Matches v Police
[2019] NZHC 3029
•20 November 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-107
[2019] NZHC 3029
BETWEEN BRENT MATCHES
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 November 2019 Appearances:
Appellant on own behalf
K Lummis for the Respondent
Judgment:
20 November 2019
JUDGMENT OF GORDON J
This judgment was delivered by me on 20 November 2019 at 2.30 pm
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Auckland Copy To: Appellant
MATCHES v POLICE [2019] NZHC 3029 [20 November 2019]
Introduction
[1] The appellant, Brent Matches, was found guilty of one charge of stopping another person in a public place with intent to frighten him, pursuant to s 21(1)(e) of the Summary Offences Act 1981.1 He now appeals his conviction.
[2]Mr Matches represented himself in the District Court and in this Court.
The charges in the District Court
[3]I take the following summary from the decision of the District Court Judge.2
[4] Mr Matches faced two charges arising out of events said to have occurred on separate dates on Federal Street, Auckland City, near the rear exit door of the Auckland District and Family Courts building. Those charges were that:
(a)On 19 February 2018, with intent to frighten Ian McHardy, he stopped him in a public place, namely Federal Street, Auckland City (Summary Offences Act 1981, s 21(1)(e)); and
(b)On 1 March 2018, he assaulted Timothy Druce (Crimes Act 1961, s 196).
[5] Mr Matches denied both charges. In relation to the first charge he said that he did not stop Judge McHardy and, whilst accepting that he did speak to him and subsequently yell at him, he says he was criticising the Judge and protesting a decision made by him as a sitting Judge on an earlier occasion, but he had no intent to frighten him.
[6] In relation to the second charge, Mr Matches denied that he assaulted Judge Druce, and said that, to the contrary, Judge Druce assaulted him, using his briefcase to push into him. He accepted that, whilst he then pushed Judge Druce back once, he was acting in self-defence.
1 The maximum penalty is three months’ imprisonment or a fine of up to $2,000: s 21(3).
2 Police v Matches [2018] NZDC 11315 [Decision on appeal] at [1]–[5].
The District Court decision
[7] On 1 February 2019, Judge Rollo, in a reserved judgment, found Mr Matches guilty of the charge of intimidation of Judge McHardy and not guilty of assaulting Judge Druce.3
[8] After addressing his connection with the two complainants (which I discuss later in this judgment), Judge Rollo then proceeded to review the evidence, including that of Judge Mc Hardy, Mr Matches and CCTV footage. That showed events after the incident itself, namely Mr Matches walking on to the nearby intersection and repeatedly yelling at someone further up Federal Street.4
[9] Next, Judge Rollo identified the three elements that the prosecution must prove beyond reasonable doubt:5
(a)One person stops another;
(b)The stopping occurred in a public place; and
(c)The person stopping the other did so with the intent to frighten the other person.
[10] Judge Rollo preferred the evidence of Judge McHardy over that of Mr Matches.6 He described the CCTV footage as being “entirely consistent with much of the account given by Judge McHardy”, whilst acknowledging that the footage does not show the meeting of the two parties nor any specific incident of stopping.7 Judge Rollo described Judge McHardy’s evidence as generally reliable, logical, and coherent.8
[11]Accordingly, Judge Rollo relevantly held that:
(a)Mr Matches deliberately stopped Judge McHardy.9 He did so by blocking, albeit briefly, the Judge’s progress up Federal Street by his
3 Decision on appeal, above n 2.
4 At [56].
5 At [72].
6 At [73]–[79].
7 At [57].
8 At [74].
9 At [84] and [86].
suddenly and closely positioning his face and body directly in front of Judge McHardy’s direction of travel.
(b)The stopping occurred in a public place, namely Federal Street.10
(c)The evidence indicates that Mr Matches intended to frighten Judge McHardy.11 This was not in the sense of making him ‘afraid’ or ‘scared’ but to make him ‘anxious’ by confronting him physically and verbally.
[12] Judge Rollo further added that the fact that Mr Matches did not physically touch Judge McHardy, nor continue to block his way, does not amount to a defence to this charge. Rather, those actions speak to the scale and degree of the incident.12
[13] The Judge therefore determined that the charge of intimidation was proven beyond reasonable doubt.
Approach to appeals against conviction
[14] Section 229 of the Criminal Procedure Act 2011 provides that a person has a general right of appeal against conviction.
[15] Under s 232(2), the Court must allow the appeal if it is satisfied that, in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any other reason. A “miscarriage of justice” is defined in s 232(4) as an error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or resulted in an unfair trial.
[16] An appeal against conviction proceeds by way of rehearing.13 If the appeal court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed.14 But the appellant must show that an error has
10 At [90].
11 At [103].
12 At [105].
13 Sena v Police [2019] NZSC 55 at [32].
14 At [38].
been made; the appeal court is not to consider the evidence de novo.15 The appeal court must remember the advantages a trial judge has, especially where the challenge is to credibility findings based on contested oral evidence.16
Grounds of appeal
[17]Mr Matches appeals his conviction on the grounds that Judge Rollo erred in:
(a)inappropriately dismissing an improper conflict of interest;
(b)finding Mr Matches guilty despite his lack of the necessary mens rea;
(c)improperly ignoring Mr Matches’ defences, including that of free speech, which he contends is a complete defence to the current charge;
(d)finding Mr Matches guilty on the basis of irrelevant and speculative factors; and
(e)improperly concealing evidence that Judge McHardy colluded with Judge Druce to find Mr Matches guilty on false charges.
[18] In his oral submissions, Mr Matches said that he did not stop Judge McHardy. The Judge stopped himself. Although this was not one of the grounds of appeal in the notice of appeal or written submissions, because Mr Matches raised it in oral submissions, I will consider this issue as a further ground of appeal.
Was there an improper conflict of interest?
[19] Judge Rollo addressed his connection with Judge Hardy and Judge Druce in his judgment.17 Mr Matches did not make any application for Judge Rollo to recuse himself because of his connection with the two complainant judges.
15 At [38].
16 At [38].
17 Decision on appeal, above n 2, at [6]–[10].
[20] In relation to Judge Rollo’s wife’s connections with those judges, the judgment records that, at the last day of the hearing, Mr Matches commenced by advising the Judge that he was aware that Judge’s wife was a Family Court Judge.18
[21] Judge Rollo then states that Mr Matches did not ask him at that late stage of the case to recuse himself. The Judge goes on to say, had Mr Matches applied for him to recuse himself, he would have declined and nor did the Judge consider that he should recuse himself of his own volition. The Judge referred to Saxmere Co Ltd v Wool Board Disestablishment Co Ltd.19 He said he did not consider that his wife, totally unrelated to this case, being an Acting Warranted District and Family Court Judge, was disentitling of his fairly performing his judicial duty to determine the case according to its merits and the law. He concluded that a fair-minded lay observer might not reasonably apprehend that, as the presiding Judge he might not bring an impartial mind to the resolution of the question or questions that he was required to decide.20
[22] With that background, I turn to the detail of Mr Matches’ grounds of appeal. In his notice of appeal, as the grounds of his appeal, Mr Matches states, “Refer to affidavit”. In his affidavit, Mr Matches says:
1.The trial Judge Peter Rollo failed to disclose to me his relationship to the two informant judges and did not disclose his wife’s even closer relationship with both informants.
…
4.I did not make application for Judge Rollo to recuse himself because he had made it known he had no intention to disclose his and his wife’s apparent bias let alone confront it.
…
7.As to his wife’s closer relationship than his own with both informants, Judge Rollo dismissively refused to address the apparent conflict and bias, stating only:
“I do not consider that my wife totally unrelated to this case, being an acting warranted District Court and Family Court Judge, is
18 At [17].
19 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.
20 Decision on appeal, above n 2, at [20]–[25].
disentitling of my fairly performing my judicial duty to determine this case according to its merits and the law”.
8.It is my informed and considered view that this judicial bias actually deprived me a fair and impartial judge and that this is further demonstrated by Judge Rollo’s own words in the reserved decision under appeal.
(emphasis in original)
[23] In his written submissions, Mr Matches confined his allegation to one of apparent bias because of Judge Rollo’s wife’s alleged very close personal and professional relationship with both complainant judges. However, because the affidavit also refers to Judge Rollo’s relationship with the complainant Judges (at para 1 set out in [22] above), I address both claims. Secondly, although in his affidavit Mr Matches uses the expression “apparent bias”, he also alleges that he was “actually deprived” of a fair, impartial trial. I will therefore consider both apparent and actual bias.
Discussion
[24] In Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, where the Supreme Court discussed apparent bias, Blanchard J referred to the Australian case of Ebner v Official Trustee in Bankruptcy,21 saying:22
[3] … a Judge is disqualified “if a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. As that judgment proceeds to observe, that principle gives effect to the requirement that justice should both be done and be seen to be done …
[4] It was pointed out in Ebner that the question is one of possibility (“real and not remote”), not probability. The High Court of Australia also warned against any attempt to predict or inquire into the actual thought processes of the judge. Two steps are required:
(a)First, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and
(b)Secondly, there must be “an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
(footnotes omitted)
21 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
22 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, above n 19.
[25]Blanchard J also referred to the fair-minded lay observer, saying:
[5] The fair-minded lay observer is presumed to be intelligent and to view matters objectively. He or she is neither unduly sensitive or suspicious nor complacent about what may influence the judge’s decision. He or she must be taken to be a non-lawyer but reasonably informed about the workings of our judicial system, as well as about the nature of the issues in the case and about the facts pertaining to the situation which is said to give rise to an appearance or apprehension of bias. Lord Hope of Craighead commented in Helow v Secretary of State for the Home Department that:
before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.
[6] … The courts must be careful not to subvert the hypothesis by ascribing too much legal knowledge to the lay observer. To do so might mean that justice is not both done and seen to be done by a notional representative of the public. On the other hand, if the court does not impute to the observer some knowledge about how barristers and judges commonly interact it may arrive at a hypothetical opinion of a hypothetical observer which does not reflect reality.
(footnotes omitted)
Judge Rollo’s connections with the two complainants
[26] First, I reject Mr Matches statement in his affidavit that “Judge Rollo failed to disclose to me his relationship to the two informant Judges”. It is clearly set out in the judgment that Judge Rollo did do so.23
[27] Turning then to the fair-minded lay observer, she would be aware of the following about the working of the judicial system and as to the facts pertaining to the situation which is said to give rise to an appearance of bias:
(a)All judges take an oath to do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will.
23 Decision on appeal, above n 2, at [6]–[10].
(b)The two charges that Mr Matches faced must be dealt with under the law in the District Court. That requires a District Court Judge to preside and hear the case.
(c)While Judge Rollo was generally aware that Mr Matches was critical of the two judges’ determinations in cases involving him or other Family Court litigants, Judge Rollo knew nothing of the specifics of any of those cases.24
(d)Judge Rollo retired in early 2017 after 17 years of sitting in Tauranga in the Criminal and Youth Court jurisdictions.25
(e)As an Acting Warranted Judge, he sits occasionally in courthouses across the country as needed.26
(f)As a result of his judicial position, Judge Rollo knew both complainant Judges arising from occasionally sitting as a visiting Judge in the Auckland District Court over the years or meeting them at judicial seminars or conferences.27
(g)Judge Rollo never sat permanently or on any prolonged basis in the same court as either Judge, nor does he have any relationship with them outside that of being a judicial colleague in the circumstances referred to above.28
[28] What Mr Matches’ submission boils down to is that, because the two complainants were judges on the same bench as Judge Rollo, there is a reasonable apprehension he might decide the case other than on its merits.
[29] I do not accept that submission. The fair-minded and fully informed lay observer would be aware of all the other circumstances I have set out above. There is
24 At [6].
25 At [9].
26 At [9].
27 At [9].
28 At [9].
no “logical and sufficient connection” between the one particular circumstance Mr Matches relies on and the “feared deviation from the course of deciding the case on its merits”. There is no close personal relationship between Judge Rollo and the complainant Judges nor any financial relationship, which might arguably have altered the analysis.
Judge Rollo’s wife’s connection with the two complainant Judges
[30] Mr Matches asserts that Judge Rollo’s wife had a very close personal and professional relationship with both informant judges. There is no evidence of any personal connection, close or otherwise, between Judge Rollo’s wife and the two complainant judges.
[31] As to any professional relationship, the fair-minded lay observer would be aware that:
(a)Judge Rollo’s wife was formerly a Family Court Judge who sat in Tauranga. She is now an Acting Warranted Family Court Judge.
(b)She was appointed in 2001 and retired in early 2017.
(c)As an Acting Warranted Family Court Judge, she sits occasionally around the country as required.
(d)There is no suggestion that the Judge’s wife has had any involvement in proceedings in which Mr Matches has been involved.
[32] I do not consider the fair-minded and fully informed observer would consider that Judge Rollo could not have brought an impartial and unprejudiced mind to the hearing simply because his wife was formerly a Family Court Judge and is now an Acting Warranted Family Court Judge. There would have to be something more in order to vitiate a decision for apparent bias. There is nothing more in this case.
Actual bias
[33] Although Mr Matches asserts that he was “actually deprived” of a fair and impartial judge, he points to nothing that would give rise to disqualification on the grounds of actual bias. In considering this allegation, I consider a court on appeal can take into account the outcome of the hearing. As I have already noted, Judge Rollo found Mr Matches not guilty of the charge in relation to Judge Druce. That finding is hardly supportive of the allegation that Judge Rollo was not fair and impartial.
[34] In summary, the fact that the two complainants were Family Court Judges and thus, like Judge Rollo, were Judges of the District Court, on its own does not give rise to apparent bias; nor does the fact that Judge Rollo’s wife is a Family Court Judge give rise to apparent bias; and no actual bias has been demonstrated.
Did the Judge err in his assessment of the evidence?
[35] It is convenient to address appeal both grounds (b) that the Judge erred in finding Mr Matches guilty despite his lack of the necessary mens rea and (d) that the Judge erred in convicting Mr Matches on the basis of irrelevant and speculative factors, under this heading. I turn first to Judge Rollo’s finding of intent.
Appeal ground (b) — Was there evidence of intent?
[36] Section 21 of the Summary Offences Act states that a person must have an “intent to frighten or intimidate any other person” or do so “knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated”.
[37] Mr Matches submits that Judge Rollo erred in finding him guilty of intimidation when there was no evidence of mens rea. In particular, Mr Matches points to the Judge’s finding that, “I do not find that Mr Matches deliberately tried to make Judge McHardy ‘afraid’”.29
[38]However, Judge Rollo’s finding must be viewed in its context:
29 At [103].
[102] The word “frighten” can have several shades of meaning. The Oxford English Dictionary defines “frighten” as ‘to make someone afraid or anxious’. A person may be frightened by a savage dog barking at them (in the sense of ‘made afraid’) but equally, a person may be frightened by a car loudly back- firing (in the sense of ‘made anxious’, or in Judge McHardy’s words, ‘made unnerved’). The expression ‘I got a fright’ illustrates this concept of being ‘made anxious’.
[103] I do not find that Mr Matches deliberately tried to make Judge McHardy ‘afraid’, in the sense of trying to make him ‘scared’, but I am satisfied, beyond reasonable doubt, that he did intend to make the judge ‘frightened’, in the sense of making him ‘anxious’, by confronting him physically and verbally in the way he did.
(emphasis added)
[39] The Judge’s finding of intent was supported by evidence. The section requires either actual intent or subjective recklessness, that is, that Mr Matches knew that his conduct was likely to cause Judge McHardy to be frightened or intimidated. This will be a matter of inference to be drawn from the defendant’s conduct.30 Subjective recklessness, at least, can be inferred from the following:
(a)Judge McHardy says he was “confronted by Mr Matches”. He did not see Mr Matches approaching him but all of a sudden “[Mr Matches] was in my space”. Mr Matches said to the Judge, “Do you remember who I am?” He said it in an angry tone. Judge McHardy said he endeavoured to go around Mr Matches and, as he did so, Mr Matches immediately indicated that he knew where the Judge lived and that “they” were coming to his house next.
(b)Judge McHardy’s evidence was that Mr Matches’ demeanour was “threatening”.
(c)Judge McHardy’s evidence was that Mr Matches appeared angry and spoke in a louder than usual tone.31 In evidence-in-chief, Judge McHardy described Mr Matches as having “an intimidation tone of voice, and I just wanted to get out of the space.”32
30 Gillespie-Gray v Police HC Auckland CRI-2006-404-123, 22 September 2006 at [9].
31 Decision on appeal, above n 2, at [95].
32 At [97].
(d)Judge McHardy said that, as he continued to walk away from Mr Matches, Mr Matches became more and more animated. His voice was getting louder and, at the end, he was yelling. Mr Matches yelled out more than once where the Judge lived and repeated the threat that “they” were going to come to his house next. His voice was extremely loud and referred to the Judge as a “paedophile judge” more than once. The Judge referred to Mr Matches as being of an angry disposition. He said, “It was quite frightening”.
(e)Although Mr Matches denied calling the Judge a paedophile, he accepted he called him a “child abuser”. He also acknowledged saying “they are coming to your house next”.
(f)Mr Matches accepted he was “animated” and talking in a loud voice back to Judge McHardy. He says he was expressing his personal feelings in relation to a case in the Family Court.
(g)Mr Matches was “a much bigger man than Judge McHardy”, having told the Court he was 6 ft and 2.5 inches tall and 54 years of age.33 Judge Rollo described Mr Matches as a “solid and robustly built man” and “clearly fit and strong”.34
(h)Judge Rollo’s assessment of Mr Matches’ personality, which included having “strong personal beliefs, confident in his own assertions and abilities” and being “unlikely to take a step backwards for anybody”.35
(i)The fact that Mr Matches’ stated intention of using the opportunity to speak to Judge McHardy about his domestic violence case was not reflected in his actual behaviour, as described by Judge McHardy, as well as telling him “they” were coming to his address.36
33 At [92].
34 At [92].
35 At [93].
36 At [101].
Appeal ground (d) — Did the Judge consider irrelevant factors (and fail to consider relevant factors)?
[40]Next, I turn to Mr Matches’ submission that Judge Rollo erred:
(a)in considering Judge McHardy’s reaction to Mr Matches’ actions;
(b)in considering irrelevant and speculative factors such as Mr Matches’ height and physical fitness;
(c)in failing to consider that Judge McHardy’s credibility was diminished by his admissions that he:
(i)was not paying attention to where he was walking;
(ii)had a limited memory of relevant events from the day;
(iii)intentionally diverted his attention away from what Mr Matches said to him; and
(iv)was unaffected by these events that he did not lodge a police complaint until 18 days later and then only because his co- complainant, Judge Druce, had done so.
[41]As to (a), there was no error on Judge Rollo’s part. He stated:
[100] In noting this reaction by Judge McHardy, I acknowledge that the victim’s assessment is not an element of the offence of ‘stopping with intent to frighten’. The focus is on the objectively proven intent of the defendant. However, in ordinary circumstances, the reaction of the victim to the actions of a defendant can be an indicator, in part, of the apparent intent of the defendant, just as a defendant’s assertions of his intent is a matter to be considered and given such weight as seems appropriate as well.
[42]This was a correct statement of legal principle.
[43] As to (b), the Judge considered Mr Matches’ size in association with his personality, saying:
[93] Mr Matches is also a person whose personality, as I saw it unfold in the now six or seven different occasions he was before me in Court, five of those being the conduct of this fixture, is that of a man of strong personal beliefs, confident in his own assertions and abilities, including in court, unlikely to take a step backwards for anybody. His physical size, apparent strength and mass no doubt assist him in that regard and perhaps also his experiences of life.
[44] That assessment was open to the Judge to make based on the way in which Mr Matches conducted himself before the court. As discussed above his physical and personality attributes are relevant (although not determinative) of the issue of subjective recklessness and the inferences that may be drawn in determining that issue.
[45] Regarding (c) above, I consider Mr Matches misstates Judge McHardy’s evidence. As to (c)(i), Judge McHardy said: “I did not see Mr Matches approaching me, all of a sudden he was in my space”; “I was walking along minding my own business, and suddenly he was right in front of me”; and “well I didn’t know what was happening, it was suddenly there was a shock of someone in front of me saying, ‘do you remember who I am?’”.
[46] As to (c)(ii) and (iii), Judge McHardy described the relevant events of the day clearly and moved away to avoid any further confrontation from Mr Matches.
[47] As to (c)(iv), Judge McHardy’s statement to the Police was made on 1 March 2019 and signed by him on 2 March 2019. Judge McHardy’s evidence was that he had decided to make a complaint to the Police well before Mr Matches’ dealings with Judge Druce (which occurred soon after 5 pm on 1 March 2018). Judge McHardy further stated that his “factual situation” had nothing to do with what Judge Druce experienced.
[48] In any event, as to Judge McHardy’s credibility, there is the Supreme Court’s reminder in Sena v Police that the appellate court should exercise “customary caution” in challenging credibility findings.37
37 Sena v Police, above n 13, at [38].
Did Mr Matches “stop” Judge McHardy
[49] Judge Rollo considered that the applicable meaning to be given to “stop” in s 21(1)(e) is assisted by reference to the words around it. The section refers to “stops, confronts, or accosts that other person”.38 I agree with Judge Rollo that to “stop” as used in the section can be to actually stop, in the sense of rendering stationary or at rest, or it can be to block or hinder the movement of the other person.39
[50] In this case, it was open to the Judge to accept Judge McHardy’s evidence that Mr Matches blocked (albeit briefly) Judge McHardy’s progress up Federal Street by his sudden, close positioning of himself directly in front of Judge McHardy’s direction of travel. Judge McHardy’s evidence was that Mr Matches put his face as close as 10 cm from his. Judge McHardy said he could not move because Mr Matches “was in the space that I was walking in”. Judge McHardy further said Mr Matches presented himself in a position in front of him where he had no choice but to initially stop. In order to move from the situation, it was necessary for Judge McHardy to respond by walking around Mr Matches (as Mr Matches accepted happened).
[51] In those circumstances, I consider there was no error on Judge Rollo’s part in determining the element of stopping was proved.
Did the Judge ignore Mr Matches’ defences?
[52] Mr Matches submits that Judge Rollo erred in ignoring his defences, including the defence of free speech, which Mr Matches says is a complete defence to the charge.
[53] Judge Rollo noted that, on at least three occasions during the hearing, Mr Matches referred to Brooker v Police, which he said gave him a right to protest.40 However, the Judge did not accept Mr Matches’ submission that “he was merely exercising his right to protest against a judicial officer’s decisions or actions”.41
38 Decision on appeal, above n 2, at [83].
39 At [84].
40 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 as cited in Decision on appeal, above n 3, at [45].
41 Decision on appeal, above n 3, at [104].
Rather, the Judge concluded, Mr Matches’ actions were calculated to be more than that, albeit arising from a chance encounter.
[54] Brooker v Police involved a charge of disorderly behaviour under s 3 of the Summary Offences Act. In that case, Mr Brooker was originally charged with intimidation under s 21 of the Summary Offences Act, but, as he had not intended to intimidate, the charge was substituted with one of disorderly behaviour. For present purposes, I consider it apt to refer to the words of Tipping J:
[92] Where … the behaviour concerned involves a genuine exercise of the right to freedom of expression, the reasonable member of the public may well be expected to bear a somewhat higher level of anxiety or disturbance than would otherwise be the case. This may be necessary to prevent an unjustified limitation of the freedom and is consistent with the purpose of s 6 of the Bill of Rights. There must, however, come a point at which the manner or some other facet of the exercise of the freedom will create such a level of anxiety or disturbance that the behaviour involved becomes disorderly under s 4(1)(a) and, correspondingly, the limit thereby imposed on the freedom becomes justified under s 5. No abstract guidance can be given as to when that level will be reached. That decision is a matter of judgment according to all the relevant circumstances of the individual case.
(emphasis added) (footnotes omitted)
[55] In my view, those comments are sufficient to dispose of Mr Matches’ submission as to the alleged defence of free speech. A proper exercise of freedom of expression (here, the freedom to protest) does not extend to intentionally intimidating another person in a public place, as is the case here.
Did the Judge conceal evidence as to collusion?
[56] Mr Matches submits that the two complainants conspired or colluded to secure an unwarranted conviction against him, motivated by their disapproval of his criticism of them.
[57] The position is that the two complainants knew each other and discussed, between themselves, their encounters with Mr Matches. That is the extent of it. In my view, there is no evidence of collusion
Result
[58]None of the grounds of appeal discloses a miscarriage of justice.
[59]The appeal is dismissed.
Gordon J
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