The Queen v White - [2007] NZCA 64

IN THE COURT OF APPEAL OF NEW ZEALAND
CA433/06
[2007] NZCA 64
THE QUEEN
v
GRAEME WHITE
Hearing:19 February 2007

Court:Hammond, Chambers and Arnold JJ
Counsel:Applicant in person

M F Laracy for Crown

Judgment:13 March 2007 at 11 am

JUDGMENT OF THE COURT

LEAVE TO APPEAL IS DECLINED.
REASONS OF THE COURT
(Given by Arnold J)

Introduction
[1]        The applicant was convicted by Judge Erber on 3 July 2006 of three charges of behaving in an offensive manner contrary to s 4(1)(a) of the Summary Offences Act 1981 and was also found to be in contempt of court. On the offensive behaviour charges, he was ordered to come up for sentence within 12 months if called upon to do so. On the contempt charge he was sentenced to 14 days imprisonment.
[2]        The applicant appealed to the High Court against his convictions for offensive behaviour and against the contempt finding. John Hansen J dismissed the appeals: White v Police HC CHCH CRI‑2006-409-000119 3 October 2006. The applicant sought leave from the High Court to appeal to this Court. John Hansen J dismissed that application: HC CHCH CRI-2006-409-000119 9 November 2006. The applicant now seeks special leave under s 114(3) of the Summary Proceedings Act 1957 to appeal to this Court.
Background
[3]        The applicant was seen cycling on several occasions wearing only a bicycle helmet and a vest made of sackcloth. He had nothing on his bottom half, so that the lower half of his body was exposed. On one occasion he was seen naked, except perhaps for a small leather bag in the nature of a sporran around his waist.
[4]        The applicant was charged with offensive behaviour. In his defence he said that he dressed in this way in order to express solidarity with unborn children and concern about the sex industry.
[5]        The applicant was tried summarily before Judge Erber and convicted. In relation to the ingredients of the offence the Judge said:
[2]       The prosecution must prove beyond reasonable doubt that [the applicant] did an act, next that he did it intentionally and, thirdly, that its effect was offensive. Whether [the applicant] intended offence is not the test. The test is whether, objectively viewed, what [the applicant] was doing was offensive. In that connection, of course, I can have regard to the views of people who saw him and I can also have regard to his own views, but they are not determinative of the issue.

[6] Considering the facts in light of the legal test the Judge said:
[12] The question is, firstly, did [the applicant] on any of these occasions ride a bicycle while the lower half of his body exposed his genitals or buttocks? I do not think there can be much doubt about that. The answer is yes. Secondly, did he do that intentionally, in other words, was it a deliberate act or was it an accident? Well, it certainly was not the latter because what [the applicant] has told me is…

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 64
Case: [2007] NZCA 64
Decision Date: 13 March 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Graeme White against his convictions for offensive behaviour and contempt of court. The convictions were upheld by the High Court, and White sought special leave to appeal to the Court of Appeal. The appeal centred on the requirements for an offence of offensive behaviour under the Summary Offences Act and whether intent is necessary for a contempt of court conviction. The Court found that the High Court's analysis of the law was correct and that there was no basis for further examination of the requirements of the offence of offensive behaviour. The Court also found that intent was not necessary for a contempt of court conviction, as the statutory provision clearly sets out the conditions for contempt without reference to intent. The Court declined leave to appeal, finding that the appeal did not raise a question of law of general or public importance. The Court emphasised that the applicant's conduct, appearing in court with his buttocks and genitals exposed while on trial for similar behaviour, supported an inference of the necessary intention for contempt. The final orders were that leave to appeal was declined.

Orders