The Queen v Morse

[2009] NZCA 51

IN THE COURT OF APPEAL OF NEW ZEALAND

CA530/2008
[2009] NZCA 51

THE QUEEN

v

VALERIE MORSE

Hearing:25 February 2009

Court:William Young  P, Chisholm and Heath JJ

Counsel:A Shaw for Applicant

S J Mount for Crown

Judgment:4 March 2009 at 3.30 pm

JUDGMENT OF THE COURT

WE GRANT LEAVE TO APPEAL ON THE QUESTION WHETHER THE CONCLUSION OF THE HIGH COURT JUDGE IS CONSISTENT WITH SS 5 AND 14 OF THE NEW ZEALAND BILL OF RIGHTS ACT 1990.

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REASONS OF THE COURT

(Given by William Young P)

[1]       This is an application for special leave to appeal against the dismissal by Miller J of an appeal by the applicant against a conviction for behaving in an offensive manner arising out of an incident in which she burnt a New Zealand flag at a dawn service on ANZAC Day.

[2]       Mr Shaw sought to argue that Miller J imputed the intentions and conduct of another protester (Mr Mark Rawnsley) to the applicant.  Mr Rawnsley was blowing a trumpet (to interrupt the principal speaker) at the same time as the applicant burnt her flag.  In the passage of his judgment which was criticised by Mr Shaw, Miller J made the point that the applicant chose to burn the flag at the same time as the trumpet was being blown.  We do not see Mr Shaw’s complaint as raising an issue of law which warrants leave to appeal.  Miller J expressly recognised that the applicant did not use a trumpet (see [38] of his decision).  In her evidence in the District Court, the applicant made it clear that it had earlier been agreed that she would burn the flag and Mr Rawnsley would blow his trumpet at the same time.  In this context, it was plainly open to Miller J to treat the blowing of the trumpet as part of the context in which the flag burning exercise fell to be assessed.  We are accordingly of the view that this point does not warrant leave to appeal.

[3]       We do, however, think it right to grant leave to appeal on the question whether the conclusion of the High Court judge is consistent with ss 5 and 14 of the New Zealand Bill of Rights Act 1990.

Solicitors:

Crown Law Office, Wellington