The Queen v Selwyn

[2007] NZCA 123

IN THE COURT OF APPEAL OF NEW ZEALAND

CA309/06
[2007] NZCA 123

THE QUEEN

v

TIMOTHY SELWYN

Hearing:22 February 2007

Court:William Young P, Randerson and Harrison JJ

Counsel:M A Edgar for the Appellant
M D Downs for the Crown

Judgment:4 April 2007 at 4pm

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1]       Mr Timothy Selwyn appeals against his conviction on one charge of sedition following trial before a jury in the District Court at Auckland on 8 June 2006.  He also appeals against a sentence of 17 months imprisonment imposed by Judge Bouchier upon his contemporaneous conviction for 13 dishonesty offences and for sedition. 

[2]       The grounds advanced by Mr Mark Edgar, Mr Selwyn’s counsel, in support of the appeal against conviction are that, first, the verdict cannot be supported by the evidence and, second, the trial Judge erred in law when directing the jury on the meaning of sedition. 

District Court

[3]       The relevant facts fall within a relatively narrow compass, and are not now in dispute. 

[4]       On 18 November 2004 an axe was left embedded in the window of the electorate office of the Prime Minister, the Rt Hon Helen Clark, on Sandringham Road, Auckland.  A pamphlet found nearby was created and printed on a computer at Mr Selwyn’s property about 3.00 am that day.  Emails generated by his computer showed his increasing agitation about the passage of the Foreshore and Seabed legislation which was subsequently enacted by Parliament.

[5]       At about 6.00 am on 18 November 2004 Mr Selwyn, calling anonymously, made several calls from a pay phone on Ponsonby Road to media organisations.  He alerted them to the event at the Prime Minister’s office and invited them to an address in Ponsonby Road where more pamphlets were available.

[6]       The Crown charged Mr Selwyn with two counts of sedition.  Count 1 alleged that on or about 18 November 2004 he published a statement in the Sandringham Road pamphlets that expressed a seditious intention, namely an intention to encourage lawlessness or disorder, as follows:

Tonight concerned Pakeha vented their anger and disgust at the Government’s attempts to steal by confiscation and without consultation, Maori land in the form of the Foreshore and Seabed Bill by attacking the electorate office of the Prime Minister.  The broken glass symbolises the broken justice of this issue and we call upon other like-minded New Zealanders to commit their own acts of civil disobedience to send a clear message that such injustice can never be accepted!

[7]       Count 2 alleged the same offence arising from Mr Selwyn’s publication of this statement in the Ponsonby Road pamphlets:

Confiscation Day

This morning concerned Pakeha vented their anger and disgust at the Government’s attempts to steal, by confiscation, Maori land in the form of the Seabed and Foreshore Bill that is currently being disgracefully rammed through Parliament as part of a desperate back-room deal.

By attacking the electorate office of the chief instigator, the Prime Minister – who is due to abandon the mess she created by fleeing the country today – we signal that a threshold has been crossed.

The broken glass symbolises the broken faith, broken trust and shattered justice, our axe symbolises the steadfastness of our determination.

The ruthless Prime Minister will leave behind a vindictive law that will haunt this nation should the M.Ps be mad enough to pass it.  Maori M.Ps complicit in this farce will never live down their betrayal.

If this is destined to be Confiscation Day, then we have marked it.

We call upon all like-minded New Zealanders to take similar action of their own to send a clear message that such a gross, blatantly racist injustice to the Maori people will never be accepted.

Ake! ake! ake!

[8]       Mr Selwyn gave evidence in his defence at trial.  The transcript suggests that he was an unsatisfactory witness.  He frequently declined to answer questions during cross-examination.  He was also unwilling to acknowledge the nature and extent of his participation in preparing and publishing the two pamphlets.  However, it was common ground by the time Judge Bouchier summed-up that he had published both statements in counts 1 and 2.  The essence of Mr Selwyn’s defence was that he intended to encourage civil disobedience, but not violence, lawlessness or disorder. 

[9]       The jury acquitted Mr Selwyn on count 1 but convicted him on count 2.

Sedition

[10]     To give context to Mr Selwyn’s appeal against conviction on count 2, it is necessary to say something by way of introduction about the crime of sedition.  As the Law Commission noted in its consultation draft report on “Reforming the Law of Sedition” in October 2006:

Few New Zealanders have ever heard of the crime of sedition; if they have heard of it they could not tell you what it is.

[11]     The crime of sedition has an ancient and controversial history.  It is ancient because it reaches back in the common law of England to at least the 17th Century when the crime of seditious libel began to emerge in reported cases.  It is controversial because prosecutions for sedition have been brought on occasions in some jurisdictions for the purpose of suppressing protest or restricting freedom of expression.  An important theme of the cases in this area is the need to differentiate between conduct which is criminal and that which is no more than an expression of the lawful right to protest, even strongly.

[12]     New Zealand inherited the English common law on sedition.  The law in this country was first codified in the Criminal Code 1893 and has been repeated with some modifications in the Crimes Acts 1908 and 1961.  Prosecutions for sedition are rare in New Zealand.  The Law Commission’s draft has proposed the abolition of the crime.  But various forms of sedition remain unlawful.

[13]     The crime of sedition is relevantly defined as follows: s 83 of the Crimes Act 1961:

Seditious statements

Every one is liable to imprisonment for a term not exceeding 2 years who makes or publishes, or causes or permits to be made or published, any statement that expresses any seditious intention.

[14]     The definition of such an intention is found in  s 81 of the Crimes Act:

Seditious offences defined

(1)A seditious intention is an intention—

(a)To bring into hatred or contempt, or to excite disaffection against, Her Majesty, or the Government of New Zealand, or the administration of justice; or

(b)To incite the public or any persons or any class of persons to attempt to procure otherwise than by lawful means the alteration of any matter affecting the Constitution, laws, or Government of New Zealand; or

(c)To incite, procure, or encourage violence, lawlessness, or disorder; or

(d)To incite, procure, or encourage the commission of any offence that is prejudicial to the public safety or to the maintenance of public order; or

(e)To excite such hostility or ill will between different classes of persons as may endanger the public safety.

(2)Without limiting any other legal justification, excuse, or defence available to any person charged with any offence, it is hereby declared that no one shall be deemed to have a seditious intention only because he intends in good faith—

(a)To show that Her Majesty has been misled or mistaken in her measures; or

(b)To point out errors or defects in the Government or Constitution of New Zealand, or in the administration of justice; or to incite the public or any persons or any class of persons to attempt to procure by lawful means the alteration of any matter affecting the Constitution, laws, or Government of New Zealand; or

(c)To point out, with a view to their removal, matters producing or having a tendency to produce feelings of hostility or ill will between different classes of persons.

(3)A seditious conspiracy is an agreement between 2 or more persons to carry into execution any seditious intention.

(4)For the purposes of sections 83 to 85 of this Act,—

To publish means to communicate to the public or to any person or persons, whether in writing, or orally, or by any representation, or by any means of reproduction whatsoever:

Statement includes words, writing, pictures, or any significant expression or representation whatsoever; and also includes any reproduction, by any means whatsoever, of any statement.

[Emphasis added]

[15]     The English common law has long recognised that violence is an element of the crime of sedition.  Directions to juries in three reported cases illustrate the point.  In R v Sullivan (1868) 11 Cox CC 44 Fitzgerald J at 45 referred to the “very tendency of sedition … to incite the people to insurrection and rebellion …”, and later at 50-51 “to excite, to tumult”.  In R v Burns (1886) 16 Cox CC 355 Cave J at 363 described a seditious intention as “… to incite the people to violence, to create public disturbances and disorder …”.  Later, in R v Aldred (1909) 22 Cox CC 1, Coleridge J at 3 said that the word “sedition” in its ordinary meaning “denotes a tumult, an insurrection, a popular commotion, or an uproar; it implies violence or lawlessness in some form”.

[16]     There is scope for debate as to the relevance of common law decisions as to the construction of statutory definitions of sedition.  In Wallace-Johnson v R [1940] AC 231 the appellant had been convicted for sedition under a provision of the Criminal Code of the Gold Coast Colony, broadly corresponding to our s 81(1)(a), of publishing with an intention to bring the Government into ‘hatred or contempt’. In dismissing the appeal, the Privy Council held that the prosecution was not required to prove an intention to incite violence as an element of the offence. The Board approached the question as one of strict statutory construction, observing that it is in the Code “… and not in English or Scottish cases, that the law of sedition for the Colony is to be found” and that it was “… a full and complete statement of the law of sedition in the Colony”: at 240. On this basis the Board declined to apply Burns but without calling its correctness into question: at 239.

[17]     On the other hand, in Boucher v R [1951] 2 DLR 369 the majority of the Supreme Court of Canada applied Sullivan, Burns and Aldred in a prosecution under a provision corresponding with our s 81(1)(e).  Kellock J concluded that proof of “… an intention to incite violence or resistance or defiance for the purpose of disturbing constituted authority” is an essential element of the crime: at 389.  The first edition of Adams: Criminal Law and Practice in New Zealand, published in 1964, referred with apparent approval to Kellock J’s statement of the law: at 158 (later editions of the text contain an abbreviated discussion of the law of sedition).  And in R v Chief Metropolitan Stipendiary Magistrate, Ex Parte Choudhury [1991] 1 QB 429 the Divisional Court adopted Kellock J’s formulation when dismissing a challenge to a Magistrate’s dismissal of a charge of sedition arising from publication of what were known as the Satanic Verses.

[18]     The Crown relied upon s 81(1)(c) when prosecuting Mr Selwyn.  Its terms are redolent of the words used synonymously in Burns and Aldred.  The elements of s 81(1)(c) were first introduced in 1951, by an amendment to s 34 of the Police Offences Act 1927, to provide that:

Every person commits an offence … who incites, encourages or procures disorder, violence or lawlessness.

[19]     The Hansard Debates record that, when introducing the bill, the Attorney-General described it as “a milder form of sedition”, providing for a summary trial with a maximum penalty of three months imprisonment compared to the maximum penalty of two years imprisonment upon conviction for sedition under the Crimes Act.  He also stated that the Government had “not extended the definition of sedition”: (30 November 1951) 296 NZPD 1214.  In fact the provision was absent from the 1893 Code and the Crimes Act 1908.  Section 81(1)(c) was introduced to the statutory definition of sedition by the Crimes Act 1961.

[20]     The Crown’s indictment particularised Mr Selwyn’s seditious intention as “an intention to encourage lawlessness or disorder” but for an unexplained reason omitted any reference to ‘violence’.  In our view, informed by English common law, the expression ‘violence, lawlessness or disorder’, where used in s 81(1)(c), must be read conjunctively, not disjunctively, and proof of intention to encourage violence is an essential element of the crime.  Encouragement of conduct of a violent nature is a critical ingredient in elevating what might otherwise be the lawful expression of the peaceful right of protest into the realm of criminality. 

[21]     We agree with the approach similarly adopted by Moller J in Police v Lee [1973] 1 NZLR 470 when interpreting s 34 Police Offences Act 1927. The charge was one of inciting disorder. The Judge applied the maxim noscitur a sociis: that is, where two or more words which are susceptible of analogous meaning are coupled together they are to be interpreted as taking their colour from each other.  Moller J allowed an appeal against conviction on the ground that the appellant’s conduct, even if disorderly, was not proven to be coloured with elements of violence and/or lawlessness: at 477.  The Judge was satisfied that this construction was necessary to reflect the then contemporary values of freedom of expression. 

[22]     Accordingly, the Crown was required to prove four elements in order to prove guilt on a charge of sedition under s 81(1)(c): (1) Mr Selwyn published the count 2 pamphlet or caused or permitted its publication (as noted, by the time the Judge summed up, Mr Selwyn admitted that he was a party to the publication of the count 2 pamphlet, the factual element of the charge); (2) the pamphlet encouraged lawless and violent conduct; that is, the unlawful use or exertion of physical force to damage or destroy property; (3) the property at which this conduct was directed belonged to or was associated with the Crown, the Government or administration of justice (which was not at issue at trial but which we consider to be an element of sedition necessarily implied from the construction of the section as a whole); and (4) Mr Selwyn intended to publish the statement, knowing it expressed a seditious intention. 

[23]     Finally, the Crown had to exclude the application of s 81(2).  While the conduct of the accused and the content of the publication must be construed having regard to s 81(2), we find it difficult to conceive of a case where s 81(2) could provide a defence once the Crown had proved a seditious intention under s 81(1)(c).  Such an intention necessarily involves the encouragement of conduct going beyond the scope of s 81(2).  In this case Mr Edgar does not suggest that s 81(2) applies.

Conviction

[24]     Mr Edgar’s argument on appeal against conviction centres on two of the four elements of the crime.  First, in relation to the fourth element, he submits that the verdict on count 2 is against the weight of evidence.  He submits that no reasonable jury could be satisfied beyond reasonable doubt that Mr Selwyn was guilty: s 389, R v Ramage [1985] 1 NZLR 392 (CA). The decision must be irrational for this Court to intervene: R v Sturm [2005] 3 NZLR 252 (CA).

[25]     Mr Edgar submits that Mr Selwyn never intended that the count 2 pamphlet was to be read as a whole; that it was published for the sole purpose of explaining to the media Mr Selwyn’s “symbolic act” at the Prime Minister’s electoral office; that it was not brought to the attention of any other parties; and that Mr Selwyn intended the media to dissect the flier and republish parts only as ‘sound bites’, rather than releasing the document to the public as a whole.  Mr Edgar relies on evidence that the fliers were left on an electrical box away from the public eye, were folded to prevent reading at first glance, and advice of their location was limited to media representatives who were contacted anonymously.  Mr Selwyn, he says, advised the media representatives that the flier would explain the act and did not request republication of the document as a whole. 

[26]     This argument must fail.  The charge was one of publication of a statement which expressed a seditious intention.  The jury was entitled to reject the limitation or gloss which Mr Selwyn sought to impose in evidence upon the purpose and scope of publication of his pamphlet.  His document as a whole provided an ample evidential foundation for the jury to infer that he knew the publication expressed a seditious intention and intended its publication. 

[27]     Second, in relation to the second element of the crime, Mr Edgar submits that the Judge erred when directing the jury on the meaning of sedition by omitting the essential ingredient of an intention to encourage violence and thereby creating a lower threshold for finding guilt than that required by s 81(1)(c).

[28]     Mr Matthew Downs submits that the Crown’s case was advanced at trial on the footing that the lawlessness or disorder which Mr Selwyn intended to encourage must be of a violent nature.  This approach suggests a conjunctive construction of the elements of the crime, contrary to the framing of the indictment.  Mr Downs’ submission is borne out by transcripts of the closing addresses by both counsel.  Each of them emphasised repeatedly that an intention to encourage violence was an essential element of the crime.  The prosecutor said that disorder involves violence of the type suggested by ‘an axe being put through somebody’s window’.  Mr Edgar answered this proposition by asking rhetorically whether the act was intended to be violent, while conceding that it was unlawful.  When addressing the jury, Mr Edgar also took the unusual step of discussing the facts and findings in Lee’s case, referring in passing to Latin maxims. 

[29]     In summing-up the Judge discussed the legal ingredients of the crime of sedition.  In view of Mr Selwyn’s admission of publication, she identified the primary issue for the jury’s determination as whether or not he published with the requisite intent.  The Judge confined her direction to whether the pamphlets expressed “an intention to encourage lawlessness or disorder”.  She defined the former as “without law, having no laws or enforcement of laws”; and the latter as “to violate moral order or rule or behave in a riotous or unrestrained manner, not passive disorder …”. 

[30]     So Mr Edgar is correct that the Judge failed to direct the jury that proof of an intention to encourage violence is an essential element of the crime of sedition.  While the concept of violence may be inherent in the other two elements of lawlessness and disorder, on which the Judge specifically directed the jury, the case in our view called for an express or explicit direction on violence.  Even though, when reviewing the addresses of both counsel, the Judge twice repeated Mr Edgar’s identification of the crime as requiring proof of an intention to encourage violence or a violent act, her omission was material. 

[31]     Nor did the Judge refer to the need for the Crown to prove a seditious intention in relation to property associated with the Crown or the Government.  To be fair to the Judge, neither counsel raised this issue and it is an element apparent only by implication in construing s 81(1)(c).  The omission was not material, though, as there could be no dispute that the Prime Minister’s electorate office was property associated with the Government. 

[32]     Despite the errors in the indictment and the summing up we do not consider there was any real or appreciable risk of a miscarriage of justice in the context of this case.  The facts were in a narrow compass and the count 2 pamphlet could not be construed in any other way than as an expression of seditious intention.  There was an explicit encouragement to “all like-minded New Zealanders to take similar action”.  That could only mean to inflict damage to other property associated with the Government in a way similar to the attack carried out shortly before on the Prime Minister’s electorate office.  Such conduct would necessarily involve unlawful and violent action within the scope of s 81(1)(c).  We conclude there is no appreciable risk of a miscarriage of justice occurring.

[33]     In this context also the jury’s verdicts reflect its appreciation of the legal elements of the crime, presumably in recognition of counsels’ emphasis on the element of violence.  Its acquittal of Mr Selwyn on count 1 demonstrates its construction of the document as a call for civil disobedience without involving the composite elements of violence, disorder or lawlessness.  The pamphlet did not call upon “other like minded New Zealanders” to physically attack the Prime Minister’s office.  By contrast, the jury’s conviction of Mr Selwyn on count 2 reflects its conclusion that an encouragement to attack the office, that is to use violent and unlawful physical force such as would be applied by an axe to a wall or window, was the clear message inherent in that pamphlet.

Sentence

[34]     Mr Edgar submits that the sentence of 17 months imprisonment including the discrete sentence of two months for the offence of sedition imposed on all charges was manifestly excessive.  He says that, while the Judge recognised the need for deterrence, she did not adequately consider the circumstances of the offending or the mitigating factors.  All offences other than the sedition and criminal damage charges occurred about five to 10 years previously; during that time Mr Selwyn had not offended.  Mr Edgar submits that a more appropriate sentence is one under 12 months imprisonment; he says it would have reflected both the seriousness of the charges and also the mitigation of remorse, guilty pleas, low level offending within each charge, and the steps which Mr Selwyn was willing and had taken to make amends.

[35]     In our judgment the end sentence of 17 months was well within the range available to the Judge given the nature, extent and seriousness of Mr Selwyn’s offending as a whole.  It was not manifestly excessive.  The sentence appeal must fail.

Result

[36]     Mr Selwyn’s appeals against conviction and sentence are dismissed.

Solicitors:

Crown Law Office, Wellington