By s 4(1)(a) of the Summary Offences Act 1981, it is an offence, punishable by a fine not exceeding $1,000, to behave “in an offensive or disorderly manner ... in or within view of any public place”. The appellant was convicted in the District Court under s 4(1)(a) of behaving in an offensive manner in a public place, “namely Victoria University, Lambton Quay”.[1] The charge particularised the offensive behaviour as “burning [the] NZ Flag”. The appellant acknowledged setting fire to the New Zealand flag in the grounds of the Law School of Victoria University in Wellington, behind but within view of the people assembled at the Wellington Cenotaph for the dawn service on Anzac Day 2007. She was part of a small group of people who had taken up position inside the University grounds to protest against New Zealand military involvement in Afghanistan and other foreign conflicts. The appellant maintained that her expression of opinion in this way was not offensive behaviour but was expression protected by s 14 of the New Zealand Bill of Rights Act 1990:
14 Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
[1]Police v Morse DC Wellington CRI-2007-085-2806, 23 November 2007 per Judge Blaikie.
On conviction, the appellant was fined $500, and ordered to pay court costs and witness fees. Her appeals to the High Court and the Court of Appeal against conviction have been dismissed.[2] The further appeal to this Court raises both the meaning of s 4(1)(a) and its application to expression of opinion, matters considered by this Court in Brooker v Police[3] in the context of the disorderly behaviour limb of s 4(1)(a). I consider that the disposition of the appeal turns on the meaning of s 4(1)(a). For the reasons given below I conclude that “offensive” and “disorderly” behaviour are two sides of the same coin, both directed at the preservation of public order. On this view, “offensive” behaviour is behaviour productive of disorder. It is not sufficient that others present are offended if public order is not disrupted. On the other hand, it is not necessary that the conduct be violent or likely to lead to violence since behaviour with that effect constitutes the more serious…

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 Morse v Police

Details

AGLC: Morse v Police [2011] NZSC 45
Case: [2011] NZSC 45
Decision Date: 6 May 2011

CaseChat Overview and Summary

Valerie Morse was convicted in the District Court for offensive behaviour under s 4(1)(a) of the Summary Offences Act 1981, after she set alight a New Zealand flag as part of a protest on Anzac Day in Wellington. The Court of Appeal dismissed an appeal against the conviction. The Supreme Court allowed an appeal against conviction, setting aside the conviction. The Supreme Court held that offensive behaviour under s 4(1)(a) is behaviour which, objectively assessed, disrupts order in public space. The Court held that the District Court had misconstrued the meaning of the offence. The Court held that the conviction could not stand because the District Court had not considered the objective element of the offence. The Court held that the appeal should be allowed and the conviction quashed. The matter did not warrant rehearing.

Orders