Thompson v Police - [2012] NZHC 2675

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-177 [2012] NZHC 2675

BETWEEN KIM ROKA THOMPSON Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing: 10 October 2012

Appearances: N Leader for the Applicant
J B Hamlin for the Respondent

Judgment: 10 October 2012

ORAL JUDGMENT OF PRIESTLEY J

Counsel/Solicitors:
N Leader, Barrister, Whangarei. Email: nick.leader@justice.govt.nz
J B Hamlin, Crown Solicitor, Auckland. Email: ben.hamlin@meredithconnell.co.nz

THOMPSON V NEW ZEALAND POLICE HC AK CRI-2012-404-177 [10 October 2012]

[1] On 31 August 2012 I released my judgment which dismissed an appeal against conviction entered against the applicant in the Auckland District Court under s 4(1)(a) of the Summary Offences Act 1981.[1]

[1] Thompson v New Zealand Police [2012] NZHC 2234.

[2] That judgment dealt at some length (because counsel had argued it on appeal)

with the interface between s 4(1)(a) and s 14 of the New Zealand Bill of Rights Act

1990 (NZBORA). The judgment also contained an analysis of the well-known authority Brooker v Police.[2]
[2] Brooker v Police [2007] 3 NZLR 91

[3] In essence I upheld the findings of two Justices of the Peace that, on a factual basis, supported by evidence the noise which the applicant had made at night when she was calling stray cats, was excessive in the circumstances, and caused annoyance to the occupants of residences in the neighbourhood.

[4] The applicant now seeks leave to appeal on questions of law to the Court of Appeal. The statutory provision for this is contained in s 144 of the Summary Proceedings Act 1957. It is trite law that although all litigants and defendants have one right of appeal, there is no second tier of appeal available as of right. That is not
the purpose of s 144.[3] In general terms leave will only be granted in a situation
[3] R v Slater [1997] 1 NZLR 211 at 215.

where an important issue or question of law is raised which has some public importance or interest which transcends the partisan rights of the parties concerned.

[5] I accept at the outset that the interface between s 14 NZBORA and s 4(1) is potentially of importance. However, it is an issue on which the Supreme Court has already spoken in Brooker. For obvious reasons relating to stare decisis, it is unlikely that the Court of Appeal could add anything useful to this area of the law at the moment. Certainly this is my view given the factual context surrounding the applicant’s prosecution.

[6] Nonetheless, Mr Leader advanced a number of points which he categorised as questions of law falling inside the general rubric contemplated by Slater and other
authorities.

[7] Counsel’s first point was that I was wrong to find that the applicant’s conduct for which she was prosecuted did not fall within the scope of s 14. Brooker, of course, and cases in this area cover words and actions deployed in some form of political protest or some other expression of a core human right.

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.

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Details

Case: [2012] NZHC 2675
Decision Date: 10 October 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Thompson v Police involved a dispute between the applicant, Kim Roka Thompson, and the New Zealand Police. The applicant sought leave to appeal to the Court of Appeal against the dismissal of her appeal against a conviction entered against her in the Auckland District Court under section 4(1)(a) of the Summary Offences Act 1981. The legal issues before the court included the interface between section 4(1)(a) and section 14 of the New Zealand Bill of Rights Act 1990 (NZBORA), and the potential relevance of the applicant's conduct to section 14.

Priestley J found that the applicant's conduct, which involved calling stray cats at night in a loud voice, was excessive in the circumstances and caused annoyance to the occupants of residences in the neighbourhood. The court held that the applicant's behaviour went beyond what reasonable members of the public could be expected to endure. Although the scope of section 14 might be broad, the findings of the Justices of the Peace in this case about the applicant's noise level and its effect would still bring about the same result. Furthermore, the court found that the applicant's conduct justified the inference that she was exhibiting the necessary mens rea for a conviction under section 4(1)(a).

The court declined to grant leave to appeal under section 144 of the Summary Proceedings Act 1957, finding that no important issue or question of law was raised which had public importance or interest that transcended the partisan rights of the parties concerned. The court held that the majority judgment of Brooker settled to a large extent the law in this area, and that the extensive judgment was designed to rationalise the law for the benefit of other judges and enforcement authorities.

Orders