Minto v Police [2013] NZHC 253 (19 February 2013)

Last Updated: 14 March 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000313 [2013] NZHC 253

BETWEEN JOHN BERNARD MINTO Appellant

AND NEW ZEALAND POLICE Respondent

CRI-2012-404-000257

AND BETWEEN HAGEN XAVIER ROBERTSON Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 5 February 2013

Counsel: Appellants in person

W Fotherby for Respondent

Judgment: 19 February 2013

_{JUDGMENT OF ASHER J}

This judgment was delivered by me on Tuesday, 19 February 2013 at 3.30pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, DX CP24063, Auckland 1140. Email: [e-mail]

Copy to:

J B Minto, 4 Ethel Street, Morningside, Auckland. Email: [e-mail]

MINTO V POLICE HC AK CRI-2012-404-000313 [19 February 2013]

Conviction for obstructing the Police

[1] On 17 April 2012, the appellants John Bernard Minto and Hagen Xavier

Robertson were part of a protest group objecting to the removal of a state house from

25 Silverton Avenue, Glen Innes. They were arrested and charged with obstructing a Constable acting in the execution of his duty. After a defended hearing in which Mr Minto gave evidence, they were convicted of the offence by Judge Perkins on

10 August 2012. They were ordered to come up for sentence if called upon within six months and to pay court costs of $132.89.

The detailed facts

[2] The appellants were part of a group of protesters who did not believe that the Government should be removing a number of state houses from Glen Innes. The house being moved was one of these. It was taken off its foundations and put on a trailer. Once removed from 25 Silverton Avenue, it was transported along the roadway by the trailer attached to a truck. The trailer to this vehicle had the ability to lift or lower the house so it could be transported over obstacles in the roadway. The protesters, including the appellants, were objecting to the removal and were gathered in the street in the way of the truck.

[3] Shortly after the house was removed from the property, the passage of the house was obstructed by a van parked on the side of the road. As the truck approached the van, it was lifted so it could pass over the top of the van. Halfway through this manoeuvre, when the house was halfway across the van, Mr Robertson jumped onto the van. The truck and the passage of the house paused with Mr Robertson standing on the roof. A Senior Sergeant Porter gave evidence that he told Mr Robertson to get down from the van and that Mr Robertson ignored him. Senior Sergeant Porter, who was assisted by a Constable Crawford, instructed Constable Crawford to arrest Mr Robertson. Constable Crawford proceeded to do so.

[4] Mr Robertson did not give evidence.

[5] The incident in relation to Mr Minto occurred a little later. The vehicle had moved down Silverton Avenue and then turned into Kotae Road. Mr Minto, together with five other people, was standing in front of the truck further down the road. The distance was at least 50 metres, and Mr Minto estimated it as more. The Police approached these protesters and asked them to move out of the way. Two of them left but four remained, including Mr Minto. The Police then asked them again to move but they refused to do so. The vehicle had come to a stop but at some distance back from the protesters.

[6] Mr Minto, who continued to refuse to move, was then arrested. Mr Minto gave evidence.

[7] I will deal with Mr Robertson’s appeal before that of Mr Minto as it was first in time.

Mr Robertson’s appeal

[8] Mr Robertson appeared for himself, but his submissions were prepared by a barrister, Ms Rees. He says he was on the vehicle taking photographs. He argues that there was no evidence of an actual obstruction of Constable Crawford. He submits that there is reasonable doubt as to whether a warning to get off the vehicle was given prior to his arrest. He also claims that the officer was not entitled to require him to move in the circumstances, and that he was entitled to be on top of the vehicle.

The ingredients of the count

[9] Section 23 of the Summary Offences Act 1981 (“the Act”) provides:

23 Resisting Police, prison, or traffic officer

Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who resists or intentionally obstructs, or incites or encourages any other person to resist or obstruct,—

(a) Any constable, or any authorised officer, or any prison officer, or any traffic officer, acting in the execution of his duty; or

(b) Any other person acting in aid of any such constable, authorised officer, prison officer, or traffic officer.

(c) Any Police dog working under the control of a Police dog handler.

[10] I respectfully adopt the analysis by Tipping J in Mackley v Police of the elements of the charge. They are: [1]

(1) That the complainant was a constable (ie a police officer); (2) That the defendant knew he was a police officer;

(3) That the police officer was acting in the execution of his duty;

(4) That [the defendant] knew that the police officer was acting in the execution of his duty;

(5) That the police officer was in fact obstructed in the execution of his duty;

(6) That [the defendant] intended to obstruct him in the execution of his duty.

[11] In that case the following statements were made in relation to the scope of the

Police power:[2]

For a police officer to be acting in the execution of his duty it is not necessary that he be doing something which he has a strictly legal duty to do. It is sufficient if he is doing something which he has the legal power to do, provided he is doing so in a reasonable manner and provided also that the exercise of the power is reasonable in the circumstances: see Tirikatene v Police [1989] NZHC 401; (1989) 5 CRNZ 149, 152 per Hardie Boys J, and Minto v Police [1987] 1 NZLR 374, 378, also reported as Minto v McKay (1987) 2 CRNZ

330, 332 (CA) per Cooke P who emphasised that the rights and liberties of citizens should not be unduly or unreasonably interfered with by police officers or others in authority. For the powers of police officers in general, reference can conveniently be made to 36 Halsbury's Laws of England (4th ed) at para 320.

[12] There is no doubt that Senior Sergeant Porter and Constable Crawford were

Police officers and that this was known to Mr Robertson.

[13] The question whether they were acting in the execution of their duty, and had the legal power to require Mr Robertson to move, is best seen in the context of whether Mr Robertson was obstructing a public way contrary to s 22 of the Act.

Section 22 provides that the offence is committed when a person without reasonable excuse obstructs any public way and, having been warned by a Constable to desist, continues with that obstruction.

[14] The normal use of a road is the passage of vehicular traffic.[3] Although it is not common, I consider that the “normal” use of the road includes the transport of houses.

[15] Vehicular traffic is impeded if something stands in its way or it is obstructed or hindered.[4] Obviously there does not need to be a complete barrier. A partial obstruction is sufficient. There can be obstruction if the offender is only contributing in part to the obstruction; in this case, standing on a vehicle that was already in the way of the house that was being moved. But for Mr Robertson’s deliberate act, the house would have continued to move.

[16] Accepting that Mr Robertson was taking photographs, the fact remains that he could have done so within a moment or so and then moved. He chose not to do so. He had no right to obstruct the highway and cause real inconvenience to vehicular traffic, even if it is correct that he did not have obstruction of the officer as his dominant concern. He must have known that the Police officers were acting in the course of their duties in seeking to clear the way. He must have known that his actions were stopping the Police from ensuring the continuing passage of the trailer.

[17] I am satisfied that there was no reasonable excuse for him standing on the top of the vehicle and obstructing the transport of the house. I have no doubt that in doing so he was unreasonably impeding normal passage along the road.

[18] The officers were plainly acting in the execution of their duty in asking Mr Robertson to move out of the way. Mr Robertson knew that. He must have known that by standing there in the path of the trailer he was stopping them clearing the road for the trailer. Like the Judge, I infer an intention to obstruct the Police by

disobeying their reasonable request. Even if it was not his dominant intention, the inference is unavoidable.

[19] There can be no doubt therefore that the elements of the charge were established. The fact that it was Senior Sergeant Porter who gave the instruction to move, rather than Constable Crawford, does not mean that Constable Crawford was not acting in the course of his duty. Constable Crawford was part of the Police presence and Senior Sergeant Porter could be seen as speaking for and on behalf of those Police officers when asking Mr Robertson to move. The Police were acting as a collective unit, led by Senior Sergeant Porter.

[20] A witness for the defence, a Douglas Robertson who is not related to the appellant, asserted that no warning was given by the Police. Although the Judge did not deal with that evidence directly, he stated that where there was a conflict of evidence he preferred the evidence of the Police officers as the Senior Sergeant and Constable each corroborated the evidence of the other. I have no doubt that he had not determined credibility solely on corroboration, but was looking at whose evidence was most credible in the round. Corroboration was a significant factor. He was entitled to prefer the evidence of the Police officers.

[21] In any event, whether or not a specific warning was given, the unmistakeable wish of the Police was for him to move off the van to stop impeding the truck. No words of warning were necessary.

[22] Mr Robertson submitted that there was insufficient urgency to require his removal. It is correct that there was no great urgency at the moment of Mr Robertson’s arrest. The truck could have stayed where it was for some time further. There was no suggestion there was any danger. However, that is not the point. The highway was being obstructed and the truck should have been allowed to proceed. The Police were acting in the course of their duty in intervening. Urgency or imminent danger are not ingredients of the offence.

[23] There is no doubt that Mr Robertson had the right to protest and to use, within reason, the road and other public areas to do so. However, there is equally no

doubt that the primary or predominant right to use a highway is for the purposes of passage and re-passage. That is why roads such as Silverton Avenue are constructed. As was observed in Director of Public Prosecutions v Jones:[5]

The right of assembly, of demonstration, is of great importance but in English law it is not an absolute right which requires all limitations on other rights to be set aside or ignored.

[24] Harrison J in Oosterman considered the English authorities relating to the offence of obstructing the highway, and stated:[6]

... the Court’s careful review of the common law principles within their English statutory framework reinforces the applicability of s 22, and the Judges’ unanimous conclusion on the subordination of the right of peaceful assembly to the primary right of use of the road for normal rights of passage and re-passage ...

[25] Accordingly, there is a balancing of the rights of assembly[7] and freedom of expression,[8] with rights of free passage on the highway and the associated obligation not to obstruct a highway and those who seek to pass and re-pass on it. Protest in a non-obstructive way is a right, but deliberate obstruction and interference with the

rights of those on the highway to use it for transport is not.

[26] There was no reasonable excuse here for Mr Robertson’s actions. They obstructed reasonable use of the highway, and the Police were themselves obstructed by his defiance when they tried to get him to desist. Mr Robertson’s appeal must be dismissed.

Mr Minto

[27] Mr Minto has acted for himself. He submits that the arguments he put forward in his defence were not sufficiently considered. He argues that the situation had not warranted the intervention of the criminal law and that the Police over- reacted. He argues that his arrest was gratuitous, arbitrary and unnecessary. He

_{submits that the New Zealand Bill of Rights Act 1990 has, in the light of recent}

Supreme Court decisions, set a higher bar than before and that this was not a factor properly considered by the Judge.

[28] Mr Minto claims that his actions were symbolic and of a token nature, and that it was wrong for the Judge to have inferred that there was an intention to obstruct. He submits that there was evidence available to show, as a background factor, the Police had been at fault in their conduct that night.

[29] Much of what has been said already in this decision applies to Mr Minto’s appeal. As the truck had proceeded up Silverton Avenue and Kotae Road, the Police had been pushing or channeling the protesters along to enable the truck to keep moving. Warnings had been given to the protesters to get out of the way. At one stage, the Police had attempted to usher protesters off to the side of the road by a “right wheel”. This manoeuvre was unsuccessful, as the protesters moved around and back onto the road. However, there were differences. Mr Minto was not within a few metres of the truck and house as was Mr Robertson. He was some distance away from the truck down the next street, and was with others. So his actions did not have the quality of direct impediment to the metre by metre progress of the truck.

[30] Mr Minto did not challenge the fact that he had been asked to leave the road. It was his intention to stay where he was. Indeed, he commented in his evidence:

... I was determined that I would stay on the road and that they would have to move me off ...

He went on further to say:

... I was determined that the Police would move me off rather than me moving voluntarily.

[31] Mr Minto had, by his actions and lack of response to the Police requests, made it clear that he was going to stay in the street as the truck came closer. The Police could have reasonably considered that his presence was an obstruction, as he was able to move of his own accord but chose not to do so. It was futile for the truck to keep on going, as it would come into contact with him in due course if it did so.

[32] His statements demonstrated that he was aware that the Police officers were endeavouring to stop an obstruction of the passage of the truck, that he was in fact obstructing the truck, and that he intended to obstruct the truck. There was nothing in the very general assertions of Police misconduct made on appeal by Mr Minto to cast doubt on this conclusion.

[33] He submitted on appeal that he was expecting a further attempt to usher him off the road. However, the fact that he may have anticipated further action by the Police before his arrest provides no defence. The Police are not required to repeat their efforts to end an obstruction. When, in due course, the Police observe that the presence of a person will constitute an obstruction and request that person to move on, and that person knows the Police are doing so to remove an obstruction, if that person refuses to move, the requisite intention to obstruct can be inferred. The quoted remarks of Mr Minto can be seen as an admission that he knew the Police were endeavouring to clear the highway, and that he had an intention to obstruct them from doing so. The fact that he may have thought that they might eventually herd him off the road does not change the fact that he would obstruct them while he could.

[34] In all these circumstances, it is easy to see why Judge Perkins determined that the charge had been proven. Warnings had been given and Mr Minto had refused to get out of the way. The vehicle had come to a stop even though it was some distance back. There was no need for immediate proximity. The pending obstruction could be foreseen, and it was reasonable for the Police to clear the road while the protesters were at a distance.

[35] I agree with the Judge that the duty of the Police was to ensure the proper carriage of the house down the street and that Mr Minto was stopping them carrying out that duty.

[36] I conclude that the decision of Judge Perkins was correct and Mr Minto’s

appeal against conviction must be dismissed.

Result

_{[37] The appeals are dismissed.}

...................................

Asher J

---

[1] Mackley v Police (1994) 11 CRNZ 497 (HC) at 499.

[2] At 499.

[3] Oosterman v Police [2006] NZHC 966; [2007] NZAR 147 (HC) at [17].
[4] At [20].
[5] _{Director of Public Prosecutions v Jones [1999] 2 AC 240 (HL) at 263.}
[6] _{Oosterman v Police, above n 3, at [14].}
[7] _{New Zealand Bill of Rights Act 1990, s 16}
[8] New Zealand Bill of Rights Act 1990, s 14