T v Police HC Auckland Cri-2008-404-230

[2008] NZHC 1839

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-404-000230

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 November 2008

Appearances: A P Comesky for Appellant

A J Bradley for Respondent

Judgment:      24 November 2008

ORAL JUDGMENT OF RANDERSON J

Solicitors:           Meredith Connell, PO Box 2213, Shortland Street, Auckland 1140

Counsel:            A P Comesky, PO Box 4304, Shortland Street, Auckland 1140

T V POLICE HC AK CRI-2008-404-000230  24 November 2008

Introduction

[1]      The appellant was convicted in the District Court on 30 July 2008 before Judge Bouchier on one count of disorderly behaviour under s 4(1)(a) Summary Offences Act 1981.   The Judge ordered the appellant to come up for sentence if called upon for a period of one year.   The appellant now appeals against her conviction.

Facts

[2]      The Judge found that about 9 pm on 7 January 2008, a Constable McGuire went to a residential address on Great North Road, Grey Lynn as a result of information received from a resident.   There he found the appellant outside the address.   He asked her if she had been yelling and screaming in the street.   She accepted that she had been  doing so  and  told  the  officer  that  people  had  been spraying her with chemicals.  The officer said she was wearing a gas mask at the time.  This was not produced in evidence in the District Court and there was little or no focus on that aspect of the matter in the lower court.

[3]      According to the police officer, the appellant was yelling words such as “rapist”, “cunt”, “all cops are pigs” and “rapist cunts”.   Despite two warnings to desist from yelling and screaming, the appellant continued and was arrested around

9.22 pm.

[4]      There was evidence that the area in question is generally residential in nature and the Judge accepted the evidence of the police officer that traffic was relatively light that evening.  It was a Monday.  I infer from the time of year that it would not have been dark at the time, although it was probably dusk or approaching dusk.

[5]      There is no evidence from the prosecution that anyone else was in the area at the time apart from the complainant who was interviewed by the police officer before he approached the appellant.  The complainant did not give evidence and the focus of the case was on the appellant’s behaviour after the arrival of Constable McGuire at the scene.

[6]      Constable McGuire said the appellant became increasingly agitated after his arrival and was yelling and screaming directly at him.  She was waving her arms and shuffling from side to side as she yelled.  Apart from that, there does not appear to be any  evidence  of  behaviour  on  the  part  of  the  appellant  which  was  said  to  be disorderly apart from the language already mentioned.

[7]      The appellant said in evidence that she was frequently in the area for the purpose of feeding local cats.  That was her reason for being there that evening.  The complainant had called out to her from his balcony and told her that he had called the police.  The appellant said she had had confrontations with the complainant in the past but was content to await the arrival of the police.   During that time she also spoke with someone else that she knew.  She could not precisely recall saying to the police constable that people had been spraying chemicals on her.   Rather she maintained that she told the constable that she was in the area for the purpose of calling for the cats.  In the end little really turns on what precisely the appellant told Constable McGuire about her precise reason for being where she was.

[8]      The  appellant  admitted  she  used  swear  words  but  denied  yelling  and screaming obscenities at the police officer.

The Judge’s findings

[9]      In general terms the Judge accepted the evidence of the police constable although she did not make a specific finding about the actual language used.  In that respect she simply repeated the evidence given by the police constable.  The critical parts of the Judge’s decision are in [12] to [14]:

[12]    I  am  satisfied,  having  made  those  findings  of  credibility,  of  the following matters to the standard of beyond reasonable doubt: that Constable McGuire warned the defendant about moderating her tone of voice and that she then continued to yell and scream and wave her hands in the street at the constable, swearing specifically at him.  I am not called upon to find exactly what she said but it certainly had something to do with the recent relatively high profile case and that she did say to him that people have been spraying her with chemicals and she did not say to him that she was calling cats.  The constable warned her to moderate her tone twice and that she could be arrested for disorderly behaviour.  When she did not, he arrested her, gave her her rights pursuant to the New Zealand Bill of Rights Act, cautioned her

and placed her in the police car and took her to the police station  and processed her in the normal manner.

[13]   Yelling and screaming in a public place such as Great North Road, Grey Lynn is, I find, behaving in a disorderly manner and accordingly I am satisfied, on the findings of fact and the findings of credibility that I have made, having rejected the evidence of the defendant that she was not yelling and screaming, that the prosecution have proved the charge to the necessary standard of beyond reasonable doubt.  She will be convicted.

[14]  What I am prepared to do though is this; to place you under a good behaviour bond for one year.   What that means is that you are convicted, ordered to come for sentence if called upon within one year.  If you do not re-offend you will hear no more of this matter, if you do, you will be re- sentenced on this matter together with anything else.  Certainly to feed local animals that may need it is a very worthy cause but to disturb neighbours in calling for them or whatever is not.  You are under a good behaviour bond for one year.

Counsel’s Submissions

[10]     On behalf of the appellant Mr Comesky submitted there was insufficient evidence that the appellant’s behaviour was disruptive of public order and that her behaviour on the evening in question would not therefore amount to  disorderly behaviour.  In that respect Mr Comesky relied on the decision of the Supreme Court in the leading case of Brooker v Police [2007] 3 NZLR 91 and, in particular, the judgment of the Chief Justice at [41] and [42]. The Chief Justice emphasised that in order to constitute disorderly behaviour under s 4(1)(a) “there must be an objective tendency to disrupt public order, by behaviour or because of the effect of words used.”

[11]     As stated by the Chief Justice at [41]:

Whether behaviour is disorderly is not to be assessed against the sensibilities of individuals to whom the behaviour is directed or who are present to see and hear it, but against its tendency to disrupt public order.

[12]     Ms Bradley pointed out there is some tension between the remarks of the Chief Justice in that respect and those of Justice Blanchard at [56] where the latter spoke not of “tendency” to disrupt public order but rather of behaviour which “disturbs or violates public order”.   However, that difference is not particularly material in the present case for reasons I will shortly mention.

[13]     What is clear from Brooker at [12] is that “a tendency to annoy others, even seriously, is insufficient to constitute the disruption to public order which may make restrictions upon freedom of expression necessary.”

Discussion

[14]     When the behaviour of the appellant in this case is objectively assessed, as it must be, it comes down to the use of obscene or insulting language to the police officer in a loud voice which may possibly have been heard by others living or walking in the area.  As well there is some evidence that the appellant was waving her arms at the time of making the remarks at issue.  This last fact is not material since the mere waving of arms cannot possibly amount to disorderly conduct in a case of this kind.   So the analysis comes down to whether the use of insulting or abusive language in a loud voice over a period of possibly 15 minutes or thereabouts was sufficient, in the circumstances, to be disruptive of public order, assessed objectively in time, place, and circumstance.

[15]     I am  not  satisfied  there  was  sufficient  evidence  to  amount  to  disorderly behaviour in this case.  Putting aside, as I must, any issue of prior disruption which was not relied upon, there is no evidence that anyone was disturbed as such other than possibly the police constable to whom the remarks were directed.

[16]     Although traffic was relatively light according to the evidence, Great North Road is a major public road and is a wide road at the place in question.  Although there was evidence that this was a residential area, it is by no means a quiet cul-de- sac and the officer’s evidence that the appellant was speaking loudly enough to have been heard by people living in the area, must have relatively little weight in this particular area.   It was not late at night when possibly other circumstances might have been brought into play, such as disturbance to sleep.  The officer himself did not give any evidence that he was concerned from his own perspective and had not, for example, complained that he was insulted or upset by the remarks which were made.

[17]     A further element in this case is that, at least arguably, s 14 New Zealand Bill of Rights Act 1990 was engaged.   The appellant’s evidence was that she was expressing her views about police officers generally in relation to a case that was a matter of public controversy at the time.   Whether that was so, she was certainly expressing her views about the police and the right to freedom of expression was engaged to that extent.  This issue does not appear to have been canvassed before the Judge since no reference is made to it in her judgment.

[18]     In  a  case  which  essentially  involves  an  allegation  of  disorderly  conduct arising from the use of language, attention ought to have been given to this issue.  As the Supreme Court pointed out in Brooker, s 4 contains a series of provisions including s 4(1)(b) and (c) which include the use of insulting, offensive, or obscene language.

[19]     Ms Bradley for the Crown has fairly accepted that the proper charge should have been one in relation to the language used.  I agree that the correct charge in the circumstances was one under s 4(1)(c)(i) or (ii) of the Summary Offences Act.  Ms Bradley submitted that the charge could be amended to a charge under one or other of those provisions, but in the absence of any specific finding by the Judge on the language used, I am not prepared to take that course.

[20]     Ms  Bradley  also  submitted,  in  reliance  on  the  observation  of  the  Chief Justice, that the real issue here is whether there was a tendency to disrupt public order and that the police officer had acted correctly in arresting the appellant because if he had not done so the appellant would have disrupted public order by continuing to yell and scream in a residential area, close to a time of darkness.  It is possible this might have occurred but there is an element of speculation involved in that proposition and even if accepted, any risk of disruption could just as easily have been avoided by arresting the appellant and charging her not with disorderly behaviour but with one or other of the offensive language provisions under s 4.

[21]     This may to some people be seen as a relatively minor case of bad behaviour. But as the Supreme Court pointed out in Brooker there is a risk that unless the provisions of the Summary Offences Act in relation to disorderly behaviour are

carefully utilised, a person’s liberty may be improperly infringed.  In particular, as the Supreme Court observed, the disorderly behaviour offence is not to be used as some sort of grab bag to sweep up any form of objectionable behaviour.   Unless there is clear proof beyond reasonable doubt of a tendency to disrupt public order then the offence is not made out.

Result

[22]     In  the  circumstances  the  appeal  will  be  allowed  and  the  conviction  is quashed.  This is not a case where I would consider directing a rehearing.

A P Randerson, J Chief High Court Judge