H v Police HC Timaru CRI-2007-476-19

[2007] NZHC 1281

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2007-476-19

H

Appellant

v

THE POLICE

Respondent

Hearing:         1 November 2007 (at Dunedin)

Counsel:Appellant in person (assisted by Mr Kelly as McKenzie friend) A R MacGougan for respondent

Judgment:      20 November 2007 at 3.00 p.m.

JUDGMENT OF SIMON FRANCE J

[1]      Mr H   was convicted by Justices in the Oamaru District Court of offensive behaviour.  Whilst driving down a road in Hampden, in the vicinity of a fish and chip shop and of the Oamaru Police Station next door, Mr H   made a Nazi salute out of the passenger window of his truck, whilst calling out “white power”.

[2]      The appeal grounds, as confirmed at the hearing, are:

a)        Mr H   had an unfair hearing because he was prevented from questioning witnesses about his arrest;

H V THE POLICE HC TIM CRI-2007-476-19 20 November 2007

b)Mr H   had no intent to offend.  The gesture was directed at a friend in the adjoining fish and chip shop, and not at the police officer who was in the driveway of the Police Station.

[3]      Earlier complaints about lack of disclosure were not directly pursued, but will be briefly addressed.

The Hearing

[4]      The first witness was the police officer.  He was at the boot of his police car which was in the driveway facing towards the road.  He heard someone yelling out white power in a loud voice, and looked up to see it was Mr H  , who was in his truck.  He was giving a Nazi salute out of the window of the truck.  The officer said that Mr H   was looking directly at the station.  The officer continued on to say it was the third occasion in the last two weeks that Mr H   had made these gestures.

[5]      Mr H   objected to this evidence of earlier occurrences.  The Justices over-ruled it, saying it was part of the lead-up, “we are hearing background”.  Mr H   replied:

“I am very happy with that.  Very happy, I have background too, so I’m very happy.”

[6]      The officer then continued to describe the two previous occasions, when Mr H   had allegedly directed the same gestures at the police officer.  On one occasion, the officer was with his wife.

[7]      Returning  to  the  charged  incident,  the  officer  said  Mr H    was looking at the station rather than him.   Mr H   would not have seen him because he was looking around the side of a raised boot.  There were people at the takeaway next door.  He saw no reaction from them.  There was no doubt they could hear.

[8]      In cross-examination Mr H   began by putting a previous disclosure request letter to the officer, and the officer’s reply.   It transpires that an aspect of why the letter was put to the officer was because the manner of address at the beginning of the letter is “Dear Miss H  ”.

[9]      The Justices instructed Mr H   to focus on the case.  Mr H   starting asking the officer about how many times he had visited Mr H  ’s residence, and did the officer think he could just walk on.  The Justice’s queried the focus; Mr H   said it was part of the “background”, and carried on.   He suggested that on a particular visit the officer had parked his car on a new drain, thereby breaking it up.   The questioning then went on to the topic of whether the officer, when there without a warrant, left when asked to.  Mr H   told the officer how he and his wife felt about the officer’s visits.

[10]     The Justices intervened saying they were here to hear about the charged incident.  Mr H   said that is what he had said, but the Justices had wanted to hear background.

[11]     Mr H   then asked if the officer had threatened him.   The officer declined to answer, saying it was irrelevant.  Mr H   pursued it by referring to a police complaint he had made, detailing the nature of the alleged threat made against him, and how could the officer have “the gall to drag me in here on a charge when he hasn’t even spoken to witnesses”.

[12]     The Justices intervened, declining to accept the proffered complaint letters. Mr H   returned to disclosure issues.  He asked if the officer had spoken to witnesses, and if not, why not?   The answer was “no requirement to”, to which Mr H   queried if that was because without them it would mean it was the officer’s word against his.

[13]     The officer then said he had spoken to a staff member of the takeaway shop about the incident.  It was a “personal discussion”, and no record was taken.  There is then an interchange with the Bench.   It is difficult to follow but I apprehend Mr H   had summonsed the said staff member at late notice to appear at the

hearing and that person had not appeared.   The Justices were of the view that the summons had been issued too late.

[14]     Mr H   next questioned the officer about the charged incident.  The officer accepted that Mr H   might not have been able to see him; in his opinion the salute was directed at the station.  He was questioned about why he was worried, and the officer said he found both the Nazi salute and the white power regime highly offensive.

[15]     Mr H    suggested  he  would  call  a  witness  to  say  the  salute  was directed at the witness, and white power was said only once.   The officer said he couldn’t comment on where it was directed, but white power had been mentioned at least 6 times.

[16]     After a short period of further questioning Mr H   returned to the officer’s alleged earlier threats, and the Justices intervened.   Mr H   then asked the officer if he, the officer, had been questioned or charged with slapping his wife around; the officer told Mr H   to be very very careful, the Justices intervened, and Mr H   apologised.  He then said to the Court that the officer was harassing him about things, and he was sick of it.  The Justices told him to be civil,  or  there  would  be  contempt,  and  to  ask  questions  about  the  incident. Mr H   said he had lots of further questions but it was a waste of time, so he was finished.  The officer was stood down as a witness.

[17]     Mr H   called evidence.   First was a Danny Davis, the calling of whom had been preceded by Mr H   saying I am calling Danny Davis; the Prosecution “will cry about it of course” but we will give him a call.   The first question to the witness was:

“Answer quickly Danny, and answer truthfully.  Did Constable threaten me at your house while in your presence?  Quickly, quick, quick.”

[18]     The Justices were quicker.  Mr Davis was stood down.

[19]     Next Mr H   called Mr Shane Stevenson, the driver of the truck at the time of the incident.  He said that the incident was directed at “Evan”, he couldn’t

recall the speed he was driving, and he couldn’t recall if he saw the officer.   In cross-examination,   when   asked   if   the   people   at   the   takeaway   could   hear, Mr Stevenson confirmed they could.  He agreed Mr H   did the salute “to his mates”.

[20]     The Justices then invited Mr H   to call his third witness.  He said he was not going to because it was a waste of time, he knew the Justices’ decision, and he was going to appeal on lack of disclosure.  Mr H   then chose to testify. The Court asked open questions to lead his evidence.  The thrust was that the salute was to Evan Johnston.   He accepted the two previous incidents the officer had described had occurred; he complained of harassment.  Mr H   explained he also did the sign and chant with other named friends.

[21]     In cross-examination Mr H   said he was going past the fish and chip shop, not the police station next door.  Evan Johnston was outside.  The truck was going 60 kph and he made the gesture only at Evan.  He said white power only once. He disputed the officer found it offensive because he, the officer, had never spoken to Mr H   about it.

[22]     The Court asked him if he realised he  could  be  offending people.    The exchange is a little unhelpful, but the thrust is that Mr H   did not realise others would find it offensive.

[23]     The Justices, in a one paragraph ruling, appeared to accept Mr H   did not think it would be offensive, but held that the sign is offensive to many people, and a public place is not the place to do it.  He was convicted of behaving in an offensive manner in a public place, and fined $100.

Appeal

[24]     The rather lengthy rehearsal of the hearing is necessary in order to consider the appeal points.

[25]     The initial disclosure complaint that concerned Mr H   was a concern over the failure of the officer to question witnesses.  An answer to that complaint is that it is always open to an accused to call these persons, as indeed Mr H   did.   There are, of course, obligations on the prosecution but that has not been explored in this case and it would be inappropriate to comment further.

[26]     Likewise, without in any way endorsing the officer’s “personal conversation” approach of discussing the offence with a witness, the reality is that the officer could have been asked about that conversation but wasn’t.   It is too late on appeal to suggest, without any evidential assistance, that some miscarriage flowed from the failure to record the conversation and disclose it.

[27]     Concerning the fairness of the hearing, the faults lay with Mr H   who chose to act for himself, and then struggled to maintain the focus and discipline required.  On appeal the focus was on the failure of the Justices to allow him to talk about an arrest that occurred the following day, but the transcript does not record any attempt to explore this topic at the hearing.

[28]     Ultimately, the essential defence was clearly before the trial Court.   The officer was asked about whether Mr H   could see him, about where the salute was directed, and about how many times the “white power” expression was yelled out.  The appellant testified and put his side of things.  The frustrations with the hearing from the appellant’s viewpoint lie with an inadequate exploration of the broad context or background of the relationship between him and officer.  Nothing in the hearing, or what the appellant explained to me on appeal, suggests that those matters could impact on the true trial issues, or the correctness of the conviction.

[29]     Accordingly I turn to the essential appeal ground which is that the appellant was wrongly convicted.   The Justices in their decision do not resolve the factual conflict as to the number of times “white power” was said, nor the factual conflict about where the sign and chant were directed at.  I consider the appeal must therefore be analysed on the most favourable view consistent with the conviction.  I take that to be:

Mr H   made the sign, and called white power  out  once,  whilst driving along the road.   He was outside either the takeaway or the police station or both.   There were people outside and inside the takeaway who would have heard it. The police officer heard it.

[30]     The uncontested evidence about having done this gesture to the police officer twice before leads to a more obvious conclusion that the police station was the target.   However, faced with a situation where the Justices do not resolve the evidential  conflict,  and  where  Mr H    denied  he  was  outside  the  police station, I do not consider it appropriate on appeal to resolve the dispute against the appellant.  I note also the officer did not reject the idea when it was put to him that the salute was aimed at Mr H  ’s friend.  Carrying on then with the factual basis for the appeal:

The gesture was aimed at a friend outside the takeaway shop but was sufficiently prominently done to be seen by the police officer next door, and certainly also the people in or outside the shop.   Mr H   did not believe he was acting offensively.

[31]     Mr H   was convicted of an offence against s4(1)(a) of the Summary Offences Act 1981, it being alleged that he behaved in an offensive manner in a public place, namely London Street.   Section 4(1)(a) was recently the subject of consideration  by  the  Supreme  Court  in  Brooker  v  Police  [2007] 3 NZLR 91, although the particular subject matter was the “disorderly conduct” limb of s4(1)(a).

[32]     The majority judgments emphasise the public order nature of the offences contained in Part ss3-8 of  the  Summary Offences  Act 1981,  as  reflected  in  the heading preceding those sections:  “Offences Against Public Order”.

[33]   A second focus I take from Brooker is that, even in relation to these comparatively minor offences, there needs to be disruption, or in this case offence, at a level that warrants the involvement of the criminal law.   In relation to offensive behaviour, the reality in my view is that different people will take offence, and feel different levels of affront, to any given action.  The standard cannot be at the lowest common denominator of affront.   The standard, whilst not to be overstated, must ensure that the trifling, or the annoying, or the mildly transitorily offensive does not engage the criminal law.

[34]     The judgments in Brooker focus on the issue in that case, namely disorderly conduct.  However, of offensive behaviour Blanchard J observed (at [55]):

Both words bear their ordinary meanings in everyday speech.   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.   It must, in my view, be capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind actually subjected to it in the circumstances in which it occurs.

[35]     I apply that standard to be present facts, it not having been overtly done so by the Justices.  The facts to be considered are as set out in paras [28] and [29] above.

[36]     There is little doubt that the Nazi salute is capable of causing real offence, probably more so, but not exclusively, to that generation that experienced the events and consequences of World War II.  However, unless its use in a public place per se constitutes a breach of s4, I do not consider the facts of this case meet the standard. The appeal proceeds on the basis of a single salute from a passing car travelling along a road at 2.20 p.m. on a Saturday.  It was aimed at a person concerning whom it was known that offence would not be taken, but done recklessly in the sense of there obviously being other people around who would witness it.

[37]     The  conduct  was  not  sustained.    It  was  accompanied  by a  white  power slogan, again as I must proceed, shouted once at the same time.  The car then drove on and that was the end of it.  No one who saw it other than the officer complained. His annoyance and offence is no doubt influenced by the history between him and Mr H  .   In my view, the correct interpretation of s4(1)(a), as set out in Brooker and emphasising the need to consider free speech values, does not capture such a transitory event.  Accordingly the appeal must be allowed.

[38]     At the appeal hearing Mr H   indicated that he now accepted that what he did might cause offence, and he would be more careful in the future.  I trust that is so.   It is important to understand that this successful appeal depends very much on the specific facts that I consider the appeal must proceed on.   I make no pretence that I consider those facts to be a very fortunate basis for Mr H  , and I doubt they reflect the reality.  The important point is that a different time and a

different context will see such conduct labelled offensive, and this ruling is in no way a licence to continue to act like that.

[39]     The appeal is allowed, and the conviction quashed.

Simon France J

In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of

3.00 p.m. on the 20th day of November 2007.

Solicitors:

Mr H  , 61 Stafford Street, Hampton, Otago

A R MacGougan, Gresson Dorman & Co, PO Box 244, Timaru