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Heke v Police [2012] NZHC 2334 (11 September 2012)

Last Updated: 18 September 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-177 [2012] NZHC 2234

BETWEEN KIM ROKA THOMPSON Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 10 July 2012

Appearances: S Youn and N Leader for the Appellant

J B Hamlin for the Respondent

Judgment: 31 August 2012

_{RESERVED JUDGMENT OF PRIESTLEY J}

This judgment was delivered by me on Friday 31 August at 12.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:...............................

Counsel:

S Youn, Public Defence Service, Auckland. Email: seung.youn@justice.govt.nz

N Leader, Barrister, Whangarei. Email: nick@leaderlaw.co.nz

_{J B Hamlin, Crown Solicitor, Auckland. Email: ben.hamlin@meredithconnell.co.nz}

THOMPSON V NEW ZEALAND POLICE HC AK CRI-2012-404-177 [31 August 2012]

_CONTENTS

Paragraph

Introduction 1

Background 3

The facts 6

District Court decision 21

The previous year 25

Admissibility of hearsay statements 29

Disorderly behaviour 39

History 39

Brooker v Police 44

Balancing 57

Freedom of expression 66

Analysis 77

Result 85

Introduction

[1] This outwardly simple appeal raised interesting issues flowing from the Supreme Court’s judgment (particularly the three majority judgments) of Brooker v Police.1

[2] Given the dearth of judicial authority relating to prosecutions under s 4(1)(a) of the Summary Offences Act 1981 in the wake of Brooker, and having heard counsel, I decided to reserve my judgment. The conduct of the appellant and the impact of Brooker on prosecutions for disorderly behaviour of this type merit some analysis by an appellate court.

Background

[3] The two acts of alleged offending occurred in late 2009. The appellant was convicted and fined. She appealed. Unfortunately the District Court transcript was destroyed. This led to the High Court directing a rehearing.

[4] The rehearing took place before two Justices of the Peace in the Auckland District Court on 9 May 2012. The appellant was convicted on the two charges of disorderly behaviour she faced, was fined $250 on each charge, and ordered to pay court costs and witness expenses.2

[5] This appeal challenges the two convictions.

The facts

[6] On two dates almost three weeks apart (22 November and 11 December

2009), the appellant’s actions upset and concerned residents in the Grey Lynn sector

of Great North Road, Auckland. The concerns of those residents, and in particular of three witnesses from whom the Justices of the Peace heard, were the volume of the

1 _{Brooker v Police [2007] 3 NZLR 91 (SC).}

2 Thompson v Police DC Auckland CRI-2009-004-027414, 9 May 2012.

appellant’s voice and the length of time she spent calling out for stray cats which she

wished to feed.

[7] The principal witness, Ms Bjorkman, told the Justices of the Peace that around 8 pm on a Sunday (22 November 2009), she heard noise and screaming outside her home. She observed a woman with a shopping trolley containing cat food. The witness heard no decipherable words but stated the woman was screaming at the top of her lungs. The witness and her fellow occupants closed windows at their home and turned up the volume of the television set. Having endured this noise outside her home for approximately two hours, Ms Bjorkman called the police who arrived about half an hour later.

[8] Apparently this was not an isolated incident. Reference was made to similar occurrences going on for hours. Attempts to remonstrate with the appellant had failed and were met by abusive responses including “white trash”. At that time (three years before the District Court hearing), Ms Bjorkman stated there had been approximately 30 incidents of this type. She had been driven to using earplugs and sleeping pills. The appellant’s past conduct cannot be called into aid to prove the specific offence stipulated in the charge, but was, in the circumstances, legitimate background information.

[9] The second incident was similar, with the screaming lasting for “a couple of hours or even more, four hours, it was just for hours and hours at end” (sic). The witness thought the start time may have been 9.30 pm. The second incident occurred on a Friday night.

[10] Ms Bjorkman referred to a flatmate having to leave the home to sleep elsewhere because the screaming, on occasions, had lasted to midnight or beyond. She stated the screaming adversely affected her daily life, made peace and quiet difficult, and sleep impossible without resorting to sleeping pills.

[11] In cross-examination Ms Bjorkman was adamant the screaming noise was clearly audible over ambient noise; that the screaming was constant; nor was the

screaming limited to the appellant calling out the names of cats approximately five

times and then desisting, as was the appellant’s evidence.

[12] Two statements were produced as evidence from former occupants of Ms Bjorkman’s home. These witnesses had given evidence at the first hearing, the transcript of which had been lost.3 Their evidence was admitted under the provisions of s 18 of the Evidence Act 2006. Both witnesses had in the meantime returned to the United Kingdom.

[13] The first statement, from Mr Eagle, confirms Ms Bjorkman’s evidence. On

22 November he heard a lady screaming outside the house, yelling at the cats, whilst he was trying to watch television. The noise was described as loud and annoying. The witness referred to the appellant as the “Cat Lady” who was always disturbing their peace. She screamed outside the house several times a week. The noise was described as being so loud that, even after shutting all doors and windows, it could still be heard above the television volume. The witness referred to the appellant cursing and scowling. He had also observed her inflicting her noise on local youths who used a nearby basketball court, some of whom had “been provoked to violent actions towards her”. The absence of the witness made it impossible to explore this matter further.

[14] Mr Eagle referred to the fact that he and his girlfriend, Ms George (from whom the other hearsay statement was obtained), had on one occasion left the property at midnight on a Sunday night to go to Mr Eagle’s flat so that they could get a good night’s sleep.

[15] Ms George’s statement referred to the 22 November incident, and occasions on which the appellant had allegedly tried to assault her. When spoken to and asked to desist, Ms George stated the appellant claimed people were trying to spray her with toxic chemicals.

[16] The Court also heard evidence from two police officers. The appellant’s loud

_{yells on 22 November could be heard through the windows of a patrol car. Her}

3 Supra [3].

explanation was she was calling for a stray cat and that she had the right to call stray cats. In cross-examination the police officer did not agree that the volume of the appellant’s yells was reasonable given the time of night and the area. She also denied that there was a lot of traffic which would have masked the volume of the appellant’s voice.

[17] The police officer who gave evidence about the 11 December incident was clear that he could hear the appellant’s yells through the open window of a patrol vehicle 100 metres away from where she was standing. He described it as a loud yelling noise. As the police officer was explaining his concerns to the appellant and pointing out that she only lived 500 metres away, she turned from him and continued to yell in two directions. The police officer’s evidence was maintained during cross- examination.

[18] The appellant gave evidence at her trial. She stated that she did “evening rounds” feeding stray cats around Grey Lynn. She described her route. She stated that she usually waited for the cats to turn up in the relevant area. Whether felines turned up depended on whether people in the neighbourhood had been “hassling” the cats. She stated that she might stay until 10 pm but on Friday and Saturday nights, when there was “a lot of partying going on”, she might stay until 11 pm. She referred to Auckland City noise control bylaws. She stated that after 11 pm she would whisper quietly to call the cats. The volume of her voice, she stated, depended on how much noise was going on. She was clearly concerned that her ability to support stray cats might be impeded by people “hassling” the cats. She commented that in the absence of a strong wind, her voice “bounces on a good night [and would travel far and echo] off the buildings really well so I don’t have to push it”.

[19] In cross-examination the appellant stated that she told people who remonstrated with her that if they left her and the cats alone she would not have to call the cats, but the remonstrators did not seem to think this was a valid reason. Cat hasslers did not include people who gave her money to purchase cat food.

[20] Clearly and unsurprisingly, given that there was very little evidence from the appellant to challenge directly the evidence of the five prosecution witnesses, her evidence on critical areas was either disbelieved by the Justices of the Peace or was insufficient to raise a reasonable doubt.

District Court decision

[21] The two Justices of the Peace reviewed the evidence they had heard. They retired to deliberate. They referred to [12] of the judgment of Elias CJ in Brooker.4

They also referred to the judgment of Randerson J in Thompson v Police (the same appellant).5 The Justices of the Peace concluded at [9]:

In this case we have three members of the public testifying that they had been denied their rights to the quiet enjoyment of their private lives and homes.

[22] They referred to [50] and [90] of Brooker and set out the dictum to the effect:6

That a person should not be subjected to activity that causes anxiety or disturbances at a level beyond which a reasonable citizen should be expected to bear.7

[23] They also referred to the evidence of the two police officers who had done

everything to “diffuse (sic) the situation without success”.8

[24] The Justices were satisfied that both charges had been proved.

The previous year

[25] It is interesting to contrast this case with a previous High Court judgment of

Randerson J involving the same appellant, Thompson v Police.9 The appellant had been convicted of disorderly conduct in 2008 in the same general location.

4 _{Above n 1.}

5 _{Thompson v Police HC Auckland, CRI-2008-404-000230, 24 November 2008.}

6 _{At [9].}

7 _{This is a reference to a portion of the majority judgment of Tipping J at [90].}

8 _{At [9].}

9 Above n 5.

Complaints had been received that the appellant was yelling and screaming in the street. She told a police officer she had been sprayed with chemicals. She was wearing a gas mask. The appellant was yelling abuse at 9.22 pm.

[26] The Judge considered there needed to be clear proof of a tendency to disrupt public order.10 Randerson J discussed Brooker. He quashed the conviction because he was not satisfied there was sufficient evidence to amount to disorderly behaviour, particularly since there had been no evidence that anyone was disturbed by the conduct.11

[27] His Honour also considered that s 14 of the New Zealand Bill of Rights 1990 (the NZBORA) was arguably engaged because the abusive language which the appellant was using was directed at police officers, particularly “in relation to a case that was a matter of public controversy at the time”.12

[28] The case is clearly distinguishable from this appeal, first because there is no public protest element involved here and secondly because, unlike in 2008, evidence was called by the prosecutor that other people had been disturbed.

Admissibility of hearsay statements

[29] I have already referred to the statements of Mr Eagle and Ms George. Both these witnesses had appeared at the first hearing. By the time of the second hearing, necessary because the District Court transcript had been lost, both witnesses had returned to the United Kingdom. Their whereabouts were unknown.

[30] The prosecution filed notice under s 22 of the Evidence Act 2006 seeking leave to produce both written statements as hearsay statements. Admissibility was opposed on two main grounds. These were that the circumstances relating to the

_{statements did not provide reasonable assurance of their reliability, and that they}

10 _{At [21].}

11 _{At [15].}

12 At [17]. A reference to a controversial trial of police officers charged with historic sexual offending.

would have an unfairly prejudicial effect. Mr Youn advanced as a ground of appeal that the statements should not have been admitted.

[31] In the District Court it was additionally submitted that the hearsay notice, received by the appellant’s new counsel three working days before the defended hearing, gave insufficient time to respond.13 Mr Youn did not lay emphasis on this ground in his submissions. In any event, the notice of opposition before the Justices of the Peace clearly focused on what grounds could properly be advanced.

[32] Section 18(1) of the Evidence Act provides:

18 General admissibility of hearsay

(1) A hearsay statement is admissible in any proceeding if—

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b) either—

(i) the maker of the statement is unavailable as a witness; or

(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

[33] The operative ground here must be s 18(1)(b)(i). Section 16(2) defines that a person is “unavailable as a witness” as follows:

(2) For the purposes of this subpart, a person is unavailable as a witness in a proceeding if the person—

(a) is dead; or

(b) is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or

(c) is unfit to be a witness because of age or physical or mental condition; or

(d) cannot with reasonable diligence be identified or found; or

_{(e) is not compellable to give evidence.}

13 Section 22(4) of the Evidence Act 2006 requires “sufficient time before the hearing”.

[34] Clearly both witnesses, having returned to the United Kingdom, were outside New Zealand and therefore unavailable. The option of locating them and flying them back to New Zealand would not only be unduly expensive but would be disproportionate, given the relatively minor nature of the charges the appellant faced. In short, their return to give evidence was “not reasonably practicable”.

[35] Written submissions before the Justices of the Peace focused on whether there was a reasonable assurance that the statements were reliable. Correctly, counsel pointed out that neither witness was able to identify the appellant. Nor were the statements taken on the night of the incidents but five months later. Finally it was submitted that the statements described a degree of animosity towards the appellant. It was submitted that all these factors in combination pointed to unreliability. A further argument was mounted that, in terms of s 8, the prejudicial effect of the evidence outweighed its probative value.

[36] It is significant that both witnesses gave evidence at the first hearing and were presumably cross-examined. The nature of their evidence and their response to cross-examination were matters of which the appellant would have had full knowledge. The evidence of the two witnesses was largely corroborative of the evidence given by Ms Bjorkman. Certainly the statements were taken some time after the event. The statements deal with the appellant’s pattern of behaviour, and only generally with the two 2009 incidents.

[37] Probative evidence cannot be excluded merely because it adds some weight to the case against the appellant. In the circumstances I have outlined, there is no basis to suggest that the circumstances of hearsay evidence of the two witnesses did not provide a reasonable assurance of reliability. Nor can there be any serious challenge that both witnesses were unavailable.

[38] I consider for these reasons that the Justices of the Peace were correct to exercise their discretion under s 18 by admitting the two hearsay statements.

Disorderly behaviour

History

[39] Section 4(1)(a) of the Summary Offences Act 1981 provides:

4 Offensive behaviour or language

(1) Every person is liable to a fine not exceeding $1,000 who, —

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

[40] The heading of the section refers to behaviour or language which is “offensive”. The actus reas of s 4(1)(a) is behaving in an offensive or disorderly manner. Using the shorthand “disorderly behaviour” can possibly create confusion given that s 3 is headed “Disorderly Behaviour”, and carries double the maximum sentence of s 4. Section 3 focuses on behaviour (or inciting or encouraging behaviour) which leads to public disorder.

[41] The concept of disorderly behaviour was introduced into New Zealand law in

1924 by an amendment to the Police Offences Act 1908.14 “Disorderly behaviour” replaced reference in the legislation to behaviour that was likely to cause breaches of the peace.

[42] The Summary Offences Act 1981 repealed the old concept of disorderly behaviour. The Minister of Justice, in moving the introduction of the Bill, noted that the earlier provision had been criticised because of its wide scope. The Minister recognised that because the Police Offences Act placed limits on how people behave in a public place, and because of the potential effect on the rights of free speech, these laws were of central importance to New Zealand’s criminal and constitutional

_law.15

14 _{Police Offences Amendment Act 1924, s 2.}

15 Hon J K McLay MP (16 June 1981) 437 NZPD 418.

[43] The test for disorderly behaviour preceding the Supreme Court’s decision in

Brooker v Police was found in the Court of Appeal’s decision in Melser v Police.16

The judgments show the focus of the Court’s inquiry was on the annoyance caused

to others present:

Per North P:17

... I am of opinion that not only must the behaviour seriously offend against those values of orderly conduct which are recognised by right-thinking members of the public but it must at least be of a character which is likely to cause annoyance to others who are present.

Per Turner J:18

Disorderly conduct is conduct which is disorderly; it is conduct which, while sufficiently ill-mannered, or in bad taste, to meet with the disapproval of well-conducted and reasonable men and women, is also something more – it must, in my opinion, tend to annoy or insult such persons as are faced with it

– and sufficiently deeply or seriously to warrant the interference of the criminal law.

Brooker v Police

[44] All five judgments in Brooker sought to redefine this test. While there was no articulated justification for such redefinition, the Chief Justice’s reasoning was sound: in a post-NZBORA legal framework, a test for disorderly behaviour that focuses on the tendency of the behaviour to annoy those who are present is more restrictive of freedom of expression than is necessary to protect the public order.19

Such a restriction would offend s 6 of the NZBORA.

[45] The decision in Brooker was a majority 3-2 judgment allowing the appeal. Finding a common thread in the majority judgments is difficult, but not impossible.

[46] Mr Brooker believed that a constable had acted unlawfully towards him. The constable had obtained a search warrant which the police then attempted to execute

_{at Mr Brooker’s house late on a Saturday night. Mr Brooker believed he was a}

16 _{Melser v Police [1967] NZLR 437 (CA).}

17 At 443.

victim of an abuse of police power and went to the constable’s address at 9.20 am, knowing she had been on night duty. He knocked on her door and continued knocking until the constable answered. The constable opened the door and told Mr Brooker emphatically to leave. He then withdrew on to the grass verge on the road outside her house and began a protest. He held up a sign and was singing, accompanied by a guitar. The police arrived 15 minutes after Mr Brooker’s arrival. The entire episode lasted for about 25 minutes.

[47] Mr Brooker was charged and convicted of disorderly behaviour. Inevitably, the question arose as to the legitimate restriction placed on his right to freedom of expression. This was the nub of the appeal.

[48] But the Court did not address the meaning of “disorderly behaviour”. They all agreed that the starting point of s 4(1)(a) is that the behaviour concerned must occur in or within view of a public place.20 From there, the waters are muddied.

[49] The majority in Brooker (Elias CJ, Blanchard and Tipping JJ) agreed that there needs to be a clear focus on the public element of the offence.21 As Elias CJ stated, the interpretation of disorderly behaviour should be “anchored in disruption of public order”.22

[50] Various formulations of the test for disorderly behaviour were given by the majority:

Per Elias CJ:23

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.

20 _{At [53], [89], [119] and [190].}

21 At [11], [53] and [90].

Per Blanchard J:24

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.

Per Tipping J:25

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.

[51] A common theme of these tests is their objective bases. For the Chief Justice, the conduct must have an objective tendency to disrupt public order. For Blanchard J, those affected by the behaviour cannot reasonably expect to endure it. For Tipping J, behaviour must be beyond what a reasonable citizen should expect to bear. Blanchard J’s formulation is framed slightly differently in that it does not contemplate the “reasonable citizen”, but rather the “affected members of the public”. These are not hypothetical people, as Elias CJ’s and Tipping J’s formulations contemplate. Objectivity is achieved by setting the threshold that those “affected members” cannot reasonably be expected to endure the behaviour. Accordingly, despite the different choice of words, the tests formulated by the majority substantially align.

[52] Synthesising as best one can, a respectable amalgam of the three majority judgments can probably be stated thus:

Whether behaviour is disorderly or not is anchored in the protection of public order. Behaviour occurring in or within view of a public place will be disorderly when, having regard to all the circumstances of the situation, the disturbance created is beyond what the reasonable citizen should be expected to bear.

[53] The majority reached the conclusion that, taking into account the noise level, the duration of the incident, the time of day, and the protest purpose, Mr Brooker’s conduct did not cross the threshold of being disorderly.

[54] McGrath J, who dissented, considered it was appropriate to treat Mr Brooker’s conduct as disorderly from the time he refused the police request to desist. Asking him to desist did not involve a major restriction on his right to protest. There was detriment to the complainant’s privacy interests, Mr Brooker’s actions going

well beyond what any citizen should have to tolerate in her home environment.26

[55] Thomas J, whose dissenting judgment occupied 140 paragraphs of the total paragraph count of 288, expressed both surprise at the Supreme Court’s decision27 and the hope that his dissenting judgment might be of assistance to a future court.28

The Judge primarily saw the issue as a balancing exercise between various rights, including freedom of expression, the right to protest and privacy. He considered the majority’s decision had extended the traditional scope of protest action by conferring a right to protest in residential neighbourhoods. He saw the majority decision as an abandonment of the notion that the right to freedom of expression should include the notion of a sense of decorum and orderliness in public places.29

[56] The word “circumstances” used by both Blanchard and Tipping JJ and in the above amalgam30 inevitably leads to a focus on the context of the behaviour which is said to be disorderly. This must include the nature of the behaviour or the content of the expression. Is the behaviour offensive, intimidating, victimising, bullying, or disruptive to public order?31 Will the behaviour cause members of the public to

_{withdraw from an area thus limiting public use?}32 _{At what time did the behaviour}

occur? What degree of peace and quiet could be expected in the relevant place at the relevant time?33 What was the location of the conduct and the length and degree of

26 _{At [146].}

27 _{At [149].}

28 _{At [159].}

29 _{At [288].}

30 _{Supra [52] and [54].}

31 Per Elias CJ at [45] and Blanchard J [61].

disruption the behaviour was causing in that place?34 Was the area a busy urban area, a shopping mall, or a quiet residential street? How long did the behaviour last?35 Was it a continuing act or an episode punctuated by spells? How loud was the noise?36 Were other people affected and if so to what extent?37

Balancing

[57] Clearly, against the background of the alleged disorderly behaviour and its context, a balancing exercise must be conducted. The circumstances discussed in the previous paragraph must be considered. Engaged rights must be balanced. Ultimately a judicial evaluation is involved. As the five separate judgments in Brooker exemplify, different judges, inevitably reflecting their personal beliefs and values and where they live, might well reach different results on the same facts. Privacy considerations and the right to freedom of expression will probably be in the forefront of interests which need to be balanced. It is common for charges for disorderly behaviour to be laid against someone purporting to exercise a right under the NZBORA. The most obvious example, and the one present in Brooker, is the right to freedom of expression.38 The judgment in Brooker is largely directed towards reconciling this right with the protection of public order. Overlaying this assessment is the interest in people having privacy and tranquillity in their home life without undue disruption. It was on this point that the majority and minority differed.

[58] The majority essentially saw interests of privacy and home life as considerations relevant to whether the reasonable citizen could be expected to put up with certain behaviour. On the other hand, the minority were effectively prepared to acknowledge privacy as a separate right which should be assessed against the right to

_{freedom of expression to determine which prevailed in the circumstances.}

34 _{Per Elias CJ at [47] and Blanchard J at [57] and [60].}

35 _{Per Elias CJ at [50] and Blanchard J at [57].}

36 Per Elias CJ at [50].

[59] Elias CJ saw s 4(1)(a) as existing for the purpose of public order, not for the protection of privacy or personal sensitivities.39 Other criminal provisions protect these values, such as the Trespass Act 1980 and the Harassment Act 1997.

[60] It seems that the protection of privacy is not an explicit consideration under s 4(1)(a). Instead, the majority recognised that the focus of the section is on protection of public order. If there is disruption to privacy and tranquillity of home life, then that is a factor going to the assessment of what a citizen should be reasonably expected to bear.

[61] Elias CJ’s reasoning focussed on the s 6 interpretative mandate that a court must prefer an interpretation of a provision most consistent with the rights contained in the NZBORA. Elias CJ used this provision as a guiding principle in determining the test for disorderly behaviour. Her Honour stated that “[a] tendency to annoy others, even seriously, is insufficient to constitute the disruption to public order

which may make restrictions upon freedom of expression necessary”.40 The Chief

Justice does not address s 5 in her judgment. That section provides that the rights contained under the Act may only be subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[62] Blanchard J’s approach to freedom of expression was first to assess the conduct in question against the disorderly behaviour test and to make an assessment of whether the conduct constitutes disorderly behaviour irrespective of any NZBORA considerations. If the behaviour was disorderly and the context brings one of the rights into play, there follows an assessment whether a finding of disorderly behaviour is a justified limitation on that right under s 5. On the first issue, whether Mr Brooker’s behaviour was disorderly, Blanchard J held that it was not. It was therefore not necessary to consider the question of s 5.

[63] Tipping J’s approach sits somewhere between the two. He considered that while the words “behaves in [a] disorderly manner” are, on their face, “deceptively simple”, they carry within them important issues that bear on balancing the rights

between citizen and citizen, and citizen and the state.41 However, unlike the Chief Justice, Tipping J did not explicitly refer to freedom of expression considerations in promulgating his test for disorderly behaviour. Rather, the right of an individual to free expression is relevant to the level of anxiety and disturbance which a reasonable member of the public should be expected to bear.

[64] Discussing s 5, Tipping J stated that any relevant freedom:42

... should be limited only to an extent that is reasonable and can be demonstrably justified in a free and democratic society ... In a case like the present the application of the disorderly conduct test requires the Court to balance the competing interests of those exercising their right to freedom of expression ... against the legitimate interests and expectations of those affected by that exercise.

[65] While Blanchard and Tipping JJ's methodology differs procedurally in relation to s 5, in substance the tests, and the outcomes of the tests, are the same. The consideration of s 5 in both instances is directed towards determining what the reasonable person could endure.

Freedom of expression

[66] In Brooker, the majority accepted that Mr Brooker’s behaviour engaged the right to freedom of expression. The Chief Justice recognised this fact unequivocally, stating at the outset of her decision that “[Mr Brooker’s] protest constituted expressive behaviour protected by s 14 of the NZBORA”.43 Elias CJ was critical of the Court of Appeal’s decision, noting that Court did not discuss “the implications of its view that whether rights of freedom of expression are engaged depends on an assessment of the motives of the speaker and the quality of the speech”.44 The Chief Justice cautioned that “[c]are is needed in using qualitative assessments in limiting a right that is broadly expressed as protecting the right to express ‘information and

_{opinions of any kind in any form’”.}45

41 _{At [87].}

42 _{At [91].}

43 At [14].

[67] However, unlike in Brooker and in the circumstances of this appeal it is problematic whether the appellant’s right to freedom of expression arises at all. Can calling for cats constitute expressive conduct deserving s 14 protection? Disorderly behaviour charges will typically be laid over minor incidents that may have a questionable expressive element. It follows that, if the conduct itself does not engage a right to freedom of expression, it will not be necessary to undertake the s 5 balancing exercise required under Tipping and Blanchard JJ’s test (presuming that no other NZBORA rights are relevant). I turn now to consider briefly this issue.

[68] That great American jurist, Justice Oliver Wendell Holmes in his dissenting judgment in Abrams v United States46 articulated a well-known modern theory of the importance of freedom of expression. He coined the principle of “the market place of ideas”, which prizes the greater good of free speech above the temptation to censor those holding contrary opinions to our own:47

... I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

[69] The Justice Holmes “market place of ideas” concept has ancient and respectable philosophical roots. A society in which there is freedom to express competing beliefs is a society which is more likely to achieve a consensus or “truth”. Writing in the troubled time of the Civil War, where England was split apart by

competing political and religious beliefs, John Milton said:48

[T]hough all the winds of doctrine were let lose to play upon the earth, so truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and falsehood grapple; whoever knew truth put to the worse in a free and open encounter?

[70] The classic approach which underlies the civil right of freedom of expression was adopted by the 19th Century philosopher John Stuart Mill. In his On Liberty

46 _{Abrams v United States [1919] USSC 206; (1919) 250 US 616.}

47 _{At 630.}

48 John Milton Areopogitica, the speech for the liberty of the unlicensed printing to the Parliament of

England (1644).

Mill argued that a society should tolerate speech which might be considered objectionable because:49

... the peculiar evil of silencing the expression of an opinion is that it is robbing the human race, posterity as well as the existing generation – those who dissent from the opinion, still more those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth produced by its collision with error.

[71] The quest for truth is the meaning of the doctrine that will otherwise “be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct”.50

[72] Section 14 of the NZBORA is a legislative embodiment of the “marketplace of ideas”. It provides that “everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form”. Like art 19 of the International Covenant on Civil and Political Rights, the right is defined in inclusive as opposed to exhaustive terms.

[73] The learned authors of The New Zealand Bill of Rights Act: A Commentary suggest that the s 14 words “of any kind in any form” indicate that “no expressive act or utterance falls outside the ambit of s 14 of [the NZBORA] on the grounds of what that act or utterance communicates or how that act or utterance is

communicated”.51 Indeed, the scope of freedom of expression has been described by

the Court of Appeal as being “as wide as human thought and imagination”,52

although violent activity will not constitute “expression”.53

[74] Other than these broad statements, New Zealand courts are yet to elaborate on the meaning of the word “expression”. Canadian jurisprudence offers what the

_{authors of The New Zealand Bill of Rights Act: A Commentary consider a “sensible}

49 _{John Stuart Mill On Liberty (4}th _{ed, Penguin, London, 1985) at 76.}

50 At 116. Justice Holmes and his dictum in Abrams was probably influenced by Mill’s on Liberty. One commentator has noted that Mill and Holmes are “routinely grouped” together in discussions on the rationale for freedom of expression. Irene Cate Speech, Truth, and Freedom; an examination of

John Stuart Mills and Justice Oliver Wendell Holmes’s “free speech defences” (2010) 22 Yale JL &

_{Human 35.}

51 Andrew and Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, Wellington, 2005) at [13.7.2].

52 _{Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA).}

53 Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48 (HC).

and relatively straightforward test”.54 In Irwin Toy Ltd v Attorney-General (Quebec),55 the Canadian Supreme Court held a Quebec provision restricting advertising to children violated the Canadian Charter of Rights and Freedoms. After considering the rationale of the freedom of expression provision (s 2(b)), the

majority proffered a loose test to determine if a given activity amounts to expression:

We cannot, then, exclude human activity from the scope of the guaranteed free expression on the basis of the content or meaning being conveyed. Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. Of course, while most human activity combines expressive and physical elements, some human activity is purely physical and does not convey or attempt to convey meaning. It might be difficult to characterize certain day- to-day tasks, like parking a car, as having expressive conduct. To bring such activity within the protected sphere, the plaintiff would have to show that it was performed to convey a meaning. For example, an unmarried person might, as part of a public protest, park in a zone reserved for the spouses of government employees in order to express dissatisfaction or outrage at the chosen method of allocating a limited resource. If that person could demonstrate that his activity did in fact have expressive conduct, he would, at this stage, be within the protected sphere ...

[75] Whether calling for cats is expressive conduct for s 14 purposes, is not easily answered in the absence of any native test. Policy considerations tug strongly both ways. While it is dangerous, as the Chief Justice noted, to exclude from “expression” certain types of conduct lest the right itself be diluted, equally it is farcical to suggest that every human activity is an exercise of the right to free expression. Care must be exercised to ensure that “expression” which has a protected status is not confused with mindless human utterances or sounds. As Holmes J famously commented, freedom of expression does not extend to falsely

calling out “Fire” in a crowded theatre.56

[76] Although the Supreme Court in Brooker was not required to embark on this analysis, Blanchard J commented at [58] that “[i]n 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}

54 _{The New Zealand Bill of Rights Act: A Commentary at [13.7.7].}

55 Irwin Toy Ltd v Attorney-General (Quebec) [1989] 1 SCR 927 at 969. The balancing of the freedom of expression right is relevant to s 4(1)(a) and to instruments such as NZBORA and the Canadian Charter. It is irrelevant in situations where clearly prescribed offences are involved. Disapproval of speed limits, bus lanes, or drug laws, is no defence to clear breaches.

56 Schenk v United States [1919] USSC 62; (1919) 249 US 47 at 249.

dimension.” This statement clearly does not sit well with a test which states that expressive conduct is conduct that conveys or attempts to convey a meaning. While it is unlikely that drunken and noisy public behaviour will have an expressive component, this determination will turn not on the drunken and noisy nature of the behaviour, but rather whether it attempts to convey some view or purpose.

Analysis

[77] The foregoing analysis of Brooker, with its focus on the necessary balancing exercise has been necessary given that the Supreme Court authority was cited both in the District Court and on appeal.

[78] Mr Youn submitted that in general terms the Justices of the Peace had incorrectly applied the Brooker test. In particular (and in the light of the appellant’s own evidence) regular calling out for cats did not constitute disorderly behaviour and was not sufficiently disruptive. Her actions would not cause anxiety or disturbance at a level beyond what a reasonable citizen could reasonably be expected to bear. Counsel further submitted (contrary to the thrust of the prosecution evidence) that the appellant’s calling for cats was for a relatively short duration.

[79] One of the difficulties in Mr Youn’s submissions is they tend to play down the thrust and significance of the prosecution witnesses and rely instead on the evidence the appellant gave at her trial. Although the Justices of the Peace made no credibility findings, it is clear they preferred the central core of the prosecution evidence. Had they believed and preferred the appellant’s evidence then she would have been acquitted.

[80] The salient features of the appellant’s conduct are important. Relevantly they

are:

(a) She was in a public place.

(b) The area, although on a busy Auckland radial road, was primarily residential.

(c) It was at night.

(d) Despite ambient traffic noise, the appellant’s calling could be heard by people in their homes (to the extent that television sets had to be turned up) and by a police officer at a distance of about 100 metres.

(e) The appellant’s voice was loud and persistently so.

(f) The calling was not for a matter of minutes, but was protracted.

(g) The calling out adversely affected the ability of prosecution witnesses to enjoy their home life.

(h) The appellant’s motivation was to summon, call, or attract the attention of cats (mostly strays) that she wished to feed in a public place and for which she had prepared.

[81] This last point is of importance in the balancing exercise. Despite the hostility which she expressed in evidence towards people who “hassled” cats or abused her, the appellant was not engaged in protest. Nor, by the use of words or tacitly, was she exercising her s 14 NZBORA right of freedom of expression. She was not making any statements about felines, domestic or stray. Certainly she was not imparting information or opinions.

[82] If I am wrong in that assessment, the volume, duration, location, and effect of her raucous callings would still need to be balanced against s 14.

[83] Essentially the prosecution was not one about protest or freedom of expression. Its focus had to be the reasonableness of the appellant’s behaviour. Her conduct occurred in a public place. By calling out loudly and persistently for cats at night in a residential area, the appellant was creating a disturbance. Nearby residents were adversely affected. The behaviour was repeated. The appellant refused to desist when requested by other people and by a police officer. In terms of the dictum of Blanchard J, the appellant’s behaviour “substantially disturb[ed] the normal functioning of life in the environs of that place” and caused 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 [and] duration....”57

[84] So the Justices of the Peace found. They were correct so to do.

Result

[85] For the reasons I have given, the appeal is dismissed.

..........................................
_{Priestley J}

57 In terms of the dictum of Tipping J it caused “anxiety or disturbance to a level which is be yond what a reasonable person should be expected to bear”. In terms of the dictum of Elias CJ it had “an objective tendency to disrupt public order”. The tests of Tipping J and Elias CJ were thus also satisfied.