O v Police HC Auckland CRI-2005-404-251

[2006] NZHC 1106

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-404-251

BETWEEN  O

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         22 September 2006

Appearances: Graeme Minchin for Appellant

Michael Mann for Respondent

Judgment:      22 September 2006

JUDGMENT OF HARRISON J

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of

4.00 pm on 22 September 2006

SOLICITORS

Marshall Bird & Curtis (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

COUNSEL GE Minchin

O V POLICE HC AK CRI-2005-404-251  22 September 2006

[1]      On 24 August 2006 I delivered a reserved judgment dismissing an appeal by Mr O   against his convictions in the District Court at Auckland on charges of obstructing a  public  way,  namely Queen  Street,  Auckland  City,  and resisting  arrest  by  a  police  officer  on  the  same  occasion.     I  also  dismissed Mr O  ’s appeals against sentence.

[2]      On 15 September Mr O   through his counsel, Mr Graeme Minchin, filed a notice of application for leave to appeal to the Court of Appeal.  Subsequently Mr Minchin  and   Mr Michael   Mann   for   the   Crown   have  filed   synopses   of submissions in preparation for today’s hearing of Mr O  ’s application.

[3]      The grounds for granting leave to appeal to the Court of Appeal under s 144

Summary Proceedings Act 1956 are well known.  First and foremost, there must be a properly formulated question of law.   Second, the question must be one which by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal.  Third, the Court must be of the opinion that it ought to be so submitted.   Inherent in all three tests is the obligation on a party seeking leave to show that the question is at least arguable.

[4]      Mr  O  ’s  application  for  leave  asserted  that  my  decision  was erroneous in fact and/or in law.  It is trite that no further rights of appeal lie against factual findings.  The points of law said to arise are these:

Was the High Court correct to find that the appellant’s exercise of his protest rights, as guaranteed by the New Zealand Bill of Rights, did not amount to a

‘reasonable excuse’ pursuant to s 22 Summary Offences Act 1981?

If the answer to the above question is no, was the appellant’s resistance to the arresting officer permissible?

[5]      The problem with this form of a question is that, apart from its failure to identify the passage or passages in my judgment relied upon, it does not properly record my findings.  The issue for determination, in that part of the judgment (paras [37]-[48]), was whether or not Mr O   had discharged his statutory onus of proving that he had a reasonable excuse for obstructing Queen Street on 19 March

2005 (I had earlier found that the prosecution had satisfied the necessary elements of the charge).  Contrary to Mr O  ’s notice of application, I did not find against

Mr O   on the ground that his exercise of protest rights as guaranteed by the NZBORA did not amount to a reasonable excuse.  I found against him according to an inquiry into the reasonableness of the excuse which Mr O   tendered in his defence for obstructing the public way.

[6]      In argument this morning Mr Minchin changed tack, effectively abandoning a challenge to my findings on reasonable excuse and advancing an argument that I erred in my legal analysis undertaken at an earlier stage, within an inquiry as to whether or not an essential element of the charge was made out – namely, whether or not   Mr O  ’s   impediment   of   normal   passage   on   Queen   Street   was unreasonable (paras [23]-[36]).   In effect, Mr Minchin says that I erred because, when answering his submissions, I said I would consider his NZBORA argument separately (para [28]).  However, as he subsequently acknowledged, I then went on to give separate and detailed consideration to that discrete argument, in recognition of its importance to Mr O  ’s appeal (paras [29]-[36]), when deciding the question of reasonableness.

[7]      Once this factor was drawn to his attention, Mr Minchin shifted the direction of his argument again.  He focused on para [32] which stated:

The NZBORA assumes direct relevance because the elements of the offence constituting prohibited conduct set the scope of infringement of any relevant NZBORA  right.    The  first  step  in  the  inquiry  is  to  consider  whether Mr O  ’s conduct fell within the natural meaning of s 22; I have already answered that question in the affirmative.   The second step is to determine whether or not the s 22 prohibition on particular conduct is prima facie inconsistent with the NZBORA.   If it is inconsistent, is the limit justified?  If not, can the section be read consistently with the NZBORA?  If it can, the provision should be read in that way; if it cannot, then its natural meaning must be given effect: see Hopkinson v Police [2004] 3 NZLR 704, Ellen France J, at [28].

[8]      I requested Mr Minchin to identify an arguable error in this approach. He was not able to oblige, other than to offer a general statement that he disagreed with the result.

[9]      Mr Minchin’s argument was wide ranging, but that is insufficient.   In the event he has failed to formulate a discrete question of law for determination by the Court of Appeal.  Nor has he satisfied either of the other two criteria.  Something

more  is  required  than  an  amorphous  argument  that  a  decision  of  this  Court  is incorrect.

[10]     Accordingly, I dismiss Mr O  ’s application for leave to appeal my judgment dated 24 August 2006.

Rhys Harrison J