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The Queen v Morse

The Queen v Morse

Case [2009] NZCA 51 4 March 2009

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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.
____________________________________________________________________
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

Details

AGLC: The Queen v Morse [2009] NZCA 51
Case: [2009] NZCA 51
Decision Date: 4 March 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application for special leave to appeal against the dismissal of an appeal by Valerie Morse. Morse had been convicted of behaving in an offensive manner after she burnt a New Zealand flag at a dawn service on ANZAC Day. The appeal pertained to whether the High Court judge, Miller J, correctly interpreted Morse's actions in light of another protester's simultaneous conduct, specifically the blowing of a trumpet by Mr Mark Rawnsley. The applicant argued that Miller J improperly attributed Rawnsley's actions to her, while the Crown contended that the High Court judge had appropriately considered the broader context of the event.

The central legal issue before the Court of Appeal was whether Miller J's interpretation of the applicant's actions in light of the simultaneous conduct of another protester warranted an appeal. Additionally, the Court needed to determine if the conclusion reached by Miller J was consistent with sections 5 and 14 of the New Zealand Bill of Rights Act 1990. The Court found that Miller J had correctly acknowledged that Morse did not use a trumpet, but rather had agreed with Rawnsley to perform their respective actions simultaneously. The Court concluded that the simultaneous conduct was appropriately considered within the context of the event. However, the Court did grant leave to appeal on the question of whether the High Court judge's conclusion aligned with the relevant sections of the New Zealand Bill of Rights Act 1990.

The Court of Appeal granted leave to appeal on the question of whether the High Court judge's conclusion was consistent with sections 5 and 14 of the New Zealand Bill of Rights Act 1990. The Court was not convinced that the argument about the imputation of another protester's conduct to the applicant warranted an appeal. The Court found that Miller J's recognition of the simultaneous actions of the other protester was a valid consideration within the context of the event. The appeal was thus limited to the constitutional question regarding the High Court judge's conclusion.

Orders