KER V NEW ZEALAND POLICE [2016] NZCA 277

KER V NEW ZEALAND POLICE [2016] NZCA 277 [22 June 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA391/2014[2016] NZCA 277BETWEEN BRIAN KERAppellantAND NEW ZEALAND POLICERespondentHearing: 26 May 2016Court: Stevens, Woodhouse and Wylie JJCounsel: D P Nairn for AppellantA J Ewing for RespondentJudgment: 22 June 2016 at 10.00 amJUDGMENT OF THE COURTA The appeal is allowed.B The question for determination is answered in [32] below.C The conviction under s 4(1)(a) of the Summary Offences Act 1981 entered by the High Court is quashed. The fine imposed and the order for court costs are also quashed.D There is no order for a retrial.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] The appellant, Mr Ker, has been granted leave under s 237 of the Criminal Procedure Act 2011 to bring a second appeal.1 The question posed is:Whether a conviction for offensive behaviour under s 4(1)(a) of the Summary Offences Act 1981 requires proof that the relevant behaviour was actually observed and caused disruption to public order or whether it is sufficient to prove that the behaviour was in the circumstances capable of being observed and producing disruption to public order.[2] We set out the facts briefly to place this question in context.Relevant facts[3] Mr Ker owns an Isuzu truck and a fully enclosed metal trailer. He had parked his truck and trailer in an open carpark off East Tamaki Road. He was living out of them at the time. The trailer was detached from the truck, and the truck and trailer were sitting side by side, with a narrow gap between them.[4] The carpark was behind a service station and a tavern. It shared a boundary with East Tamaki Primary School. The classrooms are elevated. The windows of the classrooms and grassed areas nearby overlook the area where Mr Ker had parked.[5] On 18 November 2013, Mr Ker stripped naked and washed himself with a sponge using water from a small tub which he had positioned next to his trailer. A member of the public alerted the principal of the school, who in turn called the police.[6] A constable arrived. He saw Mr Ker walk around from behind the trailer. Mr Ker was naked. He walked past the tow bar end of the trailer, between the trailer and the school. He was in view of two classrooms at the time. Mr Ker went into the trailer via a side door. He put on some shorts and then came out to talk to the constable.1 Ker v R [2015] NZCA 522.[7] There was no evidence at trial that any child, or indeed anybody else other than the constable, saw Mr Ker naked. The constable's reaction on seeing Mr Kerwas simply to observe that "[a] nude man outside a primary school is fairlymemorable ".[8] A second constable arrived a little later and Mr Ker was arrested. In explanation, Mr Ker stated that he had been working, that he had become hot and that he wanted to wash and clean himself up. He said that he had done so out of sight of the school. He accepted there were children in the general vicinity. He said that he had waited until they had gone. He asserted that there was a six-foot fence between the carpark and the school, that the classrooms were relatively high up and that his trailer was out of view from the school.[9] The police endeavoured to find witnesses who had observed Mr Ker'sbehaviour. They were unable to do so.Lower Court hearings[10] Mr Ker was charged with indecent exposure, contrary to s 27 of the Summary Offences Act 1981 (the Act). Following a defended hearing in the Manukau District Court, Judge Bergseng found Mr Ker guilty.2 He entered a conviction against him, fined him $500 and ordered him to pay $130 in Court costs.[11] Mr Ker appealed to the High Court. The District Court had found that both the carpark and the primary school were public places. There was no challenge to this finding. Rather the challenge was to the nature of Mr Ker's behaviour andwhether it was, in law, indecent exposure.[12] Venning J found that Mr Ker's act of exposure was intentional. He observedthat the offence of indecent exposure requires that the offender obscenely exposes any part of his or her genitals. He held that Mr Ker's nudity did not reach the standard of revulsion or loathing required for obscenity.3 Accordingly he quashed Mr Ker's conviction.2 Police v Ker DC Manukau CRI-2013-092-12660, 3 March 2014.3 Ker v Police [2014] NZHC 1227.[13] Venning J, however, considered that Mr Ker's behaviour was offensivebehaviour under s 4(1)(a) of the Act. The Judge did not view as fatal the fact that there was no evidence that anyone other than the constable had seen Mr Ker naked. He considered that it sufficed that the potential for observation existed. He commented that, in any event, observation was not an element of the offence. He took the view that Mr Ker's behaviour had the potential to interfere with the rights ofothers. He observed that primary school children should not be potentially subjected to men exposing their genitals. He held that Mr Ker's behaviour satisfied the test for offensive behaviour as arousing feelings of disgust and outrage in the minds of reasonable people so as to lead to a disturbance of public order. He exercised the power available to him under s 234 of the Criminal Procedure Act and convicted Mr Ker of offensive behaviour under s 4(1)(a) of the Act. He re-imposed the fine imposed by the District Court and confirmed the order for the payment of Court costs.Submissions[14] Mr Nairn for Mr Ker contended that a conviction for offensive behaviour requires proof that the behaviour was disruptive of public order. He put it to us that, logically, behaviour that is not observed cannot be disruptive of public order.[15] Ms Ewing for the Crown argued that it suffices that offensive behaviour is capable of being observed, and is capable of disrupting public order. She submittedthat all the prosecution is required to prove is that a defendant's behaviour has thetendency to interfere with the use of public space by others, and that it matters not that the conduct went unobserved by those who could have been affected by it.Analysis[16] Section 4(1) of the Act provides as follows: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; or(b) in any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person; or(c) in or within hearing of a public place,—(i) uses any threatening or insulting words and is reckless whether any person is alarmed or insulted by those words; or(ii) addresses any indecent or obscene words to any person.[17] Because it has often been invoked against defendants exercising, or claiming to exercise, rights under the New Zealand Bill of Rights Act 1990, the section has received considerable attention from the higher courts.[18] The leading case in relation to offensive behaviour contrary to s 4(1)(a) is the recent decision of the Supreme Court in Morse v Police.4 The Court unanimously held that the offence is concerned with public order and that, to be offensive under the section, behaviour has to be productive of disorder.5[19] In cases decided prior to Morse, this Court expressed the view that offensive behaviour needs only be capable of observation and of disturbing public order. For example:(a) In R v Rowe the appellant had been convicted of offensive behaviour for covertly photographing school girls from his house bus.6 The only person that saw his conduct was the police officer tasked with arresting him. He was convicted in the District Court and his appeal was dismissed by the High Court. On appeal to this Court, Mr Rowe argued that what went unseen could not disturb public order, and as a result, could not constitute offensive behaviour under s 4(1)(a) of the4 Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1; and see Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 in relation to behaving in a disorderly manner.5 At [2]–[3] and [32]–[36] per Elias CJ; [62] and [67] per Blanchard J; [70] per Tipping J; [117] per McGrath J; and [124] per Anderson J.6 R v Rowe [2005] 2 NZLR 833 (CA). Leave to appeal to the Supreme Court was refused with the Court noting that this Court's judgment involved the application of a settled test to the unusualfacts of a particular case: Rowe v R [2005] NZSC 40.Act.7 The Court disagreed. It held that the test is whether the behaviour was such as to be calculated to wound feelings, arouse anger or resentment or disgust or outrage, in the mind of a reasonable person.8 Two of the Judges concluded that Mr Rowe's conduct didhave the necessary tendency to seriously offend right thinking members of the community. The third member of the Court disagreed. The Court found, unanimously, that the conduct was observed by the constable who attended the scene. It considered that the observation by a constable can be relevant in determining whetherbehaviour occurring in a public place is "sufficiently observable to constitute an offence against public order".9(b) In R v Ceramalus the appellant had been convicted of disorderly behaviour in a public place (also under s 4(1)(a) of the Act) after he walked naked down a quiet suburban street.10 He appealed to the High Court and his appeal was dismissed. He was declined leave to bring a second appeal. He then sought special leave to appeal to this Court. Among other grounds Mr Ceramalus sought to pose, as a question of law, whether or not his actions were capable of constituting the criminal offence of behaving in a disorderly manner, when no other person was in the street at the time. Leave was declined on the basis that this question (and others) did not give rise to a question of law. The Court observed, obiter, that Mr Ceramalus' conduct "had the capacity to produce disorder in the community".11[20] Although it was not expressly overruled, Rowe was criticised by Elias CJ inMorse. She noted that Rowe was decided before Brooker v Police12 and that it applied, without reassessment, a number of High Court cases which had been decided prior to the enactment of the New Zealand Bill of Rights Act.13 The Chief7 At [41].8 At [23]–[24].9 At [45].10 R v Ceramalus [2012] 2 NZLR 46 (CA).11 At 47.12 Brooker v Police, above n 4.13 Morse v Police, above n 4, at [28].Justice also expressed the view that Ceramalus was incorrectly decided, albeit not in relation to the issue of whether capacity to produce disorder can suffice to trigger the commission of the offence.14 The other Judges in the Supreme Court did not refer to either Rowe or Ceramalus. Nevertheless it seems to us that, following Morse, neither Rowe nor Ceramalus remains good authority for the proposition that the offence of behaving in an offensive manner is committed where the offensive behaviour:(a) is observable as opposed to being observed; and(b) is capable of producing disorder as opposed to producing disorder.[21] It is clear from the judgments in Morse that the offence created by s 4(1)(a) is directed at the preservation of public order. As noted above, the Supreme Court held unanimously that offensive behaviour is behaviour productive of disorder, and that it is not sufficient that others are offended if public order is not disrupted.15 As Elias CJ noted, "offensive behaviour is concerned with behaviour which, objectively assessed, disrupts order in public space".16 Tipping J put it as follows: "it is alwaysnecessary for the prosecution to demonstrate a sufficient disturbance of public order".17[22] Public order will be disturbed where the offensive behaviour is such that itseriously interferes with others' enjoyment of the public space in question.18 In relation to the issues before us, we note as follows:(a) Blanchard J stated that, before behaviour can be said to be offensive in terms of s 4(1)(a), it must have given rise to a disturbance of public order:19either because the behaviour of the defendant has directly and substantially disturbed the normal functioning of life in14 At [29].15 At [18] above.16 At [39].17 At [70].18 At [7] per Elias CJ; [70] per Tipping J; [103] per McGrath J; and [123]–[124] per Anderson J.19 At [62] (emphasis added).the environs of the public place in question or because ithas had [an] indirect effect upon members of the publicin those environs He summarised his view as follows:20In summary, I would define offensive behaviour as behaviour capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind actually subjected to it in the circumstances in which it occurs, so that there is directly orindirectly a disturbance of public order.(b) Tipping J considered that the word "offensive" in context means that,to contravene s 4(1)(a), a person must behave in a manner that causesoffence "to those affected" to such an extent, or in such a manner, as disturbs public order.21(c) McGrath J observed as follows:22It is for the court in each case to decide whether, in the circumstances, the intensity of proved offensive aspects ofthe defendant's behaviour amounts to interference with the use by others of the public place to the extent that the conduct should be classed as offensive behaviour in terms of s 4(1)(a). To amount to the offence it must involve a serious interference with the standards reflected in those community expectations. That degree of interference must go beyond what a society respectful of democratic values is reasonably expected to tolerate. Section 4(1)(a) must be applied accordingly and I turn to that question.[23] Ms Ewing submitted to us that Morse should be seen in context, and that the various observations cited above confirming that public order must in fact be disturbed in relation to those who have been actually subjected to the offensive behaviour, reflect the facts of that case, rather than a considered ruling on the law.20 At [67] (emphasis added). See also Brooker v Police, above n 4, at [55].21 Morse v Police, above n 4, at [70].22 At [103] (emphasis added) (citations omitted).[24] We disagree. In our judgment, Morse is, and was intended to be, a comprehensive ruling on the meaning and reach of s 4(1)(a) of the Act when the offence of offensive behaviour is charged.[25] Ms Ewing also argued that there are some comments in Morse which suggest that behaviour need only have a reasonable propensity or likelihood of impactingothers' use of public space.[26] We accept that there are passages in Morse which suggest that offensive behaviour can be behaviour which has a reasonable propensity or likelihood ofimpacting on other's use of public space.23 These passages are not altogether easy to reconcile with other passages in the judgment. When the judgments are considered in full, in our view, the Court unanimously required that offensive behaviour has to be productive of disorder if it is to be caught by s 4(1)(a), and the majority either said or implied that any offensive behaviour must be observed before it can be said to be disruptive of public order, and that there must be a disruption to public order. We have noted the relevant passages in [22] above.[27] Ms Ewing also argued that, if the offence created by s 4(1)(a) is complete only once an actual disturbance to public order has occurred, the police will have no powers to intervene before matters reach that stage.[28] We disagree with this proposition. The police have statutory powers of arrest without a warrant for summary offences where there is good cause to suspect that the person has committed an offence against a number of the provisions of the Summary Offences Act.24 This power extends to offensive behaviour (s 4(1)(c)) and indecent exposure (s 27). Before the power can be invoked, the arresting officer must have good cause to suspect that the relevant offence has been committed. Rowe remainsauthority for the proposition that a constable's observations of offensive behaviourcan be sufficient. If a constable observing behaviour thinks that public order is being23 At [7] and [33] per Elias CJ; and [127]–[128] per Anderson J. See also Brooker v Police, above n 4, at [41] and [44] per Elias CJ.24 Summary Offences Act 1981, s 39(1).disrupted in or within view of a public place, and the behaviour is offensive, then arrest without warrant will be an available option.25[29] Any person found disturbing the public peace, or in circumstances where there is good cause to suspect that the person has committed a breach of the peace, can be arrested.26 The police also have relevant common law powers.27 Officers have an obligation to take reasonable steps to prevent apprehended breaches of thepeace. This is an aspect of their "public law duty to afford protection to both personsand property from imminent criminal injury".28 We accept that there has been some debate as to what constitutes a breach of the peace. What is generally required is a risk of violence to persons or property of the kind that would establish the more serious offence of disorderly behaviour contrary to s 3 of the Summary Offences Act, and not the less serious offences found in ss 4(1)(a) and 27.29 Some types of offensive behaviour could result in a breach of the peace.[30] The police also have non-statutory and discretionary powers to issue either oral or written cautions.[31] We are not persuaded by Ms Ewing's submission that the police could notintervene, particularly where a constable observed the offensive behaviour and considered on reasonable grounds that public order had been disrupted.[32] We conclude that, to constitute offensive behaviour contrary to s 4(1)(a):(a) the offensive behaviour must be observed — otherwise it cannot be productive of public disorder; and(b) there must be an actual disturbance of public order and not a mere capacity to disturb.25 Brooker v Police, above n 4, at [34].26 Crimes Act 1961, s 315(2)(a) and (b). Note caution expressed by McGrath J in Morse v Police,above n 4, at [117].27 R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48.28 At [12]. See also [11]–[14] per Elias CJ, Blanchard and Anderson JJ; [74] and [76]–[89] per McGrath J.29 Brooker v Police, above n 4, at [52] per Blanchard J; Morse v Police, above n 4, at [88] per McGrath J.[33] It follows from these conclusions that the elements of the offence created by s 4(1)(a) of the Act as they now stand, following Morse, and subject to what we say below about mens rea, are as follows:(a) the defendant has behaved in the way alleged by the Crown;(b) that behaviour was in or within view of any public place;(c) the behaviour disrupted public order; and(d) the behaviour was offensive.[34] In considering (d), it is necessary to determine whether the behaviour is objectively offensive — that is, is it offensive from the perspective of a reasonable affected person.30[35] There was limited discussion before us as to whether or not mens rea is required. Ms Ewing submitted that the offence created by the subsection does not call for proof of specific intent, and that the offence is one of strict liability. Mr Nairn did not address this point.[36] Whether or not the Crown has to prove intention was not posed as a question for us, and we did not hear full argument on it. This Court has previously left the question open.31 The absence of any reference to intention or recklessness in s 4(1)(a), in contrast to s 4(1)(b) and (c), suggests that intent is not required. Blanchard J in Morse also suggested that intention is unnecessary.32 While we are inclined to agree with Mr Ewing's submission, intention was not in issue withMr Ker's behaviour. He accepted that his actions were intentional, although he didnot intend them to be offensive. The issue of whether or not mens rea is required is best left for an appropriate case.30 Morse v Police, above n 4, at [30] per Elias CJ; [66] per Blanchard J; [72] per Tipping J; [103]-[118] per McGrath J; [127] per Anderson J.31 R v Ceramalus, above n 10, at 51–52.32 Morse v Police, above n 4, at [62].[37] Returning to the facts of the present case, there was no evidence that anyone observed Mr Ker's behaviour, other than the person who phoned the school principaland the constable who was called to the scene. The caller was not identified and he or she did not give evidence. The constable did not give any evidence suggesting that public order was disrupted. Nor was there any other evidence suggesting any disruption to public order. It follows that the elements of the offence created by s 4(1)(a) of the Act were not established. The conviction entered by Venning J must be quashed.Result[38] The appeal is allowed.[39] The question posed for determination is answered as is set out in [32] above.[40] Mr Ker's conviction entered in the High Court for breaching s 4(1)(a) is quashed. The fine imposed and the order for the payment of Court costs are also quashed.There is no order for a retrial.Solicitors:Crown Law Office, Wellington for Respondent