Thompson v Police - [2012] NZHC 2234

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-177 [2012] NZHC 2234

BETWEEN KIM ROKA THOMPSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 10 July 2012

Appearances: S Youn and N Leader for the Appellant
J B Hamlin for the Respondent

Judgment: 31 August 2012

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on Friday 31 August at 12.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel:
S Youn, Public Defence Service, Auckland. Email: seung.youn@justice.govt.nz
N Leader, Barrister, Whangarei. Email: nick@leaderlaw.co.nz
J B Hamlin, Crown Solicitor, Auckland. Email: ben.hamlin@meredithconnell.co.nz

THOMPSON V NEW ZEALAND POLICE HC AK CRI-2012-404-177 [31 August 2012]

CONTENTS

Paragraph

Introduction 1

Background 3

The facts 6

District Court decision 21

The previous year 25

Admissibility of hearsay statements 29

Disorderly behaviour 39

History 39

Brooker v Police 44

Balancing 57

Freedom of expression 66

Analysis 77

Result 85

Introduction

[1] This outwardly simple appeal raised interesting issues flowing from the Supreme Court’s judgment (particularly the three majority judgments) of Brooker v Police.1

[2] Given the dearth of judicial authority relating to prosecutions under s 4(1)(a) of the Summary Offences Act 1981 in the wake of Brooker, and having heard counsel, I decided to reserve my judgment. The conduct of the appellant and the impact of Brooker on prosecutions for disorderly behaviour of this type merit some analysis by an appellate court.

Background

[3] The two acts of alleged offending occurred in late 2009. The appellant was convicted and fined. She appealed. Unfortunately the District Court transcript was destroyed. This led to the High Court directing a rehearing.

[4] The rehearing took place before two Justices of the Peace in the Auckland District Court on 9 May 2012. The appellant was convicted on the two charges of disorderly behaviour she faced, was fined $250 on each charge, and ordered to pay court costs and witness expenses.2

[5] This appeal challenges the two convictions.

The facts

[6] On two dates almost three weeks apart (22 November and 11 December

2009), the appellant’s actions upset and concerned residents in the Grey Lynn sector
of Great North Road, Auckland. The concerns of those residents, and in particular of three witnesses from whom the Justices of the Peace heard, were the volume of the

1 Brooker v Police [2007] 3 NZLR 91 (SC).
2 Thompson v Police DC Auckland CRI-2009-004-027414, 9 May 2012.

appellant’s voice and the length of time she spent calling out for stray cats which she

wished to feed.

[7] The principal witness, Ms Bjorkman, told the Justices of the Peace that around 8 pm on a Sunday (22 November 2009), she heard noise and screaming outside her home. She observed a woman with a shopping trolley containing cat food. The witness heard no decipherable words but stated the woman was screaming at the top of her lungs. The witness and her fellow occupants closed windows at…

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 2234
Decision Date: 31 August 2012

CaseChat Overview and Summary

This appeal concerns two convictions for disorderly behaviour in 2009, which the appellant Kim Roka Thompson challenged. The two incidents involved the appellant calling out loudly at night in a residential area to summon stray cats. The appellant's convictions were upheld by the District Court and the appeal against those convictions was dismissed by Priestley J. The appeal hinged on the meaning of the term "disorderly behaviour" under s 4(1)(a) of the Summary Offences Act 1981, and whether the appellant's conduct crossed the threshold of being disorderly. The Court considered the test for disorderly behaviour as articulated in Brooker v Police, which requires an objective tendency to disrupt public order, such that the disturbance created is beyond what the reasonable citizen should be expected to bear. In this case, the appellant's conduct, which occurred in a public place at night, caused a disturbance in a residential area and adversely affected nearby residents, met this threshold. The appeal was dismissed, and the convictions for disorderly behaviour were upheld.

Orders