Ker v Police - [2016] NZCA 277

IN THE COURT OF APPEAL OF NEW ZEALAND

CA391/2014
[2016] NZCA 277

BETWEEN	BRIAN KER Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	26 May 2016
Court:	Stevens, Woodhouse and Wylie JJ
Counsel:	D P Nairn for Appellant A J Ewing for Respondent
Judgment:	22 June 2016 at 10.00 am

JUDGMENT OF THE COURT

A The appeal is allowed.

B The question for determination is answered in [32] below.

CThe conviction under s 4(1)(a) of the Summary Offences Act 1981 entered by the High Court is quashed. The fine imposed and the order for court costs are also quashed.
DThere is no order for a retrial.

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REASONS OF THE COURT

(Given by Wylie J)

Introduction

The appellant, Mr Ker, has been granted leave under s 237 of the Criminal Procedure Act 2011 to bring a second appeal.[1] The question posed is:
Whether a conviction for offensive behaviour under s 4(1)(a) of the Summary Offences Act 1981 requires proof that the relevant behaviour was actually observed and caused disruption to public order or whether it is sufficient to prove that the behaviour was in the circumstances capable of being observed and producing disruption to public order.
[1]Ker v R [2015] NZCA 522.
We set out the facts briefly to place this question in context.

Relevant facts

Mr Ker owns an Isuzu truck and a fully enclosed metal trailer. He had parked his truck and trailer in an open carpark off East Tamaki Road. He was living out of them at the time. The trailer was detached from the truck, and the truck and trailer were sitting side by side, with a narrow gap between them.
The carpark was behind a service station and a tavern. It shared a boundary with East Tamaki Primary School. The classrooms are elevated. The windows of the classrooms and grassed areas nearby overlook the area where Mr Ker had parked.
On 18 November 2013, Mr Ker stripped naked and washed himself with a sponge using water from a small tub which he had positioned next to his trailer. A member of the public alerted the principal of the school, who in turn called the police.
A constable arrived. He saw Mr Ker walk around from behind the trailer. Mr Ker was naked. He walked past the tow bar end of the trailer, between the trailer and the school. He was in view of two classrooms at the time. Mr Ker went into the trailer via a side door. He put on some shorts and then came out to talk to the constable.
There was no evidence at trial that any child, or indeed anybody else other than the constable, saw Mr Ker naked. The constable’s reaction on seeing Mr Ker was simply to observe that “[a] nude man outside a primary school is fairly memorable …”.
A second constable arrived a little later and Mr Ker was arrested. In explanation, Mr Ker stated that he had been working, that he had become hot and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ker v Police

Details

AGLC: Ker v Police [2016] NZCA 277
Case: [2016] NZCA 277
Decision Date: 22 June 2016 at 10.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Brian Ker, who was convicted by the High Court of offensive behaviour under section 4(1)(a) of the Summary Offences Act 1981. Ker had stripped naked and washed himself using a bucket of water positioned next to his trailer in an open carpark. The carpark was adjacent to East Tamaki Primary School, and the behaviour was reported to the police by a member of the public. The High Court quashed Ker's conviction for indecent exposure but convicted him of offensive behaviour. The Court of Appeal considered whether a conviction for offensive behaviour requires proof that the behaviour was actually observed and caused disruption to public order, or whether it is sufficient to prove that the behaviour was in the circumstances capable of being observed and producing disruption to public order.

The Court of Appeal held that a conviction for offensive behaviour requires proof that the behaviour was actually observed and caused disruption to public order. The Court considered that the offence created by section 4(1)(a) is concerned with the preservation of public order, and that offensive behaviour must be productive of disorder. The Court held that the behaviour must be observed and that there must be an actual disturbance of public order and not a mere capacity to disturb. In the present case, there was no evidence that anyone observed Ker's behaviour, other than the person who phoned the school principal and the constable who was called to the scene. The conviction entered by the High Court was quashed, and the fine imposed and the order for the payment of Court costs were also quashed. There is no order for a retrial.

Orders