FABLING v POLICE [2021] NZHC 363

FABLING v POLICE [2021] NZHC 363 [3 March 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-361[2021] NZHC 363BETWEEN KERRY FABLINGAppellantAND NEW ZEALAND POLICERespondentHearing: 2 March 2021Counsel: P Eastwood for AppellantC Purdon for RespondentJudgment: 3 March 2021JUDGMENT OF BREWER JThis judgment was delivered by me on 3 March 2021 at 3:00 pmRegistrar/Deputy RegistrarSolicitors:Meredith Connell (Auckland) for RespondentIntroduction[1] Mr Fabling appeals his convictions for wilful trespass,1 offensive language2and behaving in an offensive manner.3 Convictions were entered by Judge DJMcDonald following a Judge-alone trial on 7 August 2020.4[2] Mr Fabling represented himself at the trial but was represented on this appealby Mr Eastwood, who has taken the brief on a pro bono basis. Partly for that reason,I heard oral submissions rather than further adjourning the appeal so that writtensubmissions could be filed.[3] Mr Fabling was a man of no fixed abode. As a result, he was a prolific user ofthe public libraries of Auckland. His behaviour at times was not in keeping with thatexpected of a person using a public library. Eventually, he was given a written trespassnotice which related to seven public libraries in Auckland, including the Mt Albertlibrary and the Mt Roskill library.Wilful trespass[4] The first conviction appealed against is a conviction for wilful trespass on3 April 2019 at the Mt Albert library.[5] Unfortunately, all the evidence called at the trial by the prosecution related tothe Mt Roskill library and the date was 3 March 2019. The Judge identified thediscrepancy in the date and, during his judgment, amended the date of the offence inthe charging document to 3 March 2019. The Judge considered that no prejudice couldarise from this amendment because all of the evidence related to the date of 3 March2019.[6] The Judge did not, however, appear to have recognised the discrepancy inplace. In his judgment he referred only to the Mt Albert library. Accordingly, theJudge convicted Mr Fabling of wilfully trespassing at the Mt Albert library on 3 March1 Trespass Act 1980, s 4(4) and 11(2)(a).2 Summary Offences Act 1981, s 4(1).3 Summary Offences Act 1981, s 4(1)(a).4 Police v Fabling [2020] NZDC 3486.2019. There was no evidence that Mr Fabling did so. The place of the alleged trespasswas central to the charge. The conviction cannot stand, and this is recognised byMr Purdon for the Crown. I will not order a new trial.Using offensive language and behaving in an offensive manner[7] The two remaining convictions appealed against are using offensive languageand behaving in an offensive manner.[8] The charges related to an incident at the Epsom library. Two librarians,Ms Bathgate and Mr Ali, were tasked with serving Mr Fabling with a trespass notice.Mr Fabling became angry. He shouted abuse directed towards Mr Ali. I will notrecord here what Mr Fabling said. It is set out in Judge McDonald's decision. Thewords used were categorically and obscenely racist. Mr Fabling also told Mr Ali:That is why people like you got shot in Christchurch.[9] Mr Eastwood relied on Mr Fabling's evidence that he did not say all of thethings that Mr Ali and Ms Bathgate gave evidence about. I am of the clear view thatit was open to Judge McDonald to prefer their evidence to that of Mr Fabling.[10] Mr Eastwood, with some hesitancy, advanced a submission which I paraphraseas being that the comments in question offended more against political correctnessthan the general mores of society. He submitted the court should take a stand againstthat.[11] I do not accept Mr Eastwood's submission. Indeed, I totally reject it.Mr Fabling's comments were deeply offensive and completely contrary to theestablished mores of our society.[12] The charge of offensive behaviour was related to the charge of using offensivelanguage. It focused on the manner in which Mr Fabling conducted himself whileconfronting Mr Ali and Ms Bathgate in a public library where members of the publicwere present. I have no doubt that the Judge was entitled to find the charge proved.Decision[13] Mr Fabling's appeal against his conviction for wilfully trespassing at theMt Albert library is allowed. His conviction is quashed. The sentence (to come up ifcalled upon within six months) is also quashed. There will not be a new trial.[14] Mr Fabling's appeals against his convictions for using offensive language andbehaving in an offensive manner are dismissed.________________________________Brewer J