White v Police
[2017] NZHC 1983
•18 August 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2017-488-000012 [2017] NZHC 1983
BETWEEN KARLA WHITE AND CHRIS
MATTHEW FERRI Appellants
AND
NEW ZEALAND POLICE Respondent
Hearing: 10 August 2017 Appearances:
The Appellants in Person
M B Smith for the RespondentJudgment:
18 August 2017
JUDGMENT OF HINTON J
This judgment was delivered by me on 18 August 2017 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules
……………………………………………………………………
Registrar/Deputy Registrar
Solicitors:
Marsden Woods Inskip & Smith, Whangarei
Parties:
K White and C Ferri
WHITE AND FERRI v NEW ZEALAND POLICE [2017] NZHC 1983 [18 August 2017]
[1] Mr Ferri and Ms White were found guilty of disorderly behaviour (likely to cause violence)1 following a Judge-alone trial in the District Court at Kaikohe on
1 March 2017. Mr Ferri was found guilty of a further charge of wilful damage.2 On
the disorderly behaviour charges, Judge Roberts imposed a sentence of 40 hours’ community work in respect of Ms White and 80 hours’ community work in respect of Mr Ferri. Judge Roberts also ordered that Mr Ferri pay reparation of $522.41 in respect of the wilful damage charge.
[2] Mr Ferri and Ms White have filed an appeal against conviction and sentence. The stated ground of appeal is “unconstitutional judicial misconduct, notwithstanding a substantial miscarriage of justice breaching tikanga and human rights”. Ms White filed a brief written submission and an affirmation on the morning of the hearing. Mr Ferri substantially relied on a document filed along with the Notice of Appeal. The key point raised in these documents seems to be that this Court has no jurisdiction on the basis that Her Majesty the Queen has no Constitution. Ms White also said that she was protesting to redress a wrong. Reference was also made to the Queen “in Right of New Zealand” having debt of many billions and to complaints Mr Ferri had laid regarding police actions generally. These matters were clearly not relevant to this case.
[3] I approach the appeal against conviction on the basis that relevant considerations include the jurisdiction of the New Zealand courts to hear the proceeding against the appellants; the relevance of the right to freedom of expression as recognised by s 14 of the New Zealand Bill of Rights Act 1990 (NZBORA); and possible impropriety on the part of Judge Roberts in determining the proceeding.
[4] There is no mention in the notice of appeal regarding the grounds for the appeal against sentence, nor was any separate submission made in that regard. The argument against sentence seemed to be that it should fall away, along with the convictions. In addition to that argument, I will nonetheless consider whether the
sentence imposed in respect of the offending is manifestly excessive.
1 Summary Offences Act 1981, s 3.
2 Summary Offences Act, s 11.
District Court judgments
[5] Judge Roberts heard evidence from 11 witnesses, including the two appellants. From this he determined that the appellants had been involved in a prolonged incident outside the Paihia Police Station in the very early hours of Christmas Day 2015, during the course of which the appellants shouted at the police officers inside the building and other people standing nearby. Mr Ferri also kicked the front door to the police station, causing the glass panes to break.
[6] The catalyst for the offending was apparently the arrest of a young man who Judge Roberts referred to as “Hucky”. I doubt that is the correct spelling, but I adopt it in the absence of any other. Hucky was at that time in a relationship with Ms White’s daughter. He had been approached by police shortly beforehand regarding a breach of the liquor ban and had refused to comply with requests to dispose of the alcohol he was carrying. On arrest, he ran from the police. He was apprehended after a chase, during the course of which he was pepper-sprayed. He was taken to the ground by a police officer and while there, kicked in the face by a security guard. Hucky was then taken to the police station. Mr Ferri and Ms White were alerted to these events and left home to go to the police station. Mr Ferri activated a recording device, which remained active during the course of the offending.
[7] Mr Ferri and Ms White acknowledged that they were outside the police station in the early hours of Christmas Day. Both also admitted that they had been yelling, and Mr Ferri acknowledged that it was very likely he had kicked the door. The appellants said that their actions were intended to draw the attention of the general public to unlawful police conduct.
[8] The disturbance outside the police station woke a number of people sleeping nearby causing them to come outside to see what was going on. Six of those people gave evidence at trial. Each described hearing loud yelling by both of the appellants and a number of the witnesses also described seeing or hearing Mr Ferri kicking the front door.
[9] Mr Christopher Oldham came outside to see what was going on, followed by his partner, Ms Korrine Hill. Mr Oldham observed both appellants yelling and told his partner to go home as he “didn’t want anything physical to happen”. Both he and Ms Hill specifically heard Mr Ferri using the words “parasite” and “po-lice”. Ms Suzie Jones similarly woke up and went outside. She described the noise made by the appellants as being “loud and intimidating”. She heard one of the appellants complaining of an assault on a child and demanding that the police come outside. Mr Anthony Codlin was also outside and in evidence stated he was fearful that matters might escalate further. He considered that Mr Ferri, in particular, was out of control. Mr Codlin said that he heard reference to a police officer being a “parasite” and a section of the law relating to assaulting children.
[10] Another of the witnesses, Mr Cole Keoghan, was particularly unimpressed by the appellants’ behaviour. He told the appellants to “fuck up” or he would “kick your head in”. Mr Keoghan took a recording of the incident, in which he is clearly heard threatening violence to both appellants. His threats were also overheard by Ms Hill.
[11] After more than an hour of yelling, Mr Ferri and Ms White left the police station. They were later charged with threatening/disorderly behaviour and, in Mr Ferri’s case, wilful damage in relation to his kicking of the police station door.
[12] The Judge noted that the appellants had agreed that the behaviour occurred in a public place, meeting the first element of the charge. He considered whether the behaviour was disorderly by reference to the Supreme Court decision in Brooker v Police and concluded that it was.3 In coming to that conclusion the Judge took into account the time of the offending, being the very early hours of Christmas Day morning; the place, being in immediate proximity to residential dwellings and accommodation; and the circumstances, which indicated that the appellants went to the police station with the intention of protesting in a manner that they knew would
cause disruption to others. The Judge explicitly considered the right to freedom of
expression but found that the right was not sufficient to justify the appellants’
conduct. The Judge then considered whether the final element of the offence, “that
3 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91.
the behaviour was likely in the circumstances to cause violence against persons to start”, was met. He concluded that it was, having particular regard to the actions of Mr Keoghan. The Judge therefore found Mr Ferri and Ms White guilty of disorderly behaviour.
[13] Lastly, the Judge considered whether the charge of wilful damage against Mr Ferri was made out. He found that it was. Mr Ferri accepted that the damage to the door had occurred sometime after he arrived and before he left the police station. He accepted there was a “high probability” that he had kicked the door. Mr Keoghan also gave evidence that he had witnessed Mr Ferri kicking the door.
[14] Judge Roberts imposed a sentence of 80 hours’ community work in respect of Mr Ferri and 40 hours’ community work in respect of Ms White. The Judge also ordered Mr Ferri to pay reparation of $522.41 in respect of the damage to the door.
Appeal against conviction
[15] Section 232 of the Criminal Procedure Act 2011 provides that the High Court must allow an appeal against conviction if it is satisfied, in the case of a Judge-alone trial, that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or that in any case, a miscarriage of justice has
occurred for any reason.4 A miscarriage of justice means any error, irregularity or
occurrence in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.5
[16] I turn first to the appellants’ challenge to jurisdiction. The imposition of a conviction by a court lacking jurisdiction is a fundamental procedural error which gives rise to a nullity and therefore a miscarriage of justice.6 However, the issue of the District Court’s jurisdiction to hear this matter was determined in favour of the respondent in a pre-trial judgment of Judge Davis dated 8 March 2016.7 The
appellants sought leave out of time to appeal against Judge Davis’ decision. The
4 Criminal Procedure Act 2011, s 232(2).
5 Criminal Procedure Act, s 232(4).
6 R v O (No 2) [1999] 1 NZLR 326 (CA); Abraham v District Court at Auckland [2008] 2 NZLR
352 (CA).
7 New Zealand Police v White and Ferri [2016] NZDC 8238.
application was declined by Gilbert J, in part due to a lack of merit.8 This issue has therefore been determined and there is no scope for the appellants on appeal against conviction to raise the issue for a second time. In any event, this ground of appeal is unmeritorious. There is clear Court of Appeal authority that arguments which challenge the general law-making authority of the New Zealand Parliament cannot succeed. As a general proposition, the Courts are bound to accept the validity of Acts of Parliament. A litigant is not entitled to put themselves outside the law of
New Zealand.9 The present ground of appeal, which challenges the jurisdiction of
the District Court on the basis that “Her Majesty the Queen in Right of New Zealand” does not exist and/or has no constitutional power, falls into this same category.
[17] The second ground of appeal, as I have interpreted those grounds to be, concerns the right to freedom of expression under s 14 of the NZBORA. The interrelationship between the right to freedom of expression and the charge of offensive behaviour under s 4 of the Summary Offences Act has been the subject of Supreme Court scrutiny on two occasions, in Brooker v Police and Morse v Police.10
The facts of Brooker are more closely analogous to the present case. It concerned a
West Coast man who decided to protest unlawful police conduct by singing songs in the street outside a police officer’s home, on the morning after a night shift. He was arrested and convicted of a single charge of disorderly behaviour. The majority of the Supreme Court upheld Mr Brooker’s appeal on the basis that he had not caused any real disruption to public order. All of the judges acknowledged the importance of the right to freedom of expression. A majority of the Judges considered that a conviction of disorderly conduct could only be imposed if a reasonable person, being aware of the importance of the right to freedom of expression, would consider the behaviour to be disorderly at that time, in that place and under those particular
circumstances.
8 White v Police [2016] NZHC 1617.
9 R v Mitchell CA 68/04, 23 August 2004.
10 Brooker v Police, above n 3; Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1. A charge under s 4 of the Summary Offences Act is less serious than the charge laid against the appellants under s 3; both charges however require the Court to consider whether the defendant’s behaviour is “disorderly”.
[18] Judge Roberts applied the test set out by the Supreme Court in Brooker to assess whether the appellants’ conduct met the threshold required to impose a conviction for disorderly behaviour. He made a considered assessment of the relevant factors, including the time, place and circumstances of the appellants’ conduct, and I agree in substance with the conclusions which he reached. Put simply, the appellants’ behaviour took place in the early hours of the morning, in the vicinity of houses and a motel where people were asleep. The incident continued for a relatively lengthy period of time, even after it became clear that the appellants were causing a significant disruption to those in the surrounding area. Further, while there was undoubtedly some basis for protesting the treatment which Hucky had received in the course of his arrest (as evidenced by the charge of assault subsequently laid against the security guard involved in the arrest), the arrest was at that stage complete. There were no ongoing actions which might have required immediate and vociferous intervention.
[19] Judge Roberts also considered the second aspect of the charge, that the appellants’ behaviour was likely in the circumstances to cause violence against persons or property to start or continue. In concluding that this element was met, the Judge had particular regard to the threats made by Mr Keoghan including: (a) “If you don’t keep your voice down I’m going to crack you myself”; (b) “… if you don’t shut I’m gonna put you to [sleep]”; and (c) “They need to get arrested they do. Otherwise if they don’t soon I’m going to go over there and beat the living shit out of him”.
[20] The Judge decided there was sufficient evidence to conclude that the appellants’ behaviour was likely to cause violence against persons or property to start or to continue. In my view, that conclusion was open to the Judge, even allowing for Mr Keoghan’s likely over-reaction, and it was supported by the evidence of other witnesses, who were clearly concerned that violence might break out.
[21] The Judge expressly acknowledged the right to freedom of expression in the circumstances of the case before him. He applied the relevant authorities and considered the relevant factual matters in coming to his conclusion. There is no merit in this point.
[22] The remaining ground of appeal raises a general allegation of impropriety in respect of the conduct of Judge Roberts. The appellants have not articulated any particular basis for this allegation. Insofar as any such allegation concerns the approach taken by the Judge in his description and assessment of the evidence, it would appear to be unfounded. I had considered that this allegation might be intended to refer to an incident during the course of the trial when Mr Ferri was found to be in contempt and was placed in custody, however that was not raised at all during the hearing. I note though that the records show that Mr Ferri was taken into custody on two occasions, each for a relatively short period of time (19 minutes and
26 minutes respectively). These adjournments were necessitated in the first instance by Mr Ferri’s repeated failure to comply with instructions regarding the scope of his cross-examination and in the second instance by his verbal attack on the Judge and the Court.
[23] There is nothing to suggest any impropriety on the part of the Judge.
Conclusion on appeal against conviction
[24] I do not consider there has been a miscarriage of justice. The appeal against conviction is dismissed.
Appeal against sentence
[25] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.
[26] There are very few publically available decisions concerning a person who has been sentenced for disorderly behaviour on its own. In one case, McRae v New Zealand Police, the appellant became involved in an altercation with police in central Wellington, in an area that was subject to a liquor ban.11 She was part of a group that chanted “fuck the police” and subsequently refused to comply with
instructions to tip out her bottle of liquor. There was a scuffle of some kind, during
11 McRae v New Zealand Police [2014] NZHC 1293.
which a police officer had his radio ripped from his chest and part of his epaulette ripped from his shoulder. The melee culminated in the use of pepper spray by the police. Ms McRae had previously been sentenced to fines and community-based sanctions (community work, supervision and community detention). On appeal the sentence of 100 hours’ community work was quashed and substituted with a sentence of 40 hours’ community work.
[27] Ms White was sentenced to 40 hours’ community work. She has no prior convictions and was a secondary participant in the offending. The offending itself is relatively minor, as evidenced by the maximum sentence of 3 months’ imprisonment. In my view, the culpability of her offending could have been adequately recognised by the imposition of a fine, perhaps somewhere in the region of $250. There is nothing in the Judge’s decision or in the transcript of proceedings to indicate whether the possibility of a fine was explored with Ms White. However, Mr Ferri did advise Judge Roberts with respect to the ability to pay $522.41 reparations: “I think it’s fair to say we can pay that immediately”, to which Ms White said payment could not be made immediately, but could be “within the week”. In the circumstances, I consider Ms White should have been convicted and fined $250.
[28] Mr Ferri has a number of previous convictions for minor offending. His most significant offending was an assault in 2007, for which he was sentenced to
300 hours of community work. Since that time he has accumulated three further convictions for driving while disqualified, wilful trespass and resisting police. In each case he was sentenced to pay a fine. His involvement in the offending was more significant than that of Ms White. However, the sentence of 80 hours’ community work appears excessive, particularly in comparison to the sentence imposed in McRae. In my view, an end sentence of 40 hours’ community work, plus the existing order for reparation, would have been an appropriate sentence in this case.
Conclusion on appeal against sentence
[29] The appeal against sentence is allowed. The sentences imposed by Judge Roberts on the disorderly behaviour charges are quashed. In their place I impose a sentence of 40 hours’ community work upon Mr Ferri and a fine of $250 upon Ms White.
---------------------------------------- Hinton J
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