Heke v Police

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-177 [2012] NZHC 2234

BETWEEN  KIM ROKA THOMPSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         10 July 2012

Appearances: S Youn and N Leader for the Appellant

J B Hamlin for the Respondent

Judgment:      31 August 2012

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on Friday 31 August at 12.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel:

S Youn, Public Defence Service, Auckland. Email: [e-mail]

N Leader, Barrister, Whangarei. Email: [e-mail]

J B Hamlin, Crown Solicitor, Auckland. Email: [e-mail]

THOMPSON V NEW ZEALAND POLICE HC AK CRI-2012-404-177 [31 August 2012]

CONTENTS

Paragraph

Introduction  1

Background  3

The facts  6

District Court decision  21

The previous year  25

Admissibility of hearsay statements  29

Disorderly behaviour  39

History  39

Brooker v Police  44

Balancing  57

Freedom of expression  66

Analysis  77

Result  85

Introduction

[1]      This  outwardly  simple  appeal  raised  interesting  issues  flowing  from  the Supreme Court’s judgment (particularly the three majority judgments) of Brooker v Police.1

[2]      Given the dearth of judicial authority relating to prosecutions under s 4(1)(a) of the Summary Offences Act 1981 in the wake of  Brooker,  and having heard counsel, I decided to reserve my judgment.   The conduct of the appellant and the impact of Brooker on prosecutions for disorderly behaviour of this type merit some analysis by an appellate court.

Background

[3]      The two acts of alleged offending occurred in late 2009.  The appellant was convicted and fined.  She appealed.  Unfortunately the District Court transcript was destroyed. This led to the High Court directing a rehearing.

[4]      The rehearing took place before two Justices of the Peace in the Auckland District Court on 9 May 2012.  The appellant was convicted on the two charges of disorderly behaviour she faced, was fined $250 on each charge, and ordered to pay court costs and witness expenses.2

[5]      This appeal challenges the two convictions.

The facts

[6]      On two dates almost three weeks apart (22 November and 11 December

2009), the appellant’s actions upset and concerned residents in the Grey Lynn sector

of Great North Road, Auckland. The concerns of those residents, and in particular of three witnesses from whom the Justices of the Peace heard, were the volume of the

1 Brooker v Police [2007] 3 NZLR 91 (SC).

2 Thompson v Police DC Auckland CRI-2009-004-027414, 9 May 2012.

appellant’s voice and the length of time she spent calling out for stray cats which she

wished to feed.

[7]      The principal  witness,  Ms  Bjorkman,  told  the  Justices  of the Peace  that around 8 pm on a Sunday (22 November 2009), she heard noise and screaming outside her home.   She observed a woman with a shopping trolley containing cat food. The witness heard no decipherable words but stated the woman was screaming at the top of her lungs.   The witness and her fellow occupants closed windows at their home and turned up the volume of the television set.…