T v Police HC Auckland CRI-2009-404-320 [2009] NZHC 2475 (17 December 2009)

Last Updated: 15 February 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2009-404-000320}

BETWEEN T

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 30 November 2009

Appearances: S Cowdell for Appellant

E Harrison for Respondent

Judgment: 17 December 2009

_{JUDGMENT OF WHITE J}

This judgment was delivered by Justice White on

17 December 2009 at 4.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Crown Solicitor, PO Box 2213, Auckland 1140

Copy to:

_{S M Cowdell, PO Box 76683, Manukau City, Manukau 2241}

T V NEW ZEALAND POLICE HC AK CRI-2009-404-000320 17 December 2009

[1] The appellant was charged in the District Court at Papakura with three offences under the Summary Offences Act 1981:

a) disorderly behaviour under s 4, for which the maximum penalty is a fine not exceeding $1,000;

b) resisting a constable in the execution of his duty under s 23, for which the maximum penalty is three months’ imprisonment or a fine not exceeding $2,000; and

c) assaulting a constable in the execution of his duty under s 10, for which the maximum penalty is six months’ imprisonment or a fine not exceeding $4,000.

[2] Following a defended hearing on 27 February 2009 and 18 August 2009, Judge A S Singh, in an oral judgment delivered on 21 August 2009, found the appellant guilty of charges (a) and (b) and not guilty on charge (c).

[3] On 24 September 2009, the appellant appeared before Judge Singh for sentencing on the two charges on which he had been found guilty and also on two further charges of breach of community work. The District Court Judge:

a) convicted and discharged the appellant on the charge of resisting a constable in the execution of his duty;

b) sentenced the appellant to intensive supervision for 16 months with special conditions on the charge of disorderly behaviour; and

c) sentenced the appellant to four months community detention effective

1 October 2009 on the charges of breach of community work.

[4] The appellant has appealed to the High Court against his convictions on charges (a) and (b) and his sentence on charge (b). There is no appeal against his sentence for breach of community work.

[5] The essential grounds of the appeal are that in terms of the decision of the Supreme Court in Brooker v Police [2007] NZSC 30; [2007] 3 NZLR 91 the evidence did not establish beyond reasonable doubt that the appellant had committed the offence of disorderly behaviour before he was arrested and that the District Court Judge had no power to sentence him to intensive supervision as the only penalty which may be imposed for breach of s 4 of the Summary Offences Act 1981 is a fine.

[6] The Crown opposed the appeals against conviction, but accepted that the appeal against sentence for breach of s 4 must be allowed because the only penalty permitted by the section is a fine. The Crown submitted that, if the conviction was upheld, the appropriate sentence would be a small fine or a conviction and discharge as the appellant had been held in custody after he was arrested.

[7] The substantive issue on the appeal is therefore whether the evidence in the District Court established beyond reasonable doubt that the appellant had committed the offence of disorderly behaviour before he was arrested. If not and there was no basis for his arrest, there would be the further question whether the arresting officer had reasonable cause to suspect that the appellant was committing a breach of the peace: Spencer v Police (1989) 5 CRNZ 145.

Background facts

[8] On the first day of the hearing in the District Court the two constables who witnessed the offence before the arrest of the appellant both gave evidence that they were driving east in their patrol car on Sheehan Avenue, Papakura, when they saw a group of four or five people crossing the road from right to left. They observed a car slow down for them. They also observed that the group were wearing blue bandannas and carrying alcohol. They appeared intoxicated and were yelling obscenities at passing motorists who slowed down for them. The constables pulled over and got out of their vehicle and went and spoke to the group. They asked the

group if they would remove their bandannas as there had been gang tension in the area at the time and the police were having a lot of gang problems. The group initially refused to cooperate and started to abuse the police. Two of the group, the appellant and his co-accused, were arrested for disorderly behaviour and were subsequently charged with resisting arrest as a result of incidents which occurred when they were being arrested.

[9] Both constables were cross-examined by counsel for the appellant and his co- accused, but did not resile from their evidence as to the essential facts. In particular, the first constable reiterated that the group was “yelling in general and swearing” at passing motorists and that “a vehicle had to slow down due to their protracted crossing”. The second constable confirmed that the group were swearing at passing motorists and that when the group were walking across the road they caused a car “travelling towards them to slow down” and they were yelling to the car that slowed down for them.

[10] Under cross-examination, both the first and second constables conceded that they could not recall whether the appellant had taken his bandanna off when asked to do so. They could not recall seeing any bystanders or the details of the passing motorists. The first constable could not recall whether the bandanna which the appellant was wearing was blue or black or whether the appellant had asked him what he was being arrested for.

[11] On the second day of the hearing in the District Court at Manukau on

21 August 2009, a police sergeant gave evidence that he had been called to the scene by the two constables to provide back up. When the sergeant arrived, he found that the appellant and the co-accused were intoxicated, yelling abuse at passing cars and refusing to remove their bandannas. When the sergeant tried to arrest the appellant, his co-accused intervened and then ran away. The appellant and the sergeant then had a struggle that resulted in the appellant being arrested.

[12] Under cross-examination, the sergeant conceded that he had not asked anyone to remove their bandannas and that he saw no member of the public apart

from the motorists. The sergeant said that he did not hear the appellant asking why he was being arrested.

[13] The co-accused, who is the son of the appellant, gave evidence that he had taken his bandannas off when asked to do so by the police who had told him not to wear them because they might be “gang associated”. He admitted that he had resisted being arrested.

[14] The co-accused admitted that he had drunk about “four cans of Codys” (bourbon and cola) and that his father had also been drinking. He denied that they had yelled at any vehicle or that any vehicle had been forced to slow down. He recalled being pushed back by the police and being warned for obstruction.

[15] The appellant also gave evidence on the second day of the hearing. He admitted that he had drunk about half a dozen Heineken stubbies between 3:00 and

5:00 pm on the day in question, that he was wearing black clothing, including black pants, black shirt, hood and a black bandanna, and that he had been in the group which crossed the road. He denied, however, that he and the others had been yelling or that a car had been forced to slow down for them. He also said that he had taken his bandanna off when asked to do so and that he had asked the constable why he was being arrested. He denied that he had resisted arrest.

District Court decision

[16] The District Court Judge in his oral decision of 21 August 2009 summarised the evidence from the two constables and the appellant which I have referred to. He then considered the charge of disorderly behaviour and said:

[11] The initial point for me to consider is whether or not the officers began with preventing breach of peace. Constables Mackie and Treadaway had concerns about members of the group wearing gang colours. The police were concerned because of a lot of gang problems in the area at the time. The Constables were concerned that the combination of blue bandannas, state of intoxication, presence of alcohol can, and crossing the road in that state and yelling at a passing motorist in an environment where police were having a lot of gang related problems, had a real potential to result in a breach of peace, that is threatened violence. On their account, they stopped with a view to persuading the group to take the bandannas off.

[12] I remind myself at this stage of the onus and standard of proof. The onus of proof is on the prosecution from the beginning to the end of the case. There is no onus on either of you two to prove your innocence. The standard to which prosecution has to satisfy me is one of beyond reasonable doubt.

[13] On the breach of peace, I find that the officers acted in good faith. They were concerned, and they approached both of you. I have already highlighted the background. Constable Mackie asked the group to remove their bandannas. His evidence was that Prenton was posturing aggressively and swearing at him. In particular, Prenton told Constable Mackie to “fuck off”. He called for assistance and awaited arrival of Acting Sergeant Nash.

[14] According to Sergeant Nash both Prenton and T appeared highly intoxicated and both were yelling abuse at police and passing vehicles.

[15] Constable Mackie and Treadaway also gave evidence of being abused by both of you. In particular, that they were sworn at by both of you. Further, they gave evidence that both of you were shouting and swearing at motorists who were stopping or slowing down.

[16] Both of you have denied the charge of disorderly behaviour, as well as resisting and assault charges.

[17] The fact that you have elected to give evidence in your defence does not shift that burden of proof, it remains on the prosecution.

[18] Insofar as disorderly behaviour is concerned, I found Constables, as well as Sergeant Nash, to be both credible and reliable. I have particular regard to the fact that both of you had consumed alcohol, and were actually involved in the incidents.

[19] I put to one side your evidence and look at the totality of the prosecution evidence.

[20] Finding the prosecution evidence credible and reliable in material respects on the charge of disorderly behaviour, I find you both guilty as charged.

[17] From these paragraphs, it is apparent that the Judge was satisfied that the evidence established the charge of disorderly behaviour beyond reasonable doubt. In reaching this conclusion the Judge made clear findings of credibility and reliability in favour of the police constables. Although the Judge does not say so explicitly, it is implicit in his findings of credibility and reliability in favour of the police and his statement “I put to one side your evidence” that he did not accept the evidence of the appellant and his co-accused where it was in conflict with the police evidence. Having decided not to accept the evidence of the appellant and co-accused, the Judge properly put it to one side and looked at the totality of the prosecution evidence.

[18] The Judge obviously considered that Sergeant Nash’s evidence as to the intoxication and subsequent conduct of the appellant and his co-accused, particularly in yelling abuse at passing motorists, corroborated the evidence of the two constables.

Appellate approach

[19] The approach to a general appeal of this nature is now settled by the decision of the Supreme Court in Austin, Nicholls & Co Inc v Stichting Lodestar [2008] 2

NZLR 141 at [5], [13] and [16]. This Court is required to reach its own view on the merits of the appeal. In deciding whether it has been persuaded that the decision under appeal is wrong, this Court must form its own opinion as to the acceptability and weight to be given to the evidence. In forming its own opinion on the evidence, this Court may recognise the advantage that a District Court Judge had in seeing and hearing the witnesses when an issue of credibility arises and may hesitate to conclude that the Judge’s findings of fact or fact and degree were wrong.

Disorderly behaviour

[20] Under s 4(1)(a) of the Summary Offences Act 1981 –

(1) Every person is liable to a fine not exceeding $1000 who –

(a) In or within view of any public place, behaves in an offensive or disorderly manner; or ...

[21] The meaning of this provision has now been settled by the Supreme Court in Brooker, a case that required the Court to balance the interests of a police constable, who was disturbed one morning by a protester outside her home who sang songs and played his guitar while displaying a placard referring to police conduct, and the rights of the protestor. The majority of the Supreme Court (Elias CJ and Blanchard and Tipping JJ) decided that such behaviour by the protester, who was exercising his rights under s 14 of the New Zealand Bill of Rights Act 1990, did not constitute disorderly behaviour under s 4(1)(a).

[22] Elias CJ emphasised that disorderly behaviour means “behaviour seriously disruptive of public order”. Simply causing annoyance to someone else, even serious annoyance, is insufficient if public order is not affected: at [24], [33] and [41]. The Chief Justice concluded that:

[41] ... Section 4(1)(a) of the Summary Offences Act cannot be used as a grab bag to scoop up any behaviour thought to be deserving of condemnation through criminal law, unless the behaviour is disruptive of public order. To constitute disorderly behaviour under s 4(1)(a) there must be an objective tendency to disrupt public order, by behaviour or because of the effect of words used. Whether behaviour is disorderly is not to be assessed against the sensibilities of individuals to whom the behaviour is directed or who are present to see and hear it, but against its tendency to disrupt public order.

[23] Blanchard J noted that s 4(1)(a) deals with offending which can be truly described as “minor” (at [52]). Like Elias CJ, Blanchard J recognised the public element involved in disorderly behaviour (at [53], [56] and [60]). Then, significantly for present purposes, Blanchard J said:

[58] In a typical incident leading to a charge of disorderly behaviour, for example where the defendant behaves in a drunken and noisy manner in a public place, there will be no Bill of Rights dimension. The Court merely determines whether, bearing in mind the seriousness of any criminal conviction, in all the circumstances the defendant’s conduct in or in view of the particular public place can properly be described as causing a substantial disturbance to persons in the environs of that place at the time in question.

[24] Tipping J reformulated the test for disorderly conduct in the following way:

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

[25] McGrath J, like the majority judges, recognised the critical element of the protection of public order at [118]-[120]. He said:

[120] Infringement of public order necessarily involves a serious interference with community standards of behaviour ... . 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 ...

[26] Thomas J, on the other hand, did not consider that a precise definition of disorderly behaviour was possible: at [161] and [183]. He said:

[186] Consequently, the most that can be said is that s 4(1)(a) encompasses, and is intended by Parliament to encompass, a range of conduct that may contravene public order. Disorderly behaviour may range from behaviour which disrupts public order to behaviour which, because it is an annoyance, impacts on public order. Such behaviour may, or may not, implicate a right or rights. The Court’s decision in any given case will depend on the time, location and circumstances and will essentially be a question of fact and degree.

[27] In summary, therefore, as the headnote to the report of the judgment records, s 4(1)(a) of the Summary Offences Act, read consistently with s 14 of the New Zealand Bill of Rights Act, was intended to protect public order. For behaviour to be “disorderly”, it had to be disruptive of public order in the particular circumstances of time and place. The fact that the conduct was in a residential area might be relevant in applying the standard to the facts but could not be determinative. The fact that the conduct involved a genuine exercise of the right to freedom of expression was also relevant. Private annoyance, even serious annoyance, was not sufficient. (Per Blanchard, Tipping and McGrath JJ.) There had to be anxiety or disturbance beyond what reasonable citizens should, in all the circumstances, be expected to bear.

Submissions for appellant

[28] Counsel for the appellant submitted that, on the basis of the decision of the Supreme Court in Brooker, the conduct of the appellant did not amount to disorderly behaviour “as it was not seriously disruptive of public order”. She submitted that the only member or members of the public who were affected were in the car that had to slow down. While this may have been slightly annoying to the car driver, it was not enough. It was late afternoon, not late at night. The group were walking along the road rather than standing in one place, causing disruption.

[29] Counsel for the appellant submitted that the wearing of bandannas could not be an element of a charge of disorderly behaviour. The police were speculating on what might happen because the group were wearing bandannas, with no evidence whatsoever that anything would in fact happen. Wearing a bandanna is not a

criminal offence in itself. It would be a breach of freedom of expression under the New Zealand Bill of Rights Act 1990 for the police to be able to dictate what colour and/or type of clothing citizens may wear. Freedom of association under that Act also entitled the appellant and his group to be able to walk along the street.

[30] Counsel submitted that the behaviour of the appellant towards the police officers (even if accepted) cannot amount to disorderly behaviour. Use of obscene language in a loud voice to a police officer is not enough for disorderly behaviour as there is no disruption to public order: Thompson v Police HC AK CRI-2008-404-

230 24 November 2008.

[31] Counsel submitted that it was fundamentally wrong for the police to have arrested the appellant for disorderly behaviour for allegedly not following an invalid police instruction to remove his bandanna.

[32] As the appellant did not know what he was being arrested for, counsel submitted that he did not have the requisite intent to be disorderly. The appellant needed to have appreciated that there was at least a likelihood of serious annoyance to the public: O’Connor v Police [1972] NZLR 379 at 381.

[33] Finally, counsel concluded that as the appellant had not committed a criminal offence, he was acting in justified self-defence when he resisted the police arresting him.

Submissions for the Crown

[34] The Crown submitted that, on the basis of a comprehensive analysis of the evidence adduced at the hearing in the District Court, the evidence was sufficient to establish the charge of disorderly behaviour beyond reasonable doubt in light of the Supreme Court decision in Brooker.

[35] The Crown accepted that there was no direct evidence that anyone in the area was disturbed by the behaviour. At the same time, the Crown submitted that yelling obscenities at police and motorists in an intoxicated state in a residential area in the

early evening with a group, who were all wearing bandannas in colours associated with gangs, in the context of gang tension in the area, did constitute behaviour that was seriously disruptive of public order and intimidating. It was certainly more than a mere annoyance.

Discussion

[36] Having read the transcript of the evidence in the District Court, which I have summarised above, I am satisfied that the factual findings made by the Judge were right. I also accept that the District Court Judge was able to make the findings of credibility and reliability on the basis of the evidence and that there is no reason for me to disturb those findings. As accepted by the Supreme Court in Austin, Nicholls

& Co. Inc, I am entitled to recognise the advantage which the District Court Judge had in seeing and hearing the witnesses when he made findings of credibility and reliability.

[37] There is no question that the incident involving the appellant occurred in a public place, namely in Sheehan Avenue, Papakura. The first part of the public element referred to in Brooker is therefore met.

[38] Secondly, there is no dispute in this case that the appellant was crossing the street and that in doing so he and his group forced a car to slow down. There is also no dispute that the appellant and his co-accused had been drinking prior to the incident. The amount of beer drunk by the appellant in a short space of time and the evidence of the police constables, which was accepted by the District Court Judge, was sufficient to add an element of intoxication to the incident. Similarly, there is the evidence of the constables, which was accepted by the District Court Judge, that the appellant and his group had been yelling and swearing at motorists. This establishes the public disruption and substantial disturbance elements in this case.

[39] When all these factual elements are taken into account, it is apparent that this was an incident which met Blanchard J’s description of a typical incident leading to a charge of disorderly behaviour where the defendant behaves in a drunken and noisy manner in a public place. Unlike the factual position in Brooker, there was no

Bill of Rights dimension involved in this behaviour by the appellant. While the initial behaviour of the appellant may not have been at the extreme end of the continuum of disorderly behaviour, it was sufficiently serious to cause a substantial disturbance to the occupants of the car who were forced to slow down as a result and to the motorists to whom the obscenities were directed. There was disturbance beyond what reasonable citizens should, in all the circumstances, be expected to bear. The elements of the present case enable the decision reached in Brooker to be distinguished on the facts.

[40] These elements also provide the basis for distinguishing the decision in Thompson v New Zealand Police relied on by counsel for the appellant. In that case an appeal against conviction for disorderly behaviour was allowed on the ground that there was no evidence that any member of the public had been disturbed by the yelling and screaming of the appellant who had been found outside a residential address wearing a gas mask and complaining that people had been spraying her with chemicals. There was no suggestion that the appellant in that case was intoxicated or had disrupted any traffic. Nor did the complainant in that case give evidence. The facts in Thompson are sufficiently different from the current case.

[41] Similarly, the decision in O’Connor v Police may be distinguished on the facts. In O’Connor, Richmond J applied an objective test in deciding that, where there was no evidence that the appellant should have appreciated that an insulting remark would be heard by the one person who would be insulted by the remark, the appellant was not guilty of behaving in a disorderly behaviour. Here, applying an objective test, the appellant’s behaviour was clearly disorderly.

[42] The argument for the appellant that he and his group were entitled to wear bandannas and to move along the street in the exercise of their rights of freedom of expression, freedom of association and freedom of movement under ss 14, 17 and 18 of the New Zealand Bill of Rights Act 1990 requires separate consideration. There is no doubt that the appellant, like other persons in this country, was entitled to exercise those rights, but the questions here are whether the wearing of bandannas and the movements and actions of the group in the circumstances of this case were within the protections provided by those rights or whether they were within the

restrictions on the exercise of those rights imposed by s 4(1)(a) of the Summary

Offences Act 1981.

[43] I accept that the right to freedom of expression may extend beyond the protection of the printed or spoken word to include symbolic expression, such as actions or physical conduct, and hence attire: cf. Paul Rishworth and others, The New Zealand Bill of Rights (Oxford University Press, Auckland 2003) at 313, and Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: a commentary (Lexis Nexis, Wellington, 2005) at 313-314. Generally speaking, the wearing of a bandanna would normally be considered to be within the right to dress as one wished and therefore protected by the right to freedom of expression.

[44] At the same time, however, as the Supreme Court recognised in Brooker, the exercise of the right to freedom of expression may be restricted or limited by other legislation, such as s 4(1)(a) of the Summary Offences Act 1981. Whether the exercise of the right has been restricted or limited by the application of other legislation will then depend on the facts of the particular case.

[45] Here the appellant and his group were all wearing bandannas similar to those worn by gang members in an area where, on the evidence of the police, there was concern about gang behaviour. While that on its own may not have provided a sufficient basis for the police constables to require the appellant and his group to remove their bandannas, here the behaviour of the appellant extended beyond the mere wearing of a bandanna in a public place to include doing so while intoxicated and while yelling abuse and obscenities at passing motorists, one of whom was forced to slow down when the appellant and his group crossed the street. In my view these additional elements meant that in the particular circumstances of this case the police constables were entitled to take into account the fact that the appellant was wearing a bandanna similar to one worn by gang members when they reached the view that the appellant was behaving in a disorderly manner. This justified the request to the appellant to remove his bandanna and to arrest him. It was the cumulative effect of all of the elements present in this case which constituted a breach of s 4(1)(a) of the Summary Offences Act. As the Supreme Court held in

Brooker, a person who is in breach of that provision is not protected by the right to freedom of expression under s 14 of the New Zealand Bill of Rights Act 1990.

[46] Similarly, the appellant’s breach of s 4(1)(a) of the Summary Offences Act meant that he was not protected by his rights to freedom of association or freedom of movement under ss 17 and 18 of the New Zealand Bill of Rights Act.

[47] For these reasons I therefore uphold the appellant’s conviction in the District Court on the charge of disorderly behaviour, which I find was proved beyond reasonable doubt, and dismiss his appeal.

Resisting arrest

[48] On the basis that the police constables were entitled to arrest the appellant on the charge of disorderly behaviour, the appellant’s appeal against his conviction on the charge of resisting arrest must also be dismissed. The ground of appeal was based on the submission that there was no basis for him to be arrested. Once that submission failed, the argument that the appellant was entitled to resist arrest was without foundation: cf. Spencer v Police and Minto v Police (1991) 7 CRNZ 38. Similarly, the argument for the appellant, that his right under s 22 of the New Zealand Bill of Rights Act not to be arbitrarily arrested was breached, does not survive the conclusion that he was guilty of disorderly behaviour.

Sentence

[49] As already noted, the Crown accepted that the appeal against the sentence of intensive supervision on the disorderly behaviour charge must be allowed as a fine is the only penalty which may be imposed for breach of s 4(1)(a) of the Summary Offences Act. The appeal against sentence is therefore allowed.

[50] In view of the fact that the appellant was held in custody after he was arrested, I am prepared now to convict and discharge him on the disorderly behaviour charge.

Result

[51] The appeals against conviction on the charges of disorderly behaviour and resisting arrest are dismissed.

[52] The appeal against sentence on the charge of disorderly behaviour is allowed. The sentence of 16 months’ intensive supervision is quashed. The appellant is

_{convicted and discharged on the charge of disorderly conduct.}

D J White J