W v Police HC Christchurch CRI 2006-409-186

[2006] NZHC 1535

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2006-409-000186

W

Appellant

v

POLICE

Respondent

Hearing:         7 December 2007

Appearances: Appellant in Person

C Butchard for Respondent

Judgment:      7 December 2006

JUDGMENT OF FOGARTY J

[1]      The appellant appeals against conviction entered at  the Christchurch District Court of behaving in an offensive manner in a public place, namely, Bethels Road, being an offence against s 4(1)(a) of the Summary Offences Act 1981:

4    Offensive behaviour or language

(1)     Every person is liable to a fine not exceeding [$1,000] who,—

(a)      In or within view of any public place, behaves in an offensive or disorderly manner; or

…

W  V POLICE  HC CHCH CRI 2006-409-000186  7 December 2006

[2]      The  circumstances  are  that  the  appellant  lived  in  the  neighbourhood  of Bethels  Road  and  kept  goats  which  were  housed  on  the  roadside  and  was accustomed to tending to the goats wearing minimal clothing.   On this occasion he was wearing, in front of his genitals, a leather money pouch, and over his buttocks, a piece of cloth.

[3]      The Judge found that he did not intend to offend anyone, that he did not know he was being observed – this was a country area – but that there was plainly a real possibility of him being seen and he ought to have recognised this risk.

[4]      He was seen by some persons and in particular a visitor to the area, being the daughter of one of the residents, who testified that the pouch moved and that she could see his genitals.

[5]      The District Court Judge has carefully analysed this case.   He delivered an interim decision on 30 June and then a judgment on 15 September and in the course of the judgment has considered a number of decisions and in particular relied on the most recent decision of R v Rowe [2005] 2 NZLR 833. He described this as a judgment:

…   which discussed the elements of the offence of  offensive behaviour without reference to any need for proof of mens rea and, by implication, excluded any such requirement.

[6]      I think the Judge was referring to paragraphs [23] and [24] of that judgment which read:

[23]         The Court must make an evaluative assessment of all the circumstances  of  the case under  consideration.  In  doing  so  the  relevant behaviour is to be assessed objectively. The test is whether the behaviour was  “such as (to be) calculated to  wound  the feelings,  arouse anger  or resentment or disgust or outrage in the mind of a reasonable person”, a formulation  taken  from  Australian  cases  and  endorsed  as  helpful  by Tompkins J in Ceramalus v Police (1991) 7 CRNZ 678 at p 683. Conduct which constitutes an affront to good  manners  or  good taste may not  be offensive. The standard to be applied is not one of undue sensitivity, nor high tolerance,  but  rather  the resilience of a  reasonable person  is  to  be applied.

[24]         The  existence  of  an  objective  test  does  not  require  that  the prosecution must call a witness, or witnesses, who suffered offence, although it is commonplace to do so. Rather it is the tendency of the conduct, its likely

impact upon hypothetical reasonable members of the community, which the Judge must assess. Finally, and importantly, the New Zealand authorities have long recognised the existence of the safeguard that the behaviour in question must be sufficiently serious to warrant the intervention of the criminal law.

[7]      As I read those paragraphs, the Court was going beyond the reservation of the mens rea point by the Court of Appeal in R v Ceramalus (CA14/96, 17 July 1996) and finding that the question as to whether the relevant behaviour, his offence, has to be assessed objectively.  By implication it is no defence that Mr W   did not intend to offend  anyone and  in  that  respect  the  learned  District  Court  Judge  correctly applied the law.

[8]      Mr W  , in his appeal, has sought to challenge the finding that his genitals were exposed.  He has examined the transcript and points out that it could only have happened when he was carrying a bucket of water for his goats and that because it would take two hands to move the bag he was wearing sideways, requiring the bucket to be put down to do so, that it would not have happened. I have examined the evidence on this.   The visitor, the daughter of the neighbour, clearly says it happened.  I think this is a case where her evidence was not directly challenged by Mr W  ’s evidence.

[9]      Mr W   has complained with a degree of substance that he was interrupted in his cross-examination of Mrs Peters and did not have an opportunity to explore the point but equally his own evidence is not directly conflicting.

[10]     It is frequently the case where witnesses will vary in their recollections and it is the task of the trial Judge to make findings of fact.  I can see no error reviewable on appeal in the trial Judge’s findings of fact.

[11]     Mr W   also argued that it is his experience that the people in the locality are quite used to his minimal dress and that he has gained employment in the area and in that sense broadly his argument was that his conduct is acceptable in the area.

[12]     The Court of Appeal in Rowe in paragraph [24] which I have set out above distinguishes between what witnesses might say as to whether or not they suffered an offence from the:

… hypothetical reasonable members of the community, which the Judge must assess.

In this paragraph the Court makes it clear that it is left ultimately to the Judge in the case in question to assess whether or not the offence has occurred in the light of all the circumstances.

[13]     So, it is open to a Judge to find the offence has occurred in the  face of evidence that some members of the public in the vicinity are not bothered.  Though the reality of the situation is that the offence will normally only be proved when someone has complained and testifies to being offended, as was the situation here, particularly in the case of the visitor.

[14]     As I have said, the Judge in question went about the analysis carefully, wrote effectively two  decisions, had plainly read the cases, and in particular the  most recent decision of Rowe carefully.  The decision that he came to was clearly open to him on the facts and I see no basis for this Court overturning that decision, either as to factual findings or error of law.

[15]     Accordingly, the appeal is dismissed.

Fogarty J

Solicitors:

Raymond Donnelly & Co, Christchurch, for Respondent

cc:       Mr G W