Ker v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

CA391/2014
[2015] NZCA 522

BETWEEN	BRIAN KER Appellant
AND	THE QUEEN Respondent

Hearing:	4 November 2015
Court:	Randerson, Lang and Clifford JJ
Counsel:	D Nairn for Appellant Z R Johnston for Respondent
Judgment:	9 November 2015 at 2:15 pm

JUDGMENT OF THE COURT

ALeave is granted under s 237 of the Criminal Procedure Act 2011 to bring a second appeal.
BThe question to be determined is whether a conviction for offensive behaviour under s 4(1)(a) of the Summary Proceedings Act 1957 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.

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Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

Brian Ker appeals against his conviction for offensive behaviour under section 4(1)(a) of the Summary Proceedings Act 1957, contending that the conviction requires proof that the relevant behaviour was actually observed and caused disruption to public order, rather than merely being capable of being observed and producing such disruption. The Court of Appeal is tasked with determining the correct legal standard for conviction under the statute. This appeal follows a decision of the High Court which rejected Ker's argument and upheld the conviction.

The legal issue before the Court of Appeal was whether the conviction for offensive behaviour under section 4(1)(a) of the Summary Proceedings Act 1957 requires actual observation and disruption to public order, or if 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 examined the relevant statutory language, case law, and the principles of statutory interpretation to address this issue. The Court of Appeal found that the statutory language and relevant case law support the lower court's interpretation that it is sufficient to prove the behaviour was in the circumstances capable of being observed and producing disruption to public order.

The Court of Appeal held that the conviction for offensive behaviour under section 4(1)(a) of the Summary Proceedings Act 1957 does not require actual observation and disruption to public order. The Court found that the statutory language, along with relevant case law, supports the interpretation that 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 thus upheld the conviction and dismissed the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established