Taueki v Police
[2013] NZHC 1710
•5 July 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2013-454-16 [2013] NZHC 1710
BETWEEN PHILIP DEAN TAUEKI Appellant AND
POLICE Respondent
Hearing: 28 June 2013 Counsel:
S Price for Appellant
M G Wilkinson for RespondentJudgment:
5 July 2013
JUDGMENT OF THE HON JUSTICE KÓS
[1] An appeal against conviction on a charge of disorderly behaviour1 arising from a protest demonstration. It is said that the District Court Judge misdirected himself as to whether personal abuse is capable of protection under the New Zealand Bill of Rights Act 1990. Further, that he reached findings of fact, particularly as to the likelihood of Mr Taueki’s protest causing violence to erupt, that cannot be sustained on the evidence.
Background
[2] On a Saturday morning in September 2012 the appellant, Mr Philip Taueki, and six supporters went to conduct a protest demonstration at the opening of the Te Takere cultural centre in Levin. A stage had been set up outside the centre. A powhiri was to begin at 9.00 am. Mr Taueki and his colleagues were disappointed that their whanau had not been recognised in the opening process. And they objected also that an historic waka, found near Lake Horowhenua in Muaupoko lands, was to
be displayed at the centre, along with other taonga. This they considered deeply
1 Brought under s 3 of the Summary Offences Act 1981.
TAUEKI v POLICE [2013] NZHC 1710 [5 July 2013]
disrespectful. Mr Taueki and at least some of his supporters are members of the Muaupoko iwi. One of the prosecution witnesses, Mr Kuiti, accepted the group had “some good issues”. Albeit he deprecated its methods.
[3] Mr Taueki’s protest was vociferous. So was that of at least one other member of the group, a Mr Peter Heremia. Both seem to have picked out a Mr Brenton Tukapua. He was a member of the Muaupoko Tribal Authority, and part of the official party on the stage. At one point, before the powhiri began, Mr Tukapua came down off the stage to upbraid Mr Heremia. A fourth man, Mr Perry Warren, who was with Mr Tukapua, stood between him and Mr Heremia. Mr Warren and some other members of the official party persuaded Mr Tukapua to return to his seat up on the stage area. The ceremony then got under way.
[4] There were four police officers present. One or more of them warned the protesters (including Mr Taueki) against engaging in personal abuse. The protesters by and large ignored that advice. But people on the official stage stood around its fringe in a way that “blocked off” the protesters from being seen. Plainly, they could still be heard.
[5] Nothing much then happened for a further six minutes until, after another piece of vociferous abuse from Mr Taueki, he was arrested by Sergeant Bull for disorderly behaviour.
Decision appealed
[6] In a very thorough judgment, the District Court Judge first set out the evidence of the principal witnesses. Those for the police were Mr Kuiti, Constable Currie and Sergeant Bull. And those for the defence were Mr Rudd (whose utility was limited by the fact that he was not actually present that day), Mrs O’Neill (Mr Taueki’s sister) and Mr Ten Have (who had videotaped the demonstration).
[7] Following his review of the evidence the Judge said that he was in no doubt that the form of the protest moved from presence and placards to “loud personalised verbal attacks combined with gestures directed at members of the official party, who
came from the Muaupoko Tribal Authority.” The Judge said that he had formed the
very clear impression that Mr Taueki was trying to pick a fight with Mr Tukapua.
[8] The Judge then reviewed the test for disorderly behaviour under s 3 of the
Act. That provides:
Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who, in or within view of any public place, behaves, or incites or encourages any person to behave, in a riotous, offensive, threatening, insulting, or disorderly manner that is likely in the circumstances to cause violence against persons or property to start or continue.
[9] The Judge, rightly, distinguished s 3 as an aggravated form of disorderly behaviour - involving the probability of violence - in contrast to s 4(1)(a), which provides:
(1) Every person is liable to a fine not exceeding $1,000 who,—
(a) in or within view of any public place, behaves in an offensive or disorderly manner;
The maximum penalty under s 3 is up to three months’ imprisonment or a fine of
$2,000, whereas under s 4 only a fine of up to $1,000 may be imposed.
[10] The Judge then analysed the leading decision, that of the Supreme Court in Brooker v Police.2 He referred to the helpful synthesis of the judgments in that case provided by Priestley J in Thompson v Police..3 The first question, therefore, was whether Mr Taueki’s behaviour disturbed good order to such an extent that affected members of the public could not reasonably be expected to endure it (in the
particular circumstances of time and place). As to that the Judge said:
Members of the audience and people on the stage saw that Mr Tukapua was advancing towards Mr Taueki, having first to pass Mr Heremia, and leaving the stage to do so, and so stopped him from achieving his apparent purpose. A reasonable member of the public hearing and seeing these occurrences would be justifiably anxious that a fight would break out. Such a member of the public could not expect to have to bear the anxiety caused by such a level of disruption to the opening ceremony which they had come to view, or to participate in.
2 Brooker v Police [2007] 3 NZLR 91 (SC).
[11] The second question then addressed was whether in the present circumstances violence was likely to occur. That is the distinctive feature of s 3. The Judge said:
In the present circumstances, violence seemed very likely to occur if the police had not intervened when they did.
[12] The Judge convicted Mr Taueki. He sentenced him to perform 60 hours’
community work.
Grounds of appeal
[13] Mr Taueki’s appeal raises one point of law, and three points of fact:
(a) As a matter of law, the Judge created a false distinction between “general protest” on the one hand and “personal abuse” of a member or members of the public on the other. The latter was also capable of protection under Part 2 of the New Zealand Bill of Rights Act 1990.
(b)The Judge had effectively conflated two separate incidents in the course of a protest demonstration lasting 20 minutes or more
(c) The video evidence (produced by Mr Ten Have) and other evidence before the Court showed that before Mr Taueki was arrested, it would have been impossible for violence to have broken out.
(d)The presence of four police officers monitoring seven protestors was relevant inasmuch as it meant the likelihood of violence or public disturbance was extremely unlikely.
Approach on appeal against summary conviction
[14] The present appeal is governed by ss 115 and 119 of the Summary Proceedings Act 1957. It is a general appeal, to be heard by way of rehearing. The onus lies on Mr Taueki to satisfy the Court that the grounds of this appeal have been made out, and that this Court should differ from the judgment below.
[15] To the extent the appeal contends that a different view should be taken of the evidence than reached by the trial Judge, the High Court will take the same approach as the Court of Appeal does under s 385(1) of the Crimes Act 1961.4 The appellant must show that the Judge could not have been satisfied beyond reasonable doubt on all the evidence that the accused was guilty of the offence charged. The appellate Court undertakes a review function, rather than substituting its own view of the evidence.5 Appropriate weight must be given to the advantages of the trial Judge in assessing the honesty and reliability of witnesses, and the appellate Court will not interfere lightly with his or her determination on the evidence.
Issues
[16] This appeal gives rise to three issues:
(a) Issue 1: Error of law? Was the judgment below in error in concluding that personal abuse is incapable of protection under s 14 of the New Zealand Bill of Rights Act 1990?
(b)Issue 2: Error of fact? Has the appellant shown that the Judge could not have been satisfied beyond reasonable doubt that he was guilty of the offence charged?
(c) Issue 3: Should this Court instead substitute a conviction under s
4(1)(b) of the Summary Offences Act 1981?
Issue 1: Error of law? Was the judgment below in error in concluding that personal abuse is incapable of protection under s 14 of the New Zealand Bill of Rights Act 1990?
[17] The particular passage in the judgment to Mr Taueki objects is this:
On the whole, his protests were tolerated in substance. But it was his abuse of Mr Tukapua that was objectionable, both to Mr Tukapua and the police who were present. There are effectively two levels of conduct here. One level is the general protest of his family’s exclusion from involvement in the event; and the more exaggerated behaviour in the form of words and
4 CAC v Police [2012] NZHC 3023 at [17]; Richmond v Police [2013] NZHC 356 at [21]–[26].
gestures and personal abuse to Mr Tukapua is a different level. The former attracts a different and higher level of protection under the New Zealand Bill of Rights Act, than the latter, which cannot claim that protection.
[18] Mr Price (on Mr Taueki’s behalf) submits that there is no sharp distinction between such forms of behaviour. The offering of personal abuse may be a legitimate form in which to make a political point. Abuse, too, is capable of protection under s 14 of the New Zealand Bill of Rights Act 1990.
[19] I think the objection made by Mr Price is a sound one. As Sir Stephen Sedley said, famously, in Redmond-Bate v DPP:6
Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome, and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers Corner (to which the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind expected by the law and conduct of those who disagree, even strongly with what they hear.
Although that decision was set within the framework of the European Convention on Human Rights, the same liberal outlook pervades the common law of New Zealand as much as it does that of England. And of course, it receives statutory reinforcement in Part 2 of the New Zealand Bill of Rights Act 1990.
[20] It is no part of the function of the common law courts to regulate for good taste or decorum. Protest is often ill-mannered and obtrusive, but what of it? Constraints are justifiable only where the protesters’ words or actions so intrude into, and impair, the rights of others as to cross a hazy boundary between lawful and unlawful public expression.
[21] Thus, where public expression in or within view of a public place has the seriously aggravating characteristics of involving, inciting or encouraging “riotous, offensive, threatening, insulting or disorderly” behaviour and being likely to cause violence, it may cross that boundary by virtue of s 3. Similarly, offensive, disorderly, alarming or insulting public expression in or within view or hearing of a public place
may cross the line under s 4. There the constraint is less calculated to protect the
6 Redmond-Bate v DPP [1999] Crim LR 998 (QBD) at [20].
peace as to protect the democratic rights of other citizens to go about public places without the intolerable diminution of those rights caused by the actions of others. A much less substantial penalty applies under s 4 than under s 3, as we have seen.
[22] In either case, protests which involve the expression of opinion or information (as opposed to mere disruptive behaviour devoid of persuasive purpose
– such as a barrage of noise)7 demand, by virtue of the New Zealand Bill of Rights
Act 1990, a higher threshold again for constraint: the Court must then ask whether to treat that behaviour as disorderly is a justified limitation on the accused’s exercise of his or her right of free expression.8 Only if it is can the protester be convicted. In effect certain kinds of behaviour, involving the exercise of rights protected by Part 2 of the New Zealand Bill of Rights Act 1990, attract an augmented threshold for constraint.
[23] It is clear that abusive, insulting behaviour is still capable of attracting the augmented threshold protection given by Part 2. In a sense that is the point in effect made by Sir Stephen Sedley in the passage quoted earlier. As Kirby J observed in Coleman v Power:9
One might wish for more rationality, less superficiality, diminished invective and increased logic and persuasion in political discourse. But those of that view must find another homeland. From its earliest history, Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion. They are part and parcel of the struggle of ideas.
[24] But sheer vituperative abuse, which neither seeks to convey information nor to persuade the listener to the speaker’s point of view, is unlikely to engage the augmented threshold protection. Such communication lacks the inherent democratic process values s 14 in particular sets out to protect. As Blanchard J said in Brooker:10
The Court must ask itself whether treating the particular behaviour and the particular circumstances as disorderly constitutes a justified limitation on the
7 Although even a barrage of noise may engage Part 2 protection: see e.g. Wakim v Police (2011)
9 HRNZ 318 (HC). Cf Thompson v Police [2012] NZHC 2234, [2013] 1 NZLR 848 (where a woman screaming for cats to gather in order to be fed was held not to have any Bill of Rights dimension) and Taueki v Police [2012] NZHC 3538, at [54].
8 Brooker v Police [2007] NZSC 30; [2007] 3 NZLR 91.
9 Coleman v Power (2004) 220 CLR 1 (HCA) at [239].
10 Brooker v Police [2007] NZSC 30; [2007] 3 NZLR 91 at [59].
defendant’s exercise of the right in question. As a result, public order will less readily be seen to be disturbed by conduct which is intended to convey information or express an opinion than by other forms of behaviour. The manner in which the defendant chose to exercise the right and the time and place are of course relevant to that inquiry.
Conclusion
[25] To the extent that the Judge seems to have suggested that protest in the form of personal abuse cannot attract any protection under the New Zealand Bill of Rights Act 1990, I respectfully disagree. For the reasons given above, the enquiry required is a more complex, contextual one than that. More than that I need not say, however, given my findings on the next issue.
Issue 2: Error of fact? Has the appellant shown that the Judge could not have been satisfied beyond reasonable doubt that he was guilty of the offence charged?
[26] The question here is whether the finding that the behaviour of Mr Taueki was both disorderly and likely in the circumstances to cause violence cannot be supported on the evidence.
[27] In most cases this is a very difficult standard to meet, given the advantage the trial Judge has of hearing and assessing the witnesses. The singular feature of the present case, however, is that most of Mr Taueki’s behaviour is captured on a video recording.11 That is the recording made by Mr Ten Have. There are times when Mr Taueki is absent from the picture, although his stentorian voice often can still be heard. The recording is not of a high quality. But then nor were significant sections
of the oral evidence reliable when tested against what is seen in the recording. Whatever the deficiencies of the recording, it still demonstrates the frailty of unaided human memory.
[28] It is necessary, then, to begin by describing what this recording shows, and in the course of that to describe the evidence given by the other witnesses at trial.
[29] The video evidence suggests that there were four relevant phases to the protest demonstration.
11 Perhaps not entirely singular: see Taueki v Police [2012] NZHC 3538 at [10].
[30] The protesters assemble, eventually, in a row about 3 metres back from the ramp leading up to the stage. They look to be about 10 metres away from the nearest seating on the stage. One protester alone, Mr Heremia, is about one metre from the ramp. He has a poster reading, “Please Respect our Sacred Sites”. Those in the back row include Mr Taueki. In this phase of the recording their locations are more fluid. Later on they take up more definite stations as the official opening of the centre gets under way.
[31] For the first six minutes or so little happens. Two policemen wander over in the second minute and talk to Mr Heremia.12 In the third, Mr Taueki is seen holding a poster bearing the legend “Te Tacky Te Papa - Maori Traitors Assn”. It is a very large poster, and he is one of two men holding it. Three and a half minutes into the recording a police officer approaches Mr Taueki. Mr Taueki tells the officer he is there to protest peacefully, and to “get out of my face”. He becomes agitated. The
police officer tells him to calm down or he will be arrested. Another protester intervenes and takes over holding Mr Taueki’s side of the poster. Mr Taueki wanders off and picks up another poster. He mutters loudly, “it’s a police state here”.
[32] Until well into the fifth minute it is on any view a peaceful protest. Mr Taueki then starts calling out that “the taonga have been stolen. They haven’t talked to the tribe ... The Council was supposed to consult with the Maoris, not these house niggers”. People are walking up the ramp towards the stage, ahead of entry of the official party. A number of people are already sitting in the chairs six minutes into the recording. Some of the people walking up the ramp appear to be somewhat annoyed with the protesters. Mr Taueki, still in the second row, is heard to shout, twice, “Who do you think you are talking to, you dogs? You think you can [inaudible] our taonga without talking to us?”
[33] Mr Kuiti observed in his evidence that he felt Mr Taueki was becoming particularly heated because people were simply not taking any notice of him.
Constable Currie made a similar observation. That public disinterest, like Conan
Doyle’s dog,13 is significant in itself.
Phase 2: minute 7: a confrontation between Messrs Tukapua and Heremia
[34] About seven minutes into the recording Mr Tukapua moves forward and steps off the stage. He is accompanied by Mr Perry Warren. He moves straight to the nearest protester, Mr Heremia. Had he sought out Mr Taueki instead, he could have. But instead he chooses Mr Heremia. Mr Tukapua’s name has not been heard in the name-calling by Mr Taueki until he is already moving towards Mr Heremia. Mr Taueki calls out, “Tukapua, you think you can sell our tribe out?” What is said between Mr Tukapua and Mr Heremia cannot be heard on the video recording. Mr Tukapua looks highly discontent and is pressing forward. Mr Heremia, who is a man of no small stature, drops the poster he is holding. Mr Warren, however, steps between the two men. A police officer walks over and joins Mr Warren. He says something to calm Mr Tukapua down and pats him on the back. A woman on the stage leans down, takes Mr Tukapua’s arm and draws him back. Together she and Mr Warren persuade him to return to the stage and they walk back to the seating area.
[35] Where is Mr Taueki when the incident between Mr Tukapua and Mr Heremia takes place? He is still standing in the second row of the protesters. But his style at that point is severely cramped by the immediate presence of Sergeant Paroli. The officer is standing very close to him, and between him and Messrs Tukapua and Heremia, some two to three metres away. Another police officer joins Sergeant Paroli. Together they stand between Mr Taueki and the stage area. Mr Taueki makes his dissatisfaction with their presence plain in the recording. As Mr Tukapua walks away with the others who intervened, Mr Taueki fires a parting broadside, effectively into the sergeant’s left ear, “Tukapua, you traitor. Who have you spoken to, Tukapua?” We do not learn the answer; Mr Tukapua and his companions continue to walk away.
[36] In the third phase of the protest things are fairly quiet again to begin with. Mr Kuiti explained in evidence that he and the others including Mr Warren had taken Mr Tukapua back to the stage area, and they sat down there. Mr Tukapua appears to have remained in his seat during the remainder of the event. Mr Kuiti gave evidence that after the incident between Mr Tukapua and Mr Heremia, some of the people on the stage created a “block” or screen so that the protesters could not be seen from the stage area. In fact a series of permanent masonry partitions on the edge of the stage screen much of the seating area from the protesters.
[37] The powhiri now gets underway. We can hear singing. Mr Heremia is now taking the leading part in the protest, again standing alone near the stage area. The police allow him to remain there. The official party comes up the ramp during the karanga. The competing chants reach a crescendo. The official party seem to pay little heed to the protesters. The four police officers are standing there, together with two people wearing yellow wardens’ jerkins. They have their backs to the official party, facing the protesters. Mr Taueki launches a series of further tirades. Some of his comments are addressed to the police officers. But towards the Muaupoko Tribal Authority members there are shouts of “what a charade”, “little house niggers” and “plastic Maoris”. Mr Taueki and Mr Heremia are shouting over each other. Neither can easily be made out. The camera remains focused on Mr Taueki through this period. Sergeant Paroli remains in close attendance, with another officer nearby. In the thirteenth minute the tribal authority members are described as “kupapa”. That is, collaborators. At this point Mr Taueki’s particular focus is a Mr Hill, who is described as a “disgrace”.
Phase 4: minutes 14 – 15: Mr Taueki is arrested
[38] In the fourteenth minute Mr Taueki returns to the subject of Mr Tukapua. “Hey Tukapua. Where’s the MOU you signed with the Council?” He suggests Mr Tukapua is trying to “take over the lake from our family”. And then he turns to tribal moneys that are said to have been received by Mr Tukapua. “Where’s the money, Tukapua? When are you going to pay the money back?” These are shouted
in the direction of the stage, with Mr Taueki trying to see past the two police officers standing in front of him, past the masonry partitions on the edge of the stage, and past the spectator screen at the edges of the masonry works. Mr Taueki then heads away from the stage, to his left and the police officers’ right. As Sergeant Bull observed, it was probably because of the screen of people blocking the stage from the protesters. Mr Ten Have, who took the video recording, gave evidence that Mr Taueki moved directly to his left, and not closer to the stage.
[39] Sergeant Bull said that just before he arrested Mr Taueki he saw him calling Mr Tukapua a dog, yelling “come on” aggressively and making a gesture towards him to come and fight. Sergeant Bull’s evidence is more reliable on detail than Constable Currie’s, although both men tended to merge phases 2 and 4. Constable Currie’s evidence is particularly confused as to sequence, as the Judge noted, and as I note myself below. The importance of the video recording is that it shows the distinct interregnum in phase 3, in which nothing materially unlawful appears to occur.
[40] What is seen on camera is Mr Taueki emerging between two large placards calling out something to Mr Tukapua (the name can be picked up) and waving towards the stage. Exactly what he is saying cannot be discerned. He and Mr Heremia are both operating at full vocal range at this point. Again they rather cancel each other out.
[41] Sergeant Bull said that he felt that “perhaps Mr Tukapua would become angry once again”. At this point, the fifteenth minute of the recording, we see the sergeant look back and nod to Sergeant Paroli. They both head straight towards Mr Taueki and arrest him.
Discussion
[42] The following points seem germane.
[43] First, I agree with Mr Price that the presence of four police officers at the protest demonstration meant that, in terms of s 3, violence in principle is
significantly less likely to occur than might be the case if they were absent. That is not to say that such violence was likely in the first place. Nor that the police presence would eliminate the risk altogether. But it is a natural suppressant. As Mr Price submitted, there were almost as many police here as protesters. There was close supervision of the protest, to such an extent that the protest objective became split between the original complaint against the actions of the Muaupoko Tribal Authority and newly-minted complaints against police harassment. For the respondent, Ms Wilkinson pointed out that the police presence had not prevented the incident between Messrs Tukapua and Heremia. That is perfectly true. But it is readily apparent from the video recording that the police from that point took a more prominent and active role in constraining the protesters’ actions. For instance, as soon as Messrs Tukapua and Heremia started their contretemps, Sergeant Paroli had placed himself right in front of Mr Taueki. A second officer joined the sergeant within a few further moments.
[44] Secondly, there is dispute on the evidence as to whether Mr Taueki made a gesture or comment inciting Mr Tukapua to fight him. The Judge found that he did, Two witnesses gave evidence about this. Constable Currie said Mr Taueki “became aggressive with one particular person who was walking up the ramp. He was gesturing at him, ‘Come on then’, and gesturing at him with his hands to come towards him”. The person, the constable said, was Mr Tukapua. In that case it must
have been the incident in the seventh minute, not the 14th. There is no evidence
Mr Tukapua was walking up the ramp again just before Mr Taueki was arrested.14
Yet that was when Sergeant Bull said the gesture came.15 The video recording does not show such a gesture, whether at the seventh or the 14th minute. The third prosecution witness, Mr Kuiti, did not give evidence of seeing any gesture. The prosecution evidence on the goading of Mr Tukapua is materially inconsistent.
[45] Thirdly, perhaps the more important question for the purposes of s 3 is
whether Mr Taueki’s conduct was “likely in the circumstances to cause violence against persons or property to start.” The relevant concern was with Mr Tukapua
14 The evidence of Mr Kuiti was Mr Tukapua remained seated near him for the rest of the powhiri
(i.e. including when Mr Taueki was arrested).
15 See [39] above.
becoming “angry once again”.16 Yet the arresting officer, Sergeant Bull, admitted that he did not know where Mr Tukapua was at the time of Mr Taueki’s abuse and alleged gesture before he made the arrest. That was because, as the sergeant also admitted, he had his back to Mr Tukapua. Mr Kuiti, however, knew just where Mr Tukapua was at that point. He was sitting a couple of places away from him on the stage. His evidence was that once the spectator screen was set up, after the Tukapua/Heremia incident, there were no problems and the people on the stage were able to concentrate on the powhiri. As noted, he did not give evidence about seeing any gestures by Mr Taueki. He expressly stated he did not see him arrested. Mr Tukapua did not give evidence. There is no evidence that he heard Mr Taueki’s further comments or saw the alleged gesture inviting him to fight. The presence of the masonry partitions and spectator screen attested to by Mr Kuiti means the latter is quite doubtful. Sergeant Bull could not say that he did. And if he did hear the comments, he does not seem to have reacted.
[46] With great respect to the trial Judge, I do not consider that there was a sufficient factual foundation for at least the second limb of s 3: a finding that Mr Taueki’s behaviour was likely in the circumstances to cause violence against persons or property to start. A conviction on the evidence taken as a whole could not safely be entered.
Conclusion
[47] The answer to Issue 2 is “Yes”. The appellant has shown that the Court should not have been satisfied beyond reasonable doubt that he was guilty of the offence charged.
Issue 3: Should this Court instead substitute a conviction under s 4(1)(b) of the
Summary Offences Act 1981?
[48] Ms Wilkinson invites me to substitute a conviction for insulting language, under ss 4(1)(b) of the Summary Offences Act 1981 and 132 of the Summary
Proceedings Act 1957.
16 See [41] above.
[49] I decline that invitation. First, the point was but briefly adverted to in argument. Secondly, had s 4(1)(b) been the focus of the prosecution, I consider the evidence adduced, and the examination of it, may well have been materially different. I accept that substitution of the lesser offence here may be prejudicial. Thirdly, Mr Taueki’s behaviour was not so wholly vituperative and devoid of persuasive purpose as to exclude the augmented threshold for unlawful public expression. I am not satisfied at the end of the day that his conduct clearly crossed that threshold.
Result
[50] Appeal allowed.
Stephen Kós J
Solicitors:
Crown Solicitor, Wellington for Respondent
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