W v Police HC Christchurch Cri-2006-409-119

[2006] NZHC 1387

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2006-409-000119

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 November 2006

Appearances: Appellant in Person

S C Poore for Respondent

Judgment:      9 November 2006

JUDGMENT OF HON. JUSTICE JOHN HANSEN

A.Leave to appeal to the Court of Appeal for convictions for offensive behaviour is refused.

B        Leave to appeal to the Court of Appeal for being found in contempt of

Court is refused.

REASONS

[1]      Pursuant to s 144 of the Summary Proceedings Act Mr W   seeks leave to appeal to the Court of Appeal in relation to convictions for offensive behaviour, and

also being found in contempt of Court.

W V NEW ZEALAND POLICE HC CHCH CRI-2006-409-000119  9 November

2006

[2]      Turning first to the offensive behaviour, it is unnecessary to  set  out  the factual background to this matter because it us fully set out in my decision delivered on 3 October last.   It is sufficient to say at this stage that Mr W   dresses in a certain way as a method of protest.

[3]      He says that the issues that need to go to the Court of Appeal are whether or not an offence of this nature can be proved without intent, and whether it can be proved using only hearsay evidence.  In relation to the contempt, whether the charge can be proved without hearing of a plea; breaches of the Bill of Rights minimum standards in criminal practice; whether the charge can be proved without hearing evidence; and whether the statute requires intent.

[4]      Coming back to the offensive behaviour.   It is necessary to say at the start that it is required to identify a question of law.  But it must be a question of law that by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal for decision.   The presence of mens rea in the offence is trite, as the Crown properly submits.  But there is an absolute answer to this in Mr W  ’s own submissions to this Court.  He has chosen to dress in this way, which exposes his buttocks and has his genitals covered by only a nail bag, or something similar, worn in the fashion of a sporran.  He says that he did not intend it to offend, but his own submission was that he was conscious that this behaviour may offend some people, and he carried additional clothing with him to cover himself up if it turned out people were, in fact, offended.  That is a complete answer to this point of intent, and reference to the use of public spaces and the violation of public spaces, and such matters does not assist.  While the question of law is asked, the answer is trite and there is nothing to suggest in this case that it ought to be further considered by the Court of Appeal as a matter of general public importance.

[5]      Leave to appeal is refused.

[6]      In relation to the contempt case, Mr W   appeared in Court to defend himself on these charges.   He was dressed in a similar manner, except he was wearing a parka over the top of it.  Apparently the sergeant raised at the beginning of the hearing that he was dressed in a similar fashion.  The Judge said to Mr W   that

he should not be so dressed and that he would treat it very seriously if he was.  After the Judge had convicted Mr W   and ordered him to come up for sentence the sergeant advised that members of the public had stated that two witnesses had seen Mr W  ’s buttocks during the evidence being given in this case.  The Judge said he considered this serious, considered it could be a contempt and stood the matter down.

[7]      What happened was that Mr W   saw a duty solicitor, and the exchange with  the  duty solicitor  and  him  can  be  found  at  page  2,  paragraph  [3],  of  the Sentencing Notes.

[8]      Mr W   now says that his apology was not in any way an admission that he was doing anything wrong.   Both in relation to the offensive behaviour and the matter in Court dealing with the contempt, he says shows prejudice against him because of his dress.  He says this is no different from racial discrimination.  That may be his view and he is entitled to it.   But what is quite apparent between the exchange between Mr W   and the Judge and Mr McMenamin is that he acknowledged he was so dressed, apart from the parka.  Mr W   is wearing that parka today, and it is clear that if he was moving around it would be possible for his buttocks to be viewed.

[9]      Mr W   complains  of  no  dress  standards  for  Court,  yet  he  was  aware already that the way he dressed caused concern, led to Police action and, indeed, on his own admission, could have been offensive to some people.  I have already dealt with that.

[10]     In all those circumstances, the Judge was entitled to treat that as an admission of how Mr W   was dressed, and to treat that as a contempt of the Court.  In fact, it was a blatant action on Mr W  ’s behalf coming to the Court in this way knowing the possible consequences.  Again, while the first point raises a point of law, it is not one in the circumstances of this case that raises matters of general or public importance to warrant a second appeal.  The other matters raised by Mr W  , as the Crown properly say, are matters of evidence.

[11]     As the Court of Appeal said in Notthingham v T (CA16/00 26.3.01):

It is well settled that s 144 is not intended to provide a second tier of appeal from decisions of the District Court.   The stringent requirements of s 144 must be satisfied and neither the determination of what comprises a question of law nor the question of whether that point of law raises a question of general or public importance is to be diluted

[12]     In this case they do not, in my view, raise questions of general or public importance.  They are facts specific to this case.

[13]     Accordingly, leave to appeal to the Court of Appeal is refused in relation to both of them.

Solicitors
Appellant in Person
Crown Law Office, Christchurch