Walker v Police [2014] NZHC 1270 (6 June 2014)

Last Updated: 3 July 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000364 [2014] NZHC 1270

BETWEEN	MAXWELL IAN WALKER Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	3 June 2014
Appearances:	Appellant in Person R Thompson for Respondent
Judgment:	6 June 2014

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 6 June 2014 at 4.30 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

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

Solicitors: Meredith Connell, Auckland

Copy to: Appellant

WALKER v NZ POLICE [2014] NZHC 1270 [6 June 2014]

Introduction

[1] Maxwell Walker was charged that, in breach of s 3 Summary Offences Act

1981 (the Act) in a public place, namely Ocean View Road, Waiheke, he behaved in a disorderly manner that was likely in the circumstances to cause violence against persons to start. Following a defended hearing in the District Court at Auckland Judge D J McDonald found that Mr Walker had behaved in a disorderly manner in a

public place but was not satisfied it was likely to cause violence.¹ He found the

alternative offence under s 4(1)(a) of the Act proved. He called for submissions in relation to the possibility of a discharge under s 106 of the Sentencing Act 2002.

[2] Subsequently, after receiving a written submission from Mr Walker, Judge

McDonald convicted Mr Walker of a charge under s 4(1)(a) of the Act and fined him

$300 together with $130 Court costs.

[3] Mr Walker then filed an appeal to this Court against conviction.

Background

[4] Mr Walker runs a business called Waiheke Tours. He also operates a taxi business on Waiheke Island. Mr Walker has been living on the island for 35 years. He has been driving taxis for the last 20.

[5] At about 5 o’clock on Friday, 23 December 2011 Mr McLachlan, a bus driver with Fullers was waiting in his bus at the bus stop at the Mataitai Ferry Terminal awaiting the 4.00 pm ferry sailing from Auckland. Mr McLachlan and Mr Walker are known to each other. They do not like each other. A second Fullers’ bus was behind Mr McLachlan’s bus. Its driver was Mr Lee. Mr Walker was also there in the expectation of picking up a fare. The ferry arrived. It being the Friday before Christmas it was busy and a larger than ordinary number of passengers disembarked from the ferry.

[6] A number of the passengers got on Mr McLachlan’s bus. They included regular patrons who lived on the island and backpackers with packs, and, relevant for

¹ New Zealand Police v Walker DC Auckland CRI-2011-004-023720, 31 January 2013.

present purposes, a family, a mother and father and two young children who had bags and a double stroller. A queue formed to get on the bus.

[7] Mr Walker left his van and approached Mr McLachlan’s bus. He went to the

front door of the bus. What happened next was very much in issue before the Court.

[8] The prosecution case was that Mr Walker was disruptive, so much so that a number of people on the bus told him to go away. Mr McLachlan, the bus driver, said “Max, don’t even go there. Don’t even start it”. Mr Walker then left the area at the front of the bus and went to the side of the bus to the back door. Once there he informed the bus passengers in a raised and angry voice that Fullers and its bus drivers did not care about the passengers, that the bus was the wrong type of transport to take, the bus was overloaded and illegal. Mr Walker said that he had a shuttle. He could take passengers. Mr McLachlan then got out of his driver’s seat, walked down the side of the bus to the back door, grabbed Mr Walker and wrenched him off the bus, telling him to get off before pushing him against a wall. Mr Lee then intervened. The bus passengers were upset by the incident. When Mr McLachlan got back on the bus and drove away the passengers applauded him. Mr Walker was arrested later that day after one of the bus passengers called the police.

[9] Mr Walker, however, gave evidence that he was concerned that the bus was overloaded. He wanted to count the numbers on it. He saw the family with the pushchair and just made a quiet suggestion to them that it would be easier if they put the pushchair on his shuttle. He said he was then assaulted by Mr McLachlan. A button was ripped off his shirt. It all happened very quickly but when he was asked to leave by the family lady he did leave because he had made his point.

The judgment

[10] Ultimately, after hearing from Constable Aplin, Mr Lee and two passengers on the bus, Ms French, (seated near the front door) and Mr Neil, (seated near the rear door) and considering the evidence of Mr McLachlan (which had been taken in front of the Registrar) and Mr Walker’s explanation, Judge McDonald found:

[22] Mr Walker left his van and walked across the road. ... There is no doubt that he walked across to where Mr McLachlan’s bus was. He went to the front door. He saw the number of people on the bus, including the backpackers, and particularly the family.

[23] He talked to the family. Very quickly the mood on the bus changed from relaxed to tense. All of that was a result of Mr Walker approaching the bus. A number of people were telling Mr Walker in loud voices (I accept the evidence of Ms French) to go away. I accept the evidence of Mr McLachlan, supported by the evidence of Mr Neil, who heard it, that Mr McLachlan said, “Max, don’t even go there. Don’t even start it.”

[24] I accept the evidence of Mr Neil that people on the bus were getting agitated by the raised voices between Mr McLachlan and Mr Walker, that the bus was not going anywhere. Mr Walker immediately left the area at the front door of the bus. I infer that that was because he was told not only by Mr McLachlan but by others to get out of it.

[25] I find that he was not assaulted at the front of the bus within three seconds of him arriving there. That was not, as he told me, the point where Mr Lee came over. Instead of leaving the bus altogether and going about his own business back to his own van, or to the toilet, I find Mr Walker walked down the side of the bus to the back door. As even he accepted, he stepped a little distance inside the back door of the bus, that is close to where Mr Neil was sitting.

[26] I find that on getting through the back door he in a raised, angry voice informed the passengers that Fullers did not care about the passengers, their drivers do not care about the passengers, that this was a wrong type of transportation to take, that they should get off, that it was dangerous the way it was [it] loaded, illegal; and that he had a shuttle which could assist. He said that in a loud, rude, excited way. It was not merely, as Mr Walker would have me believe, telling the passengers that he did not agree with what Mr McLachlan was saying, that is Mr McLachlan was telling the passengers that Mr Walker ripped people off.

[27] What is the reaction to Mr Walker getting into the back of the bus? The reaction was what one would expect, particular given the history between him and Mr McLachlan. Mr McLachlan got out of his bus seat, walked down the side of the bus, went to the back door, grabbed Mr Walker by the arm and the shirt and wrenched him off the bus. “Get off my bus.” He takes him a short distance, according to Mr McLachlan, to a wall where he pushes him against it.

[28] The passengers were upset, and Ms French was concerned about possible violence. Mr Lee the other bus driver came across and intervened, and he thought that if he had not, Mr Walker and Mr McLachlan may have got into a fight.

[29] When it has all calmed down Mr McLachlan gets into his bus, and as he is driving away the passengers all clap, reminiscent I suppose of an airline pilot who has just landed a plane which was in some difficulty.

[11] In coming to those conclusions the Judge rejected Mr Walker’s suggestion that he merely went over to do a head count of the bus and quietly informed the passengers that he was not a rip-off artist.

[12] The Judge directed himself to the Supreme Court’s discussion of the requirements for disorderly conduct in the decision of Brooker v Police² and found that Mr Walker had, in a public place behaved in a disorderly manner. But he was not satisfied as to the third element required under s 3 of the Act. He was not satisfied that the persons on the bus considered violence was likely. However, as he was satisfied that in a public place Mr Walker had behaved in a disorderly manner the lesser charge under s 4 of the Act was made out.

Matters following the decision

[13] The Judge called for submissions in relation to s 106 of the Sentencing Act. After the hearing Mr Walker terminated his instructions to trial counsel Mr Cooper. Mr Walker instead wrote to the Court himself in which he advised the Judge:

7. I will have to leave, as I must, the ultimate decision in your honour’s hands. If you choose to enter a conviction, so be it. I believe it will impact seriously on my ability to run my business and on my commercial drivers licence, but that is a burden I will have to bear. In that event my only recourse will be to appeal, which I would do. I make that observation without resentment or any disrespect.

8. I am content for your honour to deal with this matter on the papers.

[14] Having reviewed the matter Judge McDonald then confirmed the findings, entered a conviction and fined Mr Walker $300 together with Court costs.

The appeal

[15] In the notice of appeal Mr Walker raised the following points:

1. The judge erred in law in both assessment of the evidence and in relation to his finding under Section 4 Summary Offences Act 1981.

2. The Judge erred on the facts in his finding of actions deemed to be disorderly in the wider context of the whole case.

3. In the alternative application is hereby made for re-hearing of the Section 4 charge, the difficulty being that there was no original hearing.

Other grounds

[16] Mr Walker also filed written submissions in support of his appeal and spoke to those submissions. He submitted that the Judge failed to take into account the actions of Mr McLachlan as the critical causal elements that provoked the actions that allegedly constituted his disorderly conduct. He also noted the Judge had not had the opportunity to asses Mr McLachlan because Mr McLachlan’s evidence had been taken in front of the Registrar.

[17] Next, Mr Walker submitted the Judge failed to give sufficient weight to the Judge’s own observations that Mr Walker was entitled, under the New Zealand Bill of Rights Act 1990 and his right to freedom of speech, to effectively seek or tout for business. Mr Walker submitted that the same logic applied to defending his business from allegations of improper touting and overcharging, especially when made by a competitor such as Fullers.

[18] Mr Walker then challenged the Judge’s factual findings and submitted there was insufficient evidence to convict him and the evidence of the witnesses was contradictory on main points.

Decision

[19] Although it would have been preferable for Mr McLachlan’s evidence to have been heard before the Judge, the Judge’s decision stands even without the need to directly rule on Mr McLachlan’s credibility. It is apparent from the Judge’s reasoning at [26] of his decision that the Judge considered Mr Walker’s behaviour escalated to the stage where it was disorderly when he returned to the back of the bus. The evidence of that also came from the passengers.

[20] In Brooker v Police the Court described disorderly behaviour as:³

... disorderly behaviour under s 4(1)(a) means behaviour seriously disruptive of public order.

...

Disorderly behaviour ... is behaviour which disturbs or violates public order. To fall within s 4(1)(a) it must be behaviour in or within view of a public place which substantially disturbs the normal functioning of life in the environs of that place. It must cause a disturbance of good order which in the particular circumstances of time and place any affected members of the public could not reasonably be expected to endure because of its intensity or its duration or a combination of both those factors.

...

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.

[21] Mr Walker’s behaviour could not be characterised as disorderly without weighing his right to freedom of speech against the value of public order in this case.⁴ In this regard, the evidence that Mr Walker was speaking very loudly, was excited and rude and the passengers’ reactions to his behaviour are all relevant considerations. The fact the bus could not leave is also a factor supporting a finding of unreasonable disruption of public order.

[22] The short answer to Mr Walker’s point that the evidence was contradictory is that it was open for the Judge (as it is open to a jury) to accept some parts of the evidence given by witnesses as credible and reliable while not relying on other aspects of the evidence. It was open for the Judge (as it is open for a jury) to pick and choose the evidence he relied on.

[23] The principal evidence in support of the Judge’s finding that Mr Walker had

behaved in a disorderly manner is to be found in the evidence of Mr Neil, who said:

A. Ah, the driver asked Max to leave and he did so and then he walked down the footpath alongside the bus and entered the bus through the rear door which was still open.

Q. So the rear door that you were seated nearby was open? A. Yes.

_...

⁴ Brooker v Police, above n 2, per Blanchard J at [59].

Q. And what was he doing then?

A. He was, ah, talking loudly to the backpackers who had come down

and taken seats at the back of the bus, ah...

Q. Can you remember what the conversation was?

A. No I don’t recall the exact words but it was centred around the fact that they were going on the wrong conveyance, that he offered a better deal.

...

Q. And how would you describe him as doing that?

A. Ah, he was speaking very loudly, he was rude, ah, excited and I

guess passionate about wanting to get them off the bus.

Q. Was this just verbal or was he trying to remove them physically? A. Ah, verbal.

...

Q. Did any of the passengers at the back of the bus say anything?

A. Ah, yes they continued to tell him – Max to get off the bus, get out, get away, let us go.

Q. What was the mood of those passengers? A. Upset.

Q. With this going on, was the bus able to leave? A. No.

...

[24] There was also the evidence of Ms French that Mr Walker kept talking and “everybody kept yelling and it was becoming a really annoying because it was holding us all up”.

[25] Applying the tests from Brooker, the Judge was entitled to find the offence under s 4 proved on the basis of the evidence.

[26] Mr Walker also submitted that there was a lack of any evidence that he intended to cause any form of disorderly conduct. Section 4(1)(a) of the Act makes no reference to any mens rea or fault. While the conduct in question has to be

deliberate and not accidental or involuntary, it is not a requirement that Mr Walker actually intended to behave in a disorderly manner.⁵ In R v Ceramalus the Court of Appeal cited with approval the following passage from Police v Christie:⁶

The simple question for determination on this appeal is whether or not the respondent behaved in a disorderly manner. Those are plain English words which do not call for the inclusion of a specific intent to provoke a breach of the peace or to act so that, in the circumstances, such a breach of the peace may be occasioned. It is sufficient if the conduct can properly be termed "disorderly" and that it occurred in a public place as defined.

[27] Next, Mr Walker submitted that the Judge may have been unfairly influenced by reference to his previous history. That however was irrelevant. There is a passage in the evidence where the prosecutor sought to raise with Constable Aplin if he had previously known about Mr Walker. Mr Walker’s counsel Mr Cooper objected. The Judge observed:

I’m sitting as Judge and jury Mr Cooper so I’ve got to hear the evidence and then see if there’s any propensity in it or who knows if it’s not relevant I’ll just disregard it.

[28] In fact nothing turns on the point in any event. The officer’s evidence was limited to “he’d come to our attention before but I hadn’t personally met him ...”. There can be no proper suggestion that the Judge was influenced by that against Mr Walker. As I explained to Mr Walker during the course of the hearing at times in trials evidence is given which should not be before the jury. The Judge addresses the issue by directing the jury not to take account of it. Judge McDonald is an experienced Judge. He would have been well aware of his obligations not to take account of irrelevant evidence. I am satisfied any references to Mr Walker’s prior conduct would have had no influence whatsoever on his ultimate decision. On that basis although I took in Mr Cooper’s affidavit at Mr Walker’s request, it does not advance Mr Walker’s case on appeal.

[29] Next, Mr Walker submitted the Crown witnesses’ evidence was more attuned

to the original more serious charge and did not substantiate the finding given. As a matter of law that cannot be correct. An offence under s 4 is contained within the

⁵ _{R v Ceramalus [2012] 2 NZLR 46 at 51.}

⁶ Police v Christie [1962] NZLR 1109 at 1112–1113.

elements of s 3, namely, that the offending was in a public place (which could not be in dispute) and that Mr Walker behaved in a disorderly manner.

[30] Section 44 of the Act is an absolute answer to Mr Walker’s argument there was no hearing on the s 4 offence. The section provides that where the commission of an offence against s 3 is not proved but the evidence provides an offence against s 4 a defendant may be convicted of an offence against s 4, notwithstanding that the charge alleges an offence against s 3 only.

[31] I note Mr Walker’s request for a rehearing. There is no jurisdiction for this Court to direct a rehearing. Any such application must be directed to the District Court Judge who heard the case.⁷ It is also entirely discretionary. On the basis of information before the Court there is no basis for a rehearing in this case.

[32] Finally, Mr Walker submitted the police investigation was based on a pre- determination to charge him and an inadequate investigation. However, the merits or otherwise of the police investigation are not relevant. The issue was whether the evidence before the District Court Judge was sufficient for him to find the charge under s 4 proved. On the evidence before the Court the Judge was entitled to make that finding.

Result

_{[33] The appeal against conviction is dismissed.}

_{Venning J}

⁷ Summary Proceedings Act 1957, s 75.