R v Oosterman

[2007] NZCA 118

IN THE COURT OF APPEAL OF NEW ZEALAND

CA368/06 [2007] NZCA 118

THE QUEEN

v

SIMON OOSTERMAN

Hearing:         19 February 2007

Court:            Hammond, Chambers and Arnold JJ Counsel:  G E Minchin for Applicant

A M Powell for Crown

Judgment:      3 April 2007         at 4 pm

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Protest against the Iraq war

[1]      In March 2005 Simon Oosterman, the applicant, marched up Queen Street in

Auckland in a protest against the United States-led invasion of Iraq.  At one point

R V OOSTERMAN CA CA368/06  3 April 2007

during the march, the protesters occupied the middle of the intersection of Queen and Victoria Streets, preventing traffic and pedestrians from using the intersection. Eventually the police intervened and decided it was time to clear the intersection. Mr Oosterman and the others then started marching back down Queen Street, blocking both northbound lanes.  A police officer told Mr Oosterman that he could continue his protest on the footpath.  He refused to do that.  He was then warned that if he failed to comply, he could be arrested.  Mr Oosterman refused to move to the footpath.  He was thereupon arrested and charged with obstruction of a public way, contrary to s 22(1)(a) of the Summary Offences Act 1981, and with resisting a constable acting in the execution of his duty, contrary to s 23 of the same Act.

[2]      Mr  Oosterman  and  others  were  tried  in  the  District  Court  at  Auckland. Judge McElrea, the trial judge, found both charges against Mr Oosterman proved. He convicted Mr Oosterman on both charges and fined him.

[3]      Mr   Oosterman   appealed   against   both   convictions   and   the   sentences. Harrison J  dismissed  the  appeal:  Oosterman  v  New  Zealand  Police  HC  AK CRI-2005-404-251 24 August 2006.   Mr Oosterman sought leave from the High Court to appeal to this court.  Harrison J dismissed that application: 22 September

2006.   Mr Oosterman has now sought special leave to appeal to this court under s 144(3) of the Summary Proceedings Act 1957.

The proposed question of law

[4]      The proposed appeal is now confined to the obstruction charge under s 22 of the Summary Offences Act.   The question of law, as set out in the notice of application for special leave, read thus:

Did the applicant’s conduct come within the reasonableness criteria provided by s 22(1)(a) of the Summary Offences Act, when considered in the light of the New Zealand Bill of Rights Act 1990?

[5]      Clearly that question does not raise a legal issue: rather, it called for a factual analysis of Mr Oosterman’s conduct as to whether it constituted “reasonable excuse” for the obstruction which occurred.

[6]      At the hearing, Mr Minchin, for Mr Oosterman, accepted that the question would have to be reformulated.  He never settled upon the precise wording of such reformulation, but the essence of the proposed appeal is whether the judges in the courts below approached the interpretation of s 22 correctly, in light of what was said to be the right to protest accorded by ss 14, 16, and 18 of the Bill of Rights.

Why we are declining special leave

[7] Harrison J, when dealing with the application for leave, said Mr Minchin’s argument had changed tack in the course of argument. The judge noted that, even by the end of the hearing, Mr Minchin had “failed to formulate a discrete question of law for determination by the Court of Appeal”: at [9]. Unfortunately, the matter was no clearer by the time he appeared before us.

[8]      No question of law of the required general or public importance arises.  There is  no  difficulty  about  the  correct  interpretation  of  s  22.    The  section  itself  is inherently flexible:  one commits  the  offence  only if  one  unreasonably  impedes normal passage along the way or street, and even then only if one’s actions are without reasonable excuse.   Clearly a judge must, when determining whether the offence has been committed, take into account rights accorded under the Bill of Rights.   Both Judge McElrea and Harrison J took into account the Bill of Rights when determining whether Mr Oosterman’s conduct was unreasonable and in breach of the section.  Their reasoning and their interpretation of the section were entirely orthodox.

[9]      This case does not give rise to the difficulties of interpretation discussed in Hansen v R [2007] NZSC 7. That is because of the open-textured and inherently flexible language of s 22. But, even if it did give rise to a question of how to apply the Bill of Rights at an interpretative level, the Supreme Court has now provided an answer to that. There would be no profit in this court retreading that ground.

Solicitors:

Marshall Bird & Curtis, Auckland, for Applicant

Crown Law Office, Wellington