W v Police HC Christchurch Cri-2010-409-62

[2010] NZHC 1272

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000062

W

v

POLICE

Hearing:         15 July 2010

Appearances: K Cook for Appellant

T Mackenzie for Respondent

Judgment:      15 July 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      The appellant, Mr W  , was charged with disorderly behaviour under s 4 of the Summary Offences Act 1980.

[2]        The charge arose out of an incident that occurred in the early hours of the morning at an inner city bar and outside premises where Mr W   and a friend, Mr Urqhart had been drinking.

[3]      Following a defended hearing before two Justices of the Peace, Mr W   was convicted and fined $400 and Court costs of $130.

W V POLICE HC CHCH CRI-2010-409-000062  15 July 2010

The hearing before the Justices of the Peace

[5]      At the hearing, the prosecution called three witnesses: a taxi driver, a bouncer and the arresting officer.

[6]      The bouncer, Mr Raumati, testified that after having received a call from his bar staff, he went down to the bar area and observed two males “play fighting”.  It was common ground that the two individuals in question were Mr W   and Mr Urqhart.  The bouncer testified that he went over and spoke to the two men and told them to stop it.   According to his evidence, they then became argumentative and abrasive, so he asked them to leave.

[7]      They walked towards the door, where one of them threw a barstool from waist height across the floor.  The stool travelled about 10 metres.  The bouncer was unable to say which of the two threw the stool.  The two then walked outside, where one of them tackled the other.  Both fell heavily into a taxi that was parked by the curb, damaging the side of it.  In evidence, the bouncer acknowledged he was unable to say who was the tackler.  He testified, however, that both of them hit the taxi, fell on  the  ground,  got  up  and  then  both  laughed.    At  that  point,  according to  the bouncer’s evidence, the taxi driver got out of his vehicle, wanting to know what had happened, what they had done and saying they would have to pay for it.   The bouncer testified that the two males became abusive towards the taxi driver, told him to “Fuck off” several times and also said “Who cares?”

[8]      In his evidence, the taxi driver stated that the damage to his car had cost

$1000 to repair.

[9]      The third witness called for the prosecution was the arresting officer, who confirmed that Mr W   had injuries to his face.

[10]     At the conclusion of the prosecution evidence, Mr Cook, counsel for Mr

W  , made a submission of no case to answer.   The application was dismissed.

Unfortunately no record has been kept of the Justices’ reasoning for that decision.  In the end it has not turned out to be of any moment for the purposes of the appeal, but I pause here to interpolate that in future it may be helpful were such decisions to be formally recorded.

[11]     After the submission of no case to answer was rejected, Mr W   then gave evidence himself.  He denied that it was him who threw the barstool.  He said that although he had not seen the barstool being thrown, he assumed it must have been thrown by Mr Urqhart who was following behind him as they exited the bar.   Mr W   also claimed that it was Mr Urqhart who had tackled him, and with some considerable force, with the result that he went flying “real hard” into the taxi.  Mr W   said his shoulder, and his face hit the taxi.  He did not recall swearing at the taxi driver. However the thrust of his evidence on that issue was that if he did swear, it was in response to being held in a headlock by the taxi driver.

[12]     Mr  W    also  called  evidence  from  a  bystander,  Mr  Hawes.    He  was standing outside the bar and saw Mr W   being tackled into a taxi.  He was unable to  identify the  tackler,  but  stated  that  Mr  W   was  not  in  control  as  he was propelled forward with some force.

[13]     In  their  decision,  the  Justices  referred  to  the  Supreme  Court  decision  of

Brooker v Police [2007] 3 NZLR 91, and went on to say:

[9]       We consider that the behaviour of both men, that is the defendant and the other male, Mr Urqhart, both inside the bar resulting in them being asked to leave and the behaviour as they left and out onto the street would be, in our view, considered abnormal by any responsible and reasonable person.  Furthermore in our view the behaviour of the defendant and that of the other male must be taken in total.  The behaviour inside the bar for all intents  and  purposes  was  continuous  with  the  behaviour  that  continued outside the bar.  The behaviour was seriously disruptive and that it created damage to the taxi driven by Mr Mike, and that further he was disturbed by the obscene language that he was subjected to.  So much so that he did not want to repeat the language whilst giving evidence in Court.

[10]      He was disturbed by the damage to his taxi and believed at the time, the belief in our view of a not unreasonable person, that the damage had been caused by the defendant whom he held onto in a headlock along with the security guard, Mr Raumati, until the police arrived.   Mr Raumati’s evidence also supported this view that the behaviour was disruptive.   For these reasons we find the charge proved beyond reasonable doubt.

[14]     On appeal, Mr Cook advanced the following grounds as to why the decision should be quashed.

[15]     His general submission was that the proven  conduct was not such as  to amount to disorderly conduct as defined in the authorities.     In support of that submission, Mr Cook contended:

i)The Justices did not properly decide who did what, and that was important because this was an offence involving conduct which by definition meant in principle the conduct had to be attributed to Mr W  .

ii)The Justices had mis-applied the Brooker test in that they had applied it in a subjective manner and by taking a cumulative approach.

iii)They  failed  to  give  reasons  for  some  of  their  findings including findings which turned on credibility. In Mr Cook’s submission it was not good enough the reasons had to be inferred: for example there was a conflict in the evidence between the bouncer and Mr W   as to the context in which he swore at the driver.  That conflict was never identified by the Justices, and never resolved.

iv)Mr Cook also submitted that swearing at a taxi driver outside a bar  at  3  a.m.  is  not  capable  of  constituting  disorderly behaviour.  He said that taxi drivers should be made of sterner stuff.

Discussion

[16]     It  was  common  ground  that  the  test  of  what  is  capable  of  constituting disorderly behaviour is to be found in Brooker.  The test is whether the behaviour:

a)       substantially disturbed the normal function of life in the environs of that place (Blanchard J at [56]);

b)as  a  matter  of  time,  place  and  circumstances  causes  anxiety  or disturbance  at  a  level  which  is  beyond  what  a  reasonable  citizen should be expected to bear (Tipping J at [90]);

c)       is conduct that amounts to a sufficiently serious and reprehensible interference with the rights of others to warrant the intervention of the criminal law (McGrath J at [130]).

[17]     I accept there was insufficient evidence to prove that it was Mr W   who threw the barstool, or that it was Mr W   who was the tackler.

[18]      However, that said, I am of the view that, even on the basis that it was Mr Urqhart who did both those acts, there was still sufficient evidence of conduct on the part of Mr W   that amounted to disorderly behaviour.   In particular, while his conduct inside the bar may not have amounted to disorderly behaviour, I consider that his conduct outside did, after the tackle.  In my view, the Justices were entitled to accept the evidence of Mr Raumati on this issue. Unlike Mr W  , Mr Raumati had not been drinking and he was able to give a detailed description of the conduct, including abusive language at the taxi driver and its context. It was at that point where, viewed objectively, the conduct met the Brooker test.

[19]     From a reading of the transcript, Mr Raumati comes across as an honest and reliable witness. He showed a concern to be accurate. He made concessions where those were appropriate and was careful not to embellish.  His evidence was credible as opposed to that of Mr W  .

[20]     There is no absolute rule that Justices of the Peace are required to give reasons to the extent suggested by Mr Cook.  It all depends on the facts of the case and the nature of the issue: see R v Awatere [1982] 1 NZLR 644; R v Jeffries [1999]

3 NZLR 211. In my view, the reasoning by the Justices in this case was sufficiently detailed. It is implicit in what they said that they preferred the evidence of Mr

Raumati to Mr W   and there was certainly sufficient basis to come to that conclusion for the reasons I have mentioned above.

[21]     In addition to the matters I have already mentioned, Mr Cook also raised the issue of prejudice.  He pointed out that the wording of the information refers only to “Hereford Street” as the place where the disorderly conduct took place, while the Justices of the Peace relied in part on behaviour which occurred inside the bar.  Mr Cook said this prejudiced the defence because there were other witnesses he might have wanted to call if he had known that was the approach that was going to be taken.    However  in  my view  it  was  always  open  to  Mr  Cook  to  apply for  an adjournment if he was  concerned  about prejudice.   He was  given the briefs of evidence well in advance of the hearing, and therefore knew that evidence was to be adduced about events which occurred inside the bar.  In any event, what happened inside is only peripherally relevant.  The relevance of what happened inside is that it corroborates the evidence of the bouncer in relation to the conduct of the two men outside,  which  was  simply  more  of  the  same  belligerent  behaviour.    As  Mr McKenzie put it, this was a profane display of animosity towards the taxi driver, an innocent man who was clearly concerned about damage to his property.

[22]     Mr  Cook  suggested  that  Mr  W  ’s  behaviour  may  have  been  morally wrong, but that was not enough to warrant criminal sanction.

[23]     I disagree.  Mr W   crossed the line outside the bar after the tackle.

[24]   Accordingly, appellate intervention is not warranted, and the appeal is dismissed.

Solicitors:

K Cook, Christchurch

Crown Solicitor’s Office, Christchurch

Note: Due to a recording malfunction, paragraphs [19] to [24] of this judgment have been reconstructed from notes taken in Court and may vary slightly from the Judge’s oral decision.