PHILLIPS v R [2005] NZCA 73 (12 April 2005)

Last Updated: 9 May 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA430/04

THE QUEEN



v



JARED RICHARD PHILLIPS

Hearing: 14 March 2005

Court: McGrath, Hammond and O'Regan JJ

Counsel: M J Lillico for Appellant
M Downs for Crown

Judgment: 12 April 2005

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

REASONS

(Given by McGrath J)

[1]	The applicant was convicted in the District Court on one charge of disorderly behaviour in a public place. He was fined $500 and ordered to pay Court costs of $130. He appealed to the High Court where Ellen France J upheld the conviction and the sentence. He then applied to the High Court for leave to appeal to this Court which was refused. He now applies to this Court under s 144(3) of the Summary Proceedings Act 1957 for special leave to appeal.
[2]	There was no dispute in the District Court concerning the circumstances giving rise to the charge. The applicant was one of a number of protestors, estimated at between 500 and 1000, who assembled in the grounds of Parliament on 10 March 2003 on the occasion of a State lunch during a visit by the Prime Minister of Australia. The protest was directed against the Australian government’s support for the Iraq war.
[3]	As the Australian Prime Minister was leaving the grounds of Parliament in a motorcade the applicant threw a plastic bread bag which had been partially filled with leaves and twigs at the car in which he was travelling. The bag missed its target passing over the boot of the car. The applicant said that he had intended that it hit the car and thought he had missed because of a lack of weight. He also said that he had caused light debris to be put in the bag so that it would not be harmful to the car when the bag was thrown.
[4]	Later the applicant told the police that he had thrown the bag because he did not think that the Australian Prime Minister had been sufficiently embarrassed by the protest. He had been well protected by the state in a soundproofed room during the course of the State Luncheon.
[5]	The applicant’s defence in the District Court was that his conduct was not disorderly in the context of his exercise of his right to protest.
[6]	In support of the application for special leave to appeal Mr Lillico emphasised that there was no evidence that the Prime Minister’s car, or any other in the motorcade, had deviated from its course or been damaged in any way as a result of what the applicant did. He also argued that nothing indicated that any people were concerned for their safety because of the applicant’s actions.
[7]	Finally Mr Lillico submitted that the charge of disorderly behaviour was commonly laid in the District Court for a range of behaviour, citing a number of recent incidents involving political protests which had given rise to charges. He submitted that the application of the New Zealand Bill of Rights Act 1990 in this context had never been the subject of considered analysis by this Court and that the present case gave an opportunity for that to be done. He said that the discussion by the District Court Judge had centred on case law prior to the enactment of the Bill of Rights and had not referred to the importance of freedom of expression.
[8]	Mr Downs, for the Crown, argued that the application had not raised a question of general or public importance such that special leave should be given by this Court pursuant to s 144(3). He pointed out that while no actual damage was caused by the appellant throwing an object at the car, the Court could infer that the driver, occupants and other members of the motorcade, and police in attendance could not have known what the object was when it was thrown.
[9]	Mr Downs recognised that this Court in R v Ceramalus CA14/96 17 July 1996 left open the possibility of, at some point, reviewing the test for disorderly behaviour in light of the enactment of the Bill of Rights. However, as the Court recognised in that case, questions of this type are largely ones of fact and degree so that any further appellate re-examination has to focus on the facts of the particular case. He submitted that the real question the applicant seeks to raise is not the extent to which the Bill of Rights limits the offence of disorderly behaviour, but whether on the facts as found by the Judge a question of law of general or public importance arises in this case. He submitted that it did not.
[10]	Section 144(3) of the Summary Proceedings Act 1957 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, 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.

[11]

In this case we are satisfied that the circumstances do not raise an issue calling for reconsideration of the test for disorderly conduct in light of the enactment of the Bill of Rights. While the District Court judgment did not expressly refer to the right to free speech, and the need for its protection, the Judge’s consideration of the line of cases upholding the right of political protest indicate that this value was clearly in his mind. It was open to him thereafter to focus his consideration on whether the nature of the conduct was such as to be covered by the offence of disorderly conduct. In that respect the District Court Judge said:

Here there was a long and clamorous protest, a large number of protesters present, in Parliament grounds with a substantial police presence, and a lengthy wait before an object of the protesters’ purpose emerged to be driven away. In my view any object thrown deliberately at the principal vehicle in that entourage carried with it the potential for danger to others, (other protesters, police and passing members of the public included), and not just the intended target. The throwing of any unknown object in such circumstances must be immediately of very great concern to police and others charged with security. Further, public figures also have rights, in this case the right to travel through and from the grounds of Parliament safely and without the fear that some unknown object thrown may be potentially fatal or harmful.

[12]

We are satisfied that the nature of the conduct is such that this conclusion was open to the District Court Judge. It is an application of the criminal law to protect those in the vicinity of persons at protests from actions such as that of the appellant that is consistent with respecting protected rights. A second appeal against the District Court’s decision would in this case also necessarily be a review of the facts, and an assessment of the inferences they gave rise to, rather than raising a question of law for this Court to address. That is not the purpose of a second appeal.

[13]

For these reasons the application for special leave to appeal is dismissed.

Solicitors:
Sladden Cochrane, Wellington for Appellant
Crown Law Office, Wellington