Stanton v Police

[2012] NZHC 3223

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-442-19 [2012] NZHC 3223

LEWIS REGINALD STANTON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 November 2012

Counsel:         S J Zindel for Appellant

E J Riddell for Respondent

Judgment:      30 November 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 4.15pm on the 30th day of November 2012.

RESERVED JUDGMENT OF MACKENZIE J

Background

[1]      The appellant appeals against his conviction on a charge of obstruction of a footpath, under s 22(1)(a) of the Summary Offences Act 1981.

[2]      The appellant has become quite well known in Nelson.  As I recorded in an earlier judgment1  he lives a somewhat itinerant life travelling and camping.   This

1      Stanton v New Zealand Police [2012] NZHC 1878.

STANTON V NEW ZEALAND POLICE HC NEL CRI-2012-442-19 [30 November 2012]

unconventional lifestyle led to his being banned from public places within Nelson and he had other minor brushes with authority.  For some time, he maintained a vigil outside the Farmers shop on Trafalgar Street, sitting there throughout each day with some placards and signs.   That led to some minor incidents and complaints from passersby who apparently took exception to the appellant’s action.  The City Council and police became involved.  Police took the view that the appellant was obstructing the footpath.  On 17 July 2012 he was warned that he was causing an obstruction and told to desist.  He failed to do so and was arrested at about 3.15pm that day.  He was released without charge, after a warning that a repetition of his actions would make him liable to be arrested again.  On 18 July he was again at his post outside Farmers. He was again warned that he was causing an obstruction and told to desist.  When he failed to do so he was arrested and subsequently charged under s 22.

[3]      The appellant defended the charge, at a hearing before two Justices of the

Peace in the District Court at Nelson on 3 August 2012.  In a judgment delivered on

6 August 2012, they found him guilty of the charge.  He was fined $200 plus costs.

[4]      The grounds of appeal are set out very fully in the notice of appeal.   The essence of those is that the appellant’s actions did not constitute an obstruction of the footpath, or that, if they did, they were a legitimate exercise of his right to protest, so as to provide him with a reasonable excuse.

[5]      Section 22 of the Summary Offences Act 1981 provides as follows:

Obstructing public way

(1)       Every person is liable to a fine not exceeding $1,000 who, without reasonable  excuse,  obstructs  any  public  way  and,  having  been warned by a constable to desist,—

(a)      Continues with that obstruction; or

(b)       Does desist from that obstruction but subsequently obstructs that public way again, or some other public way in the same vicinity, in circumstances in which it is reasonable to deem the warning to have applied to the new obstruction as well as the original one.

(2)      In this section—

Obstructs, in relation to a public way, means unreasonably impedes normal passage along that way:

Public way means every road, street, path, mall, arcade, or other way over which the public has the right to pass and repass.

The judgment under appeal

[6]      In  their  judgment,  the  Justices  summarised  succinctly  and  clearly  the evidence for both parties, and their factual findings.  I can do no better than repeat their summary.2

The facts are these. Mr Stanton has been occupying an area on the public footpath outside Farmers store for most of the daytime over the last 16 months or so. He sits or stands with a number of placards occupying a total space of approximately six metres in length and approximately 1.5 metres in width. The public way is quite wide at this point because it comprises partly footpath  and  partly  an  extension  of  the  footpath  leading  to  a  raised pedestrian crossing.

On 17 July 2012 Mr Stanton was warned by a constable that he was causing an obstruction and told to desist. Failing to do so, he was arrested at about

3.15 pm. He was subsequently released without charge later that day, having been warned that a repetition of his actions would make him liable to be

arrested again. Mr Stanton was outside Farmers again on 18 July and was again warned that he was causing an obstruction and told to desist. Failing to do so, he was arrested and subsequently charged under s 22.

The prosecution produced photographs taken on a number of separate occasions. Some were views of the area showing Mr Stanton in his position with his placards. Others were of the area when Mr Stanton and his placards were not present. The prosecution drew attention to the photographs showing people walking in the area normally occupied by Mr Stanton, which they could  not  do  when  he  was  present.  The  prosecution  argued  that  Mr Stantons's occupation of that area did unreasonably impede normal passage along the way. We were told that there had been public complaints but were not told of the number or nature of the complaints.

For the defence, we heard from Mr Stanton who told us that he had chosen a position that was the widest and most convenient (to the public) place to mount his protest consistent with his view that his protest needed to be in a place where it would be seen and have impact. He asserted that there was plenty of room for normal public passage even when people stopped and talked to him as they sometimes did, although they usually stayed only for minutes. His protest was against his treatment by the Nelson City Council. He considered he had the right to protest where he could get impact and there was no point being at the other end of town. The second defence witness, Mr Evans, produced photographs he had taken in order to show the

2      New Zealand Police v Stanton (aka) Hone Ma Heke DC Nelson CRI-2012-042-1948,

6 August 2012 at [5]-[8].

space occupied by Mr Stanton compared to space occupied by advertising hoardings that encroached onto the footpath. Mr Evans said that people using the footpath did not have to veer around Mr Stanton; although he had advised Mr Stanton to pull back his placards on occasion. He referred to other occasions when the position outside Farmers was occupied by buskers who took up more of the width of the footpath than did Mr Stanton.

[7]      The Justices went on to discuss whether that evidence could lead them to the conclusion that the appellant’s actions constituted an obstruction in terms of s 22. They  discussed  the  authorities  to  which  they  had  been  referred  on  what  will constitute an obstruction.3    After a careful analysis of the evidence in the light of those authorities, they reached the conclusion that the appellant’s actions did constitute an obstruction.   They then considered whether the appellant had a reasonable excuse based on his rights under New Zealand Bill of Rights Act 1990 (BORA).  Again, they discussed authority to which they were referred.4   They noted the need for a balancing between the right of freedom of expression and the rights of others to freedom of movement. Applying that principle, they said:5

To   regard   Mr   Stanton's   actions   as   falling   within   the   bounds   of reasonableness in the context of establishing a "reasonable excuse" for the purposes of s 22 seem to us to be moving the balance between Mr Stanton's rights and the rights of the general public just too far in Mr Stanton's direction.

The approach on appeal

[8]      I consider first the approach to be adopted to the application of s 22.  As the Court of Appeal observed in Oosterman, s 22 is expressed in open textured and inherently flexible language:   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.6   That makes it clear that the task of the Court below in this case was essentially twofold:  first, to make factual findings about the nature and extent of the alleged obstruction;   and second, in the light of those facts, to

assess reasonableness on the two issues identified by the Court of Appeal.

3      Police v Gillies (1940) 1 MCD 396; Stewart v Police [1961] NZLR 680 (SC); Haywood v

Mumford [1908] HCA 62, (1909) 7 CLR 133.

4      R v Oosterman [2007] NZCA 118.

5      New Zealand Police v Stanton, above n 2, at [23].

6      R v Oosterman, above n 4, at [8].

[9]      At the first stage, the assessment of the facts, the trial Court has the inherent advantage of seeing and hearing the witnesses.  This Court is reluctant, on appeal, to disturb such factual findings.  Counsel for the appellant did not invite the Court to do so. The Justices gave a clear and concise summary of the evidence and their findings in the paragraphs I have set out.   I proceed on the basis of those findings, supplemented only by the benefit of seeing the photographs which were available both to the Justices and to me.

[10]     The  second  stage,  the  assessment  of  reasonableness,  involves  a  value judgment.  The role of this Court on appeal is as described by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar as follows:7

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.

…

Was there an obstruction?

[11]     The  first  assessment  and  value  judgment  to  be  made  on  this  appeal  is whether,  in  the  light  of  the  facts  found  by the  Justices,  the  appellant’s  actions unreasonably impeded normal passage along the footpath.

[12]     In considering what is an unreasonable impediment to normal passage, it is necessary to have regard to the rights of both the appellant, and other users of the footpath.   The rights of members of the public on footpaths are not confined to a right of passage along the footpath.   Other activities may lawfully take place on footpaths, (albeit that some of them may require permission under local by-laws or other regulations).  Charitable collectors may stand to solicit donations, buskers may perform,  businesses  may  display advertising  placards  or  signs.    Such  activities, carried on normally and with appropriate regard for the rights of other users of a footpath, do not unreasonably impede normal passage.  They are an alternate use of

the footpath which may co-exist with normal passage.

7      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 130, [2008] 2 NZLR 141 at [16].

[13]     The presence of such other users on the footpath was relied upon by the appellant in this case. The Justices dealt with that submission in this way:8

It was argued that the advertising boards placed on the pavement outside shops were as much of an obstruction to normal passage as was Mr Stanton. Reference was also made in evidence to buskers and other groups who, from time to time, occupied the pavement.   But there is a difference.   The advertising signs placed on the payment are permitted and controlled under Nelson City Council by-laws.   Buskers and other street hawkers are also expected to operate under NCC permit.  …

[14]     Counsel for the respondent submits that permission granted under a bylaw provides a reasonable excuse to the impediment of the right of passage.   Without further  information,  I  question  that  analysis.    It  seems  likely  that,  in  deciding whether to grant permission to carry on such activities, the Council would need to consider whether the proposed activity would unreasonably impede normal passage. So, the granting of permission might be a recognition by the Council that the activity did not unreasonably impede normal passage.  If that is so, no issue as to reasonable excuse arises.

[15]     Another common use of public areas such as footpaths is to exercise the right to  protest.    That  right  is  well  established  at  common  law9   and  it  is  expressly enshrined in the freedoms of expression, of peaceful assembly and of movement contained in ss 14, 16 and 18 of BORA.  Section 22 is, so far as possible, to be given a meaning consistent with those rights.  I consider that in this case that is to be done by taking those rights into account in determining whether the appellant’s actions

constituted an unreasonable impediment to normal passage on the footpath.

[16]     In Oosterman, Harrison J approached this issue in this way:10

The NZBORA assumes direct relevance because the elements of the offence constituting prohibited conduct set the scope of infringement of any relevant NZBORA  right.  The  first  step  in  the  inquiry  is  to  consider  whether Mr Oosterman’s conduct fell within the natural meaning of s 22; I have already answered that question in the affirmative. The second step is to determine whether or not the s 22 prohibition on particular conduct is prima facie  inconsistent  with  the  NZBORA.  If  it  is  inconsistent,  is  the  limit

8      New Zealand Police v Stanton (aka) Heke, above n 2, [18].

9      Melser v Police [1967] NZLR 437 (CA) at 446 per McCarthy J; Oosterman v New Zealand

Police [2007] NZAR 147 (HC) at [33].

10     Oosterman v New Zealand Police at [32].

justified? If not, can the section be read consistently with the NZBORA? If it can, the provision should be read in that way; if it cannot, then its natural meaning must be given effect (see Hopkinson v Police [2004] 3 NZLR 704, Ellen France J, at [28]).

[17]     For my part, I adopt a slightly different approach from that two step inquiry discussed by Harrison J.  I prefer a single stage inquiry of considering whether the appellant’s  conduct  fell  within  the  meaning  of  s 22,  interpreting  that  section consistently with the BORA rights and freedoms as required by s 6 of BORA.  A person, who is otherwise acting lawfully, who exercises his BORA rights on a public footpath does so as of right, not on sufferance.   When that approach is adopted, I consider that normal passage, consistent with BORA, is a right of passage which accommodates the lawful use of the footpath for other purposes, including the exercise of BORA rights and freedoms.

[18]   Interpreted in that way, normal passage does not require complete and unrestricted access without let or hindrance to the entire area of the footpath for the purpose of passage.  Not every obstruction of a footpath will impede normal passage. To impede is to delay or block progress, or to obstruct or hinder.  An obstruction which arises from another lawful use of the footpath will not impede unless the ability of pedestrians to pass and repass along the footpath is delayed or hindered. That  will  not  occur if  pedestrians  can  readily walk  around an  obstacle without delaying their progress. A fortiori, normal passage will not be unreasonably impeded by such an obstacle.  Normal passage is not impeded by the use of the footpath for a lawful purpose (including the legitimate exercise of a BORA right), where passage along the footpath can be made without delay or without progress being hindered.

[19]     This  case  is  distinguishable,  on  the  facts,  from  Oosterman.    There,  the protesters were marching on the carriageway of the street.   It was recognised that similar action on the footpath would not have infringed s 22.11

[20]     The Justices recognised the use of footpaths for protest. They said:12

…   We accept that other groups occupy the pavement from time to time protesting or proclaiming a viewpoint.   We are not here to judge whether

11     Oosterman v New Zealand Police, above n 9, at [33].

12     Police v Stanton (aka) Heke, above n 2, at [18].

such actions amount to obstruction but we can see that the extended nature of Mr Stanton’s occupation is a significant point of difference.

[21]     I agree that the extended nature of the appellant’s occupation of the footpath is relevant in deciding whether he constituted an obstruction.  But two points must be borne in mind.  First, the charge related to one day only and did not allege a longer period of occupation.  Second, the length of occupation and the physical extent of the occupation must both be taken into account in determining whether normal passage is unreasonably impeded.

[22]     When the appellant’s occupation of the footpath is viewed in that way, I consider that it did not constitute an unreasonable impediment to normal passage. The Justices described the footpath as a public way, consisting of the footpath and an extension leading to a raised pedestrian crossing, as “quite wide”.  They assessed the normal width for passing and repassing up and down Trafalgar Street to be approximately six metres, or 14 metres if the extended space to allow access to an egress from the raised pedestrian crossing was included.  The appellant occupied a total space of approximately six metres in length and approximately 1.5 metres in width.  There was a minimum of 4.5 metres width of footpath available for passage over the six metre length of his occupation.  I do not consider that his occupation is likely to have impeded any pedestrians wishing to pass up or down Trafalgar Street.

[23]     Counsel for the respondent submits that an impediment can include causing others to congregate.  There was evidence that people would regularly stop and talk to the appellant while he was in his position and that they were sometimes there for significant periods of time.  I do not consider that that is sufficient evidence of an impediment to normal passage.  There was no evidence that the appellant’s activities were designed to cause people to congregate.   The evidence fell far short of establishing, on any day, let alone the day to which the charge related, an obstruction by means of an undue congregation of people.

[24]     Counsel for the respondent also referred to evidence from a senior constable who had observed the area at random times over the period of almost a month, that passersby were discouraged from moving along the footpath.  He said:

Q:       … how did that affect people that were moving along the footpath?

A:       Well some people just wouldn’t walk through there, some, some people would make a comment and turn and go through Farmers, some people would cross the road before the crossing and some people would still walk through but it was quite apparent that some people were not prepared to walk through when that was happening.

[25]     There was no evidence of any threatening behaviour by the appellant.  There was no conduct by the appellant, apart from his presence with his accompanying signs, which might provide an objective basis for the apprehension of harm.   The appellant should not be held criminally responsible for his appearance, or for his conduct, on the grounds that some people may find it so distasteful that they prefer to give him a wide berth.  The appellant’s presence in the area immediately occupied by him is not a sufficient basis to find that passage was impeded, beyond that area of immediate occupation.

Result

[26]     For these reasons, I have reached the conclusion that the appellant did not unreasonably impede normal passage along the footpath.  The appeal is accordingly allowed and the conviction is quashed.

[27]     I conclude by paying a tribute to the Justices for the quality of their judgment. The fact that I have differed from their conclusion does not detract from the clarity and cogency of their analysis of the facts, and their reasoning.

“A D MacKenzie J”

Solicitors:         Zindels, Nelson, for Appellant

O’Donoghue Webber, Nelson, for Respondent