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: [email protected]

J B Hamlin, Crown Solicitor, Auckland. Email: [email protected]

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.

[8]      I acknowledged this in my judgment.  I found, however, on the evidence (as had the Justices of the Peace) that s 14 was not really engaged so far as the applicant was concerned.  She was calling out for cats in a very loud voice.  She was not trying to make some form of political or other point.  Nor was she protesting.

[9]      But significantly I went on to find that even if I were wrong in my assessment that s 14 was not engaged, nonetheless, given the criteria articulated by the Supreme Court in Brooker, the applicant’s behaviour crossed the line.  By calling out loudly and persistently for cats at night in a residential area she was creating a disturbance. Her  behaviour  went  beyond  what  reasonable  members  of  the  public  could  be

expected to endure.[4]

[4] See generally Thompson v NZ Police [2012] NZHC 2234 at [83].

[10]     Mr Leader accepted the validity of this observation but he still considered an important question of law was alive on the precise range of s 14.  He referred to what appears to be a discussion by a United Nations Committee on Human Rights Ballantyne v Canada[5]which involved a consideration of the scope of Article 19 of the International Covenant on Civil and Political Rights as it extended to restrictive provisions relating to commercial advertising in the Canadian province of Quebec.

[5] Ballantyne et al v Canada (359, 385/89) 31/3/93.

The Committee opined that article 19 must be interpreted to encompass every form of subjective ideas and opinions capable of transmission, and should not be confined to political, cultural, or artistic means of expression.  I accept that s 14 and the right of freedom of expression can have a very broad range which might well extend beyond  the  facts  of  Brooker  and  other  cases.    Indeed  I  alluded  to  this  in  my discussion of a Canadian Supreme Court authority in [74] of my judgment.

[11]     The difficulty with Mr Leader’s submission in this regard is that, although the scope of s 14 might well give rise to interesting questions of law, 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.   This was the second level of my appeal judgment to which I have already referred.[6]

[6] See n 1.

[12]     The next points raised by Mr Leader referred initially to relief which might be available under the Resource Management Act 1991 and/or under Auckland City bylaws.  In essence counsel’s submission was the applicant’s behaviour was not of sufficient seriousness to engage the criminal law.   Counsel’s submission was that other  provisions  were  available  to  cover  the  applicant’s  behaviour,  and  for  this reason, the intervention of the criminal law was not warranted.  Section 4(1)(a) was essentially a public order offence.   It should not be engaged in a situation if, hypothetically, the applicant had engaged in the same conduct inside the boundaries of her property or inside her house there would be no offence.

[13]     The difficulty with this submission, as I have said, is that it gives rise to considerations which properly lie outside the original prosecution of the applicant and her appeal.   Exactly the same considerations could be said to apply to the relevant factual matrix in Brooker. Indeed at [41] of Brooker, the Chief Justice referred to other provisions, such as the Trespass Act 1980 and the Harassment Act

1997, which were available for the protection of privacy or personal sensitivities. But neither Brooker nor this case fit neatly into that category.

[14]     However, the irresistible conclusion must be drawn that the Supreme Court saw s 4(1)(a) as being properly engaged in Brooker.   The fact that other forms of redress or indeed other methods of prosecuting the conduct were available was not a bar to prosecution under s 4(1)(a).

[15]     The points raised by Mr Leader give rise in part to considerations canvassed by the Supreme Court in Hansen v R.[7]I do not consider the fact that the applicant could possibly have been prosecuted under Noise Control bylaws is really an answer to her conviction under s 4(1)(a).  I note too this was not a point which was advanced on appeal.  The applicant when she gave evidence made it clear she was well aware

[7] Hansen v R [2007] 3 NZLR 1.

of the restrictions imposed on her by Noise Control bylaws.   However, she was disbelieved in the District Court on critical aspects of the level of her noise and its duration.

[16]     I do not consider that a point of law, which would justify giving leave under s 144 of the Summary Proceedings Act is in play here.

[17]     The final, and interesting point raised by Mr Leader, which he acknowledged also had not been raised before me or in the District Court, was whether the applicant’s conduct justified the inference that she was exhibiting the necessary mens rea.

[18]     Trying to discern the relevant mens rea for s 4(1)(a) is not necessarily easy since the range of conduct to which that provision can apply is extensive.   I have been referred by counsel to Wilde v Police[8] which involved a successful prosecution under s 4(1)(a) of a person who threw a beer can at a cricket match that hit a person on the cheek.  In the Court of Appeal Cooke J commented:[9]

[8] Wilde v Police [1984] 2 NZLR 673 (CA).

[9] At 677.

That recklessness was plainly a sufficient mens rea for this type of offence.

[19]     Some  years  later  the  Court  of Appeal  revisited  the  mens  rea  issue  in  a s 4(1)(a) context in R v Ceramalus.[10]    The Court commented at 51 that there is no authorative judicical pronouncement in New Zealand on whether mens rea was a necessary ingredient of s 4(1)(a).   It contrasted that situation with s 4(1)(b).   The Court opined that while the behaviour in question must be deliberate and not accidental or involuntary, it was uncertain whether any further intent might be required.

[10] R v Ceramalus [2012] 2 NZLR 46.

[20]     I agree with this assessment.  Mr Leader’s submission that relevant to mens rea was the subjective state of mind of the applicant runs somewhat counter to the mens rea analysis of both Court of Appeal benches.  Even if the applicant did not turn her mind to the consequences of her behaviour (and she gave no evidence on

this aspect sufficient to rebut reasonable inferences) that is not the test.  There can be

no dancing around the fact that, by her persistent prolonged and loud caterwauling at the relevant times, the applicant’s  conduct was deliberate.    It certainly was not accidental or involuntary.

[21]     As I observed in my judgment (this being a factual matter) her evidence on the level of her noise was clearly disbelieved in the District Court.

[22]     So the conclusion I reach unhesitatingly, is that there are no questions of law which, given the structure of my 31 August 2012 judgment and the facts of this case, justify granting leave to appeal the Court of Appeal.   Particularly is this the case since the majority judgment of Brooker settled to a large extent the law in this area. My extensive judgment was designed, not to raise any new principles of law which could be subjected to appellate scrutiny.  Rather it was to try to rationalise the law for the benefit of other judges and enforcement authorities.

[23]     For all these reasons therefore, leave to appeal under s 144 is declined.

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Priestley J