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

[2006] NZHC 966

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:         17 February and 9 June 2006

Appearances: Graeme Minchin for Appellant

Michael Mann for Respondent

Judgment:      24 August 2006

JUDGMENT OF HARRISON J

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

1.00 p.m. on 24 August 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  24 August 2006

Introduction

[1]      Mr O   was found guilty in the District Court at Auckland on

16 June 2005 following a summary trial on charges of, first, obstructing a public way, namely Queen Street, Auckland City: s 22(1)(a) Summary Offences Act 1981; and, second, resisting arrest by a police officer on the same occasion: s 23.  Judge McElrea DCJ convicted and fined Mr O   $250 and $150 on each charge respectively, and ordered him to pay costs on each of $130.   Mr O   has appealed against conviction on both charges and sentence.

[2]      I first  heard  argument  on  the  appeal  on  17 February 2006.    However,  I adjourned the hearing to enable counsel to file supplementary written submissions.  I heard further argument on 9 June and reserved my decision.

District Court

[3]      Late in the morning on Saturday 19 March 2005 Mr O   and up to 80-

100 others met outside the United States Consulate in Customs Street East.  Their purpose was to demonstrate against the US led invasion of Iraq.  Mr O   was one of the organisers and, on the Judge’s findings, the apparent leader.  The group planned to march along Customs Street East and then up Queen Street to the ANZ building on the corner of Victoria Street before returning the same way.   Neither Mr O   nor any other organisers had applied to the Auckland City Council for a permit to walk up and down Queen Street.

[4]      The  relevant  facts  leading  to  Mr O  ’s  arrest  are  not  in  material dispute, and I have drawn the following summary from the Judge’s comprehensive decision:

(1)Mr O  ’s group marched, as planned, along Customs Street and up Queen Street towards the ANZ Bank.  They walked on the left hand side of the road.  An off duty police officer, Sergeant Newlands, was shopping in Queen Street with her children.   She noticed the demonstration near the intersection with Wyndham Street, a little over

halfway towards its destination.   The sergeant was concerned at the absence of a police presence despite the medium to heavy traffic both on the road and on the footpath.  She noticed that some motorists were “getting impatient” and phoned 111;

(2)A group of policemen led by Sergeant Cantwell arrived as the group reached  the  ANZ  Bank.    Mr O    and  three  others  were in control of a sound system being conveyed in a pram.  Mr O   was walking about a metre away from the pram and holding a microphone.   He was using it to address the public and lead some chanting;

(3)The group left Queen Street to occupy the ANZ’s ground floor area for about 20-30 minutes.  Some of its members made speeches before the group moved back out onto Queen Street.  A number occupied the middle of its intersection with Victoria Street, preventing traffic both vehicular and pedestrian from moving in any direction;

(4)After about five to 10 minutes  the  driver  of  a  flat  decked  utility vehicle  attempted  to  drive  through  the  intersection  from  south  to north.   The utility bumped some protesters.   There were loud exchanges with the driver.  At one point some protesters appeared to be trying to reach in through his window to remove the ignition keys. The Judge found that it “was a fairly volatile situation” which was “very dangerous”;

(5)Sergeant Cantwell and other officers then intervened.  He decided it was time to clear the intersection.  He recalled an incident a few years earlier when the driver of a four wheel vehicle killed a protester in a picket line at Port Lyttleton.   The police were able to move the protesters out of the intersection while escorting the utility through the crowd;

(6)Some of the protesters, including Mr O  , started marching back down Queen Street, blocking both northbound lanes. Sergeant Cantwell  decided  that,  given  the  obstruction  to  traffic,  the  police would not allow the protesters to remain on the roadway but they could continue on the footpath.   He approached Mr O   and the man who was pushing the pram with the speaker system.   He thought that if they went to the footpath, the others would follow;

(7)Mr O    and  the  other  man  refused  to  accede  to  Sergeant Cantwell’s request.  The officer then took hold of the pram and started pushing  it  towards  the  footpath.     Seeing  what  was  happening, Mr O   stood in front of and obstructed the pram.   At that point Sergeant Cantwell repeated his direction that Mr O   and the others continue their protest on the footpath, not on the road.  He warned  Mr O    he  could  be  arrested.    Again  the  sergeant attempted   to   push   the   pram   towards   the   footpath.      Again Mr O   tried to stop him;

(8)Sergeant Cantwell then arrested Mr O   by grabbing his left shoulder and advising him that he was under arrest.  He pushed him towards the footpath, approximately the width of a car park, but a scuffle broke out.   Mr O   was restrained in a headlock and held.  He was handcuffed but refused to walk.  As a result, the police had to carry him from a position about 50 metres south of the ANZ Bank up around the corner into Victoria Street.   Mr O   was put into a police car.  Sergeant Cantwell directed him to place his feet down in the footwell instead of between the front seats.  The officer attempted to force his feet down.  Mr O   resisted.  Sergeant Cantwell said “I grabbed him by the throat with my right hand…”.

[5]      Judge McElrea found that Sergeant Cantwell’s decision to clear the road was

‘perfectly justified … so as to allow normal vehicular traffic flow to be resumed’; that the situation which had arisen in the intersection ‘… had developed into a volatile confrontation with one motorist’; and that the sergeant ‘was not to know

what the attitude of other drivers might have been’: at [54]. While he held the absence of a permit did not make the demonstration illegal, the Judge pointed out that as a result Mr O and his fellow demonstrators lost an opportunity to settle the course of the march in advance with the police: at [55]. Consequently:

… what is the busiest intersection in Queen Street was being blocked for an indefinite period of time causing predictable frustration and uncertainty.

Decision

(1)      Obstructing a Public Way

(a)      Introduction

[6]      Judge McElrea found the charge of obstructing a public way proven for these reasons:

[57]      … Mr O   was given more than one opportunity to get off the road but persisted in his view that he was entitled to be on the road as a right equal to that of the motorists in Queen Street.  He was wrong about that as a matter of law.  Both his own person and the pram were obstructing a public way.  The right of vehicles to pass freely on public roads is an ancient right, probably older than the recognition of the right to protest, and in this case it is supported by the power given by Parliament (s 39 Summary Offences Act) for a police officer to arrest someone continuing with an obstruction of a public way when he has been warned by a constable to desist from such obstruction – that being the offence created by s 22 of the same Act.

[58]      … The police were acting, in my view, with tolerance and tact. They  were  impartial  and  using  their  powers  reasonably  on  the  facts presented to me…  Sergeant Cantwell did not purport to act on a perceived breach of the peace, but if he had needed to do so in my view the grounds were there.

[59]      The  offence  under  s 22  is  only  committed  where  the  defendant without reasonable excuse obstructs a public way (etc).   The intention to march on a roadway as part of a protest is, in my view, not of itself a reasonable  excuse  in  this  context.    The  term  ‘reasonable’  imports  an objective test to be applied by the Court, and must depend upon all the facts of the case.  If a permit has been obtained for this march, and the protesters were on the agreed route, that would have been a very different story and would most likely have constituted a reasonable excuse.  Alternatively, even though no permit was obtained, if the protesters had kept moving and there was no cause for police concern, that might lead to a different outcome.  But as  matters  developed  here,  Mr  O  ’s intransigent attitude  was an unreasonable one and was based on an incorrect view of his legal rights.  He did not act with reasonable excuse.

[7]      The starting point for determining Mr O  ’s appeal lies in the words of s 22 Summary Offences Act, which provides:

(1)       Every person is liable to a fine not exceeding [$1,000] who, without reasonable excuse, obstructs any public way and, having been warned by a constable to desist,—

(a)      Continues with that obstruction; or

(b)Does desist from that obstruction but subsequently obstructs that public way again, or some other public way in the same vicinity, in circumstances in which it is reasonable to deem the warning to have applied to the new obstruction as well as the original one.

(2)       In this section—

Obstructs, in relation to a public way, means unreasonably impedes normal passage along that way:

Public way means every road, street, path, mall, arcade, or other way over which the public has the right to pass and repass.

[8]      There is no dispute that Queen Street is a road over which the public has the right to pass and repass.  Thus, the two questions, representing the requisite elements of the charge of obstruction, are:

(1)      Did Mr O   unreasonably impede normal passage along Queen

Street?

(2)      If so, was his obstruction without reasonable excuse?

[9]      The first of these two elements constitutes the offence aspect of s 22.   Its genesis lies in continuing with an existing obstruction after a warning from a police officer to desist.  Once the offence of obstruction is proven, the onus shifts to the defendant to prove on the balance of probabilities that he had a reasonable excuse for committing it.

[10]     With  respect  to  Mr Minchin,  his  original  submissions  did  not  address argument on appeal according to this structure, but tended to constitute a generalised challenge to Judge McElrea’s decision by reliance on the freedoms expressed in the New Zealand Bill of Rights Act 1990 (the NZBORA).  The decision suggests that

Mr Minchin’s argument in the District Court may have followed a similar course, compounded by a diversionary emphasis on whether or not there was a breach of the peace sufficient to justify Sergeant Cantwell’s request to Mr O   to leave the roadway.    However,  Mr Minchin’s  supplementary  synopsis,  supported  by  oral argument, was more focused on the elements of the offence of obstruction.

(b)      Unreasonably Impeding Normal Passage

[11]     The first question is whether or not Mr O   unreasonably impeded normal traffic along Queen Street.

[12]     The democratic tradition of groups of people using roads and other public areas for the purpose of exercising the right of protest has often raised questions about the extent to which the criminal law can justifiably intervene to protect the rights of competing users.  The history of this tension was surveyed by the House of Lords in Director of Public Prosecutions v Jones [1999] 2 AC 240. In that case a small group had protested on a grass verge, which legally constituted part of a highway, adjacent to a perimeter fence at Stonehenge. Some of its members were arrested for taking part in a trespassory assembly. The point of law certified for determination on final appeal was whether under the relevant legislation a peaceful assembly of 20 or more people which did not obstruct the highway nevertheless impeded the public’s right of access to it so as to constitute a trespassory assembly.

[13]     By a majority the House of Lords answered that question in the negative. The relevance of Jones to this appeal lies in its confirmation of the primary or predominant right to use a highway for passage and re-passage, and of the Court’s trial function in each case of deciding whether in fact a person using the highway for a different purpose, such as a peaceful assembly, was acting reasonably.  Lord Irvine LC, who was in the majority, recognised the right of peaceful assembly on a public highway provided, in words similar to s 22(1)(a) Summary Proceedings Act, the activities were reasonable and did not “… amount to an obstruction of the public highway unreasonably impeding the primary right of the general public to pass and repass …”: at 257.  Lord Hutton concluded to the same effect.

[14]     Mr Minchin  placed  great  weight  on  Jones  but,  with  respect,  the  Court’s careful  review  of  the  common  law  principles  within  their  English  statutory framework  reinforces  the   applicability  of   s 22,  and   the   Judges’   unanimous conclusion on the subordination of the right of peaceful assembly to the primary right of use of the road for normal rights of passage and re-passage undermines a principal plank of Mr Minchin’s argument.

(i)       Normal Passage

[15]     Within  this  threshold  issue,  three  questions  arise.    First,  what  is  normal passage along Queen Street?   Mr Michael Mann for the Crown submits that the normal mode of passage along that road is vehicular and, along its footpath, it is pedestrian.  Mr Minchin accepts that Queen Street’s most normal use is for vehicular traffic.     However,   he  submits   that   events   such   as   Christmas   parades   and demonstration marches also fall within the definition of ‘normal passage’.  He says that they are “regular” or “usual” which are synonymous with normality.

[16]     I disagree.   In accordance with the democratic tradition to which I have referred, central and local authorities have long allowed groups to use Queen Street for the purpose of staging peaceful assemblies to express rights of protest.  I can take judicial notice of its use to voice protest on issues as diverse as rugby tours to and by South Africa, participation in the Vietnam war, visits by overseas dignitaries, rights to strike, indigenous land rights, nuclear testing, visits by American warships, abortion, homosexual law reform, genetic engineering, student fees and loans, immigration policies and civil unions.

[17]     However, none of these uses are normal.   The word “normal” means “… constituting or conforming to a type or standard; regular, usual, typical; ordinary, conventional …”: The New Shorter Oxford English Dictionary, 4th Ed.  The normal and predominant use of Queen Street is for vehicular traffic.   A public assembly constituted by a group of pedestrians marching along the road to voice or express protest is an exception to this use.  It is not a daily or everyday occurrence.

[18]     This abnormality of use is reflected by Council’s practice of closing a lane or lanes of Queen Street to vehicular traffic to allow a demonstration march to proceed safely along it, and of providing a police presence to maintain order.   The local authority  is  empowered  to  close  roads  on  a  temporary  basis:  s 342  Local Government Act.  Council has also enacted Bylaw 20.6.1 requiring an organiser of any event, demonstration march or parade in a public place to ‘first obtain consent from an authorised officer’.   Judge McElrea expressed reservations about whether the bylaw in its broad form may be void for unreasonableness in some contexts, such as where it extends to a public park: at [43]-[44].  However, the bylaw’s application to Queen Street could not be challenged for unreasonableness.

[19]     Mr O  ’s  use  of  Queen  Street  with  others  on  19 March  2005  in protesting against the invasion of Iraq was not normal.

(ii)      Impeding Passage

[20]     Second,  did  Mr O  ’s  use  ‘impede’  normal  passage  along  Queen Street?   ‘Impede’ means to ‘stand in the way of; obstruct, hinder’: The Shorter English Oxford Dictionary.    In  the  context  of  a  charge of obstructing a  public footpath under the Police Offences Act 1927, the forerunner of the Summary Proceedings Act 1981, Richmond J, following Haywood v Mumford (1909) 7 CLR

133 at 138, held that an obstruction included ‘any continuous physical occupation of a portion of a street which appreciably diminishes the space available for passing and repassing …’: Stewart v Police [1961] NZLR 680 at 681. Mr Minchin sought to distinguish this authority on the ground that it involved ‘static impediments to the right of passage’. Here by contrast Mr O was moving when he was arrested.

[21]     Mr Minchin’s  argument  postulates  a  distinction  without  a  difference.    A pedestrian impedes a motorist’s right to drive along Queen Street by his or her continuous occupation of a portion of the road which significantly diminishes the space available for a vehicle to pass along.  The effect is the same, whether his or her presence is static or in motion.   Judge McElrea accepted Sergeant Cantwell’s evidence that Mr O   and others were blocking the two northbound lanes of

Queen Street.  He found as a matter of fact that the obstruction occurred: at [54] and

[57]. Mr Minchin did not and could not raise any challenge to this factual finding.

[22]     There is no doubt that Mr O  ’s use of Queen Street on 19 March

2005 impeded normal passage along that public way.

(iii)     Reasonable Impediment

[23]     Third, was Mr O  ’s impediment of normal passage on Queen Street unreasonable?   In my judgment Mr Minchin’s arguments about the NZBORA fall for consideration under this element of the charge.  The question is whether or not its provisions can be read consistently with s 22 such that the prosecution is unable to prove that Mr O   acted unreasonably.  Proof of a failure or refusal to comply with the officer’s warning, once the person has committed the act of unreasonably impeding normal passage, constitutes the mens rea of the offence.

[24]     Judge McElrea did not make an express finding on reasonableness in this context.  I infer that his omission occurred because, like other elements, the question was not contested before him.  The Judge considered reasonableness at [59] within the  separate  inquiry  of  whether  or  not  Mr O    acted  without  reasonable excuse.   Accordingly, I shall determine the issue afresh based upon the Judge’s primary findings of fact and my findings of law.

[25]     The question is whether, when Sergeant Cantwell issued his warning to desist and thereafter, Mr O  ’s impediment of the roadway was and continued to be unreasonable.   Adoption of the statutory criterion of  reasonableness  requires  an assessment  of  all  the  relevant  circumstances;  it  is  a  matter  of  fact  and  degree. Whether or not Mr O  ’s conduct is reasonable follows the proven premise of impediment of normal carriage.   The inquiry takes account of factors such as the space occupied and the duration of the time of occupation: Hirst v Chief Constable of West Yorkshire (1987) 85 Cr App R 143 per Glidewell LJ at 148-150.

[26]     Mr Minchin set store on a passage from the judgment of Lord Parker CJ in

Nagy  v  Weston  [1965]  1  All  ER  78  at  80,  approved  by  Lord  Denning MR  in

Hubbard v Pitt [1976] QB 142 at 174 and by Glidewell LJ in Hirst at 147, as follows:

It is undoubtedly true … that there must be proof that the user in question was  an  unreasonable  use.  Whether  or  not  the  user  amounting  to  an obstruction is or is not an unreasonable use of the highway is a question of fact. It depends on all the circumstances, including the length of time the obstruction continues, the place where it occurs, the purpose for which it is done, and, of course, whether it does in fact cause an actual obstruction as opposed to a potential obstruction.

[27]     Applying this test literally Mr Minchin submits that: (a) as Mr O   was moving and occupying only the lane closest to the footpath, any obstruction was minimal; (b) Queen Street is a normal venue for demonstrations which customarily take place there; (c) the obstruction was for the purpose of exercising rights of protest which are guaranteed by the NZBORA; and (d) Mr O  ’s conduct did not cause an actual obstruction as opposed to a potential obstruction – this element being assumed rather than established beyond reasonable doubt.

[28]     In answer to each of these propositions I record that: (a) the Judge found that Mr O  ’s obstruction was substantial and continuous, at [20], [54] and [57]; (b) Mr O  ’s use of Queen Street was not normal as a matter of law; (c) I shall consider the NZBORA argument separately; and (d) the Judge found as a fact that Mr O   and the pram were actually obstructing Queen Street: at [54] and [57].   Subject to my determination on the NZBORA argument, Mr O  ’s impediment of normal passage was unreasonable.

[29]     In support of his NZBORA argument Mr Minchin relies upon the recognised freedoms of expression, at s 14; of peaceful assembly, at s 16; and of movement, at s 18.  He acknowledges that the inconsistent provisions of other statutes prevail over the NZBORA: s 4.  But he emphasises the statute’s express recognition that its rights and freedoms ‘may be subject to only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’, at s 5; and that whenever an  enactment  can  be  given  a  meaning  consistent  with  the  rights  and freedoms contained in the NZBORA, ‘that meaning shall be preferred to any other meaning’, at s 6.

[30]     A  great  deal  has  been  written  judicially  and  academically  about  these provisions but it is unnecessary here to cite authority.  The NZBORA means what it says; the relevant provisions speak for themselves.  In this context the significance of the Act lies not in its creation of new freedoms but in Parliament’s statutory entrenchment of rights well settled at common law.  Lord Denning’s classical 1975 summary of these freedoms, and their relationship with other rights, holds equally true in New Zealand following the NZBORA’s enactment: Hubbard at 178-179:

… Here we have to consider the right to demonstrate and the right to protest on matters of public concern.   These are rights which it is in the public interest  that  individuals  should  possess;  and,  indeed,  that  they  should exercise without impediment so long as no wrongful act is done.  It is often the only means by which grievances can be brought to the knowledge of those in authority – at any rate with such impact as to gain a remedy.  Our history is full of warnings against suppression of these rights…  Such is the right of assembly.  So also is the right to meet together, to go in procession, to demonstrate and to protest on matters of public concern.  As long as all is done peaceably and in good order without threats or incitement to violence or obstruction to traffic, it is not prohibited…  I stress the need for peace and good order…  But, so long as good order is maintained, the right to demonstrate must be preserved…

[Emphasis added]

[31]     After approving this passage in DPP v Jones at 287, Lord Hutton said this: at

288E-F:

If, as in my opinion it does, the common law recognises the right of public assembly, I consider that the common law should also recognise that in some circumstances this right can be exercised on the highway, provided that it does not obstruct the passage of other citizens, because otherwise the value of the right is greatly diminished…

[Emphasis added]

[32]     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].

[33]     I am not satisfied that the statutory prohibition on Mr O  ’s freedom of movement imposed by s 22 is inconsistent with his separate freedom of peaceful assembly.  The latter was not infringed by Sergeant Cantwell’s request for him to leave  the  vehicular  lanes  of  Queen  Street.     The  officer  expressly  advised Mr O   of his ability to continue to exercise his freedom of peaceful assembly with others on the footpath: Melser v Police [1967] NZLR 437 (CA) per McCarthy J at 446. If the prohibition was inconsistent, then it was minimal or insignificant in that it did no more than restrict the area of public place available for Mr O to exercise his freedom.

[34]     However, if there is an inconsistency, then I am satisfied that any limitation on Mr O  ’s freedom of peaceful assembly is justified.  The proper approach is to consider the objective of s 22 and whether or not the use of a criminal sanction is a rational means of achieving it, bearing in mind the need to infringe on rights as minimally as possible: Hopkinson at [43]. The importance and purpose of legislation preventing obstruction on a public way cannot be questioned. It is designed to allow freedom of passage and re-passage for normal users. That freedom is essential to the orderly functioning of society and is imposed upon all users of a public way. The prohibition against obstruction is rationally linked and proportionate to the statutory objective.

[35]     The fact that, as Mr Mann emphasises, Mr O   was exercising the right  to  freedom  of  peaceful  assembly,  providing  special  protection  for  protest action, does not override or trump other statutory provisions or rights, freedoms, interests and obligations: Jeffrey v Police (1994) 11 CRNZ 507; Police v Beggs [1999] 3 NZLR 615. In balancing these freedoms when considering a charge of disorderly behaviour, the Court of Appeal has held that the right to freedom of movement imposes a justifiable limitation upon the right of peaceful assembly to express political protest: Melser at 446.

[36]   Accordingly, for these reasons, I am satisfied that the prosecution has established that Mr O  ’s impediment of normal passage on Queen Street was unreasonable.

(2)      Reasonable Excuse

[37]     The second stage of the inquiry is to determine whether or not the obstruction was without reasonable excuse.  Mr Mann properly drew attention to the apparently oxymoronic juxtaposition of a requirement to prove that the impediment was reasonable and, if it was not, the availability of a defence of reasonable excuse for it. Its origin may lie in Parker LJ’s recognition in Nagy at 80 – immediately before the passage quoted  above – that the  equivalent English statutory provision required proof  both  of  the  absence  of  lawful  authority or  excuse  and  unreasonable  use, although he thought that in effect they were one and the same.  In my judgment there is a material distinction.  The latter is part of an objective evaluation of the factual circumstances which constitute the offence of obstruction; the former involves a discrete inquiry into whether a person had a lawful justification or excuse for committing what was otherwise an offence.   However, the scope for successfully arguing the defence must be very limited.

[38]     I accept that, once a prima facie case of obstruction is made out against a defendant, the onus lies on him to satisfy the Court that there was a reasonable excuse for that conduct; the civil standard of the balance of probabilities applies: Stewart at 682-683.

[39]     It is difficult to find a principled rationale for or exposition of the defence of reasonable excuse.  The defence has been discussed in a number of authorities.  The most  helpful  for  these  purposes  is  the  decision  of  the  Supreme  Court  of  the Australian Capital Territory in Mark v Henshaw 85 FCR 555 (FCA). In that case, the defendants were charged with breaching a statutory provision that:

A person who, without reasonable excuse, trespasses on premises in a Territory is guilty of an offence, punishable on conviction by a fine not exceeding one hundred dollars or imprisonment for a term not exceeding one month, or both.

[40]     The  defendants  had  trespassed  on  premises  to  protest  against  the  cruel treatment of hens kept there.  In defence they argued that they had reasonable excuse for entering because the hens were in need of aid and assistance and because they perceived  the  need  to  prevent  further  cruelty  in  circumstances  where  all  other avenues had failed.

[41]     The  Court  discussed  the  appropriate  approach  to  the  reasonable  excuse defence: at 557-558.   First, the excuse put forward by the defendant must be examined and identified; secondly, it is necessary to determine whether the excuse is genuine;  and,  thirdly,  an  assessment  is  necessary to  determine  if  the  excuse  is reasonable.  The Court then said about the reasonableness inquiry:

… the critical issue in determining whether the appellants entered upon the premises … with reasonable excuse is not the appellants’ beliefs or their state of mind.   Whilst those factors are relevant and may afford some assistance to the trier of fact, the final answer will always come from an objective assessment of the particular facts of each case; that assessment requires a consideration of not merely the trespassers’ beliefs and state of mind: it requires the application of community standards.   In particular, it requires the trier of fact to determine whether the trespassers’ conduct is acceptable to the community.

[Emphasis added]

[42]     This objective standard was applied in New Zealand in A v Police [1999] 2

NZLR 501, which concerned the meaning of “reasonable excuse” in the context of s 49 Domestic Violence Act.  Baragwanath J said at 506:

I accordingly reject the argument that the term ‘reasonable excuse’ means

‘reasonable’  only  in  the  subjective  perception  of  the  defendant.  …

‘Reasonable’ has been adopted by the law in a range of contexts as imposing an objective standard as a societal norm. In this context I consider it to mean an  excuse  which  an  ordinary  New  Zealander  would  consider  to  be reasonable in all the circumstances.

[43] Judge McElrea identified Mr O ’s excuse for refusing to accede to Sergeant Cantwell’s warning. Mr O claimed that his entitlement to remain on Queen Street was equal to that enjoyed by motorists: at [57]. The excuse may have been genuine but the question is whether or not it was reasonable.

[44]     On  this  ground  of  appeal  Mr Minchin  sought  by  analogy  to  invoke  the principle requiring the prosecution to negative the existence of an honest belief that a

police officer was not acting in the execution of his duty when bringing the charge of resisting arrest: s 23A(a) Summary Offences Act; Mackley v Police (1994) 11 CRNZ

497 (CA).  However, the authorities on resisting arrest recognise not an honest but mistaken belief of law but an honest but mistaken belief about whether or not the police officer was acting in the execution of his duty, which is a factual question.  I agree with Judge McElrea that Mr O  ’s understanding of his legal rights was wrong.  An incorrect view of the law, whether honest or genuine, is not reasonable. Moreover, there is no room for a subjective defence of honest belief within the objective inquiry necessary to determine whether an excuse was reasonable.   As Judge McElrea correctly noted when determining the charge of resisting arrest at [61], Mr O  ’s mistaken view of the law could not constitute an honest belief even if negation of that state of mind was an element of the charge.

[45]     I record that Mr Minchin devoted a great deal of written argument, as he did in the District Court, to a submission that there was an insufficient breach of the peace to justify Sergeant Cantwell’s intervention and warning.  The purpose of his submission was not clear but I infer that it was directed towards reasonable excuse. He said that as the situation was under police control at the relevant time:

… any breach of the peace could not have been expected to occur and to deny freedom of assembly on account of what could conceivably happen is to surrender democratic rights to unlawfulness.

[46] I agree with Judge McElrea that the existence or otherwise of a perceived breach of the peace does not fall for consideration within the charge of obstruction: at [51]. The prosecution did not have to prove the legal validity of or foundation for the warning. And, contrary to Mr Minchin’s assertion, the officer’s warning to Mr O to cease his state of obstruction could not and did not amount to a denial of freedom of assembly.

[47]     I add that Mr O  ’s enjoyment of the right to the freedom of peaceful assembly with others in Queen Street on 19 March 2005 would have been prima facie protected by obtaining a permit from Council in advance of the march.  On this basis he may have had a proper evidential basis for raising the defence of reasonable excuse for committing what was otherwise the offence of obstruction: see Hirst per Glidewell LJ at 150. In its absence, he had none.

[48]     Mr O    has  not  discharged  his  onus  of  proving  that  he  had  a reasonable excuse for obstructing Queen Street on 19 March 2005.

(a)      Resisting Arrest

[49]     On the charge of resisting arrest Judge McElrea found:

[60]      … I do not regard Mr O  ’s passive resistance to his arrest as sufficient to constitute the offence of resisting a constable in the execution of his duty.   However his conduct in the police vehicle was in a different category, putting his legs where they were not meant to be and refusing to move them so that Sergeant Cantwell had to physically force them back down behind the seat.  It was Mr O  ’s resistance to this action which led to Sergeant Cantwell taking hold of him by the throat to ‘control his prisoner’.

[61]      The effect of the case law which I have mentioned seems to be that the prosecution must show beyond reasonable doubt that the defendant knew the officer was acting in the execution of his duty.   My finding is that Mr O   did know this by the time that he resisted, or if he did not it was only because of a mistaken view about the law as to the sergeant’s right of arrest in such circumstances, and a mistake in law is not sufficient for these purposes.   His resistance, both passive (outside the car) and active (inside the car), flowed from that mistaken view and coloured his whole perception of events.  Unfortunately it also led a number of other people into trouble.

[50]	A person is guilty of resisting arrest – s 23(a) Summary Offences Act:
… who resists or intentionally obstructs, or incites or encourages any other person to resist or obstruct, -
(a)       any constable … acting in the execution of his duty.
[51]	Mr Minchin    advanced    a    lengthy    written    argument    in    support	of

Mr O  ’s appeal against conviction on this charge which appeared to come down  to  two  propositions.    One  was  that  Mr O    was  entitled  to  use reasonable force to mitigate the effect of a wrongful arrest if his appeal against the charge of obstructing a public way was successful.  In view of my adverse finding on the obstruction charge it is unnecessary to consider this argument further.

[52]     Mr Minchin’s other ground was that Sergeant Cantwell used excessive force throughout  the  arrest  process  and  as  a  result  Mr O    was  entitled  to  act reasonably in his own defence.  Mr Minchin subjected the evidence relating to the

arrest to minute scrutiny.  He referred to the officer’s violent neck manoeuvre and “illegal   throat   grip   and   sadistic   comment”.      He   added   an   argument   that Mr O  ’s movement of his legs was “simply passive resistance and did not cross the line into open confrontation”.  He submitted that, because Mr O   was exercising his right to protest and excessive force was being used, he honestly believed that the actions of the police were unlawful.

[53]     At an earlier stage of his decision Judge McElrea said this:

[46]      The key issue is the question of an honest belief of the defendants that they were resisting the exercise of excessive force by police…   It is correct  that  if  an  accused  honestly  believes  that  police  were  acting unlawfully and not in the execution of their duty, then to act on that belief would not constitute an offence because the essential mental element of the offence would be missing.   Further, if there is an evidential basis for that position then the onus of proof lies on the prosecution to establish beyond reasonable doubt the lack of any such belief.   The reasonableness of the belief is only relevant insofar as it may point to whether the belief was actually or honestly held.

[54]     Mr Minchin did not suggest that the Judge’s summary of the law was in error. He did not identify any error of fact.  The question of excessive force did not arise once the Judge found that Mr O   refused to move his legs on request and physically resisted the officer’s attempt to force them back down behind the seat. This was the act of resistance to the officer’s conduct in execution of his duty once the Judge found that Mr O   had refused to comply with Sergeant Cantwell’s direction.

[55]     Mr O  ’s appeal against conviction on the charge of resisting must fail also.

Sentence

[56]     Mr O   appeals against his sentence by way of fines of $250 and $150 on the obstruction and resisting charges respectively, and the orders for payment of costs of $130 on each.

[57]     The thrust of Mr Minchin’s argument on appeal is that the Judge erred in failing to discharge Mr O   without conviction: s 107 Sentencing Act 2002. That provision prohibits a discharge “unless the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the matter”.  Judge McElrea noted that neither Mr O   nor his two co-accused identified any special or adverse consequences from the convictions.   He recorded a general submission  that  Mr O    would  like  to  continue  into  adult  life  without  a conviction and more generally that a conviction would be “disproportionate to what was involved”.   The Judge did not consider that the statutory test had been met. There was no evidence of any particular consequence which would be “out of all proportion” as opposed to simply disproportionate.

[58]     Judge McElrea gave Mr O   credit for the fact that he had no previous convictions before saying this about his conduct: at [6], Sentencing Notes:

Mr O   was the apparent leader of the group and in my view his refusal to accept what was said to him about getting off the road led to the problems for all others and so he has led other people into trouble. If he had used his microphone to ask people to move off the road, I am sure there would have been a different outcome for everybody.  I think he does have a greater responsibility than all the others and accordingly a fine in my view of

$400 is appropriate in this matter.

[59]     Mr O   has sworn an affidavit in support of his appeal.   In 2002 he graduated from Auckland University with a Bachelor of Arts degree, obtaining a very high mark in sociology.  He then commenced study for a Masters of Arts with the aim of obtaining a doctorate.  However, due to ill health, he has left university and is now working as a campaign co-ordinator and media liaison person for a low paid worker campaign at a union.

[60]     Mr O   says, and I unhesitatingly accept, that he continues to read and think  deeply  about  society  and  issues  which  in  his  opinion  are  corrupting  or damaging to the human community.  He also adheres to the principle of “standing up publicly in order to draw the attention of the public” to what he regards as unjust and corrupt activity in the wider political and corporate arenas.

[61]     Mr O   says that his group targeted the ANZ Bank on 19 March 2005 because he regarded it as a participant in:

… an international consortium of banks which determine social and political policy in Iraq and thereby make a profit out of the war in Iraq.  I find this morally corrupt and contrary to basic morality and the principles enshrined in  the  Universal  Declaration  of  Human  Rights  in  1948  and  I  sincerely believe  that  it  is  my  duty  to  bring  it  to  the  attention  of  the  public  of New Zealand.

[62]     Mr O   opines that he will experience difficulty in obtaining future employment if his convictions for obstruction and resisting arrest are upheld.   He refers to an inquiry which he made of a Foodtown store in October 2005 about work there.  He says that the employment officer asked if he had convictions.  In response he was told to look elsewhere because the company would not employ somebody with convictions, especially for resisting arrest.

[63]     Mr O   also refers to the possibility that a conviction may inhibit his prospects of travelling overseas.   He says that he has made inquiries of countries which he intends visiting this year.  The visa application forms included questions about convictions.

[64]     Judge McElrea exercised a discretionary power.   In order to succeed on an appeal against his decision not to discharge without conviction Mr O   must prove that the Judge erred in law, was plainly wrong or took account of irrelevant considerations or failed to take account of relevant considerations.  Mr Minchin has not identified any such error.

[65]     Instead Mr Minchin has submitted an affidavit from Mr O   which should have been produced in the District Court for consideration on sentence.  He has not explained the reason for his failure to take that step.  Furthermore, I am not satisfied that the information provided by Mr O   establishes that the direct or indirect consequences of his conviction would be out of all proportion to the gravity of his offending.  Whether the conviction will actually impede his employment or travel prospects is speculative.  What is most relevant is that Judge McElrea plainly regarded his conduct as sufficiently serious to justify entering convictions, for the reasons which he outlined, and the prospect of future difficulties with employment or

travel, which is the consequence of conviction for all first offenders, falls well short of establishing that the scales should be tipped in favour of a discharge.

Conclusion

[66]     In the result I dismiss Mr O  ’s appeals against conviction on the charges of obstructing a public way and resisting arrest, and against his sentence by

way of fines of $250 and $150 respectively with court costs payable on each of $130.

Rhys Harrison J