THE QUEEN v ANTHONY HATHAWAY ALLEN [1999] NZCA 126 (27 July 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca159/99

THE QUEEN

V

ANTHONY HATHAWAY ALLEN

Hearing:	27 July 1999
Coram:	Richardson P Gault J Thomas J
Appearances:	J Grace for Appellant J C Pike and J Donald for Crown
Judgment:	27 July 1999

judgment of the court delivered by RICHARDSON P

[1] Following a hearing in the District Court, Anthony Hathaway Allen was convicted of intentionally obstructing a constable acting in the execution of his duty, contrary to s23 of the Summary Offences Act 1981.Mr Allen's appeal was dismissed in the High Court and he now appeals to this Court pursuant to leave granted under s144 of the Summary Proceedings Act 1957.

[2] The appellant is a newspaper photographer.On 15 May 1998 he attended a protest march in Wellington.The march began in Civic Square and later moved to Cuba Street.At about 5.10 pm the marchers stopped on Cuba Street, blocking the evening traffic.The appellant and other members of the press moved into the street to photograph the protesters.

[3] The police, concerned about the disruption to traffic, determined to move the protesters and other persons off the street and on to the footpath.The District Court Judge accepted the evidence of Constable Dean that he asked the appellant to move from the street four times:first in a general request directed at a number of persons and then a further three times individually. Although the appellant moved briefly on to the footpath following the first request, he returned on to the street and did not move after being asked to do so by Constable Dean.Following a fourth request he was arrested and later charged with intentionally obstructing a constable acting in the execution of his duty.

[4] The matter came for hearing before Judge Pethig.After hearing evidence from a number of witnesses and the appellant, as well as viewing video footage of the event, the Judge ended his short judgment:

In my view this was a plain case where the defendant was given directions and he chose to ignore them in the interests of what he saw as a story which he could cover for City Voice, and he did so in breach of the lawful direction of the police trying to clear the road and reopen it for traffic and he obstructed them.Accordingly I find him guilty.

[5] The appellant was convicted and ordered to pay court costs of $130.

[6] The appeal to the High Court was based essentially on two grounds set out in the judgment of Gallen J as follows:

1. The Judge failed to adequately weigh the rights and duties of the Appellant to use the road, against the needs of the Police to clear the road of journalists and pedestrians;he simply ruled that a failure to follow instructions constituted the offence:in particular:

(a) The Judge failed to consider the needs and rights of the Appellant to walk on the road, and to seek, receive, and impart information of a political event;

(b) The Judge failed to consider whether the directions given by the Police were a reasonable and justified restriction of the Appellant's rights;

(c) The Judge failed to assess the real effect of Appellant's conduct on the Police's efforts to open the road.

2. The Judge failed to make any finding that the Appellant had the required mens rea - that the Appellant intended to obstruct the Officer in the execution of his duty.

[7] In his judgment Judge Pethig resolved conflicts in the evidence, preferring the Police evidence and, referring to Mr Allen's evidence and the matters raised before him, continued:

He says that he was a newspaper photographer at the time covering the story. The police sergeant in charge of the operation rejects that, but in my view it is totally irrelevant in what capacity the defendant was present.The media have no right to ignore the directions given by the police when they are trying to clear the roadway of persons so as to allow the free access which the public have.The media generally co-operated and while I accept that on the occasion of an arrest some had endeavoured to take photographs and had done so, I do not know what specific directions had been given to each of them apart from the general direction to remain off the roadway.I am quite satisfied that the defendant was specifically told not to do so, and he did...

The police were trying to clear the road, the defendant having initially done so went back on several occasions, and despite several requests from the police continued to get on the road, thus making its re-opening more difficult.

The Judge added that he did not see any defence arising from the direction being unreasonable because, he said, the roadway would remain obstructed by the police van and the protestors' van blocking the road, giving his reasons, and then ended his judgment with the passage already cited.

[8] Gallen J noted that the first ground raised depended on the contention that the appellant, because of his occupation, was to be regarded by the police in a different light from other members of the public.The Judge referred to the position of the media, including its position under s14 of the Bill of Rights and the decision of this court in Television New Zealand Ltd v Attorney-General [1995] 2 NZLR 641.He concluded that when the decision of Judge Pethig was looked at as a whole the Judge did in fact determine the questions raised by Mr Grace, at least by implication. There was no direct finding that it was reasonable for the police to require members of the media to leave the road as well as protestors, but it followed from Judge Pethig's decision that he had so concluded since there was a direct reference to the media in the context of the police clearing the road and a finding that it was necessary to do so.

[9] The second main submission before Gallen J went to mens rea.The appellant denied having the requisite intent for that offence.It was submitted that Judge Pethig failed to make an express finding that the appellant intended to obstruct the police officer in the execution of his duty.

[10] The contention for the appellant was that he had an honest belief he had a right and a duty to move on to the roadway in pursuit of his occupation and that there were no reasonable grounds for the police officer to take the action which he did.The Judge noted that Mr Grace was unable to point to any legal authority which gives representatives of the news media any rights greater than those which pertain to ordinary citizens but accepted that the perception of the position which they occupy in gathering news and the like may have a bearing on determining the state of mind of representatives of the news media. However, an incorrect understanding of the law regarding the extent of a constable's powers cannot amount to a defence and it followed that a belief by the appellant that as a representative of the news media he was entitled, as a matter of law, to ignore a direction by the police officer, could not provide an evidentiary foundation for a defence.

[11] The Judge then dealt with a submission that there was nothing in the decision of Judge Pethig to indicate he had considered whether nevertheless there was an evidentiary foundation on the facts for an honest belief on the part of Mr Allen that the direction of the police officer was unnecessary.

[12] The Judge referred to a number of passages in the judgment, concluding that when looked at together the District Court Judge was rejecting an evidentiary basis for a suggestion that the appellant had an honest belief as a matter of fact rather than of law, and that the direction of the police officer was in the circumstances unreasonable:

The Judge had rejected the contention that the appellant considered there was no lawful direction for him to stay off the road and had concluded that the appellant chose to ignore the directions which were given to him.The Judge's comments involve the conclusion that the action the appellant took was motivated by the desire to obtain a story and the choice was made in the face of a lawful direction of the police to the contrary.Such conclusions are not compatible with an honest belief that the circumstances justified the action. Further, taken together the conclusions indicate that the Judge had decided that even if there was such an evidentiary basis, the prosecution had discharged the onus of discounting it.

[13] Gallen J dismissed the appeal.He subsequently granted leave to appeal further to this court pursuant to s144.Pursuant to that section leave may be granted to "appeal to the Court of Appeal against any determination of the High Court ... on a question of law arising in any general appeal".The High Court may grant leave if in its opinion "the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision" (s144(2)).

[14] In granting leave Gallen J referred to the submissions of counsel as to what questions of law were said to be of public or general importance in these terms:

He [counsel for Mr Allen] submits in particular that when questions arising under the provisions of the Bill of Rights Act are dealt with, then the Judge ought to make it clear that he has considered the questions and his determination should reflect his conclusions on the basis of the tests which the Courts have accepted it is appropriate to apply.He makes a similar submission with regard to the question of mens rea.

[15] In his written submissions to this court Mr Grace formulated the questions in this way:

The questions on appeal are:

1. Whether a Judge ought to make express and unambiguous findings of the applicability of the New Zealand Bill of Rights Act 1990, when a defendant raises a right under that Act as a defence to a charge of obstructing police officers in the execution of their duty?

2. Whether a Judge ought to make express and unambiguous findings of mens rea, when [an absence of] mens rea is raised as a defence in cases of obstructing police officers in their duty?

[16] More broadly, it would seem to follow that the question of law said to have arisen in the High Court is whether a trial judge is required, as a matter of law, to deal unambiguously and expressly with every issue raised in the case.

[17] Recently, in R v Jefferies (CA190/99, judgment 22 July 1999), this Court, following the leading authority of R v Awatere [1982] 1 NZLR 644, held that whilst the provision of reasons for decision in summary proceedings is always highly desirable, what is involved must depend upon the nature of the case and the issues involved.

[18] The present case involved a defended hearing where conflicting accounts of events were presented.It is accepted that it was necessary for the Judge to give reasons.The question that arises is whether the findings and the content of the reasons given were sufficient.

[19] Numerous cases both in New Zealand and overseas have discussed the required content of reasons where a duty to give reasons arises.It is widely accepted that there is no obligation on a trial judge to address expressly every point that arises in a case.What is required will depend upon the particular circumstances.

[20] Turning first to the decisions of this Court:in R v Awatere Woodhouse P commented that the proper question to be asked is whether reasons are given that can "sensibly be regarded as adequate to the occasion" (at 649);in R v Atkinson [1984] 2 NZLR 381 Hardie Boys J said that "how fully expressed [reasons] should be will depend on the nature of the individual case";and in R v Connell [1985] 2 NZLR 233, Cooke J said at 237:

To require the Judge to set out in writing all the matters that he has taken into account and to deal with every factual argument would be to prolong and complicate the criminal process to a degree which Parliament cannot have contemplated.There are cases where a point or argument is of such importance that a Judge's failure to deal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice.A demonstrably faulty chain of reasoning may be put in the same category.But it is important that the decision to convict or acquit should be made without much delay.Careful consideration is an elementary need, but not long exposition.

[21] The position in Canada is similar:see R v Burns (1994) 89 CCC (3d) 193 and R v R(D) (1996) 107 CCC (3d) 289.See, too, the recent decision in the Privy Council, Stefan v General Medical Council [1999] 1 WLR 1293.

[22] Quite plainly a trial judge is expected to turn his or her mind to the elements of the offence and to any tenable defences that the accused may raise. Whether the Judge has made adequate findings and given adequate reasons is a matter of assessment in the particular context having regard to the issues arising.

[23] In the present case there is no doubt that the issues of whether the appellant had the requisite mens rea for the offence and whether his rights under the New Zealand Bill of Rights Act were truly engaged are important. Both were issues that the appellant raised in his general appeal to the High Court pursuant to s115 of the Summary Proceedings Act 1957.As noted in R v Awatere at 648, s119, and we may add s121 and s144, act as statutory safeguards surrounding the criminal jurisdiction of the District Court.In the present case Gallen J was satisfied that the Judge did not err in either his approach or his conclusion.

[24] We cannot discern any error of law arising on the appeal to the High Court and are not persuaded that Judge Pethig or Gallen J erred in law or that the findings and reasons for judgment were insufficient.On the contrary, we consider Judge Pethig's judgment was fairly directed to the issues in the case and is appropriately concise in dealing with those issues .

[25] As we have said, the question is whether the judgment was adequate for the occasion.It must always be sufficiently clear that the Judge has addressed and determined the issues and the reason or reasons for that.If the judgment is ambiguous that will be important on the appeal.But there is no justification as a matter of law for requiring express findings as such and expressly stated reasons as such.It is the clarity with which the issues are addressed and dealt with that is important.

[26] Many of the matters that Mr Grace raised may be of considerable significance in particular cases at trial and on a general appeal.But there is nothing of sufficient materiality in this case to require special consideration as a question of law on further appeal.In that regard it will be apparent from what we have said earlier in the judgment that Gallen J carefully considered all the various matters raised by way of challenge to the decision of the District Court.But because of the particular emphasis Mr Grace placed on the Bill of Rights, we should add a brief comment. Mr Grace was relying here, as in the District Court and the High Court, on s14 rather than the administration of justice provisions of the Bill of Rights. In terms of that section, everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.Where Bill of Rights rights and freedoms are truly engaged the trial court can ordinarily be expected to address the issues with reasons given.In this case, while not referring specifically to s14 but addressing himself to the particular circumstances of this charge, Judge Pethig said that the media have no right to ignore the directions given by the police when they are trying to clear the roadway of persons so as to allow the free access which the public have.In context, the Judge was clearly referring to the absence of any right to ignore the lawful directions given by the police. In Television New Zealand v Attorney-General at 647, also cited to Judge Pethig, this court per Cooke P said that, in the circumstances of that case which involved compliance with a search warrant duly issued according to law, the media was under the same obligation to obey the law as falls on everyone else in the community.

[27] In other factual circumstances different considerations may apply under the Bill of Rights but in the present case Mr Allen, as a member of the media, had no rights greater than members of the public for not complying with the lawful directions of the constable.On this issue the crucial findings of fact against him were that the police were clearing the road, he did not comply with repeated directions to leave the road and, as tantamount to an express finding of intent, Judge Pethig concluded that Mr Allen chose to ignore those lawful directions.

[28] For the reasons given the appeal is dismissed.

Solicitors

John Grace, Porirua, for appellant

Crown Law Office, Wellington