The Queen v Ali'imatafitafi

[2007] NZCA 329

IN THE COURT OF APPEAL OF NEW ZEALAND

CA59/07
[2007] NZCA 329

THE QUEEN

v

IAO METAI ALI'IMATAFITAFI

Hearing:25 June 2007

Court:William Young  P, Randerson and Panckhurst JJ

Appearances:  A G Speed for Appellant

H D M Lawry for Crown

Judgment:2 August 2007 at 3.00 pm

JUDGMENT OF THE COURT

A        The appeal is allowed.

B        The conviction under s 3 of the Summary Offences Act 1981 is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1]     This appeal arises from the conviction of the appellant in the District Court on one charge of disorderly conduct and one charge of resisting arrest.  We are concerned only with an appeal against conviction in respect of the charge of disorderly conduct.

[2]        The disorderly conduct charge was laid under s 3 of the Summary Offences Act 1981:

Disorderly behaviour

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.

[3]        The charges arose from an incident on 20 April 2004 involving the appellant and his son.  The police had been called to their residential property by noise control officers.  The appellant’s son armed himself with a machete and a meat cleaver and confronted the police.  In brief outline, the prosecution case against the appellant was that he retrieved these weapons from his son and refused to drop them when requested by the police to do so.  That led to the police physically restraining the appellant and then arresting him.  No members of the general public were involved in the incident other than the appellant and his son. 

[4]        The prosecution against the appellant has already been the subject of three decisions of the High Court and one of this Court.  It comes before us now pursuant to leave granted by Courtney J on 19 January 2007.  Although expressed slightly differently by Courtney J, the essential question of law raised by the appeal is whether behaviour which is likely to result in a forceful response by the police towards the person responsible for that behaviour, is capable of amounting to an offence under s 3.

Background

[5]        The appellant’s home was in Eskdale Road, Birkdale.  On the afternoon in question, the appellant and his son Michael had been listening to a stereo.  There was a complaint about excessive noise which resulted in the noise control officers being called to the property.  When Michael produced the machete, police officers were called as backup.  In all, at least four police officers attended the scene.  One of them was armed.  An altercation ensued between the police, the appellant and Michael.  During the incident, Michael was in possession of the machete and the meat cleaver.  In circumstances with which we are not directly concerned, Michael was shot and injured by a police officer.

[6]        At some point, the appellant recovered the weapons from somewhere outside his property.  The police case against the appellant was that the appellant was asked to drop the weapons several times but refused to do so when requested.  According to the evidence of a Constable Cann, the appellant was pepper sprayed but continued to walk towards his property.  He then threw the weapons onto his driveway.  He refused the constable’s request to get down onto the ground.  There was a struggle between the police and the appellant during which he was tripped over, handcuffed and arrested.

[7]        At the hearing in the District Court before Judge Everitt on 8 September 2004, the appellant did not give evidence.  He appealed to the High Court against conviction.  One of the grounds for appeal was that his trial counsel had failed to call him to give evidence.  Keane J dismissed the appeal on 19 April 2005.  He reached that conclusion having been informed by the appellant of the evidence he would have given if he had had the opportunity to do so.  The High Court Judge did not consider any miscarriage of justice had arisen because the outcome would have been the same even if the appellant had given evidence.

[8]        On 26 April 2006, this Court allowed an appeal by the appellant on the basis that Keane J ought to have heard evidence and made a factual finding as to the instructions given to counsel by the appellant.  The matter was then remitted to the High Court for a further hearing.

Courtney J’s decision of 4 September 2006

[9]        Courtney J then heard evidence from both trial counsel and the appellant.  In a written decision delivered on 4 September 2006 she found there had been a misunderstanding by trial counsel as to the appellant’s instructions.  She found that the appellant did wish to give evidence and that counsel had wrongly (but understandably) assumed he did not wish to do so.  Courtney J also found that if the appellant had given evidence it would have been to the following effect:

(a)He was arrested twice.  The first time involved an unsuccessful attempt by Constable Cann to handcuff him;

(b)After the first arrest, when he was being restrained on the ground, he saw Michael approaching holding a machete and meat cleaver;

(c)Michael slipped, with the weapons still in his hands;

(d)He took the weapons from Michael.  He heard people shouting at him words to the effect of throw down the weapons or drop the weapons.

(e)He proceeded down the driveway with the intention of putting the weapons away or throwing them away. He threw them towards the bottom of the steps.

(f)Michael then got up and ran towards the policemen and was shot;

(g)He walked up the driveway and Constable Cann took his hand and told him that he was under arrest for being in possession of weapons or words to that effect.

[10]      We add that the appellant’s evidence before Courtney J continued to the effect that he then pulled his hand away from Constable Cann.  He was then grabbed from behind, put onto the ground, seriously beaten up, and pepper sprayed.

Courtney J’s decision of 25 October 2006

[11]     Courtney J then heard argument at a subsequent hearing to consider the consequences of the factual findings she had made.  On the disorderly conduct charge, Courtney J first cited the relevant paragraphs from Judge Everitt’s decision in the District Court:

[19]     Was it disorderly behaviour in those circumstances at that time and place and what was going on to pick up items of evidence, weapons that had been used by his son, and carry them off in the manner that has been described and refusing to put them down after being told on a number of occasions?  I think it is an inescapable conclusion that it was disorderly in those circumstances, at that time, at that place for Mr Ali’imatafitafi to carry off with these weapons.  The Police had no idea what he was going to do with them.  It would have been quite straightforward for him to put them down and say – I am just securing them and making them safe.  He did not.  Had he said – I’m just taking them away to make them safe, and put them down when told to do so, even at the second time when told to do so, I think there would have been no disorderly conduct.

[20]     It was the persistent and continual disobedience of the directions of the Police which were lawful directions to put the weapons down.  In those circumstances, at that time, in that place it was disorderly.  I think it was likely in the circumstances to cause violence against a persons [sic] to start as it was highly likely that the Police would react by seizing Mr Ali’imatafitafi and that is what happened and a violent struggle then took place. …

[12]      After discussion of authorities as to what constitutes disorderly behaviour, Courtney J stated:

[16]  The relevant circumstances in which Mr Ali’imatafitafi’s conduct was being judged were:

·  There had already been an altercation and a physical scuffle between Mr Ali’imatafitafi and police as a result of which Mr Ali’imatafitafi had been arrested and was in the process of being handcuffed;

·  Michael Ali’imatafitafi had emerged from the house carrying dangerous weapons and, on the police version of events, had been shot;

·  On Mr Ali’imatafitafi’s version of events Michael had slipped and dropped the weapons, Mr Ali’imatafitafi picked them up, was told to drop them and then Michael ran towards the police and was shot.

[17]  On either version of events the tension at the scene must have been palpable. The police were armed and were clearly prepared to respond with some degree of force to take control of the situation.  Even if Mr Ali’imatafitafi’s version is correct, and he picked up the weapons before his son was shot, it would have been obvious to any reasonable person from the police commands to drop the weapons that there existed a high level of concern and tension among the police present that night.

[18]  It is against that background that the District Court Judge had to decide whether Mr Ali’imatafitafi’s failure to drop the weapons after being commanded to amounted to disorderly conduct.  Given the circumstances that existed on that night I think that Mr Burns’ submission is right that there was an adequate basis on which to find the charge had been proven even if Mr Ali’imatafitafi had heard only one command to put down the weapons.  On his own evidence he did hear the command to drop the weapons but he continued walking towards the weapons and picked them up.  The fact that, as a result of his impaired hearing, he may not have heard other similar commands is not relevant because, given the seriousness of the situation, the charge would have been proven at the point he ignored the command that he did hear.

[19]  I do not think that Mr Ali’imatafitafi’s intentions regarding the weapons are relevant.  The test to be applied is an objective one, not to be determined by Mr Ali’imatafitafi’s subjective intentions.  Once he had thrown the weapons away it was obvious that his intentions were peaceful.  However, he did not articulate those intentions and until he had actually disposed of the weapons his intentions could not possibly have been obvious to the police.  I therefore consider that Mr Ali’imatafitafi’s conduct was disorderly.

[13]      The Judge went on to consider the point at issue here and concluded:

[23]  Mr Speed submitted that there was no likelihood of violence because the only persons present who might act violently were the police, whose actions could not have been intended to have been the subject of s 3 because they would simply have been acting in the course of their duty.  I do not accept that submission.  It cannot be suggested that a forceful response by the police is not violent.  The use of batons, firearms or pepper-spray, for example, would all be characterised in everyday language as being violence.  Even the usual measures taken by the police to exercise physical restraint, such as handcuffing, would be regarded as violent in everyday language.

[24]  Nor is there anything in the purpose of s 3 that would suggest that violence by the police acting in the course of their duty was not intended to fall within the second limb of s 3.  Violent action by the police of the kind I have referred to is sanctioned by the law for public policy reasons.  But while force by the police is sometimes necessary, it is not regarded, even by the police, as an ideal outcome. Conduct by members of the public that would tend to result in a forceful response by the police must be regarded as undesirable.  In addition, such conduct carries with it the danger that other members of the public will be drawn into the situation, thereby causing more violence.  For these reasons I conclude that a forceful police response should be regarded in the same way as a forceful response by any other person.

[25]  If the police version of events is correct, Mr Ali’imatfitafi’s [sic] son was shot as a result of him advancing towards the police carrying a machete and a meat cleaver.  In ordinary usage, this would be characterised as violent.  When Mr Ali’imatfitafi [sic] then took up the weapons it must have been likely that the same action would be taken if he did not drop them.  The Crown case is that the police had already shot Mr Ali’imatafitafi’s son by the time Mr Ali’imatafitafi picked up the weapons.  If that were so, then there must have been a very high likelihood that the police would feel sufficiently concerned at Mr Ali’imatafitafi retrieving the weapons to take forceful action to prevent him from doing so.

[26]  I observe further that, if the circumstances were as Mr Ali’imatafitafi claims, i.e. that Michael had not yet been shot when Mr Ali’imatafitafi picked up the weapons then, quite apart from any reaction from the police, I would consider the actions to fall within s 3.  Michael was the person who had initially brought the weapons into the scene.  If he was still physically competent there was an obvious danger that he would try to retrieve the weapons from his father, thus presenting a risk to both his father and to the police and inviting a violent response of the type that, in fact, did occur.

[27]  While I agree that the Judge’s finding of “persistent and continual disobedience” may have been different had he heard from Mr Ali’imatafitafi, I do not think that the outcome of the case would have been any different.  Instead of a finding of “persistent and continual disobedience” there would simply have been a finding of disobedience.  But there is no doubt that, even on Mr Ali’imatfitafi’s [sic] version of events, his conduct was disorderly and likely to cause violence to start or continue.

[14]      On the basis of her findings, Courtney J concluded there was no likelihood of a miscarriage of justice on the disorderly conduct charge as a result of the appellant not giving evidence and dismissed the appeal. 

[15]      On 19 January 2007 Courtney J granted leave to appeal to this Court under s 144(2) of the Summary Proceedings Act 1957 on the following question:

Is a forceful response by the police towards an individual, in the absence of members of the public, capable of amounting to behaviour that is likely to cause violence against persons or property to start or continue for the purposes of s 3 Summary Proceedings Act 1981?

Submissions on appeal

[16]      In this Court, Mr Speed for the appellant advanced the same argument he raised before Courtney J.  He submitted the actions of the police in carrying out their duty to control public disorder could not amount to an element of the offence under s 3.  The purpose of s 3 is to control disorderly conduct in a public place which is likely to cause violence by members of the public, other than the police.  So long as there is no evidence that no other members of the public were likely to become involved, the charge could not be sustained. 

[17]      He relied on the decision of Anderson J in Scott v Police (1994) 12 CRNZ 207 (HC) in which the police failed to prove a charge of disorderly behaviour against a woman who had become intoxicated in the bar of a motel and assaulted the motelier.  Anderson J considered those present in the bar were most unlikely to become violent towards the intoxicated guest and that this requirement had not been satisfied. 

[18]      In response, Mr Lawry submitted that the section did not differentiate between the police and any other member of the public.  He agreed that the purpose of the section was to enable the police to control public disorder.  If the behaviour of the appellant was such as to make it likely that the police would have to intervene using physical force, then this was just as much within the section as it would be if other members of the public were likely to become involved.  He submitted that it was simply a matter of the Court assessing the conduct in an objective manner.  That was a matter of fact and degree in all the circumstances.

[19]      Mr Lawry also submitted that the question posed for this Court is academic because there were other members of the public who were likely to have been drawn into the incident by responding in a violent manner. 

Discussion

[20]      We commence our consideration of this matter by observing that we encountered some difficulty in resolving this matter because the procedures adopted in this case to date have not resulted in any concluded factual findings by a single judicial officer hearing all the available evidence.  When the matter was dealt with in the District Court, the appellant did not give evidence and Judge Everitt’s findings were therefore based on the prosecution evidence alone.  And, when Courtney J heard the appellant’s evidence, she did not hear the prosecution witnesses but proceeded on the basis of the notes of the evidence from the trial in the District Court.  Although we have the advantage of hindsight, it would have been preferable for either the High Court or the District Court to have reheard the entire evidence and reached concluded factual findings on that basis.

[21]      Much of the evidence relevant to this appeal is not in dispute.  Where the evidence is disputed, we will adopt the appellant’s account to be fair to him.  But our conclusions would not differ even if we were to adopt the relevant parts of the prosecution evidence for the purposes of this appeal.

[22]      Approaching the matter on this basis, we agree with Courtney J’s findings that the police were confronted with a highly charged situation at the appellant’s property that afternoon.  There was undisputed evidence that, when approached by a noise control officer, the appellant had responded angrily, picking up the offending stereo and throwing it onto the public footpath outside his residence.  When Michael emerged from the house carrying the machete and meat cleaver, a new and dangerous dimension was introduced.  On the appellant’s version of events, when Michael slipped, the appellant took the weapons from him.  Even though he had hearing difficulties, he admitted hearing people shouting at him to drop the weapons.  Despite those instructions, he did not drop the weapons when requested but proceeded towards his property and threw the weapons onto the driveway.

[23]      The evidence was that Eskdale Road is a major thoroughfare and the incident occurred when rush-hour traffic was building up.  Several police cars were at the property and were at least partially blocking the roadway.  At least four police officers were at the scene and there had been an earlier unsuccessful attempt to arrest the appellant involving an altercation and a physical scuffle.  All of this took place either on the public footpath or berm at or near the appellant’s residence or on his driveway within view of those public areas.  It is not in dispute that the appellant’s actions took place “in or within view of” a public place.

[24]      Nor was it suggested the appellant’s behaviour was not disorderly.  Rather, the focus was on whether his behaviour was likely in the circumstances to cause violence against persons to start or continue.

[25]      Although there was evidence of several members of the public being in the vicinity, we consider it most unlikely that anyone other than the police were likely to respond to the appellant’s behaviour.  The noise control officers had summoned police assistance and, given the number of officers present and the presence of dangerous weapons, we do not consider it likely that they or the civilians present would have intervened.

[26]      Courtney J referred in her decision to the possibility that Michael might have tried to get the weapons back from his father if he was still competent to do so but there is no evidence to support that possibility and Mr Lawry did not rely on it.

[27]      The essence of the police case was that the appellant’s behaviour was likely in the circumstances to cause violence to start or continue in that it was likely to cause the police to respond with physical force to restrain him and force him to drop the weapons.  On that basis, the identified question of law for the purpose of this appeal would be better stated:

Does the phrase “likely in the circumstances to cause violence against persons … to start or to continue” in s 3 Summary Offences Act 1981 include the likelihood of a forceful response by members of the police against the person alleged to have behaved in a disorderly manner?

Legislative history

[28]      In order to answer this question, it is of assistance to examine the legislative history which has led to the present ss 3 and 4 of the Summary Offences Act and to identify the differences between disorderly conduct under each of those provisions.  For convenience, they are set out here:

3  Disorderly behaviour

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.

4  Offensive behaviour or language

(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; or

(b)     In any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person; or

(c)     In or within hearing of a public place,—

(i)    Uses any threatening or insulting words and is reckless whether any person is alarmed or insulted by those words; or

(ii)Addresses any indecent or obscene words to any person.

[29]      The prior legislation was discussed in some detail in the judgment of Elias CJ in the recent case of Brooker v Police [2007] NZSC 30 at [25] – [28]; see also Police v Christie [1962] NZLR 1109 at 1110-1112 (SC). The current provisions owe their development to the Police Offences Acts of 1884, 1908 and 1927.

Police Offences Act 1884

[30]      The 1884 Act prescribed two relevant offences.  First, s 3(29) of the Police Offences Act 1884 made it an offence to:

[use] any threatening, abusive, or insulting words or behaviour in any public place within the hearing or in the view of passers by, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned.

Section 24(2) created a second offence of:

… [using] any profane, indecent, or obscene language, in any public place, or within the view or hearing of any person passing therein, or residing in such public place.

Police Offences Act 1908 and amendments

[31]      When the Police Offences Act was consolidated in 1908, both of these offences were retained: see s 3(ee) and s 42 Police Offences Act 1908.  However, by the Police Offences Amendment Act 1924, the requirement for a breach of the peace was removed and the concept of disorderly behaviour was introduced.

[32]      In removing the requirement for a breach of the peace, the need to show that conduct or language would manifest itself in violence was necessarily eliminated.  As amended, s 3(ee) made it an offence to:

In or in view of any public place … [behave] in a riotous, offensive, threatening, insulting, or disorderly manner, or [use] any threatening, abusive, or insulting words, or [strike] or [fight] with any other person.

[33]      Taking into account an additional amendment in 1919, there were three relevant public order offences under the 1908 Act:

(a)behaving in a riotous, offensive, threatening, insulting or disorderly manner, or using threatening, abusive or insulting words, or striking, or fighting with another person: s 3(ee) Police Offences Act 1908;

(b)using profane, indecent or obscene language: s 42 Police Offences Act 1908;

(c)inciting, encouraging or procuring disorder, violence or lawlessness: s 2 Police Offences Amendment Act 1919.

Police Offences Act 1927 and amendments

[34]      The three offences identified in [33] remained in force as ss 3(ee), 34 and 48 of the 1927 Act.  The former s 3(ee) remained in the same form other than the deletion in 1960 of the reference to “striking and fighting”.  After the 1960 amendment, the former s 3(ee) in the 1908 Act became s 3D in the 1927 Act.  Many of the reported cases are in relation to that provision. 

Summary Offences Act 1981

[35]      The Police Offences Act 1927 and all subsequent amendments were repealed and replaced by the Summary Offences Act 1981.

[36]      Sections 3 and 4 consolidated elements of ss 3D, 34 and 48 of the 1927 Act and created two offences, distinguished according to the likelihood of violence.  As Elias CJ commented in Brooker v Police at [30]:

The reform of the previous law achieved by the Summary Offences Act divides disorderly behaviour into the more serious offence where violence is likely (where it is associated with “riotous, offensive, threatening, insulting” behaviour), and the lesser offence (associated with “offensive” behaviour only), where it is not necessary to establish the likelihood of violence.

[37]      Parliamentary debates at the time illustrated an intention to resurrect the requirement of violence while maintaining other more minor offences which did not have violence as a pre-requisite.  In moving the introduction of the Summary Offences Bill, the Hon J K McLay, Minister of Justice, stated ((16 June 1981) 437 NZPD 418):

… disorderly behaviour has been split into two offences – the first is committed only when serious public disturbance with violent overtones is occurring, or is about to occur, and the second is a minor offence of disorderly or offensive behaviour, which is punishable only by a fine. …

[38]      The Hon D F Quigley speaking on behalf of the Minister of Justice confirmed the effect of the resurrected requirement for violence ((15 October 1981) 442 NZPD 4178:

Of the offences mentioned, disorderly behaviour is the first substantive measure in the Bill.  A former requirement of a breach of the peace has been reintroduced into the offence, thus making it an offence to behave in a riotous, offensive, threatening, insulting, or disorderly manner in circumstances when violence against persons or property is likely to ensue.

[39]      It is evident from the legislative history and the differences in the language of ss 3 and 4 that Parliament intended more serious penalties to apply under s 3 where disorderly behaviour was likely in the circumstances to cause violence against persons or property to start or continue.  This has echoes of the requirement in the Police Offences Act 1884 for an intent to provoke a breach of the peace or for such a breach to be occasioned by the behaviour in issue.  The section is aimed at conduct at or within view of a public place which is likely to provoke a violent response from others.

Decisions under s 3

[40]      A review of case law under s 3 has not revealed any case where a conviction has resulted from a forceful or violent response from a police officer to some form of disorderly conduct by the accused.  An illustration of the application of s 3 is to be found in Olds v Police [1986] 1 NZLR 637 (HC) where an anti-apartheid protester shouted inflammatory comments while standing immediately outside a tennis match. Spectators were incensed and shouted back. Prichard J held that the reaction of the spectators showed that the defendant’s behaviour was likely to provoke violence from the persons so addressed.

[41]      In one case (Baker v Police HC HAM AP53/01 2 November 2001), the appellant was convicted in the District Court under s 3 where the only violence involved was a police officer reacting to the appellant’s conduct and spraying him with pepper spray.  The conviction was quashed by Hammond J on appeal on the grounds that the appellant’s right to counsel was breached.  The fact that the only violence likely to result from the appellant’s conduct was the response of the police officer was not addressed.

[42]      Section 3 does not have any current parallel in the United Kingdom.  Section 4 of the Public Order Act 1986 (UK) speaks of the likelihood of “unlawful violence” being provoked.  Violence justified by law is necessarily excluded:  R v Rothwell [1993] Crim LR 626 (CA).

[43]      However, s 4 was not always phrased in such terms.  Its immediate predecessor, s 5 of the Public Order Act 1936, relevantly provided:

Any person who in any public place … uses threatening, abusive or insulting words or behaviour … whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence.

[44]      In Marsh v Arscott (1982) 75 Cr App R 211 (CA), a Divisional Court held that an offence could not be committed against the above section where the only persons present were police officers. This was essentially on the basis that police officers could not breach the peace. McCullough J, delivering the leading judgment with which Donaldson LJ agreed, opined at 216:

This section is describing breaches of the peace which are brought about, or are likely to be brought about, by other words or behaviour occurring earlier, although usually not very long before.  The phrase “whereby a breach of the peace is likely to be occasioned” indicates that Parliament was concerned with cause and effect, i.e. with conduct which is likely to bring about a breach of the peace and not with conduct which is itself a breach of the peace and no more…

In the circumstances here, assuming the defendant to have been acting unlawfully in using threatening words and behaviour, no breach of the peace was likely to have been occasioned.  No other person was likely to have broken the peace, and all that the police were likely to do was arrest him, as they did.  On that basis too an acquittal would, in my judgment, have been inevitable.

[emphasis added]

[45]      In DPP v Orum [1988] 3 All ER 449 (QB) Glidewell LJ remarked that the above dicta represented common sense as well as good law. McCullough J added at 453:

It is improbable in the extreme that any police officer would ever be provoked by threatening, abusive or insulting words or behaviour to cause a breach of the peace … .

[46]      It appears that neither Canada nor any of the individual states in Australia require the likelihood of violence as an element of either disorderly conduct or any other relevant public order offence.

[47]      It is important to recall that ss 3 to 8 of the Summary Offences Act 1981 are all concerned with the control of public disorder as the Supreme Court emphasised in Brooker. The Chief Justice placed particular emphasis on the need to demonstrate that the behaviour in question is disruptive of public order (at [41]). The same point was made by other members of the Court: Blanchard J at [56], McGrath J at [118] and Thomas J at [186] and [190]-[191]. We note that two of the members of the Supreme Court in Brooker were inclined to equate a breach of the peace under the provisions of the former Police Offences Act with violence against persons or property under s 3: Blanchard J at [52] and McGrath J at [102].  There may not be a precise correlation because the present s 3 is specifically aimed at violence, but a likely breach of the peace is nevertheless analogous.

[48]      It is evident that s 3 is aimed at conduct of a disorderly nature in or within view of a public place which is likely to result in disorder of a violent nature either continuing or starting.  Where the only response likely is that of police officers seeking forcibly to restrain the alleged disorderly behaviour, there is generally no threat to public disorder.  Indeed, a police response which seeks to restrain or arrest the offender is designed to have the opposite effect, i.e. to bring the offending behaviour to an end.  In doing so, the police officers are exercising their statutory duty to prevent a breach of the peace:  s 42 of the Crimes Act 1961.  As such, their actions would be entirely lawful.

[49]      To hold that any forceful police response satisfies the violence requirement of s 3 would result in virtually every instance of s 4 disorderly behaviour, where a defendant is arrested (and thereby subjected to a forceful police response), being elevated to the more serious offence under s 3, whether or not any other member of the public may have responded with violence.  That cannot have been intended.

[50]      We add that there may well be situations where there is a likelihood of a forceful or violent response from both police officers and other members of the public.  In such a case, an offence under s 3 would be established if the other essential elements are proved.

Conclusion

[51]      On the facts of the present case, there is no evidence to suggest that any member of the general public was likely to be provoked into a violent response in consequence of the appellant’s behaviour.  The appellant’s refusal when requested to drop the weapons was, in the circumstances of this case, behaviour of a disorderly nature.  The response of the several police officers present was to pepper spray the appellant and then, after he had thrown the weapons onto his driveway, to arrest him.  In the course of that arrest, the appellant struggled with the officers.

[52]      In these circumstances, we consider the appellant committed an offence against s 4(1)(a) of the Summary Offences Act.  But no offence under s 3 of the Summary Offences Act was committed in the absence of proof that violence (other than that inherent in the lawful actions of the police) was likely to start or continue.  We understand that the resisting charge is still pending so we offer no view on that.

Result

[53]      The appeal is allowed and the conviction under s 3 of the Summary Offences Act is quashed.  We have considered whether it is appropriate to exercise our power to amend the charge to an offence against s 4(1)(a) of the Summary Offences Act.  However, given the entire history of this matter, we consider the time has come for finality in the court proceedings which have seen three High Court judgments and now two appellate judgments.  The prosecution has had ample opportunity to lay the correct charge and the appellant has been put to a great deal of trouble and expense.  In the circumstances, it is not in the interests of justice to amend the charge.

Solicitors:           

Crown Law, Wellington