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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NZCA 329
Decision Date: 2 August 2007

CaseChat Overview and Summary

The appeal against the conviction of Iao Metai Ali'imatafitafi in the District Court for disorderly conduct and resisting arrest was heard by the Court of Appeal of New Zealand. The appeal focused on the conviction under s 3 of the Summary Offences Act 1981, which pertains to disorderly behaviour that is likely to cause violence against persons or property to start or continue. The incident leading to the charges involved the appellant and his son, who armed himself with a machete and a meat cleaver, confronting the police at their residential property. The appellant's role in the incident, as alleged by the prosecution, was retrieving these weapons from his son and refusing to drop them when requested by the police, leading to his physical restraint and arrest.

The central legal issue in the appeal was whether behaviour likely to result in a forceful response by the police towards the person responsible for that behaviour could amount to an offence under s 3. The Court of Appeal, after examining the legislative history and case law, concluded that while the appellant's behaviour was disorderly, the forceful response by the police in the absence of any likelihood of violence from members of the public did not satisfy the requirement of s 3 that the behaviour be likely to cause violence against persons or property to start or continue. The Court found that the appellant's conduct warranted an offence under s 4(1)(a) of the Summary Offences Act, which pertains to offensive behaviour or language, but not under s 3. The appeal was allowed, and the conviction under s 3 of the Summary Offences Act was quashed.

Orders