Pointon v Police - [2012] NZHC 3208

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2012-470-24 [2012] NZHC 3208

BETWEEN ANDREW LYALL POINTON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 3 October 2012

Counsel: M Bott for Appellant
N G Belton for Respondent

Judgment: 30 November 2012

JUGMENT OF HEATH J

This judgment was delivered by me on 30 November 2012 at 2.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, PO Box 13063, Tauranga
Counsel:
M Bott, PO Box 48-141, Wellington

POINTON V NEW ZEALAND POLICE HC TAU CRI 2012-470-24 [30 November 2012]

Contents

Introduction  [1] The District Court judgments  [3] Competing submissions  [11] “Offensive behaviour”: legal principles
(a)      Introductory comments  [15]
(b)      From whose perspective is the behaviour judged?  [18] (c)      What is “offensive” behaviour?  [23] (d)      The tests to be applied  [32] Analysis
(a)      Freedom of expression  [33]
(b)      Was Mr Pointon’s behaviour “offensive”?  [38] Result                  [54]

Introduction

[1] Mr Pointon is a naturist. Around 8.30am on 23 August 2011, he went for a run along tracks in a wooded area within the Oropi Bike Park, about 20 kilometres from Tauranga. Apart from running shoes, he was naked. As he was running he encountered the female complainant, walking her dog. She made a complaint to the Police. As a result, Mr Pointon was charged with “offensive behaviour”, contrary to s 4(1)(a) of the Summary Offences Act 1981 (the Act).

[2] In a reserved decision delivered in the District Court at Tauranga on 6

December 2011, a Community Magistrate found Mr Pointon guilty and entered a conviction.1 Mr Pointon appealed against his conviction to a District Court Judge.2
On 11 June 2012, his appeal was dismissed.3 On 7 September 2012, the Judge

granted leave to appeal out of time on a question of law.4 However, he did not identify the question (or questions) of law on which he thought a second appeal was
justified.5

1      Police v Pointon DC Tauranga CRN 110700006717, 6 December 2011 (Best CM).
2      Summary Proceedigs Act 1957, s 114A(2).
3      Pointon v Police DC Tauranga CRI 2012-470-5, 11 June 2012 (Judge P A Moran).
4      Summary Proceedings Act 1957, s 114B(2).
5      The test for granting leave to appeal to this Court under s 114B(2) of the Summary Proceedings
Act 1957 is the same as that applying when this Court considers whether to grant leave to appeal to the Court of Appeal on a criminal appeal from the District Court: s 144(2). The applicable principles are set out in R v Slater [1977] 1 NZLR 211 (CA), in the context of the analogous “special leave” provisions of s 144(3). In cases in which a District Court Judge considers leave should be granted under s 114B(2) it would be helpful to this Court if the relevant question (or questions) of law were identified.

The District Court judgments

[3] Community Magistrate Best heard evidence both from the female complainant and Mr Pointon. In submissions, he was referred to Morse v Police,6 and

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 Pointon v Police

Details

AGLC: Pointon v Police [2012] NZHC 3208
Case: [2012] NZHC 3208
Decision Date: 30 November 2012

CaseChat Overview and Summary

Andrew Lyall Pointon is a naturist who was convicted of the criminal offence of "offensive behaviour" contrary to s 4(1)(a) of the Summary Offences Act 1981, after running naked in a public park. He appealed against the conviction, which was dismissed by a District Court Judge. The Judge granted leave to appeal out of time on a question of law. The High Court held that the appeal should be allowed, and the conviction set aside. The Court held that there was insufficient evidence that the behaviour was "offensive", for the purposes of the Act. While the complainant was "unwelcomely surprised" by the sight of Mr Pointon, it was not of such a character as to warrant intervention by the criminal law. The complainant's decision not to return to the park was her own choice.

Orders