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
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- Pointon v Police [2012] NZHC 3208
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Orders
Orders of the court
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Background
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Evidence
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