R v Police HC Auckland Cri-2006-404-4

[2006] NZHC 931

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-404-04

BETWEEN  R

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         3 July 2006

Appearances: Grant Illingworth QC for Appellant

Mark Woolford and Katie Hogan for Respondent

Judgment:      9 August 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 9 August 2006

SOLICITORS

McLeod & Associates (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

COUNSEL

GM Illingworth QC

R V POLICE HC AK CRI-2006-404-04  9 August 2006

Introduction

[1]      Ms R   appeals against  her  conviction  in the District  Court  at Auckland on 22 November 2005 on one charge of loitering “near the place where [the   complainant]   works,   namely   Belucci,   190 Broadway,   Newmarket”   with knowledge that her conduct was likely to cause Ms Manwa Wong, the complainant, who owned the Belucci store, reasonably to  be intimidated: s 21(1)(d) Summary Offences Act 1981.  Ms R   also appeals against her fine of $300 plus court costs of $130 on the ground that she should have been discharged without conviction.

[2]      Ms R   was prosecuted along with two others.  One was convicted and fined but has not appealed.  The other was discharged without conviction.

[3]      The issues raised on appeal by Mr Grant Illingworth QC, Ms R  ’ counsel, are, first, whether or not the police proved that Ms R   was loitering within the statutory context and, second, if so, whether she did so with the requisite statutory knowledge.

District Court

[4]      The relevant factual circumstances, taken from the careful decision of Judge

Caroline Henwood, are as follows:

(1)      At about 10 am on 10 May 2004 Ms R   and others, whom a police officer identified as a group of animal rights activists, were engaged in a protest outside the District  Court  at  Auckland.    Early in  the afternoon some of them including Ms R   went to Newmarket and stationed themselves outside Ms Wong’s shop in Broadway.  She sold garments allegedly made of animal fur.   It was clear that Ms R  ’ group was protesting against the sale of fur garments;

(2)      Ms R   and another woman entered the shop while Ms Wong was serving customers.  They were in the vicinity of a clothing rack and Ms R   was heard speaking very loudly, so that  customers could

hear,  words  to  the  effect  “is  there  any  fur  here?”     Ms Wong recognised Ms R   from a previous protest.  She asked her to leave the store.  Ms R   then removed a jacket from the rack.  She walked to the door to show it to other protestors; she thought that the collar had real rabbit’s fur.  In answer to a further demand from Ms Wong, Ms R    left  and  re-joined  the  protest  outside  but  first  threw  the jacket on the shop floor;

(3)      Ms Wong was aware that while on the footpath Ms R   and others were making a great deal of noise through the use of megaphones, sirens and screaming.   She also thought she was being videoed by Ms R  .  The Judge viewed the video.  She made these findings:

They [Ms R   and others] were screaming, a loud siren was blaring and the Court was able to view this on the video. Even taking into account the fact that the video was being viewed in a courtroom, there can be no doubt in the Court’s mind that the siren was ear splitting and deafening.   The noise from that siren was intimidating in itself.

[5]      The Judge accepted Ms Wong’s evidence that her shop was targeted by the protestors, and that she felt frightened and intimidated as a result.  Ms Wong was so scared by the conduct of the protestors and the intimidation of her customers that, after Ms R   and another left her shop, she attempted to close the doors.  Another member of the protest group tried to stop her.

[6]      Ms Wong called the police who had a discussion with the protestors but did not  take  any  action  against  them.    Ms Wong  then  called  a  security  firm  for assistance.   A guard arrived shortly afterwards.   At one stage he left the shop and spoke to  the  protestors.   He  advised  them that  they could  continue  about  their business provided that they were peaceful and did not enter the shop because they were trespassing.

[7]      Judge   Henwood   summarised   Mr Illingworth’s   submissions   that    the prosecution  had  not  established  the  actus  reus  of the offence of loitering but dismissed that line of defence with a description of the purpose of s 21(1)(d) at [40]. The Judge examined Ms R ’ conduct for the purpose of establishing whether it

‘justified the intervention of the criminal law’. She focused first upon Ms R ’ activities in entering the shop and locating a garment with a small amount of rabbit fur on the collar, which she found was sufficient for Ms R and others ‘to launch into a full-scale protest’: at [43]. She referred to Ms Wong’s observation of Ms R

‘… standing in the doorway videoing her specifically’: at [47].

[8]      Judge Henwood was satisfied that the charge was proven against Ms R   on the ground that she knew her conduct was reasonably likely to intimidate Ms Wong. She found that it constituted the offence of intimidation.   Accordingly, she found Ms R   guilty of the offence: at [48]-[51].  I shall return to her reasoning later.

Loitering

[9]      Section 21(1) Summary Offences Act 1981 provides:

Every person commits an offence who, with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated,—

(a)       Threatens to injure that other person or any member of his or her family, or to damage any of that person's property; or

(b)       Follows that other person; or

(c)       Hides any property owned or used by that other person or deprives that person of, or hinders that person in the use of, that property; or

(d)       Watches or loiters near the house or other place, or the approach to the house or other place, where that other person lives, or works, or carries on business, or happens to be; or

(e)       Stops, confronts, or accosts that other person in any public place. [Emphasis added]

[10]     Mr  Mark  Woolford  for  the  police  did  not  dissent  from  Mr Illingworth’s proposition that s 21 must be interpreted in a way that best accommodates the right to protest: s 6 New Zealand Bill of Rights Act 1990.  Mr Illingworth cited a number of authorities in support. It is settled that the right of protest is a manifestation of the right of freedom of expression and a serious infringement of society’s standards is required if the subject conduct is to engage the criminal law; the fact that activities

are troubling or annoying to a complainant or members of the public is insufficient:

see Stemson v Police [2002] NZAR 278.

[11]     The first or threshold issue is whether or not Ms R   was in fact “loitering”. The meaning of the word “loiter” must be construed in its statutory context.   The original crime of intimidation was directed at somebody who “watches or besets the

… place where such other person … carries on business …”: s 33(d) Police Offences Act 1927.  The word ‘besets’ is synonymous with besieging or surrounding.  When enacted in 1981, s 21(d) retained the same element  from s 33(d) of watching or besetting, even though the mental element of the crime of intimidation was substantially amended.  It was not until 1997, when the Summary Offences Act was amended, that the words “loiters near” were introduced to replace “besets”.

[12]     The report of the Statutes Revision Committee on the Summary Offences Bill was read to the House on 9 October 1981.  It records that the forerunner of s 21 was opposed by the Federation of Labour because of concern that it would interfere with the right to picket.  The Government’s purpose was to prohibit ‘stand-over tactics’, with the provision to apply more widely to subjects ‘such as gang confrontations and threats of damage to property’.  The committee acknowledged that the words ‘watch’ and ‘beset’ might now be considered archaic but, in view of their long statutory tradition, they were retained.

[13]     The 1997 amendment was introduced in a report by the Justice and Law Reform Committee  read to  the  House  on 20 November  1997.    The  Minister  of Justice, the Honourable Douglas Graham, spoke in support, emphasising that it was part of a package of measures for dealing with gangs.  He spoke also about the evils of stalking.   However, he did not  explain the reason for substituting the phrase “loiters” for “besets” in s 21.

[14]     Messrs  Illingworth  and  Woolford  are  unaware  of  any  other  case   in New Zealand where s 21 has been invoked against those bona fide exercising the constitutional right of freedom of protest.

[15]     The crime of loitering has long been a feature of English vagrancy statutes. Its contextual history is traced in what is, with respect, the scholarly and illuminating judgment of Scott LJ in Ledwith v Roberts [1937] 1 KB 237 at 267-277. The Judge identified the crime’s antecedence in various enactments dating from the 16th century, when large groups of dispossessed people assumed a vagrant lifestyle in England in order to survive. Scott LJ described them as “the thriftless poor” who

constituted at 276:

…  in our  earlier  history an unemployed class  which  was  only too  well known and always regarded as a public menace, and that it was this class which was intended by all the expressions ‘idle and disorderly persons,’

‘person using loitering,’ ‘rogues and vagabonds’ and ‘sturdy beggars.’  That the class was treated as semi-criminal is also beyond argument …

[16]     He endorsed at 269 the then Oxford dictionary definition of:

‘Loitering’ in its early use as ‘vagrancy, vagabondage, or leading a vagabond’s life,’ and ‘loiterer’ as ‘a vagabond or sturdy beggar.’

[17]     Scott LJ concluded by expressing his opinion at 277 that it was wrong that:

… these old phrases should still be made the occasion of arrest and prosecution,  when in their  historical  meaning  they  are so  utterly  out  of keeping with modern life in England.  The class against which the legislation was directed has ceased to exist…   The old phrases have today lost their meaning, but they remain on the statute book as vague and indefinite words of reproach.

[18]     The meaning of the word “loiter” has been considered authoritatively in other Commonwealth jurisdictions.   In Samuels v Stokes (1973) 130 CLR 490 the High Court of Australia held that a participant in a march through the streets of Adelaide demonstrating against the Vietnam war was guilty of failing ‘to cease loitering’ at a police officer’s request by remaining as part of a group which was stationary at an intersection for 15 minutes. Menzies J noted that the question of whether the defendant was loitering by standing in one area for an extended period was to be determined in its statutory context. He concluded at 498-499 that:

In this setting it seems to me that the word ‘loiter’ means no more than

‘tarrying’, or, to use a phrase that has received judicial recognition, ‘hanging about’.   A person may loiter who has a reason,  lawful  or  unlawful,  for standing, sitting or sauntering in a public place.   It is to be observed that merely to  loiter  in a  public place is  not  made an  offence  and  there  is, therefore, no compelling reason for reading the word in a narrow sense.  The

offence  created  by  s 18(1)  is  failing  to  give  a  satisfactory  reason  for loitering…

I consider that, without any context, the word ‘loiters’ does ordinarily carry the meaning of lingering idly or aimlessly, and not merely lingering, but the context to which reference has been made suggests that here a person who merely lingers is a person who loiters, regardless of his reason for so lingering.   Moreover, it does not seem to me oppressive, and therefore unlikely, that authority should be given to a member of the police force to ask a person lingering in a public place why he is doing so, or to authorise a member of the police force to request a person so lingering to stop doing so in any of the circumstances stated in s 18(2)(a), (b), (c) and (d).  It must also be remembered that, although, without some context, the word ‘loiter’ would carry the suggestion of idling or lack of purpose, there are many decided cases which establish that to hang about with an unlawful purpose is to loiter…

[My emphasis]

[19]     The judgment of Gibbs J at 502-504 (in a passage adopted by Randerson J in Hargrave v Police (1998) 17 FRNZ 124 at 129) was to the same effect.   After referring to Scott LJ’s decision in Ledwith v Roberts, Gibbs J said this at 503:

The word ‘loiter’ in its ordinary sense does not connote remaining without a lawful reason.  Dictionary meanings of the word include ‘to linger idly about a place’ and ‘to hang about in an idle manner’;  it  has  other  senses  not relevant in the present context.  In its natural meaning the word may suggest indolence or inactivity but it does not connote either legality or illegality; a person may loiter for a legitimate reason…

In my opinion the context of s 18(2) makes it clear that a person may be loitering although he is standing about with a perfectly lawful purpose.  The words of the section make it clear that a person may be requested to leave the area,  notwithstanding  that  he  is  lawfully  there  and  that  there  is  no suggestion that he has done or will do anything wrong…

However, it was said that the fact that the respondent had a purpose to be present — a purpose of supporting the demonstration — meant that she was not loitering…  The question whether a person is loitering would seem to me to be in general one that should be answered by an objective consideration of the observable facts rather than by an inquiry into the person’s state of mind.   The mere fact that a person is standing still in a street will not necessarily mean that he is loitering although when all the circumstances are regarded it may be held that he is.  The facts of the present case put shortly were that the procession in which the respondent had been marching had broken up into violence and disorder.   The respondent was standing in the street,  still  holding her  flag,  but  jumping  up  and  down, apparently to see what was happening.   There was no suggestion that she was  prevented  from  leaving  by  the  press  of  the  crowd.     In  these circumstances it was, in my opinion, right to conclude that she was loitering in the street.

[My emphasis]

[20]     With respect, I do not find the reasoning of Menzies or Gibbs JJ particularly convincing.  Mr Woolford did not refer to Samuels. A New Zealand Court, guided by the NZBORA, may reach a different conclusion about whether or not a person loiters by standing in a public place along with others for the apparent purpose of exercising her democratic right of protest.

[21]     Mr Illingworth relied principally upon the decision of the Privy Council in Attorney-General of Hong Kong v Sham Chuen [1986] 1 AC 887. The facts were in the vagrancy realm and are not material. The accused was arrested for loitering in a public place without giving “a satisfactory account of himself and a satisfactory explanation for his presence there…”. Lord Keith, giving judgment for the Board, accepted that the dictionary meaning of “loitering” was synonymous with “lingering”. He referred at 896 to three possible constructions of the words being:

… (i) any lingering; (ii) lingering with no apparent purpose at all; and (iii)

lingering in circumstances which suggest an unlawful purpose.

[22]     Lord Keith peremptorily eschewed at  896A-B reference to the legislative history of the relevant statute and to reported decisions elsewhere.   He then made these observations which, with respect, are hardly controversial:

… The word is to be construed in the light of the context in which it appears in this particular enactment…   Obviously a person may loiter for a great variety of reasons, some entirely innocent and others not so.   It would be unreasonable to construe the subsection to the effect that there might be subjected to questioning persons loitering for plainly inoffensive purposes, such as a tourist admiring the surrounding architecture…  So their Lordships conclude that the loitering aimed at by the subsection is loitering in circumstances which reasonably suggest that its purpose is other than innocent.

[23]     While Mr Illingworth placed great weight on this passage, I do not derive any assistance from it.  It states no more than the obvious in its statutory context.  It does not support Mr Illingworth’s submission that Lord Keith’s statement constitutes a test that the actus reus of the offence under s 21 is committed if and only if the defendant’s lingering is accompanied by circumstances that reasonably (i.e. objectively) indicate a purpose that is ‘other than innocent’.

[24]     I have found other authorities cited by Mr Illingworth from North America to be of more use, particularly the majority decision of the Supreme Court of Canada in R v Heywood [1994] 3 SCR 761. In that case the appellant was convicted of an offence, that having already been convicted of sexual offences, he was ‘found loitering in or near a school ground, playground, public park or bathing area’. Cory J for the majority reviewed the relevant statutory history. He noted that at 27:

Historically, the essence of the offence of vagrancy was that of being a loose, idle or disorderly person or vagrant, rather than the doing of any of the specific acts referred to in the vagrancy provisions…

[Judge’s emphasis]

[In 1953-54] the vagrancy provisions were restructured so that the focus shifted from being a vagrant to doing the acts prohibited by the section. However,  it  is  significant  that  the acts  prohibited  were  still  primarily related to the status of the accused rather than the nature of the acts themselves.

[My emphasis]

[25]     Cory J was of the view in Heywood that, in its statutory context, the word

‘loiter’ should be given its ordinary meaning of ‘hanging idly about a place’, and that if the person had a purpose for being in that state, such as waiting for a spouse, he or she could not be said to be idling: at 28-30.   He was satisfied that the ordinary definition was also consistent with the purpose of the section.

[26]     In summary, while the authorities are not altogether consistent, it can be said that all accept that loitering means lingering or hanging idly about a place.   But otherwise its meaning is very dependent on the statutory context.   It must also be remembered that the concept of loitering derives from vagrancy statutes designed to reach  those  who  idled  and  whose  mere  presence  without  an  apparently  lawful purpose  was  sufficient  to  justify  a  legislative  presumption  that  their  inactivity equated with a criminal disposition.  That is why the vagrancy laws were aimed at a person’s status or state of being rather than his or her conduct and why the law frequently assumed an unlawfulness of purpose, requiring a satisfactory explanation if criminal liability was to be avoided.

[27]     The use of the word in a very different context, to proscribe active behaviour associated with the affirmative  purpose of exercising  the  freedom to  protest,  is

incongruous.  It is not easy to comprehend how a person’s presence could of itself amount to loitering in such circumstances.  The approach mandated by the NZBORA requires a narrow construction of the word, to ensure that the result does not unnecessarily  interfere  with  a  fundamental  constitutional  right.     The  relevant statutory provision must be interpreted to give it a meaning consistent with the rights and freedoms contained in the NZBORA: s 6.

[28]     This  requirement  to  adopt  a  narrow  construction  is  supported  by  the definition of loitering in Black’s Law Dictionary (6th Ed) 1990, cited by Randerson J in Hargrave at 129, as follows:

To be dilatory; to be slow in movement; to stand around or move slowly about; to stand idly around; to linger or spend time idly.

[29]     I agree with Mr Illingworth that in the s 21 context “loiter” must also take colour and meaning from the word “watches”.  That word reinforces the conclusion that a person’s passive state of being (providing it is accompanied by the necessary state of knowledge or intention) is the subject of legislative proscription.   In the context of domestic relationships, a person’s prolonged presence, whether keeping watch or idling about, often suggests an intimidatory purpose.  That inactive status can, of itself, provide the necessary factual foundation for an adverse inference about the state of knowledge or intention necessary to constitute the offence of frightening or intimidating.  I am in no doubt that s 21(d) was directed at redressing that type of conduct.

Decision

[30]     I am satisfied that Judge Henwood erred in a number of material respects on the loitering question.  Her first error was in making findings on facts which deviated from the terms of the charge.  Ms R   was charged with “loitering near the place where [Ms Wong] works, namely Belucci, 190 Broadway, Newmarket”.  The word

‘near’ means ‘not far off’ or ‘to or at a short distance in proximity in space or time’, and  requires  a  finding  of  fact:  McDowell  v  Police,  HC  Wellington,  AP71/99,

30 April 1999, Gendall J at 4.  Ms R   was not charged with loitering at or within

the shop or where she worked.  However, the Judge appeared to base her decision on the latter premise.  The distinction is important.

[31]     On two occasions the Judge described the charge as one of loitering “where the complainant works”: at [4] and [32][a]. She omitted the critical component of loitering “near a place” where the complainant works. However, she later correctly recited the terms of the charge, at [37], before returning to the theme of conduct at or within the shop. She said it was necessary to examine Ms R ’ conduct “at Belucci” to establish whether her conduct was unlawful: at [41].

[32] As noted, Ms R was charged jointly with two others. Judge Henwood examined with care Ms R ’ conduct. She focused on her conduct in the shop, particularly in removing a jacket from one of the racks: at [10]. She found that Ms R was videoing Ms Wong from the doorway of the store: at [12], [22]-[24], [47]-[48]. She also found that while Ms R was inside the shop, others were outside, pressing placards against the window: at [14]. She concluded with these findings:

[48]      It is a finding of the Court that these protestors on this day had come specifically from the Auckland District Court to Belucci Fashions to conduct a protest against that shop and the shop owner, who is  the complainant Manwa Wong.  They conducted the protest in such way that they must have known that their conduct would reasonably intimidate Manwa Wong and indeed it is the Court’s finding that that was their intention.  They intended to cause the complainant to fear them in order to influence her behaviour, that is to cease selling garments with fur on them.  That is intimidation.  It is the Court’s view that their behaviour as protestors justified the intervention of the criminal law.  This is illustrated by the conduct of the protestors:

1.entering the shop, rifling through the clothes and engaging in loud tones with the shop owner and customers;

2.screaming at the top of their voices and having the siren on right near the door of the shop on the footpath;

3.specifically videoing the complainant through the open door of her shop;

4.        pressing signs up against the window of the shop;

throwing a garment on the floor of the shop in view of the complainant and her customers.

[49]      It is not necessary for the prosecution to prove that they made threats of  violence or  were actually  violent  to  her.    It is  enough to show they

organised their conduct on that day to make maximum impact on her in order  to reasonably intimidate her  and in  this  particular  case they  were specifically targeting the complainant.  The video discloses another person, possibly another shop owner who was not being targeted, coming out and remonstrating with the level of noise and disruption caused by the protest.

[33]     The Judge identified five acts, all falling within the ambit of conduct, to justify her conclusion about Ms R  ’ state of knowledge.  However, with respect, her actions in, first, entering the shop, rifling through clothes and engaging in loud tones with the shop owner and customers; second, in specifically videoing Ms Wong through the open door of her shop (counsel agreed that the video was between six and seven minutes in length and was directed at the shop’s interior for no more than a minute and a half); and, third, throwing a garment on the floor of the shop in view of Ms Wong and her customers, all occurred within Belucci.   They did not occur near to the premises, as the charge alleges.

[34]     This   factor   serves   to   reinforce   the   inappropriateness   of   the   charge. Section 21(1)(d) is designed, as I have said, to capture the conduct of somebody whose mere watching or idle presence near a place is designed to intimidate its occupant.   The provision recognises the human power to frighten through geographical proximity alone.   The proper charge arising from Ms R  ’ conduct inside the shop, and one on which she may have been at real risk, was of trespass or wilful damage or, more particularly, the specific offence of threatening to damage Ms Wong’s property with the requisite intent: s 21(1)(a).  However, she did not face any of these charges.

[35]     In the result only two aspects of Ms R  ’ conduct remain for consideration within the purview of loitering – participating in screaming at a high volume coupled with a siren near the door of the shop on the footpath, and pressing signs up against the shop window.

[36] Judge Henwood’s second error was a failure to undertake the threshold factual inquiry into whether or not Ms R was loitering. This was a question of fact or degree. The Judge correctly identified that the meaning of ‘loitering is crucial to the correct legal analysis of the events of 10 May’: at [37]. However, having

made this point, she omitted to identify the conduct which could be said to amount to loitering.  She simply said at [40]:

The defence argue that the defendants were protesting exercising their legal right in that they were not idling or lingering or hanging about the complainant’s shop because they had a specific purpose to demonstrate and being protestors they could not be said to be loitering.  The Court disagrees with that  submission.    A protestor  could be said to be loitering for  the purposes of s 21(1)(d) when they are watching or lingering or hanging about the complainant’s property knowing that his or her conduct was likely to cause the complainant reasonably to be frightened or intimidated.  The fact that a protestor holds a placard or has pamphlets does not give that person a special protection by way of the Bill of Rights Act

1990  when  the  conduct  steps  over  the  line  and  becomes  intimidation

justifying the interference of the criminal law.   The Court notes that the wrong Parliament wishes to address in s 21 of the Summary Offences Act is simply the intimidation of citizens, not the ‘loitering’ which is not in itself unlawful.  There also needs to be considered the shopkeeper and his or her right to go about the lawful business of making a livelihood…

[Emphasis added]

[37]     With respect, the highlighted passage from the judgment shows that Judge Henwood conflated the two discrete areas of inquiry into the actus reus and mens rea of the offence.   She assumed that ‘a protestor’ loiters if he or she is ‘watching or lingering or hanging about’ a place with knowledge that his or her conduct was likely to have proscribed consequences.  However, the Judge first had to determine whether or not Ms R   was in fact loitering outside the shop before considering her state  of  knowledge  or  purpose,  especially  given  the  Judge’s  express acknowledgement that loitering itself is not unlawful.

[38]     In my judgment, applying “an objective consideration to the observable facts rather than an inquiry into [Ms R  ’] state of mind” (Samuels at 503), Ms R  ’ conduct was the antithesis of lingering idly or aimlessly.  On the Judge’s findings, Ms R   was not in an inactive, indolent or idle state at all.  Deliberate action in aid of a lawful purpose, in this case exercising a constitutional right of protest, cannot amount  to  loitering:  Madden  v  Police,  HC  Auckland,  A169/01,  24 May  2002, Heath J at [13].

[39]     The Judge’s third and related error arose in this way.   Section 21 requires proof of ‘conduct’ which the defendant knows is likely to cause intimidation.  The

section prescribes five different types of qualifying conduct: s 21(1)(a), (b), (c), (d) and (e).  The prosecution must establish the link or nexus between the particular type of charged conduct, in this case loitering, and the associated knowledge.

[40]     Assuming for these purposes that Ms R  ’ presence near Belucci amounted to loitering, the question must  be whether or not  her presence was of itself the conduct  which she knew would  intimidate the shop owner.   The  Judge  did  not undertake this aspect of the loitering inquiry.  Instead she relied on different conduct; that is, making excessive noise by high pitched screaming using a siren, and pressing signs against a shop window: at [48]-[50].  As I have observed, these affirmative or deliberate acts are the antithesis of a passive state of being.

[41]     Again, the conduct upon which the Judge relied may have placed Ms R   at risk of a charge of hindering Ms Wong in the use of her property: s 21(1)(c).  It may also have placed her at more risk of a charge of disorderly behaviour.  Arguably her conduct jointly with her companions may have been so annoying and insulting as to interfere  with  Ms Wong’s  right  to  go  about  her  business  peacefully,  as  Judge Henwood  expressly found,  that  it  justified the  intervention of the  criminal  law: Melser v Police [1967] NZLR 437 (CA). With respect to the Judge, her careful reasoning suggested a focus on condemning the conduct of Ms R and others at the expense of an evaluation of whether or not the police had proven the elements of the charge which they elected to lay.

[42]     In summary, I am not satisfied that the police established the first element of the charge of loitering under s 21(1)(d) and, therefore, the Judge erred in finding the charge proven and entering a conviction.   It is unnecessary for me to consider the second element of the state of Ms R  ’ knowledge.  Accordingly, I allow Ms R  ’

appeal and set aside her conviction in the District Court.

Rhys Harrison J