W v Police HC Christchurch CRI 2006-409-194

[2007] NZHC 23

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2006-409-000194

G  W

Appellant

v

POLICE

Respondent

Hearing:         8 February 2007

Appearances: Appellant in Person for Crown

Judgment:      8 February 2007

JUDGMENT OF FOGARTY J

[1]      On 7 December last, this Court dismissed an appeal from a conviction to the Christchurch District Court of behaving in an offensive manner, in that the appellant wore minimal clothing on a public road.  The Judge found that this was offensive, applying an objective test following the decision of R v Rowe [2005] 2 NZLR 833. The Judge, however, did find that the appellant did not intend to offend anyone and that he did not know he was being observed, although there was plainly a possibility of him being seen. He was observed by persons on a private property.

[2]      The appellant now seeks leave to appeal to the Court of Appeal, and seeks the

Court of Appeal to examine three questions of law:

W   V POLICE  HC CHCH CRI 2006-409-000194  8 February 2007

1.Whether  a  person  without  mens  rea  to  offend  can  be  guilty  of offensive behaviour.

2.Whether a person going about their lawful business without mens rea to offend is guilty of offensive behaviour when discriminated against by an observer on the grounds of skin colour, dress, religious practice, political practice, social status.

3.Whether the resilience of a reasonable person who is referred to in the judgment of R v Rowe at paragraph 23:

… 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 …

defines an acceptable level of prejudice in an observer with regard to skin colour, religious practice, political practice, social status.

[3]      The appellant argues that the Court of Appeal has not had before it a case addressing the application of the law on offensive behaviour with a positive finding of fact that the person convicted did not intend to offend anyone.  That proposition, on the material before me, appears to be true.  However, I am satisfied that in Rowe the Court of Appeal intended to endorse a line of authority which establishes an objective test as to offensive behaviour and confines mens rea to a requirement that the Crown prove that the act in question was intentional.   I refer particularly to Melser & Ors v Police [1967] NZLR 437 where Turner J said at page 444:

Disorderly conduct is conduct … which, while sufficiently ill-mannered, or in bad taste, to meet with the disapproval of well-conducted and reasonable men and women, is also something more – it must, in my opinion, tend to annoy or insult such persons as are faced with it – and sufficiently deeply or seriously to warrant the interference of the criminal law.

[4]      In the Court of Appeal in the case of Ceramalus v Police (CA 14/96, 17 July

1996) the Court examined authorities which suggest that the relevant conduct must have been "calculated" to be offensive and disorderly, and said:

… But calculated in this context has often been construed to mean "likely" and thus become an objective requirement.   See, for example, Melser v

Police [1967] NZLR 437, and O’Brien v Police (High Court, Auckland, AP

219/92, 12 October 1992, Blanchard J).

[5]      In Rowe the Court of Appeal in paragraphs 23, 24 and 25 said:

[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.

[25]  These  principles  appear  from  authorities  which  include  Police  v

Christie [1962] NZLR 1109, Wainwright and Butler v Police [1968] NZLR

101, Melser v Police [1967] NZLR 437 (SC & CA), Kinney v Police [1971] NZLR 924, Messiter v Police [1980] 1 NZLR 586, Ceramalus v Police and R v Brooker [2004] NZAR 680. A number of them involved disorderly behaviour or using insulting language in a public place, where similar principles apply.

[6]      Paragraph [23] of the decision of the Court of Appeal read on its own might leave  room  for  the  word  ‘calculated’  to  be  included  in  the  test.    The  word

‘calculated’ grammatically is subjective language and is incompatible with assessing behaviour objectively, but plainly the Court of Appeal intended to follow its earlier decision in Ceramalus and its earlier decision in Melser & Ors v Police.  In that context then it is clear that ‘calculated’ is to be understood as ‘likely’.

[7]      The appellant did refer to a contrary Australian authority, particularly the decision of Stone v Ford (1993) SASR 444. However, Judge MacAskill distinguished that decision, considering it to be incompatible with the New Zealand decisions. I am satisfied that the New Zealand Courts have for some time now, dating back to at least 1967, adopted the objective test. In my mind this is a case which squarely requires the objective test to be applied given the positive finding

that the appellant did not intend to offend.   That is not a reason of itself for the subject to be revisited for what would be the fourth time.  In short, the law on this point has now been settled, and if it was not settled before Rowe, it has been settled since Rowe in 2005.   That is also a recent decision.   In my view, there is no particular reason that the topic should be revisited by the Court of Appeal in 2007.

[8]      The second and third questions essentially complain that this approach to the law is discriminatory.  Well, in a sense it is.  Any law which imposes on individual members of the community minimum standards of conduct, with which they may not personally agree, is in that sense discriminatory.  But, in my view, to say that this law is discriminatory against dress is not consistent with the principles against discrimination which are designed essentially to protect religious, political and cultural views and to enable different peoples to live together and to prevent one group of society imposing its views totally on another.   The international laws on discrimination  are  not  undermined,  in  my  view,  by  the  test  as  to  acceptable behaviour in public places set by the Court of Appeal in its decisions and most recently in Rowe.  Again, I do not think that this is an issue that would be capable of being argued with any prospect of success in the Court of Appeal.   In my view I think independently of that there is no public interest in it being so argued.

[9]      For these reasons I do not think that this case raises questions which are of general or public importance, nor is there any particular reason that it should be submitted to the Court of Appeal for what would be a third examination of the merits of this case.

[10]     Accordingly this application for leave is dismissed.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Respondent cc:  Mr G W