K v Police HC Hamilton CRI-2007-419-5

[2008] NZHC 157

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2007-419-5

BETWEEN  K Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         19 February 2008

Appearances: Michael Meyrick for Appellant

Jamie O'Sullivan for Respondent

Judgment:      19 February 2008

JUDGMENT OF HARRISON J

SOLICITORS

Berman and Burton (Auckland) for Appellant
Almao Douch (Hamilton) for Respondent

COUNSEL Michael Meyrick

K V POLICE HC HAM CRI-2007-419-5  19 February 2008

Introduction

[1]      Mr K   appeals against his conviction in the District Court at Huntly on 7 December 2006 on one charge of using offensive language with intent to offend.  He does not, however, appeal against his fine of $300.

[2]      Mr  K   was represented by counsel in the District Court.  He filed a notice of appeal on his own behalf.  However, at short notice Mr Michael Meyrick has agreed to act as counsel.  He, like Ms Jamie O’Sullivan for the police, has filed a comprehensive synopsis of submissions.   As a result the issues for oral argument have been helpfully condensed.

Background Facts

[3]      The relevant facts were not in material dispute in the District Court.  At about

8.10 am  on  24 March  2006  Sergeant  Victor  Sneddon,  a  police  officer  based  in Huntly, was directed to an area of Parker Road.  Its nature and location is not exactly clear from the facts, but I accept Mr Meyrick’s advice that the locality is essentially rural.  Sergeant Sneddon was wearing his police uniform and driving a marked patrol car.

[4]      At the end of Parker Road is a reserve and turning area.  On arrival Sergeant Sneddon saw a six wheeler truck and a front end loader.  Both belonged to a private contracting firm.  Four or five of that company’s employees were also present.  They were removing timber structures from around various trees in the road reserve area.

[5]      Within a few minutes Sergeant Sneddon saw a man emerge from a residential driveway at the end of Parker Road.  It was Mr  K  .  The two gentlemen were not previously acquainted.   Sergeant Sneddon walked over and introduced himself to Mr  K   as the latter left his driveway.  He noticed that Mr  K   was speaking into a dictaphone.  He appeared to be recording what was being said.

[6]      Mr  K   raised with Sergeant Sneddon the  fact that he was in dispute with his neighbour.  He alleged that the neighbour’s cattle yard encroached onto the road reserve area.  Sergeant Sneddon responded that he knew little about the history of the dealings between the two neighbours.   He said he was there for the sole purpose of keeping the peace and ensuring public safety.   Mr  K   responded with what Sergeant Sneddon called ‘a tirade’ against himself and the company employees while they disassembled the various structures and placed them into the bucket of a front end loader.  The police officer noted that Mr  K   was becoming increasingly agitated.

[7]      In the ensuing few minutes the workmen removed or cut down some trees in the reserve.   Among them were a six foot high Totara and Feijoa.   Apparently Mr  K   had planted them.   These events only served to compound his state of aggravation.   Shortly afterwards Mr  K   approached Sergeant Sneddon in the reserve.  He said to him ‘you know what you are Sneddon.  You are a brown nose; you are an arse licker to that [neighbour], okay?’

[8]      Sergeant Sneddon found these words offensive, particularly in the presence of the workmen.  He said this:

I’m a 20 year service officer … this is what I do, and I rise and fall on my reputation for being fair and impartial, for being incorruptible and telling the truth.   So these comments made by Mr  K   in the presence of others, they undermined everything that keeps me coming to work.  It was an unwarranted, personal attack on me as a result of circumstances that were beyond my control.

[9]      Sergeant Sneddon then arrested Mr  K   and later charged him with using offensive language in a public place.

District Court

[10]     Sergeant Sneddon was the only witness for the police.   He was subject to cross-examination by Mr  K  ’s counsel but was not challenged on the factual elements of his account.  Mr  K   did not give evidence.

[11]   In delivering her decision, Judge Burnett recorded defence counsel’s acknowledgement that Mr  K   spoke the words  complained of.   The defence was essentially that the workmen’s actions in removing the structures and cutting down the trees planted by Mr  K   (although there was no evidence to this effect) were sufficiently upsetting to him to exclude his verbal reaction from the intervention of the criminal law.  The defence seems to have been placed on the footing of justification which has obvious jurisprudential difficulties.

[12]     In the District Court counsel relied primarily on Gibbons v Police (Auckland Registry, AP271/92, 16 November 1992) where Smellie J quashed a conviction on a similar charge where the appellant had called a police officer a ‘fucking jerk’ in a hotel car park at night time.  Judge Burnett did not discuss Gibbons but I infer that she found it distinguishable on the facts.

[13]     The ratio of Judge Burnett’s decision is as follows:

[12]     It is quite evident to me from Sergeant Sneddon’s evidence and demeanour that he was there, indeed as he said, to simply keep the peace. His actions cannot be described as anything other than moderate, and a moderating influence.   There was absolutely nothing that he did to agitate the defendant or to inflame any situation.  Whilst the sergeant accepted that the defendant was agitated, and became more agitated when the two trees came down, he acknowledged himself that he was not  comfortable  about  those  trees  coming  down,  because  he  is someone who enjoys trees.

[13]      He was, however, not privy to any briefing as to what the staff were expected to do, and clearly there was nothing that indicated to him that what the  staff  were  doing was illegal.    In  fact,  it  was  apparent  that  the sergeant was of the view that what the staff was instructed to do was entirely within the bounds of what their instructions were.  It was land owned by the council, and the council was clearing the land as it was entitled to do.

[14]     Those  words,  said  as  they  were  in  the  manner  that  they  were addressed to the sergeant, cannot be anything other than words intended to alarm, insult or offend the sergeant.  The statutory defence is not relied on, and there is no evidence to support such defence in any event.  I am entirely satisfied that this is a case where s 4 of the Summary Offences Act applies, s 4, ss (1) (b), where it applies and where it properly applies.    The  elements  of  the  charge  are  proven  beyond reasonable doubt, and the conviction is entered.

Appeal

[14]     Mr Meyrick has raised a number of points on appeal.   First and perhaps foremost he submits that the prosecution failed to prove that Mr  K   used the words complained of.  He has carefully reconstructed the notes of evidence and other  material,  such  as  the  transcription  of  the  taped  conversations  and  police records, to conclude with an argument that only the phrase ‘brown nose’ was proven. He says there is no conclusive evidence that Mr  K   used the words ‘arse licker’.

[15]     Mr Meyrick’s submission does, with respect, face a fundamental and fatal obstacle.  As already noted, Sergeant Sneddon’s evidence was not in dispute in the District Court.  Indeed his counsel conceded that Mr  K   used the relevant words.  That was decisive and the Judge was entitled to accept it.  It is now too late to attempt to challenge facts which were not in dispute at trial.

[16]     Second, in his written synopsis Mr Meyrick appeared to raise a challenge about whether the words were used in a public place.  However, he now accepts that the words were used in a road reserve.    They were spoken  in  the  presence of members of the general public.  He does not pursue this argument.

[17]     Third, Mr Meyrick submits that the phrase ‘brown nose’ is not inherently offensive.  He says it is a vulgar term though commonly used in the vernacular.  He says it means no more than to ‘ingratiate oneself with’ or ‘curry favour with’.   It ascribes to the term an etymology that ‘servility is equivalent to having one’s nose in the anus of the person from whom advancement is sought’.

[18]    I accept that meaning.   Of course, its impact is aggravated here by its conjunction with Mr  K  ’s use of the phrase ‘arse licker’.   More importantly, though, the test is not whether the words themselves are inherently offensive when considered in isolation but whether viewed objectively in the circumstances they were spoken with an intent to offend.

[19]     A circumstantial approach is essential.   By using the vulgar vernacular of

‘arse licker’ and ‘brown nose’ in conjunction, Mr  K   must have intended that his words  would  have  a  derogatory and  offensive  meaning.    His  emphatic message was that the police officer not only lacked independence but was also fawningly subservient to Mr  K  ’s neighbour and adversary.  The words suggest that Sergeant Sneddon was crudely motivated to impress the neighbour in the hope of securing a personal benefit.   Mr  K   meant to demean the police officer in the presence of the public and lower their confidence in his commitment to fair and impartial enforcement of the law.

[20]     Mr  K  ’s purpose was to speak offensively when addressing the police officer.  While I accept that he was agitated and upset, that does not excuse his behaviour.  Nor can it be said that the police officer’s conduct justified or provoked this reaction.  I repeat that the test is objective and an intention to cause offence is the only inference available.  The intervention of the criminal law is necessary.

[21]     In this respect Mr Meyrick relies upon Gibbons.  He submits rhetorically that the words ‘arse licker’ and ‘brown nose’ could never be found to be offensive given that in Gibbons the appellant escaped the sanction of the criminal law when calling the police officer a ‘fucking jerk’.  However, in my judgment this difference only reinforces the importance of a circumstantial approach.

[22]     I agree with Ms O’Sullivan.   Gibbons is distinguishable for a number of reasons.  The police officer had questioned an inebriated 22 year old woman at some length in a hotel car park about her age and identification.  She answered his earlier questions but then reacted with the words complained of.   Smellie J was satisfied that the police officer’s line of questioning was hardly justified in view of the fact that the appellant was of legal age, had honestly identified herself and had left the licensed premises.  Significantly, Smellie J was satisfied that, given the locality of the hotel and the time of night at which the words were used, the circumstances were insufficiently serious to warrant the intervention of the criminal law.

[23]     Also in Gibbons, Smellie J was satisfied that the words used were insulting. He acknowledged that police officers are entitled to go about their work without

being abused by members of the public.   He allowed the appeal, though, on the premise  that  the  intervention  of  the  criminal  law  was  not  justifiable  in  those particular circumstances.

Decision

[24]     I repeat that this case is very different from Gibbons.  As other Judges of this Court have observed, a police officer is entitled to go about his or her duties without being subjected to offensive insults made gratuitously in the presence of others. While, in retrospect, Sergeant Sneddon’s explanation of the effects of Mr  K  ’s words may seem a little overstated and dramatic, I have no doubt that his general  sense  of  offence  was  justifiable  on  any  objective  basis.    Contrary  to Mr Meyrick’s submission, I do not believe that the officer displayed a thin skin but, even if he had, I repeat that the test is objective and I am satisfied that Mr  K  ’s words were offensive and were spoken with an intent to offend.

[25]     In my view Judge Burnett had a proper basis for convicting Mr Van Der

K   on the charge of using offensive language and I dismiss his appeal against conviction accordingly.

Rhys Harrison J