in this appeal.  It became clear in the course of the Crown’s submissions that the charge of disorderly behaviour was not appropriate to the facts of this case.

[3]      The  objectionable  conduct,  which  gave  rise  to  the  charge  of  disorderly behaviour under the Summary Offences Act, is best described at page 2 of the notes of evidence by the complainant, Catherine Louise Chalkland.   She described two males; her words were:

… one was taller than the other and they were leaning against the brick wall of the 212 property and one of the guys had a spray can in his hand, I’m not sure which one.  Um, and there was some writing already on the fence, on the brick fence and as I walked past them to the bus stop and I stood at the bus stop with the rest of the people there, he turned around to us (that being the appellant) and put the lid on the tin can and put it in his mouth, nozzle in first and kind of moved his hand up and down the body of the can and said “can you do this”?  To me, that was gesturing oral sex, and the others around me agreed.

The Crown has responsibly conceded that this conduct is more suitably seen as constituting the offence of offensive behaviour under s 4(1)(a) of the Summary Offences Act, than disorderly behaviour under s 4(1)(a).   This is the conclusion I would have reached had the concession not been made.

[4]      There  was  some  discussion  before  me  about  the  recent  Supreme  Court decision of Brooker v Police (2007) 23 CRNZ 346.  In Brooker the Supreme Court make it clear (at [53]-[56]) that there is a distinction between offensive behaviour and disorderly behaviour, the difference being that:

Behaviour which is offensive is behaviour in or within view of a public place which is liable to cause substantial offence to persons potentially exposed to it.

[5]      That sort of behaviour must:

…  be  capable  of  wounding feelings  or  arousing  real  anger,  resentment, disgust or outrage in the mind of a reasonable person …

[6]      Disorderly behaviour, however, is not necessarily offensive in that way.  It is behaviour which disturbs or violates public order.  The Supreme Court found that:

… To fall within s 4(1)(a) it must be behaviour in or within view of a public place which substantially disturbs the normal functioning of life in the environs of that place. It must cause a disturbance of good order which in the particular circumstances of time and place any affected members of the public could not reasonably be expected to endure because of its intensity or its duration or a combination of both those factors.

[7]      It has assisted me greatly that the Crown has responsibly conceded that the behaviour of Mr H   does not meet the description the Supreme Court has given in Brooker to disorderly behaviour.  That being the case, the offence with which he was charged was not made out and it has not been necessary for me, therefore, to consider the other limb of his appeal, namely the poor quality of the identification evidence.

[8]      The  Crown  has  invited  me  to  amend  the  conviction  of  Mr  H    by substituting the offence of offensive behaviour for that  of  disorderly behaviour. Section 132 of the Summary Proceedings Act 1957 permits that course of action. However, one of the requirements of exercising that power is that I must be satisfied Mr H   has not been prejudiced in his defence.

[9]      In this case, Mr H   did not give evidence at the defended hearing in the District  Court.    Certainly he  is  entitled  not  to  give  evidence;  that  is  his  right. Nothing should be taken from his decision not to give evidence.  However, it may well be that he chose not to do so because he was advised that he had a good legal defence as the facts of the case simply did not amount to disorderly behaviour.   I cannot know if he would have defended a charge of offensive behaviour in the same way as he chose to defend the charge of disorderly behaviour.  But I do know that because the matter has come to me in the way that it has done, he has lost the opportunity of choosing whether or not to give evidence.

[10]     It may be that had he been charged with offensive behaviour, he may have chosen to defend the charge and he may have denied doing the conduct that was

Ms Chalkland described in her evidence.  These are matters I do not know, but it is clear to me that in relation to a charge of offensive behaviour Mr H   has not had the opportunity of exercising or enjoying the benefit of rights that the criminal law and the New Zealand Bill of Rights Act 1990 give to him.   Consequently, any amendment of the existing charge to one of offensive behaviour would prejudice Mr H  ’s rights and his defence of that charge.   It follows that in this case it would not be appropriate to amend the conviction of disorderly behaviour by substituting it for one of offensive behaviour.

[11]     Since the Crown has conceded that the facts do not support a charge of disorderly behaviour the appeal is allowed.

Duffy J