Hayden v Police

[2012] NZHC 1932

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2012-406-000017 [2012] NZHC 1932

RICHARD JAMES HAYDEN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         On the papers

Counsel:         No appearance from Appellant

M A O'Donoghue for Respondent

Judgment:      3 August 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 10am on the 3rd day of August 2012.

JUDGMENT OF MACKENZIE J

[1]      Mr Hayden  was  convicted  of  disorderly  behaviour  and  fined  $400.    He appealed against both conviction and sentence.  The appeal was set down for hearing today.  There was no appearance by Mr Hayden.  Mr O’Donoghue advised from the bar that he understood that Mr Hayden had been at the Court earlier in the day and the hearing time had been confirmed to him.  I deal with the matter on the papers, taking into account the materials which Mr Hayden and counsel for the respondent

have filed.

HAYDEN V NEW ZEALAND POLICE HC BLE CRI-2012-406-000017 [3 August 2012]

[2]      The evidence disclosed that on 9 February 2012, a constable was called to a disturbance at Horton Park in Blenheim.  Mr Hayden was chasing a horse and a dog around the park with his arms flapping, shirtless.  While others tried to restrain the horse, Mr Hayden kept running at it which caused the horse to run away.   The constable described his behaviour as agitated and intoxicated.   At one point Mr Hayden tried to get on the horse but fell off.  At the time traffic was very busy, and only a small fence surrounded the park which would not prevent the horse from escaping.  Mr Hayden said the reason he was chasing the horse was to catch it, and that he had a collar.

[3]      The  Justices  of  the  Peace  heard  evidence  from  the  constable  and  from Mr Holdway (an off duty constable participating in a cricket match at the park at the time).

[4]      The Justices of the Peace held that Mr Hayden’s actions were disorderly behaviour, because of the presence of other users in the park who felt required to move away, the danger to citizens and traffic, and his intoxicated state.  He was fined

$400 and ordered to pay court costs of $132.89.

[5]      The grounds set out in the notice of appeal are:

(a)       The  prosecution  coached  the  witness  Andrew  Holdway,  so  his evidence should be struck out;

(b)Andrew Holdway’s evidence was also speculative when he said “other people were scared” so this should be struck out;

(c)       The constable stated three times that his concern was the horse, but a photograph produced by Mr Hayden showed otherwise.

(d)The sentence – Mr Hayden has already been locked up 3 times and fined $860 in animal related fines.

[6]      There is no material which would support the first ground of appeal and it must fail.   The record shows that the witness’s evidence was properly elicited in

evidence in chief, without any inappropriate leading questions.   As to the second ground of appeal, Mr Holdway said, in cross-examination by Mr Hayden, that some of  the  people  in  the  park  were  scared.    That  was  an  observation  which  was admissible under s 24 of the Evidence Act 2006.  It arose during cross-examination. This ground of appeal must also fail.

[7]      The test of disorderly behaviour is extensively discussed by the Supreme Court in Brooker v Police.[1]Disorderly behaviour under s 41(a) is conduct which seriously interferes with or disrupts public order and which reasonable people should not be expected to endure.  That was an assessment for the Justices who heard the case to make in the light of the evidence.  I have considered the notes of evidence. There is no proper basis on which their assessment could be disturbed.

[1] Brooker v Police [2007] 3 NZLR 91.

[8]      The third ground of appeal must also fail.  The photograph was only one part of the evidence relied upon.   It does not provide a sufficient basis to disturb the factual findings of the Justices.

[9]      The appeal against conviction is dismissed.

[10]     As to the appeal against sentence, the penalties imposed on Mr Hayden for other offending were not relevant in fixing the level of fine.  The maximum penalty under the section is a fine of $1,000.   The $400 fine imposed was not manifestly excessive.

[11]     The appeal against sentence is also dismissed.

“A D MacKenzie J”

Solicitors:         Crown Solicitor, Nelson, for Respondent

Copy to:           Mr Hayden