Farquhar v Police HC Dunedin CRI-2011-412-1 [2011] NZHC 541 (8 June 2011)

Last Updated: 19 June 2011

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

_{CRI-2011-412-000001}

BETWEEN BRUCE SCOTT FARQUHAR Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 8 June 2011

Appearances: Applicant in Person

R D Smith for Crown

Judgment: 8 June 2011 at 4:00 PM

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 8 June 2011 at 4.00 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Crown Solicitor, PO Box 803, Dunedin [e-mail]

Copy to: B S Farquhar, 14 Mulford Street, Dunedin

FARQUHAR V NEW ZEALAND POLICE HC DUN CRI-2011-412-000001 8 June 2011

Introduction

[1] The applicant was convicted of a charge under s 21(1)(e) of the Summary Offences Act 1981 of confronting a person in a public place knowing that such conduct was likely to cause that other person to reasonably be intimidated. His appeal against conviction was dismissed by Lang J. He seeks leave to appeal to the Court of Appeal.

[2] The conviction followed the applicant confronting and abusing a Crown prosecutor in town following his release from prison on charges the prosecutor had acted on.

Jurisdiction

[3] The jurisdiction for leave to appeal to the Court of Appeal arises from s 144 of the Summary Proceedings Act 1957.

144 Appeal to Court of Appeal

(1) Either party may, with the leave of the [High Court], appeal to the Court of Appeal against any determination of the [High Court] on any case stated for the opinion of the [High Court] under section 107 of this Act or against any determination of the [High Court] on a question of law arising in any general appeal:

Provided that, if the [High Court] refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the [High Court], or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the [High Court] 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.

[4] As the Court of Appeal confirmed in R v Slater:[1]

Section 144 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

Decision

[5] The applicant must identify a question of law for reference to the Court of Appeal and, if he can, must satisfy the Court that it is a question of general or public importance.

[6] The first issue for the Court is whether the applicant can identify a question of law. In his application Mr Farquhar identified the question of law as:

Evidence does not meet the elements of the charge

And:

1. I had no idea that calling a person a name (or 4, for that matter) would cause a person to be frightened or intimidated.

2. I thought a person in his position would be above being intimidated or frightened by someone calling them a name.

3. The only intimidation I have seen in all of this is [the complainant] using the system in which he is part of to silence me, I have never tried to make [the complainant] do, or not do anything!

[7] Also, during the course of submissions when the Court raised the issue with the applicant he submitted that the question of law was that he had no intent to intimidate and that his conduct was less than that of Brooker in Brooker v Police.[2]

[8] If there is no evidence to support a finding of fact, then that may be a question of law. But the difficulty for the applicant is that there was evidence to

_{support the Judge’s finding that he had the necessary intention.}

[9] The District Court Judge heard the evidence of both the complainant and the applicant. He found that the applicant had confronted the complainant and harangued him in a public place and that when he did so the applicant knew his conduct was likely to cause the complainant reasonably to be intimidated. He based that conclusion on the words which he found the applicant had directed at the complainant, the angry tone of the applicant’s raised voice as described by the complainant and the applicant’s action in stopping to face the complainant at close quarters while uttering the abusive comments. Those findings were all open to the Judge on the evidence before him. There is no question of law arising in relation to the issue of intent.

[10] The balance of the matters the applicant set out in his application for leave are similarly questions of evidence.

[11] Nor is there any question of law arising out of the applicant’s reference to the case of Brooker. As Lang J confirmed the District Court Judge correctly directed himself to the elements of the offence as identified in Gillespie-Gray v Police:[3]

one person confronts another;

confrontation occurs in a public place; and

the person confronting knows that his or her conduct is likely to cause the other person reasonably to be frightened or intimidated.

[12] This Court also confirmed in the case of Gillespie-Gray that the New Zealand Bill of Rights Act 1990 does not provide a defence or in some way mitigating intimidating conduct so that the criminal law would not intervene.

[13] None of the matters that the applicant raises amount to a question of law let alone a question of law that raises a question of general or public importance.

_{[14] The application for leave to appeal is dismissed.}

_{Venning J}

---

[1] _{R v Slater [1997] 1 NZLR 2011 at 215.}
[2] Brooker v Police [2007] NZSC 30; (2007) 23 CRNZ 346 (SC).

[3] Gillespie-Gray v Police HC Auckland CRI-2006-404-123, 22 September 2006.