Wakim v Police HC Auckland CRI 2011-404-093

[2011] NZHC 1457

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-093
CRI 2011-404-147
CRI 2011-404-097
CRI 2011-404-144
CRI 2011-404-146

CRI 2011-404-145

BETWEEN  JANFRIE JULIA WAKIM MALCOLM FRANCE JOHN MINTO

JOHN DARROCH ROCHELLE REES

ANDRUTH AMATO Appellants

ANDNEW ZEALAND POLICE Respondent

Hearing:         31 October 2011

Counsel:         R E Harrison QC and M J Morris for Ms Wakim

S Magnussen for Mr France, Mr Darroch, Ms Rees and Ms Amato
J Minto, in person
N H Malarao and E Rutherford for Police

Judgment:      10 November 2011

JUDGMENT OF HEATH J

This judgment was delivered by me on 10 November 2011 at 9.30am pursuant to Rule 11.5 of the High

Court Rules

Solicitors:

Registrar/Deputy Registrar

Crown Solicitor, PO Box 2213, Auckland

Counsel:
R E Harrison QC, PO Box 1153, Auckland
S Magnussen, PO Box 6132, Wellesley Street, Auckland
Copy to:

J Minto, Appellant in person

WAKIM V NEW ZEALAND POLICE HC AK CRI 2011-404-093 10 November 2011

Introduction

[1]      Following a defended hearing in the District Court at Auckland, Ms Wakim, Mr France, Mr Minto, Mr Darroch, Ms Rees and Ms Amato were each convicted on a single charge of disorderly behaviour.1   The charge was brought under s 4(1)(a) of the Summary Offences Act 1981 (the Act), a provision that encompasses the offences of both disorderly and offensive behaviour.

[2]      In Brooker v Police,2  the Supreme Court held that the offence of disorderly behaviour  was  linked  to  public  order  and  should  only  be  invoked  where  a disturbance of public order exists.  The same approach was taken in Morse v Police,3 on a charge of offensive behaviour.

[3]      Mr Brooker followed a police constable to her private residence, after she had completed a night shift.  He stood outside her house, on a grass verge, and sang a protest  song,  accompanied by a guitar.    Mr Brooker also  had  a visible placard complaining about a search warrant that the police officer had been responsible for procuring.   The Supreme Court held that conduct did not amount to disorderly behaviour.

[4]      Ms Morse, as part of a protest against New Zealand’s involvement in the war in Afghanistan, deliberately set fire to the New Zealand flag in the grounds of the Law School of Victoria University of Wellington.  She did so behind but within view of people assembled at the Wellington Cenotaph for a dawn service on Anzac Day

2007. The Supreme Court held that conduct did not amount to offensive behaviour.

[5]      In this case, the six appellants gathered outside the Auckland Tennis Centre in January 2010, to express dissatisfaction with the military activities of the Israeli Government in the Palestinian Territories.   The protests were directed at a female tennis player from Israel.   The protesters held placards, yelled slogans (with and

without the aid of amplification) and made various loud or shrill noises that were

1 Police v Amato and Ors DC Auckland CRI 2010-004-301, 18 February 2011.

2 Brooker v Police [2007] 3 NZLR 91 (SC).

3 Morse v Police [2011] NZSC 45.

directed towards the tennis courts.   In light of the Supreme Court’s decisions in

Brooker and Morse, did that conduct amount to disorderly behaviour?

Background

[6]      In early January each  year, the ASB Tennis Open, for female players, is played at the Auckland Tennis Centre, in Auckland.  In 2010, one of the players was Shahar Pe’er, an Israeli national.   She had previously served in the Israeli Armed Forces.

[7]      On  6,  7  and  8  January  2010,  a  group  of  protesters  (including  all  the appellants) gathered to demonstrate against Israel’s military activities in the Palestinian Territories.  For most of the time, the demonstrators were situated on a grassy area, adjacent to Lower Domain Drive.  That location is opposite the main entrance to the Auckland Tennis Centre.  On one occasion, the protest moved to an area further up Lower Domain Drive, in closer proximity to the number 4 court, on which Ms Pe’er was then playing.

[8]      Mr France was arrested on 6 January 2010, for using a megaphone after having been warned by police officers not to do so.  On 7 January 2010, Mr Minto, Ms Wakim and Mr Darroch were arrested.  Mr Minto was arrested for using a loud- hailer to make (what the Police regarded as) an unacceptably high level of noise. Ms Wakim was arrested for using a megaphone, projecting a shrill cry and making a loud noise, by moving her tongue.   Mr Darroch was arrested after climbing a tree and using a megaphone to shout slogans in the direction of the tennis stadium.  Ms Rees and Ms Amato were arrested on 8 January 2010 for using a loud-hailer, having previously been warned by the Police not to do so.

[9]      The charges were not all heard together.   Evidence was given separately, about the activities that occurred on the particular days when individual protesters were arrested.  Only evidence admitted against a particular defendant could be used against him or her.  Once all relevant evidence about a particular defendant’s arrest had been called, that defendant did not participate further in the hearing.

The appeal

[10]     In broad terms, the grounds of appeal can be reduced to two:

(a)       The Judge erred in taking into account evidence that was not admitted against particular defendants; and

(b)The  Judge  erred  in  finding  that  the  elements  of  the  disorderly behaviour charge had been proved beyond reasonable doubt.

[11]     Mr Malarao, for the Police, acknowledged that the Judge erred in taking into account evidence given at times when a particular defendant or his or her counsel was  not  present.    Nevertheless,  he  submitted  that  there  was  sufficient  common ground as to what occurred on each date to justify the District Court Judge’s global approach.

[12]     The critical issue on the substantive point is whether, as required by Brooker, the prosecution proved beyond reasonable doubt that the conduct of which complaint is made was linked to disruption of public order.4

[13]     I prefer to deal with the appeals at a substantive, rather than a procedural or evidential, level.  I acknowledge that the Judge ought only to have taken into account evidence relevant to an individual defendant’s conduct that was given at a time when the defendant (or his or her counsel) was present to cross-examine witnesses and present a defence case.  But ultimately, on the best view of the prosecution’s case, I do not accept the relevant protest activity could properly be characterised as disorderly behaviour.

The statutory scheme

[14]     Sections 3 and 4 of the Act provide:

4 Brooker v Police [2010] 3 NZLR 91 (SC) at para [42] (Elias CJ), [63] (Blanchard J), [90]

3         Disorderly behaviour

Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who, in or within view of any public place, behaves,  or  incites  or  encourages  any  person  to  behave,  in  a  riotous, offensive, threatening, insulting, or disorderly manner that is likely in the circumstances to  cause violence  against  persons  or property to  start  or continue.

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

(b)      In  any  public  place,  addresses  any  words  to  any  person intending to threaten, alarm, insult, or offend that person; or

(c)      In or within hearing of a public place,—

(i)        Uses  any  threatening  or  insulting  words  and  is reckless whether any person is alarmed or insulted by those words; or

(ii)      Addresses  any  indecent  or  obscene  words  to  any person.

.... (my emphasis)

[15]     Sections 3 and 4 appear under that part of the Act headed ―Offences against public order‖.   Both are directed to conduct that occurs ―in or within view‖ of a public place.  Two provisions deal specifically with disorderly behaviour.  The more serious is contained in s 3.  That offence is directed to someone who, in or within view of any public place, behaves in a ―disorderly manner that is likely in the circumstances to cause violence against persons or property to start or continue‖. The lesser charge, under s 4(1)(a), is established if a person behaves in an offensive or disorderly manner, in or within view of any public place.

[16]     In Brooker, contrary to earlier authorities,5  the Supreme Court focussed on the linkage between the behaviour in issue and disruption of public order.   Five separate judgments were given.  As one would expect, identical phraseology is not used.     Nevertheless,  underlying  themes  can  be  discerned  from  the  language

employed in the judgments.

5 For example, Police v Christie [1962] NZLR 1109 (SC) and Melser v Police [1967] NZLR 437 (SC

[17]     Elias CJ  took  the  view  that  disorderly  behaviour,  under  s 4(1)(a)  meant

―behaviour seriously disruptive of public order‖.   She contrasted that notion with annoyance that was insufficient to affect public order.6    The Chief Justice took the view  that  an  interpretation  of  ―disorderly  behaviour‖  that  was  ―anchored  in disruption of public order‖ was more consistent with the fundamental principle that the criminal law must be predictable.7

[18]     While acknowledging that the concept of disruption of public order could not be divorced from the particular circumstances in which the alleged offending occurred, the Chief Justice expressed the view that behaviour which amounted to intimidation, victimisation, or bullying is disruptive of public order, even if no violence is reasonably in prospect.  That is because behaviour of that type is likely to alarm or be seen as threatening by those present.  It is the link between the nature of the behaviour and any inhibition or alarm that it causes to others who wish to use the area that brings about the risk of disruption of public order.

[19]     Blanchard J considered that disorderly behaviour was conduct that ―disturbs or violates public order‖.8   The Judge held that, to meet that threshold, the behaviour would disturb ―the normal functioning of life in the environs of that place‖.   He added:

[56] ... It must cause a disturbance of good order which in the particular circumstances of time and place any affected members of the public could not reasonably be expected to endure because of its intensity or its duration or a combination of both those factors.

[20]     Tipping J restated the test for disorderly behaviour.  He said:9

[90] Any modern test for determining when conduct is disorderly must be capable of application both to ordinary cases and to those that are less simple because aspects of the rights and freedoms affirmed by the Bill of Rights are engaged. With that in mind I would reformulate earlier tests in the following way. Conduct in a qualifying location is disorderly if, as a matter of time, place and circumstance, it causes anxiety or disturbance at a level which is beyond what a reasonable citizen should be expected to bear. Unless that is so, the conduct will not warrant the intervention of the criminal law. If it is

6 Brooker v Police [2011] 3 NZLR 91 (SC) at para [24].

7 Ibid, at para [38].
8 Ibid, at para [56].

9 Brooker v R [2010] 3 NZLR 91 (SC) at paras [90]–[91].

so, the public has a legitimate interest in proscribing the behaviour, and thereby protecting citizens from it. In this way public order is protected.

[91] The involvement of one of the rights and freedoms affirmed by the Bill of Rights is likely to influence the level of anxiety and disturbance which a reasonable member of the public should be expected to bear. In the present case it is the right to freedom of expression which is involved. Section 5 of the Bill of Rights provides that this freedom should be limited only to an extent that is reasonable and can be demonstrably justified in a free and democratic society. The level of anxiety or disturbance which citizens are expected to bear should be consistent with that legislative mandate. In a case like the present the application of the disorderly conduct test requires the Court to balance the competing interests of those exercising their right to freedom  of  expression,  and  more  particularly  their  freedom  to  protest, against the legitimate interests and expectations of those affected by that exercise.  (my emphasis)

[21]     McGrath J,  while  dissenting  as  to  the  result  of  the  appeal,  agreed  that s 4(1)(a) required an evaluation of the behaviour in the context of public order considerations.   His Honour observed that public order protects the community’s expectations, enjoyment of tranquillity and security from disruptive behaviour in

certain situations.10

[22]     Explaining the notion of ―infringement of public order‖, McGrath J referred to ―a serious interference with community standards of behaviour, in the sense that the behaviour goes beyond what a society respectful of democratic values can be expected to tolerate‖.11    In the context of the guarantee of freedom of expression set out in s 14 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), the Judge said:

[120]    ... The right to express dissenting opinions concerning official action or policy is central to democratic values. It will be rare that expressions of opinion which have no tendency seriously to upset their audience will be categorised as sufficiently intruding on public order. It is not necessary, however, that the conduct is likely to produce a physical response or other reaction resulting in a breach of the peace before the behaviour may properly be found to be disorderly. In any particular situation self-discipline, apprehension or the good judgment of affronted persons may control their overt response to a manner of behaviour which, objectively, they should not have to tolerate.

[23]     Thomas J, also dissenting as to the outcome, did not consider that it was possible to devise a test that could be applied to all cases of this type.  He preferred

10 Ibid, at paras [118]–[119].

to employ a more flexible approach, based on benchmarking.12   At my level of the judicial hierarchy, it is unnecessary to dwell on Thomas J’s reasons for preferring that approach.

[24]     It will be apparent that all members of the Brooker court were alive to and emphasised the need for a more nuanced approach when the behaviour in question arose out of the exercise of one or more of the freedoms guaranteed by the Bill of Rights.  Blanchard J said,13 by reference to an observation made by Thomas J in the course of argument, ―the purpose of protest is to make someone listen to something they do not want to hear‖.  He added that, wherever the line should be drawn, it is important not to ―criminalise behaviour which, while impolite or inconsiderate to other persons, is not necessarily a cause of public disorder‖.  The Judge continued:

―Causing annoyance, even considerable annoyance, to citizens does not suffice‖.14

The District Court Judge’s decision15

[25]     Judge Wade did not consider there was much dispute about what occurred when the appellants were arrested on 6, 7 and 8 January 2010.  The Judge viewed the noise emanating from the protesters as ―continuous rather than spasmodic‖.16     He found  it  was  loud  enough  to  disrupt  patrons.     He  referred  to  one  witness, Mr Linklater (the Chairman of the Board of Trustees of the Westonaria Tennis Trust) who had told a police officer that if the Police did not quell the noise he would go into the stadium and get about 100 able bodied spectators to do the Police’s job for them.  Nothing of that sort happened and there is no evidence that anyone else in the

stadium showed the same degree of agitation.

[26]     The  Judge  observed  that  the  tournament  is  popular  and  attracts  several thousand spectators, who each pay between $40 and $70 per day.   He was also

12 Ibid, at paras [183]–[191].

13 Ibid, at para [62].
14 Ibid, at para [63]. See also paras [40] (Elias CJ), [91] (Tipping J) and [120] (McGrath J).

15 Police v Amato and Ors DC Auckland CRI 2010-004-301, 18 February 2011.

mindful that tennis was a sport in which silence was generally expected, while a game was in progress.17

[27]     Judge Wade accepted evidence from Constable Walton18  that, when she was at the stadium, she had been deployed to go into one of the stands to assess the noise made by protesters.   She could hear amplified voices and chanting clearly.   Her evidence was that the volume was such that she could hear the protesters over the top of both the public address system and applause when players entered the arena.

[28]     In discussing legal elements of the offence,19  Judge Wade referred to two extracts from the judgments delivered in Brooker; one from the Chief Justice20  and the other from Blanchard J.21   Both emphasised the need for an objective tendency to disrupt public order to be demonstrated as an element of the offence.

[29]     The Judge, from the evidence, was satisfied ―that many if not all of the spectators found the noise annoying‖ and that even ―more significantly, it impacted upon the players ability to concentrate‖.22      The Judge found that the protesters’

motive ―was  not simply to draw attention to the cause they were espousing‖.23

Rather, he said:

[44] I am sure that each of them knew perfectly well and intended that their contribution  to  the  noise  level  would  be  such  as  to  bring  the  tennis tournament to a halt by making it impossible for the competitors and especially the Israeli competitor to give the game the concentration required. This was done for the purposes of disrupting play for a substantial period if not causing the abandonment of the tournament as a whole.

[45] That was why the protest and the noise generation took place as close to the stadium and where Miss Shahar Peer was playing rather than at any other venue. Not only were the players affected but the thousands of spectators who had paid substantial sums of money to watch a professional tennis tournament. What information, I ask myself was being imparted by making meaningless high pitched ―sha-la-la‖ screams or blowing whistles?

[46] The only sensible answer is that it was not done for the purposes of persuasion nor to draw attention to the placards being carried or the leaflets

17 Ibid, at para [5].

18 Ibid, at para [9].

19 Ibid, at para [32].
20 Brooker v R [2010] 3 NZLR 91 (SC) at para [41].
21 Ibid, at para [56].

22 Police v Amato and Ors DC Auckland CRI 2010-004-301, 18 February 2011 at para [41].

being distributed. It was done to bring about a temporary or permanent

cessation of the tennis tournament and to spoil the spectator’s day.

[47] The protest and the actions of each of the defendants before me crossed the line beyond what is an acceptable protest and did so by a substantial margin.

[30]    The Judge’s findings of fact do not materially conflict with the general descriptions given to the Court by those involved.   It is clear that the protesters intended to convey, to Ms Pe’er and those attending the tennis, their concerns about the  way in  which  the  Israeli  Government  had  treated  people  in  the  Palestinian Territories.  The level of noise had to be sufficiently loud to impart their views to those inside the stadium.  If that were not their intention, there would have been no point in using megaphones or other forms of amplification.   It would have been sufficient for a silent demonstration to have occurred, at which the protesters held placards to explain their concerns.

[31]     Different considerations apply to the Judge’s views about the intentions of those involved in the protest; in particular their suggested intentions to disrupt the tennis.  With respect, those findings are beside the point.  The fundamental question arising out of Brooker is whether the prosecution has proved beyond reasonable doubt that disruption of the type contemplated in the Supreme Court judgments occurred.  The question was not whether the protesters intended to interrupt or stop the tennis. The District Court Judge erred by failing to answer the correct question.

[32]     The passages I have cited from judgments delivered by Elias CJ, Blanchard and Tipping JJ highlight the level of behaviour required to justify invocation of the criminal law through a s 4(1)(a) charge of disorderly behaviour.  Those three Judges form a relatively consistent majority, on this issue.   The Chief Justice spoke of

―intimidation,  victimisation,  or  bullying‖;24    Blanchard J  referred  to  conduct  that

―disturbs  or  violates  public  order‖;25   Tipping  J  referred  to  behaviour  causing

―anxiety or disturbance at a level which is beyond what a reasonable citizen should

be expected to bear‖.26

24 Brooker v R [2010] 3 NZLR 91 (SC) at paras [42] and [45].

25 Ibid, at para [56].

26 Ibid, at paras [90] and [91].

[33]     With respect, those descriptions elevate the nature of the behaviour required to infringe s 4(1)(a) to a much higher level than that conveyed by Judge Wade, in his decision.   That is emphasised by the Judge’s reliance on the annoyance caused to spectators and the inability of the players to concentrate.27

[34]     It  goes  without  saying that  a verbalised  protest  may offend  or disturb  a member of the public who either disagrees with what is said or takes umbrage at the disruption of his or her own legitimate activities.  But disruption to an individual’s enjoyment of a sporting event is not the same thing as disruption of public order.

[35]     The issue is one of degree.  In my view, there was no evidence to suggest, on an objective basis, that the way in which the protesters behaved had a tendency to disrupt public order, in the manner contemplated by Brooker.  While some spectators were, no doubt, disturbed by what was occurring (Mr Linklater was one and others inside the stadium made complaints to the Police) there is nothing in the evidence to suggest that such a state of agitation, frustration or alarm was emerging (short of a

tendency to violence28) among the spectators that maintenance of public order  might

have been at risk, in the senses described in the judgments of Elias CJ, Blanchard and Tipping JJ.29

[36]     In my view, there was insufficient connection between the behaviour and disruption to public order to justify a finding that each of the appellants was guilty of

the offence of disorderly behaviour.

27 See paras [28] and [29] above.

28 Compare with s 3 of the Summary Offences Act 1981.

29 See para [32] above.

Result

[37]     Each appeal is allowed.  The conviction entered against each appellant is set aside. No rehearing is required.

P R Heath J

Delivered at 9.30am on 10 November 2011.