S v Police HC Invercargill CRI 2010-425-4

[2010] NZHC 1032

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2010-425-4

BETWEEN  S

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         10 May 2010

Counsel:         N J Murphy for Appellant

M J Thomas for Respondent

Judgment:      17 May 2010

JUDGMENT OF MILLER J

[1]      Mr S   was convicted of disorderly behaviour, contrary to s 4(1)(a) of the  Summary  Offences  Act  1981.    He  appeals  against  his  conviction  and  his sentence, a fine of $600 plus $130 Court costs.

[2]      On the evening of 29 September 2009 Constable Erceg was on traffic patrol at Queenstown.  He stopped a car on Church Street, outside the Dux De Lux bar in which were sitting Mr S   and his associates.

[3]      As  the  officer  spoke  to  the  occupants  of  the  car  he  was  approached  by Mr S  .   From that point there is much conflict between the evidence of Constable Erceg, on the one hand, and Mr S   and one of his associates, Mr Kerr, on the other.

[4]      The officer explained that he stopped the car because it had been racing through town and he believed a passenger had been yelling from one of the car’s

S V NEW ZEALAND POLICE HC INV CRI 2010-425-4  17 May 2010

windows.  Mr S  , who was intoxicated, began to interfere.  Constable Erceg tried to ignore him.  Mr S   began to abuse the officer, saying:

Get the fuck out of my town you aren’t a local. Fuckin revenue gathering bastards.

Why don’t you leave us locals alone.

I want to make a complaint about you, you wanker.

Mr S   then pushed past the officer, who resisted, and walked to the driver’s window, telling the driver to drive off.   He demanded Constable Erceg’s badge number, which was not visible because the officer was wearing a fluorescent vest, then took photographs with his cellphone.  The officer warned him to leave.  He may have told Mr S   to “piss off”.  Mr S   responded to the warning by saying:

This is a free country and I’ll fuckin stand where I like.

[5]      A female associate of Mr S  ’s ushered him back to the bar.  From that position, about 15 metres distant, the officer could hear Mr S   still yelling abuse and swearing.   He entered the bar and arrested Mr S   for disorderly behaviour, handcuffed and cautioned him, and took him to the police station.

[6]      Mr S   said he was researching a proposed documentary on the police quota system or target system, an apparent reference to an alleged requirement that the police process a certain number of traffic offenders each month.  He denied being intoxicated or using abusive language.  He simply investigated the traffic stop to see whether the officer was practising revenue collection.

[7]      Mr S   denied intervening in the traffic stop.  He simply walked over and watched for a time as Constable Erceg dealt with the driver.  He did not ask for the badge number while the officer was busy, but waited until the officer engaged him in conversation.  He denied talking to the driver himself, saying it was his friend who did so, or pushing past the officer.  Constable Erceg responded to his inquiry by inviting him to “piss off”, and never volunteered his badge number.

[8]      Mr S   also denied swearing at Constable Erceg from the bar.  It was suggested  that  at  least  ten  minutes  elapsed  between  the  officer  speaking  to Mr S   and making the arrest.

[9]      Mr Kerr confirmed that Mr S   was not intoxicated, and stated that he followed Mr S   across the road when he saw the officer becoming agitated. Words  may  have  been  exchanged  before  he  arrived.     Constable  Erceg  told Mr S   to “piss off” when asked for his badge number.  Mr Kerr did not hear Mr S   swear at the officer, but did hear him ask repeatedly for the badge number.  Mr Kerr did not confirm that it was he who told the driver to leave, but admitted telling the driver that he need say nothing.  He heard abuse yelled at the officer after the incident, but it did not come from the bar they were in, the Dux De Lux.  He thought it came from a bar called Monty’s, which adjoins the Dux De Lux.

[10]     The Justices held:

[2]       You  acted  under  the  misconception  that  you  were  entitled  to confront the police officer in a public place, namely Church Street, and it is clear in the evidence presented that you interfered with the officer’s line of duty.  We believe the behaviour was inappropriate in choosing this particular place  and  time.    Interfering  with  a  police  officer  carrying  out  his  duty equates to disorderly behaviour.  Clearly alcohol was a factor.  Neither of the witnesses was accurately able to remember how much alcohol they had actually consumed.

[3]       We  believe  there  are  proper  channels  through  which  you  could pursue a survey on police quota systems and they would not be by randomly approaching police officers during the course of their duties.   We do not believe the officer laid the charges frivolously.

[11]     It will be seen that the Justices approached their decision on the assumption that it is disorderly conduct to interfere with a police officer in the execution of his duty.  They did so although they were referred to the leading authority, Brooker v Police.[1]    But interference with police work is not synonymous with disorderly conduct.  Brooker established that the offence requires:

[1] Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91.

A disturbance of good order which in the particular circumstances of time and  place  any  affected  members  of  the  public  could  not  reasonably  be

expected to endure because of its intensity or duration or a combination of both factors.[2]

[2] At [56].

[12]     The difficulty for an appellate Court is that the Justices have not found the necessary facts.  On the approach they took they evidently felt no need to do so, for Mr S    plainly interfered,  at  some  level,  with  the  officer’s  work.    They accepted that Mr S   was affected by alcohol and had interfered with the traffic stop.  To that extent, at least, they preferred the police evidence.  However, it is not clear whether they held that Mr S   committed the offence merely by asking  for  the  officer’s  badge  number,  or  whether,  at  the  other  extreme,  they accepted the officer’s account of the abuse offered, both in the street and from the bar, and the active interference in the traffic stop.

[13]     Ms  Murphy sought  to  persuade  me  that  even  if  the  officer’s  account  is accepted  the  behaviour  was  not  disorderly,  arguing that  it  cannot  be  disorderly merely to interfere in a traffic stop and that the language allegedly used could not reasonably be thought disorderly at that time and place.   That  I cannot accept. Perhaps the denizens of Queenstown bars are little troubled by colourful language, but the language used here on the officer’s account would be insulting in any setting. More importantly, in this particular setting Mr S  ’s challenge to the officer was apt to encourage others to join in.  Mr Kerr did join in.  When that is coupled with actively hindering the officer’s work (by intervening as he dealt with the driver and advising the driver to leave) and continued abuse from the bar, the necessary

element of public disorder might readily be established.[3]  A high value could not be

attached  to  freedom  of  expression  in  such  circumstances,  notwithstanding  that Mr S  ’s ostensible purpose, that of investigating a quota system, may be a matter of public interest.

[3] R v Morse [2009] NZCA 623.

[14]     The  officer’s  account   has  a  certain  plausibility,  for  several  reasons: Mr S   had been drinking and acted opportunistically; since no one could suggest that all traffic stops are unjustified, his intervention could not serve his research unless he proposed to interview the officer about the justification for this particular  stop;    he  cannot  seriously  have  thought  the  officer  would  submit  to

questioning about the stop or the quota system in the circumstances;   he does not seem  to  have  identified  himself  as  a  researcher;  his  insistent  demands  for  the officer’s identifying number rather suggest that he was pursuing accountability for this particular stop, having assumed without evidence that the officer lacked justification;   and it seems that he and Mr Kerr wanted to ensure the officer abandoned the traffic stop.   These features of the evidence are scarcely consistent with bona fide research.   In important respects Mr S  ’s evidence is not supported by that of Mr Kerr, who did not join the incident until after Mr S   had evidently exchanged words with the officer, causing the agitation that Mr Kerr observed.

[15]     However, the Justices having misdirected themselves, the appellate question is  whether  the  evidence  proved  the  offence  of  disorderly  behaviour  beyond reasonable doubt.   Faced as I am with the disadvantage of not having heard the witnesses, I am not satisfied to the required standard that the officer’s account is correct.  And Ms Thomas accepted that it would not be disorderly to ask the officer for his badge number, without more.  (In making that concession, she did not accept that the officer must supply his badge number in such circumstances.)

[16]     For these reasons, the appropriate course is to order a rehearing in the District Court so the facts can be established and a decision reached against the correct test. The conviction will be set aside and the information remitted to the District Court for rehearing.  I respectfully suggest that the hearing should be conducted by a Judge.

Miller J

Solicitors:

Checketts McKay Law Limited for Appellant

Crown Solicitor’s Office, Invercargill for Respondent