The Queen v White - [2007] NZCA 214

IN THE COURT OF APPEAL OF NEW ZEALAND
CA67/07
[2007] NZCA 214
THE QUEEN
v
GRAEME WHITE
Hearing:14 May 2007

Court:William Young P, Glazebrook and Wilson JJ
Counsel:Mr White in person

A M Powell for Crown

Judgment:30 May 2007 at 11.30am

JUDGMENT OF THE COURT

The application for special leave to appeal is granted on the following questions:
(a)Is the mens rea requirement for offences under s 4(1)(a) of the Summary Offences Act 1981 always limited to an intention to do the act in question?
(b)Should lack of intention to offend be taken into account in assessing whether a person is behaving in an offensive manner?
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REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
[1] Mr White, on 15 September 2006, was found guilty in the District Court at Christchurch by Judge MacAskill of behaving in an offensive manner in a public place, an offence against s 4(1)(a) of the Summary Offences Act 1981. An appeal against that decision was dismissed by Fogarty J on 7 December 2006 and he refused leave to appeal to this Court on 8 February 2007.
[2] Mr White seeks special leave to appeal on the following three questions:
(a)Whether a person without mens rea to offend can be guilty of offensive behaviour.
(b)Whether a person going about their lawful business without mens rea to offend is guilty of offensive behaviour when discriminated against by an observer on the grounds of skin colour, dress, religious practice, political practice, or social status.
(c)Whether the resilience of a reasonable person referred to in the judgment of R v Rowe [2005] 2 NZLR 833 at [23] (CA) (“The standard to be applied is not one of undue sensitivity, nor high tolerance, but rather the resilience of a reasonable person is to be applied.”) defines an acceptable level of prejudice in an observer with regard to skin colour, dress, religious practice, political practice, social status.

Factual background
[3] At about 7.20pm on the evening of 28 January 2006, Mr White was walking along the road near his home to tend to a goat. That part of the road where he was walking is visible from a neighbour’s property and from a nearby camping ground. When he left his house, Mr White was wearing what was described by witnesses as a leather bum bag across his genitals and a sack cloth top. A short way down the road he took the top off leaving him clad only in the leather bag with his buttocks uncovered.
[4] Mr White was observed by Mr and Mrs Peters who were visiting Mrs Peters’ father who rents the neighbouring property. Mrs Peters’ evidence was that, as Mr White approached the house and at a distance of about of 20 metres or so, he looked towards her and moved his bag sideways around his hips exposing his genitals. She said that Mr White’s genitals were exposed to her view for about half a minute. Mr Peters largely confirmed the evidence of his wife.…

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.

Continue reading The Queen v White

Details

AGLC: The Queen v White [2007] NZCA 214
Case: [2007] NZCA 214
Decision Date: 30 May 2007

CaseChat Overview and Summary

In the case of The Queen v White, Graeme White was convicted in the District Court of behaving in an offensive manner in a public place. The conviction was upheld on appeal to the High Court and White sought leave to appeal to the Court of Appeal of New Zealand on questions relating to the mens rea required for the offence and the impact of discrimination on the assessment of offensive behaviour. The Court granted special leave to appeal on two questions: (a) whether the mens rea requirement for offences under s 4(1)(a) of the Summary Offences Act 1981 is always limited to an intention to do the act in question, and (b) whether lack of intention to offend should be taken into account in assessing whether a person is behaving in an offensive manner. The Court held that these were issues of sufficient importance to merit a second appeal and that a purely objective test could potentially extend the reach of the criminal law too far. The Court noted that the questions raised by White may have implications under the New Zealand Bill of Rights Act 1990 and suggested the appointment of an amicus curiae to assist the Court hearing the appeal.

The Court of Appeal of New Zealand was required to decide whether the mens rea requirement for offences under s 4(1)(a) of the Summary Offences Act 1981 is always limited to an intention to do the act in question, and whether lack of intention to offend should be taken into account in assessing whether a person is behaving in an offensive manner. The Court held that these were issues of sufficient importance to merit a second appeal and that a purely objective test could potentially extend the reach of the criminal law too far. The Court noted that the questions raised by White may have implications under the New Zealand Bill of Rights Act 1990 and suggested the appointment of an amicus curiae to assist the Court hearing the appeal. The Court rejected White’s arguments relating to discrimination on the basis that they did not arise squarely in this case.

The Court of Appeal of New Zealand granted special leave to appeal on the questions identified in the reasons of the Court. No final orders have been made at this stage.

Orders