HANA v R [2004] NZCA 241 (27 September 2004)

Court of Appeal of New Zealand

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HANA v R [2004] NZCA 241 (27 September 2004)

Last Updated: 2 November 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA193/04

THE QUEEN



v



BERNETT HANA

Hearing: 20 September 2004

Coram: Anderson P
McGrath J
Glazebrook J

Appearances: M Dixon for Applicant in respect of conviction of offensive behaviour
Applicant in person in respect of other matters
M F Laracy for Crown

Judgment: 27 September 2004

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]

The applicant, a middle-aged man, was summarily convicted in the District Court on two counts of offensive behaviour and various counts relating to the possession of cannabis and the possession of implements for using cannabis, contrary to the Misuse of Drugs Act 1975. He appealed to the High Court which upheld all convictions except two relating to the possession of a pipe. The applicant then applied to the High Court for leave to appeal to this Court but leave was declined. He now applies to this Court for special leave pursuant to s 144(3) of the Summary Proceedings Act 1957 which provides:

(3) Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court 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.

[2]

Submissions were advanced by counsel for the applicant in respect of one of the counts of offensive behaviour. The behaviour consisted of standing naked on a traffic island in Courtenay Place, a major Wellington thoroughfare, at 2.30 a.m. At least some of the patrons of a nearby night club, Kitty O’Sheas, thought the incident amusing rather than offensive. But one member of the public complained to two Police Officers who happened to be about 500 metres away from the scene. The arrest of the applicant and his removal in a Police car excited derisory comment from some of the patrons of Kitty O’Sheas.

[3]

The question of law originally posed by counsel in her written submissions was amended in the course of oral submissions to the following form:

The legal issue to be determined is whether the behaviour of the appellant was legally capable of being offensive.

[4]	Counsel emphasised that the applicant’s behaviour was confined to his nude appearance and did not involve any ancillary lewdness. She also pointed out that public reaction seems to have been confined to amusement and derisory comments, not about the applicant but about the Police. Further, in her submission, the only persons likely to be in the particular vicinity at that time of the morning were persons who had been enjoying the convivial atmosphere of the adjacent night club.
[5]	With respect to counsel, we think the submissions overlook the readiness with which intoxicated persons may be amused by offensive behaviour. But in any event Courtenay Place, even in the early hours of the morning, is not the exclusive domain of such people. At 2.30 in the morning it is highly likely there will be other people around; those driving vehicles in the area for personal or business reasons, patrons of night clubs who have not been reduced to frivolity by over indulgence in alcohol, local residents travelling to or from their homes, and such like.
[6]	A deliberate display of nakedness by an adult in the middle of a major city thoroughfare, even in the early hours of the morning, is so manifestly legally capable of being offensive that this Court should not be troubled by a further substantive appeal to examine that issue.
[7]	As to the other matters, which Mr Hana addressed in person, we were unable to identify any proper legal basis for granting special leave in terms of s 114(3) Summary Proceedings Act.
[8]	In the result, the application is dismissed.

Solicitors:
Crown Law Office, Wellington