www.kiwisfirst.com

"WE CHANGE THE LAW NOT INFREQUENTLY"

4 March 2010 
Tuesday's Supreme Court appeal Siemer v Solicitor General in the new $100 million building showcased brilliant performances by lawyers on both sides.  It also offered up some stupendous 'judgespeak'.  
 
The appeal has significant implications for the law of contempt and Bill of Rights in New Zealand.   It challenges a Court of Appeal rejigging of a 6 month prison sentence imposed upon kiwisfirst editor Vince Siemer by the High Court in August 2008 for failing to shut down this website and www.stiassny.xxx.  That action was brought by the Solicitor General under a civil application to punish alleged breaches of an interim injunction granted in April 2005 to Auckland insolvency accountant Michael Stiassny.  Mr Siemer's Supreme Court appeal claims he was denied criminal protections, was improperly deprived a trial by jury and that lower courts both misstated the injunction and failed to identify what published texts he was required to remove.
 
The appeal took the full day and was heard by Sian Elias CJ, Peter Blanchard J, Noel Anderson J, John McGrath J and the embattled Bill Wilson J.  
 
Elias CJ had earlier refused to disqualify herself after voluntarily disclosing to Siemer's Counsel potential conflicts she and her husband have with Michael Stiassny.  Mr Stiassny is NZ Racing Board Chairman and Elias and her husband are heavily invested in horse racing.  Her husband and Stiassny are both directors of Vector Limited.
 
The Court of Appeal earlier altered the sentence into an "unless order" which stated Mr Siemer would be released from the fixed sentence after complying with the order.  He has been out on bail since October 2008, after spending 10 days in Mt Eden. 
 
Early in the hearing, Judge Peter Blanchard ( pictured) retorted "We change the law not infrequently" after Robert Lithgow QC presented the bench what he had considered to be well-settled legal concepts in New Zealand. 
 
When Mr Lithgow attempted to state the Courts had failed to identify what Mr Siemer was being ordered to remove, Justice Anderson interjected "He runs a website.  Presumably he knows English.  He can figure it out."
 
When the Crown responded, Chief Justice Elias informed Crown prosecutor Madeleine Laracy that the bench did not want her to address this point in her oral submissions. 
 
Ms Laracy instead focused on U.S. and Canadian case law in support of her claim that the New Zealand Bill of Rights offers no protection when it comes to the NZ Courts punishing for alleged breaches of its own orders.  She maintained that the power of contempt was "coercive" and not "punitive" in this case, irrespective of the sentencing order sought, and eventually made by the Court.  She suggested chaos would reign if alleged violations of court orders were determined by juries.  She stated the authority of judges and the Courts would be undermined and this risk required contempt punishment to remain the exclusive preserve of judges.  She likened it to the contempt powers of Parliament, while admitting Parliament has never used such powers to commit someone to prison.
 
While initially attended by several news reporters, the courtroom had largely emptied when Mr Lithgow gave his rebuttal that the Bill of Rights not only specifically bound the judiciary, but that jury examination fit comfortably with the aim often-expressed by the Courts of maintaining the confidence of the public in its decisions.  BACK TO FRONT PAGE
 

Fight to protect Bill of Rights Ignored by Limited NZ Supreme Court

Wellington, New Zealand  11 June 2007
Justices John McGrath and Andrew Tipping, acting for the New Zealand Supreme Court upon pressure from Judges Willy Young and Judith Potter, refused to hear an appeal by Auckland businessman Vince Siemer relating to his prosecution for exposing what he claims is an 'Enron-esque' scandal occurring in the Country's energy-sector.  The appeal stems from a High Court injunction issued in April 2005 that muzzled Siemer from claiming Vector Energy Chairman Michael Stiassny has unduly benefited financially from his imposition of abnormal accounting treatments, including aggrandizing the public utility's asset valuation (currently to NZ$5.7 billion).  The Court of Appeal upheld a limited injunction in December 2005 but Siemer has since re-launched his website [RELATED STORY LINK BLOCKED BY ORDER OF NZ SOLICITOR GENERAL - EMAIL HIM  david.collins@crownlaw.govt.nz  TO ASK WHY], placing himself in alleged contempt of the injunction. 
 
The Supreme Court has said that because the action was filed as an interlocutory application it is not required to consider the appeal.

Siemer claims that the local lines company's valuation is misleading due to it valuing assets on replacement cost, as well as the electricity monopoly assigning $1.7 billion (or 30% of total valuation) to 'goodwill'.  Stiassny has additionally claimed publicly that Vector achieved an unrealized $500 million gain on the acquisition he orchestrated of gas utility company NGC in 2005 and gave a speech in October 2005 to the N Z Institute of Directors where he claimed to have grown the company from a one billion dollar company to one worth five billion dollars in three years time.  Siemer uncovered Vector's own internal assessment at the time placed the likely benefit from the NGC acquisition at a mere $6 million, roughly 1% of the acquisition cost. 
 
The appeal states the New Zealand Bill of Rights Act 1990 guarantees the right to warn the public in relation to what Siemer knows about Stiassny's accounting practices.  He has now forced the issue with New Zealand's highest court that, having earlier provided sufficient evidence to the Appellate Court in support of his claims of gross misconduct by Stiassny, the Court failed its legal obligation to revoke the injunction.  Consequently, he says he is no longer obliged to comply with what is an unlawful restriction to freedom of expression. 
 
Vector is 75.1% owned by the Auckland Energy Consumer Trust, with 24.9% publicly traded on the NZX share market.  There is little regulation in New Zealand governing traded shares. Ownership of 75% is significant, constituting a 'super-majority' that severely limits the legal rights of minority shareholders.
 
In July 2006 the Commerce Commission signaled its intent to take over Vector due to repeated overcharging, in breach of the Fair Trading Act.  A settlement was reached four months later.  In December 2006, the three independent directors Greg Muir, Tony Gibbs and John Goulter resigned en-masse, saying they have had ongoing concerns with the governance of the company and the leadership of chairman Michael Stiassny.  In May 2007 the Chief Financial Officer Peter Fredricson also unexpectedly resigned. 
 
Stiassny, an insolvency practitioner by trade, wields considerable power in the small New Zealand business community.   "content censored by order of the New Zealand Supreme Court"  Others have subsequently approached Siemer with further evidence of Stiassny's mismanagement and furtive accounting methods. 
 
Stiassny filed a $1.2 million defamation lawsuit in the High Court against Siemer in April 2005 claiming Siemer is engaged in a malicious personal vendetta against him, but has taken no apparent action in the more than two years since to advance his lawsuit.
 
Complicating the matter for Siemer is the fact that Hugh Fletcher, husband of the Supreme Court Chief  Justice Sian Elias, was recently appointed director of Vector Energy.  Some would say it is a small world - nowhere more proven than the incestuous board rooms that rule the business (and Court) roost in New Zealand. #  Return to front page

NATURE KNOWS BEST - is our court and political system damaging the nuclear family?

LEGAL AID TOPS $20 MILLION

Feilding lawyer Rob Moodie in Contempt

Editorials from Viewers

Dominion Post Reporter admits to making up Vector story

26 October 2007 
In a story appearing in the Dominion Post last weekend, reporter Andrew Janes detailed events at the Vector annual general meeting of 19 October 2007 at Ellerslie Event Centre in Auckland.  The big problem was Mr Janes got his facts wrong.  When questioned about this, Mr Janes responded that he arrived late and had made up a statement that Vector shareholder Vince Siemer had been barred by Police from entering the meeting.  No indication was made in the Post story that the reporter missed part of the event he purported to cover.  He has now admitted to simply making it up.
 
The Dominion Post is a Fairfax Media Publication, as are the Sunday Star Times, The Independent Weekly and the web-based site Stuff.co.nz.
 
This admittedly false reporting follows earlier claims by Star-Times Business Editor Tim Hunter that Vector should be allowed to grow and that recent mass resignations by its directors, CEO and CFO where not indicative of any problems he could see.  Fairfax's photographer was also barred (in addition to Siemer) by hired security staff from the shareholder meeting.  Hunter responded that he could understand why Vector would want to keep Siemer out of the meeting but that he had called Vector "to tell them I was unimpressed" that they would bar his news photographer.  None of this was worth reporting according to Hunter.
 
The article by Mr Janes focused on Chairman Michael Stiassny's very public battle with the Commerce Commission over claims by the Commission that Vector has been overcharging consumers on gas and electricity and Stiassny's responding threat that Vector would cease to invest in infrastructure unless it was allowed to charge more.  These are the same arguments ENRON waged for years.  Not surprisingly it was California - the least regulated U.S. state ENRON operated in at the time - that experienced rolling power blackouts and 20 fold price increases virtually overnight at the hands of ENRON management.  This manipulation of prices stalled ENRON's inevitable demise by a year.  The cost to California remains incalculably high even to this day.  California has since tightened up its regulations on utility providers.
 
The Post article follows a trend by Fairfax of not reporting the significant financial pressures facing Vector as a result of poor and reckless management.  As an example, Fairfax has gone quiet on the fact that even as Vector is selling productive assets their debt is increasing - as well as the fact that Vector reported negative retained earnings in order to pay a dividend to shareholders this year.  Asked about this troubling scenario last year, Hunter merely responded that dividends do not necessarily follow earnings. 
 
An insider has told kiwisfirst that the media in general - and the New Zealand Herald in particular - are afraid to report Vector's financial woes for fear that it would trigger a mass share sell-off that results in Vector's enormous loans being called due and a collapse of the company.  Television networks in New Zealand largely pick up these business stories from the major newspapers, explaining why the chain of non-reporting does not require anything resembling a conspiracy.  With only 25% of Vector's shares publicly trading, the company is well insulated on its invested capital but breach of its debt covenants and pressure on its BBB+ credit rating is a serious issue which could result in escalating interest rates on its massive debt - and possibly the notes being called by the banks.  A proxy battle by shareholders is not possible to turn around Vector's fortunes.  By its own account, Vector's debt is pegged at over 62% of valuation, even with an untenable $1.6 billion in 'goodwill' on the books of this monopoly utility.  Two elected trustees, Shale Chambers and Karen Sherry represent the majority shareholder (Auckland ratepayers) on the eight member board of directors.  Both have negligible productive experience running a public company. 
 
Increasingly the company's board has been put into a position where it must strongly lobby politicians to put pressure on the Commerce Commission to allow it to charge what it wants to charge to save their own necks.  So far Commission Chair Paula Rebstock has staunchly stood up to Staissny and Co in enforcing the regulation model widely proven to be equitable and successful around the world. 
 
The problem with the lack of relevant media reporting and misreporting regarding Vector is that consumers are increasingly being unwittingly saddled with a burgeoning financial burden that is more than triple what it was a few years ago despite a successful capital float of 24.9% of the company in August 2005.  Vector's debt currently stands at $3.1 billion.
 
With the Vector board largely replaced in recent months, Michael Stiassny is now the only director with finance and accounting expertise.  This is a dangerous combination with Stiassny's well-known autocratic style.  Another problem is that, other than his liquidation accounting practice, Mr Stiassny has not shown an ability to run successful companies.  Many in the industry have commented that a liquidator's core competencies are opposite that of a manager of productive enterprises.  The huge debt accruing since Stiassny took over Vector stands as apparent proof.  If this situation is allowed to continue, a looming catastrophe in the power supply sector is just around the corner.  #  (Back to front page)

 

 

FORMER TOP COP REFLECTS ON HIS OWN POLICE CULTURE EXPERIENCE IN CLAIMS NEW TERROR LAWS ARE THREAT TO CIVIL LIBERTIES

DEEP IN THE FOREST
by Ross Meurant, B.A.  M.P.P.
 
Like most recruits, I entered the police as an impressionable young man with a basic education, from a working class environment in provincial New Zealand.  There were hundreds of peers like me, before me and after.  I was nothing special but I was altruistic.  We were all cannon fodder.  Easy to manipulate. We looked at the forest before us in awe.
 
The moment you step into the police, this sub culture within NZ culture hits you.  You are immediately part of the thin blue line.  You are part of a team and that team looks after itself.   You are special.  You are the border between good and evil. The attitudes of the police instructors, armed not with teaching certificates but with ten years exposure to the police sub culture, either consciously or subconsciously invite you into the forest.
 
To step out of police college is to take the next step into the forest. You are now part of the difference between law and order in the streets where gangs would rule and evil would triumph.  But for you and your fellow coppers, society would be a dangerous place.  Your mission is to protect society from this evil.  Very soon you learn to decide what is evil and what is not.  You are no longer just a collector of human rubbish at the base of the cliff but you have an obligation; yes, even a duty to guide the country to a decent society.  That direction is best decided by you and others in your sub culture of police, for what better epitomizes the values of a decent society than those cherished by the men and women in blue?  Your task is honourable.  What better vocation than to rid the country of evil?  Thus, achieving this end can even justify the means!
 
The further into the forest, the more pervasive becomes this police culture.  The heart of the beast is centered in elite CIB squads like Regional Crime, Criminal Intelligence and Drug Squad.  These are the destinations to which the most ambitious and zealous aspire.  Together with the Armed Offenders Squad and Team Policing units, these entities are the bastion of police culture.
 
Of course there are those who do not aspire to these objectives but then, the police is also a government department which always harbor a good number of 'glide timers': there to collect their pay and do as little as possible, which is the best route to longevity in any government agency.  Often these people will suddenly find themselves floating on the top of the pool.
 
Every new entrant runs the same gauntlet.  No recruit is ever formally 'taught' to use violence, to lie and cover up.  None of my mentors did that to me and I never did it to those whom I mentored.  But the culture sends a very clear message.  'When you witness transgression by a colleague, keep your mouth shut at worst and at best, provide an account which supports the miscreant and helps him/her out of a sticky situation.'  If you don't, as a new recruit, you are ostracized.  You may as well quit there and then.  But once you have provided succor, you have taken your next step into the forest.  Later you will witness another indiscretion and you will again 'cover'.  After all, you have been accepted as one of the team.  You are 'reliable'. To lose that status is not a desirable outcome.  But already you are compromised. Then one day you will commit an indiscretion and others will cover for you.   Then you are beholden. Then you have entered the forest proper.  There is no light to show the way home.
 
When I speak about a police culture, I speak about the environment I have described.  It is introverted, self protecting and lacking objectivity.   It is a culture which looks after itself and has a certain view of how life should proceed.  It is reinforced by drinking and bonding sessions.  The 'them and us' ethos becomes tangible.  What is more, the culture is working class conservative in its origins. Bigoted and intolerant.  Few of its officer corps are university graduates and even fewer hail from private schools.  There is no network which pervades the upper echelons of society.  The police are insular.
If someone has tattoos or hair too long or dresses the 'wrong' way or does not have 'acceptable' politics, then they are one of 'them' and not to be trusted.  Conversely liberals are a menace to stability and are even more dangerous than unemployed Maori. 
 
I recall when as a detective in the mid seventies, I applied to go to university and was asked by my commissioned officer:  "Meurant.  Why do you want to go to university?   Are you a communist?"  The message was pretty clear.  This was at the height of Vietnam. The police sub culture did not approve of its members being associated with undesirable elements who frequented establishments of enlightenment!
 
When I did finally go to university I found my lecturers to include Michael Basset, Phil Goff and Helen Clark, all of whom where later my peers in parliament but who at the time I entered university, shared decidedly  different political beliefs to me.  Yet even though I argued, as an example, that US foreign policy in Vietnam was 'defensive' (domino theory), these people approved my assignments.  They were prepared to tolerate a philistine within their midst, suppress their natural aversion to me and mark my opinions objectively.  This, as I reflect, juxtaposes starkly the attitude or culture of the two institutions.  One institution is prepared to tolerate alternative views.  The other is not.
 
I advanced in the rank structure relatively quickly in the police and soon found myself  incarcerated as supervisor in a control room; a job I loathed.  So I did go to university and here, the first signs of light began to reappear.  Slowly the mist began to abate and I saw things from a different perspective.  In all, I did eleven years at either Auckland or Victoria universities.  I am immensely grateful for how those institutions unwittingly help me exorcise the demon of excessive exposure to police culture.
 
This 'culture' manifests in many different forms.  Three recent examples will illustrate my point and demonstrate that it is as alive and well as it was in my day:
 
John Dewar.  Recently incarcerated for, according to the view of the Court, covering up for the despicable conduct of assistant commissioner Rickards and two other police officers.   John Dewar was one of the best sergeants I ever had as an inspector, but the 'culture' manifest in his destiny in a most tragic manner for him. 
 
Then there was the police shooting of a man in Christchurch.  The law is clear when a cop or civilian may kill another human being.  One must fear on reasonable grounds, death or grievous injury to oneself or a third person which cannot otherwise be prevented.  In my view the circumstances of the killing are not as transparent as the police public relations section would have us believe.  A man shot wielding a hammer on cars!  Not dissimilar to a man shot, wielding a golf club against shop windows.
 
The proper place to test the validity of police action is before a Court.  The strength of our police is public confidence and support; without which they are nothing.  The best way to retain that public support is for transparency and that is best achieved by testing police actions in a Court of law. Yet immediately after the killing we have the police association representative, completely out of line in my view, seeking to influence the outcome by claiming the shooting was justifiable and that we should trust the police to judge their own actions.  This of course is the manifestation once again of the police culture: look after the police.  That is quite different, in my view, to looking after the rule of law.
 
Finally there is the recent implementation of draconian anti terror legislation to combat routine crimes and offences in the community.  Police say they have collated information over a period of 12 months which on analysis leads them to the conclusion that there is a real threat to the stability and security of our country.  The problem as I see it is, that information they have has been self assessed by the same people who collate the data or at best, by the supervisor of the 'intelligence unit' and his superior; all of whom view society from within the forest and with vested interests in producing an outcome which justifies the retention of their unit. These subjective conclusions are presented to judicial officers as the basis of justification for warrants and implementation of anti terror legislation which abrogate the most basic of our legal rights.  
 
 No longer are we protected from arbitrary detention without being charged and the legal requirement to be taken before a Court as soon as possible. This I find unacceptable. 

I am also disappointed that too many New Zealanders appear not to comprehend the significance of what it means to our legal structure when on the basis of subjective analysis by the police, these Guardians substantially usurp the role of the judiciary as a check and balance against tyrannical tendencies.  There is a fundamental flaw in the present legislation where it allows a subjective test of police information by police, to form the basis of reason to catapult us onto a terror alert footing.   It is even more disturbing to me when I know the environment where these decision are made, is deep in the forest.  What the police are effectively saying is:
 
"In the Ureweras there are weapons of mass destruction. Trust us."  Sound familiar?
   
I have been in the forest.  In the seventies I was a detective on Regional Crime and Drug Squad. I was also on the AOS.  My formal police assessments were high.  'Excellent' as a detective.  'Outstanding' as a commissioned officer.  In my formative years my immediate supervisors included detective sergeant John Hughes, detective inspector Graham Perry and later detective inspector Bruce Hutton (Hutton was my boss on my first homicide: the Crewe murders).  These men were legends in their own time, each of them relentless and with a determination of mind few could match.  Together with half a dozen other young detectives, we formed a formidable unit; we became a legend in our own time.
 
Our adversaries were serious villains:  Peter Fulcher, Mihaly Bede, Terry Clarke alias Mr Asia, the Saffiti boys and several gangs.  This was a particularly violent time in the history of policing in New Zealand.  We were right in the middle.  It was inevitable that we, who consistently faced angry men in dark alleys, would have allegations made against us.  I had my share against me.
 
There were allegations of excessive force; that I was aware of but did nothing about an offender alleged being dangled  by his ankles from the fourth floor of the police station; perjury and even one of extracting a confession from a drug dealer by playing on him Russian Roulette with a police issue revolver.  These allegations were of course outrageous untruths without foundation and never sustained.
 
In 1981 I was seconded to the police Red Escort Group - Red Squad.  I later wrote a book about the exploits of the squad.  That initiative catapulted me into the headlines for the first time.  On the one hand, I believe it provided the impetus for me to gain selection for National as a Member of Parliament in a conservative seat.  On other hand, because I later became a Member of Parliament and had written the book, The Red Squad Story, I became synonymous with Red Squad and alone have endure the odium and contempt heaped upon that police unit, as the tide of public opinion turned.
 
My last job in the police was inspector in charge of special operations and a criminal intelligence section.  At the time the focus was on the activities of Maori activists at Carrington hospital.  I took raw police data and used it in my Maiden Speech.  At the time I believed in the conclusions we as a police unit had peer reviewed.  Some form of revolution or armed insurrection had been threatened. There were threats of 'Kill white die a hero".  Maori wanted political sovereignty.  Maori activist Sid Jackson was one of several who had been to Libya.   But did a contrary political view and aspirations really pose a threat to the security and stability of our country?  History has provided the answer.  There has been no revolution and at least one of the Maori activists of those times is now in Parliament working within the system.
 
I made a mistake when I took the raw police data and used in my Maiden Speech.  It took another 9 years in parliament, another 3 years at university and as I do now, living in East Europe where the legal protections and freedoms we take for granted often do not exist, for me  to finally step out of the forest and see it for what it is.
 
I urge every New Zealander not to allow the State apparatus to take from you by default, legal rights people long before us fought for, died for.  I urge every New Zealand to contact their Member of Parliament and express concern that the anti terror legislation currently before parliament, be placed on 'hold' until the true nature of the present police raids  under the auspicious of terror legislation, is tested before the Courts. 
 
Is a delay of a few months too much to much to ask before we take the next step toward undermining the most significant legal document ever which has endured since 1215?  The Magna Carta.   #   RETURN TO FRONT PAGE
 www.rossmeurant.co.nz

 

LEGAL TRENDS AHEAD

"The welfare of the people is the supreme law." -Cicero

IS THE FIX IN?

3 June 2010
Judges in the growing Woolgate scandal are lawyering up to insulate themselves from accountability.   This follows the announcement this week by acting Attorney General Judith Collins that Judges Helen Winkelmann and Anthony Randerson have been appointed along with chief Ombudsman Beverly Wakem to a Judicial Conduct Panel to formally investigate judicial misconduct by current Supreme Court Justice Bill Wilson.

In the 2007 Saxmere v Wool Board appeal, then-Court of Appeal Judge Wilson failed to disclose the extent of his business and personal relationship with the Wool Board's Counsel Alan Galbraith QC.  Wilson later lied to cover up the fact he owed Galbraith money and was in the middle of purchasing a $2.1 million property with Galbraith at the same time he presided over the appeal.

 While Chief Justice Sian Elias is now hiding behind judicial mouthpiece Neil Billington after months of personally keeping a lid on fellow Supreme Court Justice Bill Wilson's misconduct, Wilson himself has hired a key material witness as his lawyer. 

According to key investigation documents, Wellington lawyer Colin Carruthers QC personally pleaded with Wilson early on in the scandal to disclose his financial indebtedness to Galbraith.  Wilson refused.  In a move which is as unlawful as it is effective, Wilson has now hired Carruthers as his lawyer.  Hiring Carruthers makes Carruthers immune from having to testify as to these material facts of Wilson's misconduct.   

Mr Carruthers is married to former ACT MP and journalist Deborah Coddington.  He is expected to charge the NZ government upwards of $600 per hour to defend Wilson and has already come out swinging hard.  He told the press that a judicial review application will be filed in the Auckland High Court challenging the authority of the statutory appointment of a judicial conduct panel to investigate and possibly remove Wilson from the bench.  

Attorney General (and friend of Wilson) Chris Finlayson proposed earlier this year that the government would help reimburse the multi-million dollar legal expenses incurred by Saxmere and the Wool Board due to Wilson's alleged misconduct.

Perhaps reflecting how dysfunctional the NZ Court system is on the whole, Wilson J has defiantly stated his actions do not warrant disciplinary action, in addition to his lawyer's legal challenges that the Executive and Legislative branches of government have no authority.  Unlike virtually every other law-respecting country in the world, New Zealand has no prohibition against judges presiding in cases where they have a conflict of interest.

Wilson's salvo has also put Judges Winkelmann and Randerson on warning that no one will be spared.  Not that he needed to.  Though Winkelmann has distinguished herself among her judicial peers as honourable, she is timid by nature and quick to back down when confronted by her fellow judges.   One lawyer called her "the most virtuous girl in the brothel". 

On the other hand, Randerson J, as Head of the High Court Bench, was well-known to have covered up worse judicial misconduct than Wilson is accused of.  In 2005, for example, Judge Randerson dismissed a formal complaint with unequivocal evidence that High Court Judge Judy Potter failed to disclose her family relationship when she ruled on behalf of her brother-in-law in a case.  Quite creatively, Randerson said he saw nothing wrong with Potter J's failure because the ruling she issued was "procedural" in nature.

Beverly Wakem has been put on as filler.   When the protocol for such an eventuality of a Judicial Conduct Panel was established by Parliament in 2004, a fierce judicial lobby ensured that the judges would control any panel and that Parliament would not be able to discipline any judge for misconduct short of removal from office by a full vote.  When it comes to the legal jockeying which is destined to permeate the process, Judges Winkelman and Randerson will be leading Ms Wakem with a tight leash.  BACK TO FRONT PAGE

 

HUMAN RIGHTS COMMISSION FOLDS UNDER CROWN LAW PRESSURE

10 August 2009  
The Soviet dissident Alexandre Solzenitsyn once spoke of the Russian people "We did not care enough about freedom.  In the end we got what we deserved."  It is an ominous warning for New Zealanders since we lost the right to appeal to the Privy Council.  This was made all the more evident last week after the New Zealand Human Rights Commission bowed to Crown Law and Supreme Court pressure.  The HRC reversed their position on the issue of criminally convicting participants at public meetings whose expressed opinions are deemed offensive by the designated "legal occupier" of the public building.
 
This was one of two human rights cases dismissed last week by the New Zealand Supreme Court.  Both have huge negative implications for New Zealanders and New Zealand's image as a rights-respecting democracy in the world.  Nonetheless, the rulings have received no mention in the New Zealand media. 
 
In Easton v the Broadcasting Commission SC 55/2009 [2009] NZSC 84, the Supreme Court validated the use of discretionary security costs orders by Judges to prevent claims by impecunious litigants from proceeding to a hearing.  This reversed well-established law that Courts cannot raise financial impediments to litigants which would singularly result in the bonafide claim not being allowed a hearing.
 
As alarming as this precedent is to reasonable court access, the case of Bright v NZ Police SC51/2009 [2009] NZSC85 stands as far worse testament of the dangerous erosion of human rights occurring in New Zealand.  This case demonstrates how the very organizations mandated to protect against civil rights abuses kowtow to Court proclivities to curtail human rights.  Consider last week's case which the New Zealand Human Rights Commission wrote the legal grounds for, then claimed an opposite position after Crown Law shook their finger. 
 
Penelope Bright was charged and convicted of criminal trespass during an Auckland Town Hall public meeting in 2006 for holding up a banner against the back wall which stated "Mayor Hubbard's DICKtatorship is a cereal matter, don't buy it".  The obvious pun to Dick Hubbard's cereal company sought to drive home the strident push by the former Mayor to get a planned - and since scuttled - waterfront stadium approved by excluding opposing views from the public debate.  The video of the meeting showed Ms Bright was quiet until the Mayor threatened her.  The Mayor ordered her arrested and charged with criminal trespass when she refused his order to leave the Town Hall for being disruptive.  Ms Bright was never warned of the criminal charge as the Trespass Act required.  This would be but a minor legal point on her conviction. 
 
The legislation covering such public meetings is the Local Government Official Information and Meetings Act (LGOIMA).  It specifically allows for removal without criminal charge from public meetings and claims supremacy over all other legislation in relation to the conduct of public meetings.   The New Zealand District Court, High Court and Court of Appeal all stated that LGOIMA did not exclude the use of criminal prosecution when an attendee refused a request by the "rightful occupier" to leave.  All the lower court judges ignored the video evidence which showed Ms Bright had put the banner away before the Police approached her, was not warned for trespass and did not attempt to re-enter the building.  Bluntly speaking, all the judges agreed she was rightfully convicted of criminal charge because of her "offensive" banner, even though she put the banner away before being removed. 
 
According to the Supreme Court ruling, the Trespass Act legislation co-exists with LGOIMA.  The upshot is all attendees need to be wary of offending the "rightful occupier" where the public meeting is conducted lest they end up criminally convicted and sent to prison. 
 
This is dangerous to any democracy, but there is a deeper, more troubling story.  New Zealand Human Rights Commission lawyer Michael White wrote the submissions for Ms Bright to the New Zealand Supreme Court.  But Chief Human Rights Commissioner for New Zealand stated the Human Rights Commission could not intervene in the public interest unless the Supreme Court agreed to hear the matter.  Perplexingly, Ms Noonan stated a leave application to the Supreme Court was "not a proceeding".  This proved to be a ruse by Ms Noonan.
 
It quickly became apparent that the close-knit judges on the Supreme Court wanted to avoid the nettlesome legal issue, and the Human Rights Commission potentially stood in the way of a clean brush off.  However this played out behind the scenes, the result was truly shocking.  Human Rights Commission "Principal Legal and Policy Analyst" Sylvia Bell wrote a letter to Crown Law stating the written submissions were not the position of the Human Rights Commission.  Worse, Ms Bell's letter claimed Chief Commissioner Noonan "declined to intervene" in the public interest but would "reconsider" if the Supreme Court agreed to hear the matter.  This contradicted Ms Noonan's (patently false) claim that the HRC were somehow prevented in law from intervening in an application for leave to appeal before the Court.  Ms Bell concluded by adding that the New Zealand HRC gave no undertaking to raise the issue before any international forum if the Supreme Court declined to hear the appeal (wink, wink).  RETURN TO FRONT PAGE
 
 

BILL OF RIGHTS CHALLENGE TO COURT IMPOSING DISCRETIONARY FINANCIAL BARRIERS GOES TO SUPREME COURT

29 June 2009
An application for leave to appeal a Court of Appea l decision imposing a discretionary $3,000 financial barrier against an impoverished man has been filed with the New Zealand Supreme Court.    The Appeal is against a 17 June 2009 Court of Appeal Judgment requiring a poor plaintiff pay the security before his claim will be heard.  The Court of Appeal decision is Easton v Broadcasting Commission CA793/2008 [2009] NZCA 252.

While the Court of Appeal ruling was a $6,500 reduction from the financial barrier earlier imposed by the Registrar, it is being widely criticised because (1) the Judges recognised the plaintiff was financially impecunious (unable to pay the discretionary order) and (2) the defendant was a Crown entity.  Consequently, the Court order amounted to a discretionary order which effectively killed the claim ahead of a fair hearing. 

Before the loss of New Zealanders' right of appeal to the Privy Council in England, it was generally accepted that any discretionary Court order resulting in a bonafide legal claim being nullified before hearing was an unfair restriction to Court access, aka justice.  However, since the right to appeal to the Privy Council  was abolished by the Supreme Court Act in 2004, the High Court and Court of Appeal have increasingly used security costs orders to manage their case loads.  The effect has been more than ironic.  Poorer litigants have had their cases dismissed simply because they have been unable to come up with the additional money, while wealthy litigants are exempt from paying. 

Mr Easton's appeal to the Supreme Court is based on this financial incongruity.  He alleges this is a breach of equal access to justice, guaranteed by the New Zealand Bill of Rights.  His grounds include the increasing court scenario in New Zealand where a Judge is allowed to use discretion to impose the highest security against the poorest parties to litigation.  In one case last year, Auckland District Court Judge Roderick Joyce imposed a $20,000 security for costs against a bankrupted litigant before the Court would allow a 3 1/2 hour trial.  In that case too, the plaintiff filed a civil rights claim and has appealed directly to the Human Right Commission.

Senior lawyers spoken to for this story claim this is nothing new - and that this legal challenge is long overdue.  One explained that, if applied to the world of politics, everyone who voted for Helen Clark last election would be required to pay for the cost of the election before they were allowed to vote, simply because a pollster determined ahead of time she was going to lose.  He added it was not difficult to imagine what affect this would have on access to voting.  Another pointed to the Taito v the Queen ruling of the Privy Council in 2002, a scathing criticism of legal disregard by New Zealand Judges which many scholars consider was the catalyst for the New Zealand Law Society pushing to dump the Privy Council as an appellate Court of right.   The Law Lords of the Privy Council were unreserved in exposing the unacceptable practice of NZ Judges denying legal aid and preventing access to Courts simpy to lighten their workloads. 

The sad epilogue to the Taito case is that NZ Judges reacted by shooting the messenger.  The fear today is that we are all poorer as a law-respecting democracy because of it.  It is now up to the New Zealand Supreme Court to prove these fears are misplaced.  BACK TO FRONT PAGE

ATTORNEY GENERAL ASKS TO APPEAR BEFORE SUPREME COURT

25 February 2010 
The New Zealand Attorney General has applied for leave to the Supreme Court to overturn a Court of Appeal Judgment which ordered the Refugee Status Appeals Authority to reconsider a refugee application by a Sri Lankan couple.  In a follow-up memorandum, the Attorney General Chris Finlayson advised he personally wishes to appear as counsel and that his preferred dates are mid-May or mid-June if leave for a hearing is granted. 
 
Finlayson's office refused to comment why this extraordinary move to personally appear before the Court was deemed necessary.
 
In seeking to overturn the unanimous decision in X v Refugee Status Appeals Authority CA109/2008 [2009] NZCA 488, the Attorney General wishes to argue that the Authority has wide discretion to deny refugee applications and that the 1951 International Treaty requiring "serious reasons" to deny refugee status must be more loosely interpreted than what the Court of Appeal suggested was the patently evident English meaning.
 
It is unclear why Mr Finlayson considers this case so significant to personally appear.  The case concerns a Sri Lankan couple who applied for refugee status in 2001.  Their application was rejected by domestic refugee expert Roger Haines QC on behalf of the Authority in 2006.  The Crown application alludes to Finlayson's meeting in London last year where he pledged to his counterparts in Canada, Australia, the U.S. and U.K. to prosecute "those responsible for genocide", even though this charge is not at issue in this appeal.  It seems just as likely that it is a political move to defend Mr Haines' reputation as the New Zealand legal expert and leading refugee law advocate.
 
The application by the Attorney General is opposed and the Supreme Court has not decided yet whether to hear the matter.
 
The couple, who cannot be named, came to New Zealand in September 2001.  In the early 1990's the husband was an engineer on a ship which transported munitions for the Tamil Tigers in the long running civil war.  The ship he was on was scuttled and he faced trial in India, where he was acquitted of all charges.  In an Indian Supreme Court ruling which was criticised by every tribunal in New Zealand, the man spent 8 ½ years in an Indian prison - in part, because he did not have proper papers to be in India.
 
The Authority loosely relied upon the Rome Statute of the International Criminal Court which states "individual criminal responsibility" occurs when a person contributes to the commission of a crime by a group with a common purpose.  The Tamil Tigers' were known to wage warfare indiscriminately.   Mr X was assumed guilty on the basis he worked on a ship which transported munitions which could likely be used to kill innocent civilians.
 
Mr X filed a judicial review application to the Auckland High Court, where Patricia Courtney J dismissed it on the grounds the denial of refugee status was open to the Authority to make.
 
In a 104 page judgment, the Court of Appeal overturned both decisions, and determined the Authority did not have "serious reasons" to refuse refugee status.  As the Authority applied the refugee treaty, Baragwanath J stated " it is unlikely that such a low level test could be regarded as appropriate to measure serious reasons for considering commission of a crime... Pitched so low, it might have caught members of the mercantile marine who during the Second World War manned vessels carrying explosives which the crew knew might be used in retaliatory raids on cities rather than against military targets."
 
Both sides agree that a similar appeal is currently awaiting word from the House of Lords as to whether it will be heard.   BACK TO FRONT PAGE
 

 

Bill Wilson's Private Appointment to Supreme Court a Lesson to Public

4 September 2008 
"Friends of Bill W" is taking on a new meaning after the meteoric rise of Bill Wilson to the New Zealand Supreme Court bench this year. 
 
Less than two years ago, Mr Wilson QC was sitting in his law office trying to figure out where his next paying client was coming from.  Not that Wilson needed the money.  His Rich Hill Stud Farm - which he owned with fellow Queen's Counsel Alan Galbraith - was printing money, returning to each of them roughly a million dollars per year.  Compared to this, his new $400,000 yearly salary as a Judge could be considered a paltry sum, even if Justice Wilson now gets chauffered around Wellington in a limousine and has all his lunches catered.
 
But Deputy Prime Minister, Finance Minister and Treaty of Waitangi Negotiations Minister Michael Cullen took a fancy to the jovial good old-boy lawyer in Cullen's fourth ministerial capacity as Attorney General.  At least, Dr Cullen thought Wilson was jovial.  This was a nice trait for a judge.  Or perhaps it was his passion for horses, a commonly shared interest of New Zealand judges.  Perhaps this is why, in February 2007, Mr Wilson was plucked from his lawyer desk for a plum Court of Appeal appointment.  I say 'perhaps' because the actual judicial appointment procedure in New Zealand has become as mysterious as it seems straightforward. 
 
In the official Ministry of Justice website, it is stated "In New Zealand all judges are appointed by the Governor-General. For appointments to the High Court, Court of Appeal and Supreme Court, the Governor-General is advised by the Attorney-General who, by convention, receives advice from the Solicitor-General and the Chief Justice." 
 
However, at Bill Wilson's recent inauguration to the Supreme Court, Chief Justice Sian Elias reportedly introduced Justice Wilson by qualifying that, while she disapproved of the way he was appointed, he was welcomed to their exclusive club.  The Governor General's Public Affairs Officer Anthony Paltridge confirmed this week that the Governor General's role is more symbolic than functional, with the Governor General acting on the advice of Parliamentary representatives in fulfilling his Head of State role.  On judicial appointments, the Attorney General Michael Cullen and his then-green protégé David Collins were the two who ensured Bill W was strapped in for his rocket ride up the ladder of judicial success, as these gentlemen are for all High Court appointments.  As stated again on the Ministry of Justice website, "The Attorney-General places great importance on maintaining the quality and integrity of the judiciary. Putting the responsibility for all these appointments in the hands of the Attorney-General is intended to help to ensure a consistent and principled approach to these important decisions. In the case of appointments to the Court of Appeal and the High Court, the administrative process is carried out under the direction of the Solicitor-General."
 
What relevant factors Michael Cullen considered is a complete mystery.  Repeated attempts by kiwisfirst and a former MP to obtain information as to what factors were considered in Wilson's judicial appointment, how the selection process eventuated, or even who else was considered, have been met with a wall of silence.  Cullen's Press Secretary Chris Ritchie responded to kiwisfirst that this information cannot be forced out because the Attorney General's judicial selection process is exempted from the Official Information Act.  The cloak of total secrecy which prevents the slightest peek into how or why this man went from lawyer to Supreme Court judge in less than two years is unparalleled in any other function of government ,or private business for that matter. It begs the obvious question: is this how we should be picking our highest court judges?
 
By most accounts, Justice Wilson is an average lawyer of average intelligence.  One curious thing he had going for him though was that he had worked his way into various high security and government-sensitive duties under the current Labour government.  He also had powerful friends, which did not hurt.  Before long, in a historical blink of an eye, an average lawyer becomes a Supreme Court judge in New Zealand! 
 
It is not the unprecedented promotion of Bill Wilson that is getting the most attention these days.  As first forewarned by kiwisfirst shortly after Bill Wilson's appointment to the Court of Appeal, Justice Wilson was predicted to have trouble reconciling (as most lawyers do) his well-established habit of proactively furthering private interests of his mates and his own with his new sworn oath of impartiallity.  Having leap-frogged over District Court Judges, Associate Judges and High Court Judges in his initial appointment, a lawyer who virtually wakes up one day to find other judges bowing to him poses particular peril to promoting the equitable interests of natural justice for all citizens.  Virtually unlimited power without oversight has an almost limitless corrupting influence.  No doubt Wilson J was aware that the office set up to hold judges accountable for misconduct - the Judicial Conduct Commissioner - was 0 for 300 in deeming judicial complaints it had received worthy of a mere investigation since its formation. But we are getting ahead of ourselves.
 
In the case of Bill Wilson J, this has now been demonstrated.  One of the first Court of Appeal cases Wilson J sat on was the appeal of a High Court decision by the Wool Board against a ruling in favour of Saxmere Company Limited (a super-fine wool exporter). {CA288/05 [2007] NZCA 349}.  This was heard on 2 April 2007 and the eventual decision overturned the High Court ruling of Forrest Miller J, unanimously ruling in favour of the Wool Board on four distinct grounds.  Saxmere and its principal Peter Radford were saddled with approximately $100,000 in Court costs in addition to the loss.  Section 6 of the Wool Board Act 1997, as passed by Parliament, had seemed so clear in promoting the interests of fine wool exporters to market their products, both to Radford's lawyers and Justice Miller.  Radford was wounded and puzzled.  It seemed to him Justices Wilson and Will Young had little interest during the hearing, but he did not know why.
 
Serendipity would intervene when Mr Radford spoke later about his case to a lawyer acquaintance who informed him the lead lawyer for the Wool Board, Alan Galbraith QC ( right in photo), was the joint partner with Justice Wilson ( left in photo) in one of the largest horse-breeding operations in New Zealand, namely Rich Hill Limited.  A check by Radford's solicitor of the Companies Office records indeed showed Wilson and Galbraith as 50/50 partners in the venture.  Radford had noticed Galbraith had not been involved in the case until it was heard before his long-term business partner Justice Wilson at the Court of Appeal level.  Nor was Galbraith involved in opposing Radford's application for leave to the Supreme Court (which was denied).
 
With this new information, Radford was devastated and his faith in an impartial Court justice soundly shaken.  As Peter Radford now alleges in his 21 August 2008 affidavit lodged with the Supreme Court, in support of leave to overturn the judgment of the Court of Appeal for perceived bias, the law compelled Wilson to recuse himself from hearing the case.  It is acknowledged that Wilson J approached Radford's counsel Francis Cooke QC shortly before the appeal to divulge that he had a shared investment in bloodstock with opposing counsel, but the extensive financial and intimate degree of the active business relationship was not disclosed.  In fact, it was downplayed.  
 
The certainty of the conflict of interest in Bill Wilson J then deciding the appeal was underscored by a complaint against Wilson J to the Judicial Conduct Commissioner Ian Haynes, supported by the legal opinion of Legal Ethics Professor Duncan Webb of Canterbury University.  As has become his custom, Judicial Conduct Commissioner Haynes responded by claiming he had no jurisdiction over the alleged misconduct and tried to dismiss the complaint accordingly.  The Professor cogently and politely corrected him.  Mr Haynes was thereby forced to get Justice Wilson's response to the complaint, but - when he sought it - Wilson J responded that he needed to refer to the case file first.  Why this was deemed necessary before addressing a charge of conflict of interest is not clear.   The next part is clear, however.  The 25 file case at the Court of Appeal went missing!  So, unfortunately, Justice Wilson could not respond until the parties duplicated the Court file - which they did.
 
In days past, Commissioner Haynes would have simply gone to his 'go-to girl' Ailsa Duffy QC (right) who, for the first two years Haynes held the office, regularly supplied "independent" legal opinions at Haynes' request to decide whether the more troublesome judicial misconduct complaints merited investigation.  Ms Duffy never disappointed.  Each and every time she found no merit to the formal complaints.  This is significant legally.  Duffy did not have the statutory duty to expose judicial misconduct that Haynes does.  Nothing prevented Haynes, on the other hand, from solely relying on Duffy's advice to dismiss a complaint, which he regularly did.
 
An Official Information Act request by kiwisfirst last year to determine how well Ms Duffy was paid by the JCC for these independent opinions was rejected on the basis the Office of the JCC is exempt from the OIA.  Anyway, it didn't matter now.  Ms Duffy obvious proved her worth.  Ailsa Duffy was appointed High Court Justice Ailsa Duffy earlier this year. 
 
Judicial Conduct Commissioner Haynes did the only thing left for him to do: he took an extended overseas holiday. 
 
Attorney General Michael Cullen was equally well informed as to Wilson's conflict of interest and was directly approached by former MP Ian Ewen-Street, who requested Cullen fulfill his duty as Attorney General to "maintain the rule of law" and correct the perceived bias by Wilson sitting on the case.  Two issues were at stake: the punishment of Wilson J for not acting lawfully under the circumstances and the correction of the miscarriage of justice which had occurred as a result.  Dr Cullen failed to respond to Mr Ewen-Street and apparently did nothing even when he knew the story was going to be presented to the media.  
 
Dr Cullen had obviously seen it all before.  The media in New Zealand can be counted on to be quite reticent in reporting judicial misconduct.  As secret as Dr Cullen's selection criteria had been on Wilson's appointment to the Court of Appeal and then to the Supreme Court, it was clear the Attorney General had not put emphasis on Judicial appointment criteria espoused on the Ministry of Justice website, namely  " Qualities of character: Personal qualities of character include personal honesty and integrity, open mindedness and impartiality, courtesy, patience and social sensitivity, good judgement and common sense, the ability to work hard, to listen and concentrate, collegiality, breadth of vision, independence, and acceptance of public scrutiny." 
 
The reality is that Dr Cullen was not inclined to take action that would expose his singular responsibility for appointing a man of such flawed character to the Supreme Court of New Zealand.  And because no judge has been removed from the Bench for misconduct in New Zealand history, Judge Wilson will likely not have to worry about continuing on in the approach he personally feels comfortable with.
 
But it was the actions of the Solicitor General David Collins, who shares this statutory obligation to uphold the rule of law and natural justice in New Zealand, which left the parties gobsmacked.  When pressure started to build toward Parliament and the Attorney General in particular, S-G Collins claimed the matter was sub judice (active before the Courts).  Therefore, the executive and legislative branches were prohibited from taking action.  The problem was this claim by Collins was simply untrue.  Not coincidentally, David Collins had used the same false claim to kill a Parliamentary investigation into alleged Judicial Misconduct by Judith Potter J in August 2007, so false claims to government authorities were a proven road to success for him.  It is one thing for wantabe judges like Collins to automatically close ranks to protect judges.  But Collins knew the particulars of Wilson J' conflict of interest, he reasonably understood the activist way the Judge had interpreted Section 6 of the Wool Board Act 1997, yet now he was working hard to cover it all up. 
 
Feeling they had little option left, Saxmere, through their lawyer Sue Grey, joined the Attorney General two weeks ago in a special leave application to the Supreme Court, asking for the Wilson J verdict be thrown out for perceived bias due to his discovered conflict of interest.  Their story found its way to the pages of the Sunday Star Times on 23 August 2008 after journalist Nicky Hager of Wellington looked at the evidence and wrote a reasonably insightful article into Judge Wilson's failings.  After refusing for four months to address the apparent judicial bias, David Collins took one day after the story broke to call Ms Grey's boss Al Morrison at the Department of Conservation and apparently direct that she drop the complaint and go quiet or she would lose her job with the Department of Conservation.
 
This is quite disturbing if it was an isolated incident, but it was not.  In June 2007, just two months after deciding the Wool Board appeal, Wilson J sat on another appeal for a trial by jury (Siemer v Fardell CA172/07).   In support of their appeal against a judge alone trial, Vince and Jane Siemer cited specific evidence of Judges concealing evidence in the case, as well as the fact that Alan Galbraith QC had three years earlier - in response to a formal complaint to the Auckland District Law Society against Robert Fardell QC by Mr and Mrs Siemer - sent a letter stating he had conducted his own investigation into Mr Fardell's alleged conflict of interest and taking a retainer without a trust account.  Mr Galbraith's letter to the ADLS concluded his investigation found no merit to the complaint.  The letter gave the implication that Galbraith had at least spoken to the Siemers.  He had not.  Only a year after the ADLS had dismissed the complaint on the strength of Galbraith's "investigation" did Siemers even find out about his letter.  By this time, they were barred by ADLS policy that all complaint decisions are final. 
 
It was little solace that Fardell paid Galbraith very well, though it is unlikely the ADLS was aware Mr Fardell paid for Mr Galbraith's input.  However, in June 2007, before the Court of Appeal, it all was perfectly clear.  Here again, Wilson J did not disclose the fact that Galbraith was his long-term 50/50 business partner.   The Court dismissed Mr & Mrs Siemer's appeal and awarded substantial costs against them for bringing it.  Siemers sought leave to the Supreme Court, which refused to hear the application on the basis a 'belief that judges as a class are biased' cannot succeed (a ground never alleged by Siemers), relying on an unspecified House of Lords decision which purportedly said as much.
 
In a ringing and final irony, Wilson J also sat on the Court of Appeal panel in Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495.  In that decision - rendered before the Wilson J decision in the Saxmere case - the Court of Appeal determined judicial conflict of interest required a two-stage investigation. First, (outlined in this Court of Appeal ruling) it is necessary for the Court, by rigorous inquiry, to establish the exact circumstances that had a direct bearing on the suggestion that a Judge was, or might be seen to be, biased. The second inquiry was as to whether those circumstances as established might lead a fair-minded lay observer reasonably to apprehend that the Judge might not bring an impartial mind to the resolution of the case.  It is very nice to recognise this.  The hypocrisy is that a New Zealand Judge could seemingly stand for these principles as a matter of doctrine within weeks of sitting on two cases where he personally had violated them. 
 
The axiom "Justice must not only be done but must be manifestly and undoubtedly be seen to be done" is emblazoned on the New Zealand Court of Appeal window.  The question now is whether New Zealanders will ever see this being the guiding practice of the New Zealand Courts where judges are selected in secret, these same judges fail to disclose their conflicts of interest without consequence and a great many court cases are shrouded in suppression orders.  #

SUPREME COURT RESCUES ONE FOR PERSONAL LIBERTIES

Dateline: 25 May 2007
In a split-decision handed down this month, the Supreme Court upheld the right to peaceful protests while disavowing the use of criminal statutes to prosecute those exercising freedom of expression.  Chief Justice Elias was joined by Justices Blanchard and Tipping in the matter of Brooker v Police SC 40/2005 in holding that the New Zealand Bill of Rights Act 1990 that guaranteed freedom of expression "to seek, receive, and impart information and opinions of any kind in any form" superseded privacy concerns where there clearly was no harassment and annoyance to the public. 
 
In a democratic ruling, each Justice provided extensive legal rationale for the way they ruled. Chief Justice Elias offered the most analytical and cogent legal reasoning, laying out a legal roadmap on what may and may not warrant criminal charges of disorderly conduct.  The Chief Justice denounced the lower Court's reliance on disorderly conduct being the antonym for "orderly", thereby extending to anything that was not orderly; definitions that included not "well-behaved".  This semantic escapade gravitated to a ' peaceful protest' amounting to an attack on the subject's "dignity" when it assisted the police prosecution of the appellant (who was convicted for protesting in front of a police constable's house).  The Chief Justice was almost scathing in criticism of Appeal Court Justice Young and High Court Justice John Hansen for not focusing on fundamental questions such as whether Mr. Brooker's behavior was "disruptive of public order?"  During the substantive proceedings there was no evidence that any member of the public was even irritated by the protest other than the police constable who was the subject of the protest.  Justices Young and Hansen's approach had been to focus on the constable's loss of privacy because her house happened to be close to the road, as well as the fact that Mr. Brooker knocked on her door before putting up his placard. 

Justice Blanchard seconded the Chief Justice and, in obvious answer to the dissenters, said "The exercise of the s14 right (freedom of expression) in the form of a protest is not confined to non-residential streets."  Justice Tipping was the most understated in his treatment of the lower court rulings, saying "Bearing in mind the significance of the right to freedom of expression and all other issues, I do not consider that it was possible for the trail judge to be satisfied beyond reasonable doubt that Mr. Brooker's behavior disturbed public order to the necessary extent."
 
Justices McGrath and Thomas dissented, with McGrath claiming that issues of "public order" and "privacy" overrode citizens' statutory rights to freedom of expression.  Justice Thomas, on the other hand, launched into a diatribe of 48 pages (almost half of the entire judgment) criticizing everything from the tone and time of the protest (9:30 am) to the fact that it was on a residential street - even arguing that the lower court judges whose decision was on appeal should be allowed to weigh-in given the closeness of the decision.
 
Contrary to his visceral opinion that sought to curtail civl liberties, Justice Ted Thomas was long considered a more moderate to liberal member of the Court, harking back to the days of Lord Cooke.  But with this he has likely delivered his last judgment.  Thomas has not heard a case recently and will be forced into mandatory retirement at the end of the year.
 
The core issue in this Supreme Court appeal involved a protest by Alistair Patrick Brooker in front of Police Constable Fiona Croft's house, both of Greymouth.  Mr. Brooker believed Constable Croft had acted in an unlawful and harassing manner toward him.  She had obtained a search warrant which the police then attempted to execute at Mr. Brooker's house late on a Saturday night.  The warrant sought forensic examination of a car that was not on the property.  Since the search was ostensibly for the purposes of a court hearing that Monday, and no forensic tests could be run that quickly, Mr. Brooker alleged that the search warrant was an abuse of police power used to harass and intimidate him.  His protest involved subsequently knocking on Constable Croft's door at 9:20 am and proceeding to sing and play a protest song on his guitar on the street in front of the house.  The constable said this invaded her privacy because she was sleeping (she worked the night shift).  Mr. Brooker also placed a sign on the street that read "No More Bogus Warrants".  While it was alleged he sang at a pitch louder than a talking voice, he used no amplifier for his voice or instrument.  The police were called by the constable and responded within 15 minutes.  On orders of the police, Mr. Brooker moved his car that was parked on the grass along the roadway but, when he returned moments later to continue his protest, he was arrested.
 
This case was heard by the Supreme Court on 7 December 2005, yet the decision only came down on 7 May 2007. 

There has been considerable focus on the New Zealand Court system since the Privy Council was abolished in 2005.  Brooker v Police was viewed as a watershed test case of democratic principles for New Zealand and is being analysed by democracies around the world.  There has been much recent criticism directed at the parochial aspects that have governed the lower courts for too long.  The loss of the Privy Council, where as many as 60% of the New Zealand judgments had been overturned, was considered a loss that imperiled New Zealand's place as a law abiding society in the free world.  With this judgment, the Supreme Court has advanced its legal framework toward a mature place among the established democracies.   Judge Elias perhaps said it best, "Imprecision in the criminal law which leaves it to judges to identify what is deserving of penalty is inconsistent with the rule of law for reasons also identified by the Permanent Court of International Justice in the Danzig Legislative Decrees Case." #

WATCHDOG PENNY BRIGHT: MAKING A DIFFERENCE, ONE COUNCIL AT A TIME

Date published: 9/3/07
In the suburb of Kingsland in Auckland resides a 52 year old dynamo who embodies the axiom "I slept and dreamed that life was beauty.  I awoke -- and found that life was duty."  It is a short but fitting musing that comes to mind after 10 minutes with Penny Bright, the media spokesperson for the Water Pressure Group, a small but vocal public watchdog organization whose mission is to promote honest and accountable local government.  Particularly as it relates to water supply in the Auckland region.  
 
It would seem that few people try to pack as much life into each day as Ms. Bright.  When she speaks you get the distinct sense that she is trying to squeeze the history of local governments and her fight into a single conversation.  Her expansive knowledge of local governmental protocol and the actual inner workings of government that often conflict with it is exceeded only by the speed by which she seeks to impart such knowledge.  She is notorious for her voluminous written submissions to public officials and the media alike.  Despite this propensity - or perhaps in part because of it - her passion is contagious.  Same too for her grounded faith and optimism that reveal none of the battle scars one might expect from a trench warrior who has spent the last 9 years of her life working to keep government and business honest.  And she does so without remuneration - or with few members of the public even recognizing the results and determined effort she puts forth each day. 

Not that Ms. Bright is complaining.  She is quick to say that what she is doing is her choice and there is nothing else she would rather do.  She is equally quick to point out that she is not on a benefit as reported recently on a TV1 interview.  She exists on her own savings and the donations of private citizens, living a Spartan existence that is apparent to anyone seeing the dining room she has converted into an office; the mountains of paperwork leaving little room for anything but essential furniture and even less room to eat. 
 
There is something unique and refreshing about Ms. Bright that belies her 'media spokesperson' status.  She is not a spin doctor, nor does she patronize her way to popularity.  Recently on the John Banks' radio show, where she has been a regular contributor, the host (and former Auckland Mayor) asked if she would support a Banks' candidacy over a Hubbard candidacy for Mayor of Auckland.  Although no fan of Dick Hubbard, who she considers to be a bully and ineffective Mayor, her response was hallmark candor, saying she thought the hosts' skills were better suited to the radio program. 

This same frankness can often make it difficult to achieve diplomatic gains with local public officials who are more accustomed to the genial yet subversive tactics that commonly determine local politics and public policy.  Not surprisingly, this has created a siege mentality on both sides of the debate, with Ms. Bright likening certain local politicians to feudal lords who are most interested in carving out their own fiefdoms with little regard for the public good.  She refers to her group as the 'peasants' and they have increasingly resorted to peaceful resistance to promote their aims.  Ms. Bright alone has been arrested a dozen times in the last two years, mostly for trespassing when refusing to leave Auckland City Council meetings after the Chairman ruled the Council was going into confidential session.  Because she wins or has the charges dropped each time she appears in Court, the ongoing toll on the police and courts has caused a shift in the attitude of the police toward responding to such trespass complaints from the Council.  Last year, she subpoenaed and cross-examined Mayor Hubbard at the Auckland District Court in a move that revealed the Mayor had little time for the protocol that should dictate the conduct of public officials and the convening of public meetings.
 
These are all minor victories that create a cumulative effect according to Ms. Bright, who believes that as she peels away the veneer that prevents transparent decision making, the result will invariably be more responsible decisions from local government.  Judging from recent successes, it appears she may have cause for confidence.  In May 2006, she refused to leave a Council meeting when the Chair of Metro Water Ltd. refused to discuss how much water rates were going to rise until the meeting went into confidential session.  Again she was arrested.  But the upshot of her protest was that Metro Water was later compelled to reveal that water rates were being hiked by 9.7%, largely to fund other city services.  It was disclosed that the monopoly water provider would have hiked rates only 3% but for the Councilors' decision to milk extra money out of this essential commodity.  Two years earlier, her group exposed evidence that Metro Water Limited, which is wholly owned by Auckland City and governed by its Council, had misrepresented its water quality to the public, claiming that it was 'Aa' grade when in fact much of the water it supplied to the public was un-graded.  This was a rare instance where the Commerce Commission agreed with the Water Pressure Group's stance that Metro Water knew, or should have known, that what it was doing violated fair trading practices.  Ms. Bright rightfully points out that the Commerce Commission has never taken the lead on the water quality issue, nor on allegations that Metro Water is overcharging, acting only as it has on complaints by the Water Pressure Group - and then only with considerable nudging.   Late last year she was successful in getting the Maori party to table a request for a Parliamentary inquiry into Metro Water's charging and collection practices.
 
Despite such notable successes, the victories have been all too often few, far between and hard fought for.  Which makes one wonder how a volunteer who spends as much as 10 hours a day on such a thankless job stays motivated.  When asked what keeps her going, Ms. Bright's answer is as challenging as it is telling.  "Who else is going to do it?  The official government watchdogs are not holding these people accountable.  Where is the media?".   #

FOR MORE INFORMATION REGARDING THE WATER PRESSURE GROUP, or to express your comment, you can contact Penny Bright at  waterpressure@gmail.com  

NATURE KNOWS BEST     by Dr. Muriel Newman, reprinted with permission

While human evolution resulted in the establishment of traditional nuclear families, socialists and feminists have long campaigned against them. This week Newman Weekly investigates the effects of efforts to undermine the family and the NZCPD Guest, Stuart Birks, of Massey University, examines the protest actions of fathers' groups.
 
Every day, in a myriad of ways, nature reminds us of her ancient powers: whether it's the sight of birds flocking ready to migrate on their autumn journey across the globe, or the catastrophic effects of cyclones, earthquakes and volcanoes, nature has a mind of her own. And while it is true that man has learned to harness the power of nature to some extent, and through sensible preparation minimise her devastation, our world remains largely at her beck and call.
 
One of nature's most successful devices is the "pair" bond, evolving through the process of natural selection to ensure the continuation of species. The strength of the pair bond - whether it is formed for a season or for a lifetime - is determined by the characteristics of the offspring: if the mother is fully capable of rearing the young without aid of a mate, then the bond tends to be short, but if the task is too difficult or the young take too long before they can live independently, then a pair will bond for life.
 
Left to our natural devices, human beings pair for life, as they share in the complex task of raising their children. They also share a natural inclination - common to most pairing animals - of establishing their own territory, a place to call their own, to build a home and raise their family.
 
Anthropologist Robert Ardrey in his fascinating book, The Territorial Imperative: A personal inquiry into the Animal Origins of Property and Nations puts it this way: "our attachment for property is of an ancient biological order. Through isolation of the pair on the mutual property, a guarantee is effected that neither will desert the family obligations. But I also suggest that the mysterious enhancement of powers which a territory invariably summons in its male proprietor places energy otherwise unavailable at family disposal". 
 
He goes on to suggest that there are three basic needs that motivate the behaviour of all higher animals including man: "the needs for identity, for stimulation, and for security". He defines identity is the opposite of anonymity: "the endless quest to achieve recognition of oneself as an individual in one's own eyes and in the eyes of one's kind". Stimulation he defines as the opposite of boredom, the need for excitement and challenge, enjoyment and apprehension; and security he defines as the opposite of anxiety, with the need for a place of refuge tending to be strongest in females. 
 
Over time, human evolution gave rise to the two-parent married family, often described as the most successful child rearing institution ever invented. But by the middle of the 19th century, socialism had begun its march and in its sights, the destruction of the nuclear family: in 1848 Carl Marx called for the 'abolition of the family' in his Communist Manifesto and, aided and abetted by the feminist movement, what had taken more than a million years to evolve, has, in just over 150 years been largely undermined.
 
Each step in this erosion of the family has been incremental: the establishment of no-fault divorce made it easy to walk away from the commitment of marriage; the introduction of the domestic purposes benefit with its built-in financial incentives rewarded mothers who split up from their husbands; the practice of awarding sole custody of children to mothers made it easier to consider separation (I recall seeing research some years ago which showed that around 70 percent of marriage break-ups were instigated by mothers who were confident they would gain sole custody of their children); the enforcement of a punishing child support regime which fails to take into account the financial circumstances of both parents or to ensure the money is spent on the children, often handicaps subsequent families.
 
Many of these changes have taken place under the veil of secrecy, which has surrounded the operation of the Family Court. As a result, the situation where an estimated 15,000 New Zealand children a year will lose all effective contact with their fathers - and often their grandparents - has occurred outside of mainstream public awareness. 
 
This means that a misguided mix of laws and state incentives has created within New Zealand society a disturbing situation where tens of thousands of mothers are living on their own struggling to raise their children, but unable to give them the nurturing of two parents. Meanwhile tens of thousands of willing fathers have been cast adrift from their traditional role of breadwinners, husbands and fathers, while their children are forced to suffer the well-documented consequences of living without their fathers (see the worrying analysis by the British Think Tank Civitas, Experiments in Living: The Fatherless Family).
 
As a Member of Parliament, I campaigned to change all of this: I called for a major overhaul of the social welfare system and the child support system, for the family court to be opened to public scrutiny, and for 'shared parenting' to be introduced to replace sole maternal custody.
 
Shared parenting is based on the presumption that just as two parents are equal in their responsibility to their children before a relationship breaks up, so too they are equal afterwards - unless one can prove the other is unfit to be a parent. According to some family law experts, introducing shared parenting would revolutionise what has become a complex, lucrative, but destructive "family breakdown" industry, massively simplifying the law and clarifying expectations: at present a father has to prove that he is fit to be a parent, effectively challenging the mother, while under shared parenting the suitability of both parents is taken for granted.
 
This change would put the needs - and rights - of a child to be raised by their mother and their father, even though their family may no longer live together, ahead of any parental animosity. The effect would be to significantly reduce the damaging family warfare that all too often dominates custody cases, as well as reducing welfare dependency as parents realise that they must work cooperatively in caring for their children.
 
While the feminists in the Labour Government opposed my Private Members' Bills to open up the family court and introduce shared parenting - not wanting to see the gains hard won by the feminist movement undermined by giving some of those rights back to fathers - their actions are in stark contrast to recent trends internationally.
 
Further, the fathers groups who supported these parliamentary campaigns, frustrated by the Government's refusal to take their concerns seriously, are now taking their struggle to the streets, targeting the homes of judges, psychologists and others that they believe to be exacerbating the increase in family breakdown. These developments are examined in more detail by this week's NZCPD Guest Stuart Birks, Massey University's Director of the Centre for Public Policy Evaluation (click here to view>>>).
 
So while USA has abolished welfare laws that cause family breakdown leading to fewer broken homes, fewer fatherless children and more marriage, and Belgium and Italy have this year introduced shared parenting to ensure that if families do break up the father-bond is maintained, the New Zealand government continues to turn its back on nature and put its head in the sand by progressing the feminist socialist dream which will inevitably lead to yet more unhappiness, more crime and more disaffected and ruined lives.
 
This article was originally published on the New Zealand Centre for Political Debate website, www.nzcpd.com   

BIG CHANGES AHEAD WITH PASSING OF THE LAWYERS AND CONVEYANCER'S ACT 2006 INTO LAW

dateline: 26 June 2007
Full story coming in July. 
There is a major shakeup occuring in the New Zealand legal system.  The Lawyers and Conveyancer;s Act 2006 provides a stunning overhaul of how law services have traditionally been provided and controlled in New Zealand.  Few lawyers yet recognize the significant and lasting impact this new law will have on the industry in a very short period of time.  For example, under the new law, lawyers will be able to offer a wide array of services that had previously been forbidden, such as real estate sales and auxillary services that could extend into lending.  Under the Act, lawyers can now offer contingent fees that base their compensation on the success they achieve for their clients.  On the professional oversight front, the Act calls for this authority to become centralized under the auspices of a national law society based in Wellington.  The current local district societies will be required to reinvent themselves if they are to survive as distinct entities.  Membership will also no longer be compulsory.  In total, there are a staggering 312 pages in the Act.  A full analysis is coming this July on Kiwisfirst.

 

BROOKER V POLICE SC 40/2005 [4 May 2007]

IN THE SUPREME COURT OF NEW ZEALAND                SC 40/2005  [2007] NZSC 30

ALLISTAIR PATRICK BROOKER  v  POLICE

Hearing: 7 December 2005
Court: Elias CJ, Blanchard, Tipping, McGrath and Thomas JJ
Counsel: A P Brooker in Person
T Arnold QC and J Davidson for Crown
A J F Wilding as Amicus Curiae 
Judgment: 4 May 2007

JUDGMENT OF THE COURT

A. The appeal is allowed.
B. The appellant's conviction is set aside.

REASONS
Para No
Elias CJ [1]
Blanchard J [51]
Tipping J [71]
McGrath J [98]
Thomas J [149]

Elias CJ [1]
Blanchard J [51]
Tipping J [71]
McGrath J [98]
Thomas J [149]

ELIAS CJ

[1] Allistair Patrick Brooker was convicted of disorderly behaviour for his actions when making a public protest in the street outside the house of a police constable. His appeal concerns the meaning of "behaves in [a] disorderly manner" under s 4(1)(a) of the Summary Offences Act 1981: 

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; ...

[2] The protest constituted expressive behaviour protec ted by s 14 of the New Zealand Bill of Rights Act 1990:1

14 Freedom of expression

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.  [3] Section 14 is enacted to "affirm New Zealand's commitment to the International Covenant on Civil and Political Rights",2 which provides in art 19:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have th e right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

1 Mr Brooker was expressing a grievance. Such action engages freedom of expression for reasons given in RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd [2002] 1 SCR 156 at para [32] per McLachlin CJ and LeBel J in relation to picketers. See also Irwin Toy Ltd v Quebec (Attorney General) [1989] 1 SCR 927 at p 978 per Dickson CJ, Lamer and Wilson JJ.

2 As the long title to the Act provides. 

[4] Under s 6 of the New Zealand Bill of Rights Act, s 4(1)(a) of the Summary Offences Act must be given a meaning consistent with the right to freedom of expression in s 14 of the New Zealand Bill of Rights Act, if it can be given such a meaning. The right to "impart information and opinions of any kind in any form", affirmed in s 14, is not however unqualified. By art 19(3), it is subject to reasonable restrictions prescribed by law which are necessary to protect other important interests, including public order and the rights and reputations of others. Section 4(1)(a) is such a restriction. Its scope depends on its meaning and purpose.

[5] The District Court Judge who convicted Mr Brooker3 considered the meaning of "disorderly behaviour" was as settled by Police v Christie4 and Melser v Police,5 cases decided under s 3D of the Police Offences Act 1927. He held that behaving in a disorderly manner is "behaving in a way that right thinking members of the public would consider inappropriately annoying to members of the public".6 The Solicitor-General in this Court does not support the test for disorderly behaviour in this abbreviated form. He maintains however that the Judge went on to identify the passages from Melser and Christie which set out the proper principles and correctly undertook the balancing of interests they require, including in those interests Mr Brooker's right to freedom of expression.

[6] The meaning to be given to disorderly behaviour under s 3D of the Police Offences Act has been variously described in the authorities. Henry J in Christie (the case principally relied upon by the District Court Judge) started with "orderly" (as the antonym of "disorderly"), and noted that its dictionary definitions included "well-behaved". Since "behaviour" was the focus of the section and "to behave" meant to "conduct oneself with propriety", he considered that "disorderly behaviour" was to act or conduct oneself in a manner which contravenes good conduct or proper conduct as recognised by "right thinking members of the public" and which "welldisposed persons would stigmatise and condemn as deserving of punishment".7 The requirement that the conduct be deserving of punishment provided a higher threshold 3 Police v Brooker (District Court, Greymouth, 30 June 2003, Callaghan DCJ). 4 [1962] NZLR 1109 (HC). 5 [1967] NZLR 437 (CA). 6 At para [5]. 7 At p 1113. than a bare notion of deviation from personal standards of good behaviour (conduct contra bonos mores).

[7] In Melser, the Court of Appeal did not entirely endorse the approach in Christie. The judgments in Melser emphasise the impact of the conduct on others present and indicate doubt about the emphasis in Christie on good behaviour. So, North P considered that disorderly behaviour must both "seriously offend against those values of orderly conduct which are recognised by right-thinking members of the public ... [and] must at least be of a character which is likely to cause annoyance to others who are present".8 Turner J regarded disorderly behaviour as "conduct which, while sufficiently ill-mannered, or in bad taste to meet with the disapproval of well-conducted and reasonable men and women" must also "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".9 McCarthy J regarded disorderly behaviour as conduct which seriously interferes with the rights and freedoms of others and which is "unnecessarily disorderly and objectionable" and "likely to engender considerable  annoyance".10

[8] Neither the High Court11 nor the Court of Appeal,12 in confirming the judgment of the District Court, considered whether the Judge had accurately applied Melser in the test he adopted (set out in para [5] above). Both appellate courts proceeded on the basis that the meaning of disorderly behaviour accepted in Melser remains good law, notwithstanding the repeal of s 3D of the Police Offences Act and the enactment of the Summary Offences Act and notwithstanding enactment of the New Zealand Bill of Rights Act 1990. They took the view that the pre-Bill of Rights Act cases (especially Melser and Wainwright v Police13) had already made it clear that the assessment of whether behaviour is disorderly "must allow for rights of free 8 At p 443. 9 At p 445 . 10 At p 446. 11 Brooker v Police (High Court, Greymouth, CRI 2003-418-000004, 16 October 2003, John Hansen J). 12 R v Brooker (2004) 22 CRNZ 162. 13 [1968] NZLR 101 (SC). expression and peaceful assembly".14 Although the meaning of disorderly behaviour was unchanged, the Court of Appeal acknowledged that its application depends on context. It approved the view expressed in R v Ceramalus that what constitutes disorderly behaviour (described in Ceramalus as "essentially a question of fact and degree") turns on an "evaluative assessment" of its tendency "as it would be seen by members of the public".15 That turns on the facts of the case, in the social context in which it occurs. The Court of Appeal accepted that what constitutes disorderly behaviour evolves with changing public expectations (and that Wainwright, in particular, might have been differently decided today).16 The rights affirmed in the New Zealand Bill of Rights Act are part of the context in which behaviour is assessed today. But the Court of Appeal considered that such evolution was not confined to the values in the New Zealand Bill of Rights Act. The context includes "changes in social attitudes towards dissent"17 and other rights:18 [I]t is right to remember that the rights and freedoms affirmed by the New Zealand Bill of Rights Act are not the only ones which are deserving of legal protection. Rights to privacy are an obvious example and so too is what might be regarded as an associated right to feel secure in one's home. The rights to freedom of expression and peaceful assembly do not trump all other rights, interests and obligations: see Jeffrey v Police (1994) 11 CRNZ 507 (HC) and Police v Beggs [1999] 3 NZLR 615 (HC).

[9] The Court of Appeal treated the offence of disorderly behaviour as entailing a question of degree: was the behaviour such as to merit criminal sanction when measured by its tendency seriously to annoy or offend a reasonable person. Freedom of speech was a relevant and important consideration in assessing whether right thinking members of the public would think the behaviour serious enough to attract criminal consequences. Since there was evidence upon which it was "open" to the District Court Judge to have found Mr Brooker's behaviour to have constituted 14 R v Brooker (CA) at para [20]. In the view that Melser did not require reconsideration of the authorities under s 3D of the Police Offences Act, the appellate courts followed R v Ceramalus (Court of Appeal, CA 14/96, 17 July 1996). 15 At para [19]. 16 At para [28]. 17 At para [28]. 18 At para [29]. disorderly behaviour within this meaning,19 the appeal was dismissed in both the High Court and Court of Appeal.

[10] For the reasons I later develop, I am of the view that the courts appealed from have misconstrued s 4(1)(a) of the Summary Offences Act. I think they have gone astray in two principal respects.

[11] First, they treat s 4(1)(a) as protective of the privacy and feelings of the individual who is the subject of expressive conduct, even if the conduct is not disruptive of public order. I do not think that conforms to the meaning of s 4(1)(a). Other provisions of the criminal law and other civil law remedies protect privacy interests. Privacy in the home is an important value, recognised by art 17 of the International Covenant. It may properly lead to restrictions on freedom of expression, even if public order is not at risk. But s 4(1)(a) does not provide such protection. A broader view of "disorderly behaviour", unanchored to the public order purpose of the offence created by s 4(1)(a) and arrived at by balancing competing interests identified as deserving of protection by a judge after the event, is unnecessarily restrictive of freedom of expression and offends the principle that criminal law should be certain. As a result of the approach taken, I think the courts below insufficiently addressed the critical question whether Mr Brooker's behaviour was disruptive of public order.

[12] Secondly, I am of the view that the courts below were wrong to accept the Melser test for disorderly behaviour of seriousness measured against the tendency of behaviour to cause annoyance to those present. Unpopular expression will often beunsettling and annoying to those who do not agree with it. As Douglas J pointed out in speaking of the First Amendment to the United States Constitution, "a function of free speech under our system of government is to invite dispute":20 It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it 19 This is the language of the Court of Appeal which, being of the opinion that there was no other question of law, seems to have required the appellant to establish that the conclusion of "fact and degree" was not open on the evidence (and therefore an error of law on that basis). 20 Terminiello v City of Chicago 337 US 1 at p 4 (1949). presses for acceptance of an idea. That is why freedom of speech, though not absolute ... is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance or unrest. 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.

Background to the appeal

[13] Mr Brooker believed the police constable had acted unlawfully towards him. She had obtained a search warrant which the police had then attempted to execute at Mr Brooker's house late on a Saturday night. The warrant authorised forensic examination of a car which proved not to be on the property. Since the forensic examination was for the purposes of a court case the following Monday and it seemed unlikely that any tests of the vehicle could be carried out in time, Mr Brooker believed that he had been the victim of an abuse of police power and that the constable's purpose had been to harass him. Whether that belief was wellfounded is not a matter with which we are concerned. But it was the basis upon which Mr Brooker decided to make a public protest outside the constable's home.

[14] Mr Brooker went to the constable's address at about 9:20 am, knowing that she had been on night duty. His evidence was that he knocked on her door to make sure she was there. (She had not been at home at 4:30 pm the previous afternoon when he had first attempted his protest.) He continued knocking until the constable answered the door, the District Court Judge estimated three minutes after he had begun to knock. The constable had been woken up by his footsteps on the veranda as he walked up to the door. When she answered the door he made a remark to the effect that she obviously did not like being woken up. When she told him emphatically to leave, he withdrew to the grass verge on the road outside her house to begin his protest. The protest comprised displaying a sign facing the road saying "No more bogus warrants" and singing (in what was described by a police witness as a "normal singing voice") accompanied by guitar. The songs contained slogans such as: "Safer communities together, Fiona"; "Freedom from unreasonable search and seizure"; "You just don't know when to quit - no more 3 am visits, Fiona"; and "Too many bogus warrants, no more malicious prosecutions". Before the singing began, the constable had already rung the police station. The first police officer was on the scene 15 minutes after Mr Brooker arrived. Two other police officers, one an Inspector, arrived shortly afterwards. After speaking to the complainant, the Inspector advised Mr Brooker that he would be arrested for intimidation if he did not leave. Mr Brooker held out his hands in response, apparently inviting handcuffs. It was pointed out to Mr Brooker that his car would be towed away if left on the grass verge and pavement where he had parked it. He moved the car and then returned. When asked to leave again, he refused and again held out his hands. He was then arrested for intimidation. The entire episode took perhaps 25 minutes, at the outside.

 [15] The constable in her evidence did not complain about Mr Brooker's activity so much as his presence. She felt he had no reason to turn up at her address. She was "shocked" to see him there. Her complaint to the police was that she didn't want him at her address. She did not complain of any threatening or intimidatory comments, rather believing that Mr Brooker's "mere presence on my address was intimidating" and "impeded" her "normal day of life". There were no complaints about Mr Brooker's conduct from members of the public using the street or neighbouring properties. There was no evidence that anyone else was aware of what was going on, although the District Court Judge inferred that the singing could have been audible to neighbours and in the grounds of a school across the road. Later that day, after being released from police custody, Mr Brooker spent some hours singing his protest outside the Greymouth police station without incident and without further arrest.

[16] Mr Brooker was first charged with loitering with intent to intimidate under s 21(1)(d) of the Summary Offences Act. That charge reflects the concerns expressed by the constable. As relevant to the charge laid, s 21(1)(d) provides: (1) Every person commits an offence who, with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated, - ...

(d) Watches or loiters near the house or other place, or the approach to the house or other place, where that other person lives, or works, or carries on business, or happens to be; ...

(3) Every person who commits an offence against this section is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000.

[17] Mr Brooker pleaded not guilty in the District Court at Greymouth. After hearing the evidence, Judge Callaghan used s 43 of the Summary Proceedings Act 1957 to amend the charge by substituting for the charge of intimidation a charge of disorderly behaviour under s 4(1)(a) of the Summary Offences Act. The amendment was not the subject of a recorded ruling. It appears from the judgment on the substituted disorderly behaviour charge that the Judge ruled that the evidence did not demonstrate that Mr Brooker intended to intimidate the complainant, a necessary element of the original charge. As the Judge then put it:21 rather the most that could be said was that he may have just wanted to annoy her by making it quite clear to her that he was protesting in respect of the issue of bogus search warrants with the particular emphasis on her conduct. Whether the behaviour of Mr Brooker in making his protest on the grass verge outside the complainant's house amounted to "loitering" does not seem to have been separately considered.

[18] The hearing was adjourned after the amendment of the charge so that further evidence could be called at Mr Brooker's request. At the resumed hearing, Mr Brooker was convicted of behaving in a disorderly manner in a public place. He was fined $300 with court costs of $130.

[19] The Judge took the view that the off-duty police officer was properly to be regarded as "an ordinary member of the public".22 "Right thinking members of the public" would, he thought, have considered Mr Brooker's actions in protesting 21 At para [17]. 22 At para [23]. outside a "private residence" went "too far".23 Mr Brooker had intended to "shame", "annoy", and "harass" the constable by bringing to the attention of her neighbourhood his view that she had acted unlawfully.24 His actions in "taking this protest and acting in the way he did outside an off duty police constable's private residence" (where she and others within reasonable proximity could hear and observe his actions) were "an affront to recognised public standards of good conduct in a public place", and amounted to disorderly behaviour.25

[20] In the High Court, John Hansen J followed the Court of Appeal decision in Ceramalus. On that view, the test for disorderly behaviour established in Melser . On that view, the test for disorderly behaviour established in Melser was unaffected by the enactment of the New Zealand Bill of Rights Act because the rights and freedoms it protects are weighed in application of the test. The District Court Judge was held to have correctly identified the legal test , although his reliance on Christie and his formulation of the test were not discussed. Hansen J agreed with the conclusion reached, treating the fact that the behaviour had taken place in a residential street as decisive:26 While [the behaviour of Mr Brooker] would hardly have raised an eyebrow outside the Greymouth police station, in a residential neighbourhood it meets the requisite test and the Appellant's behaviour warrants the interference of the criminal law. Busking and most of the other protests referred to by the Appellant did not take place in a residential neighbourhood. In such a setting right thinking members of the public would be seriously offended by the Appellant's behaviour. In that area it was taking the right to protest too far.

[21] In coming to the conclusion that the further appeal should be dismissed, the Court of Appeal was influenced by the view it took that Mr Brooker's purpose was not principally to exercise his rights to express his opinions:27 In the end, we think that it was open to the District Court Judge to conclude that the appellant's actions constituted the offence of disorderly conduct in conformity both with the existing authorities and the New Zealand Bill of Rights Act.

The salient features of the case which lead us to that conclusion and to reject

the arguments of the appellant are as follows:

1. The techniques which the appellant employed (display of a placard, the use of a guitar and singing and chanting) no doubt are common enough incidents of protest action (and indeed busking) but his actions in targeting a single individual at her home lie outside the range of accepted or recognised protest actions. Indeed they can be seen as more aligned with a rather different course of conduct, regrettably all too common, in which disaffected people set out to harass individuals in ways which are sometimes explicitly or implicitly threatening. In reaching this conclusion we note that the appellant knew that the policewoman had just come off night duty, he knocked on her door to ensure that she was there and his purpose was to harass and annoy her.

2. We accept that the appellant was, to some extent, expressing opinions about the policewoman's prior conduct (and in this sense his actions could be seen to involve the exercise of his rights under s 14, New Zealand Bill of Rights Act 1990). Rights under that section, however, may be subject to reasonable limits prescribed by law (as indeed is the case with laws of defamation). Perhaps more importantly, in this case the apparent exercise by the appellant of rights under s 14 were merely incidental to his primary purposes which were to annoy and harass the policewoman.

3. It is perfectly clear from the authorities that it is sufficient if one person observes or is affected by the conduct that is alleged to be disorderly. In this case the conduct was directed towards the policewoman and her reactions (entirely predictable we would have thought) were relevant in terms of the District Court Judge's evaluation of the appellant's conduct. In any event, a charge of disorderly conduct does not require evidence that a particular person was in fact annoyed or disturbed by the conduct complained of; rather it is the natural tendency of that conduct that is important.

4. The features of the case that we have mentioned seem to us to take the conduct to a level in respect of which it was open to the District Court Judge to conclude that the intervention of the criminal law was warranted. [22] I do not find the reasoning of the Court of Appeal easy to follow. It does not address the test used by the District Court Judge. The Court seems to suggest that because a targeted protest against an individual at home is "outside the range of accepted or recognised protest actions" (a proposition that is not further  ubstantiated either on the basis of findings of fact or legal principle), the exercise of any right of freedom of expression by Mr Brooker was "merely incidental" to his "primary purpose" of annoying and harassing the policewoman. On this basis the Court clearly thought the right to freedom of expression was to be discounted to some extent in assessing whether the behaviour was disorderly. The fact that the  protest was "incidental" was one of two features identified as "salient" (the other being the "predictable" reaction of the police constable) which took the conduct "to a level in respect of which it was open to the District Court Judge to conclude that the intervention of the criminal law was warranted". The Court does 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. Care 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".28 The view taken by the Court of Appeal that Mr Brooker's exercise of freedom of speech was "incidental" to his wish to annoy or harass the constable seems hardly consistent with the findings of the District Court Judge set out in paras [17] and [19] above which make it clear that the  essage to the neighbourhood about the bogus warrants was the very behaviour which caused annoyance to the constable. It was expression which was unwelcome and no doubt was annoying - even seriously annoying - but it did not lose the character of protected expression simply because it was predictable that it would annoy the constable.

[23] Although the Court of Appeal allows that it is the tendency of conduct objectively assessed according to the standards of "members of the public" that is important,29 the "predictable" reactions of the policewoman were identified as the second salient feature which justified the conclusion that Mr Brooker's conduct was disorderly.30 This is close to suggesting that whether the offence has been committed turns on whether the "natural tendency" of the expressive conduct is to cause annoyance or disturbance to the person who is its subject. That is not what Melser suggests. In Melser, the "right-thinking person" was a proxy by which the suggests. In Melser, the "right-thinking person" was a proxy by which the  judges arrived at an objective measure of the minimum standards of orderly conduct in a public place, enforced by criminal sanction. Melser did not suggest that the subjective reaction of those referred to or directly implicated by expression of view was sufficient measure of disorder, even if "entirely predictable". While McCarthy J referred to the embarrassment of the Speaker and members of the House of Representatives, the test he was using was the objective one of whether a right thinking person would consider that causing such embarrassment offended proper 28 Levy v State of Victoria (1997) 146 ALR 248 at p 274 (HCA) per McHugh J;   ommittee for the  Commonwealth of Canada [1991] 1 SCR 139 at p 182 per L'Heureux-Dubé J. Compare Watson  v Trenerry (1998) 122 NTR 1 at p 6 (CA) per Angel J; p 14 per Mildren J.

29 At para [19]. standards of conduct in a public place and warranted the intervention of the criminal law. The Court of Appeal focus in the present case on the "entirely predictable" reactions of the police constable may have skewed its assessment from the objective impact on public order. "Disorderly behaviour" under s 4(1)(a) of the Summary Offences Act 1981 is behaviour disruptive of public order

[24] The meaning of s 4(1)(a) must be ascertained from its text and in the light of its purpose.31 The indications provided in the Summary Offences Act provide important context.32 In addition, if an enactment can be given a meaning consistent with the right to freedom of expression, that meaning is to be preferred to any other.33 Other aids to interpretation include the wider legislative and common law context and any relevant legislative history. In my view, all suggest that disorderly behaviour under s 4(1)(a) means behaviour seriously disruptive of public order.

Simply causing annoyance to someone else, even serious annoyance, is insufficient if public order is not affected. (i) The derivation of s 4(1)(a) [25] The offence of disorderly behaviour has been part of New Zealand legislation since 1924. The former legislation, the Police Offences Acts of 1884 and 1908, made it an offence to:34 [use] any threatening, abusive, or insulting words or behaviour in any public place ... within the hearing or in the view of passers by, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned. 30 Although the judgment lists three considerations, the first and second are aspects of the same point.

31 Section 5(1) of the Interpretation Act 1999.

32 Section 5(2) and (3) of the Interpretation Act.

33 Section 6 of the New Zealand Bill of Rights Act. 34 Section 3(29) of the Police Offences Act 1884; s 3(ee) of the Police Offences Act 1908.

[26] Section 2 of the Police Offences Amendment Act 1924 dropped the reference to likely breaches of the peace and introduced the concept of disorderly behaviour. By it, it was an offence to behave "in a riotous, offensive, threatening, insulting, or disorderly manner" in or in view of any public place. The same provision was retained in s 3(ee) of the Police Offences Act 1927, when the 1908 Act was repealed. [27] Most of the authorities relied upon in the District Court and on appeal as to the meaning of s 4(1)(a) of the Summary Offences Act were decided under s 3D of the Police Offences Act 1927. It was enacted in 1960,35 in substantial re-enactment of the earlier s 3(ee) of the 1908 Act. Section 3D provided:

3 Riotous, etc., behaviour in public place

(1) Every person commits an offence, and is liable to imprisonment for a term not exceeding three months or to a fine not exceeding one hundred pounds, who in or within view of any public place as defined by section 40 hereof, or within the hearing of any person therein, behaves in a riotous, offensive, threatening, insulting, or disorderly manner, or uses any threatening, abusive, or insulting words. [28] The Summary Offences Act 1981 repealed this general provision. The Minister of Justice, in moving the introduction of the Bill, indicated that, because the Police Offences Act set limits "on how we can behave and what we can say in a public place", and because of "its potential reach into the area of free speech", these laws were "of central importance to our criminal and constitutional law".36 He referred to the significant amount of criticism directed at the breadth of the sections governing public behaviour and gave, as an example, the "well-known section 3D dealing with disorderly behaviour". In response to criticisms such as these, the Bill split the offence of disorderly behaviour into two separate offences: ? those where "serious public disturbance with violent overtones" is in prospect and where it was thought undesirable to leave matters on the basis of "conduct that caused annoyance of a rather indeterminate nature";37 and 35 By the Police Offences Amendment (No 2) Act 1960. 36 Hon J K McLay MP (16 June 1981) 437 NZPD 418. 37 At pp 418 - 419.  minor offences, punishable by fine only, where the offence could "properly be expressed in somewhat wider terms".38 (ii) The text of ss 3 and 4 of the Summary Offences Act 1981 [29] As enacted, the two separate offences are contained in ss 3 and 4 of the Summary Offences Act. They are found under the heading "Offences Against Public Order", and relevantly provide: 3 Disorderly behaviour Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who, in or within view of any public place, behaves, or incites or encourages any person to behave, in a riotous, offensive, threatening, insulting, or disorderly manner that is likely in the circumstances to cause violence against persons or property to start or continue.

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  hether any person is alarmed or insulted by those words; or (ii) Addresses any indecent or obscene words to any person.

(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  hether any person is alarmed or insulted by those words; or (ii) Addresses any indecent or obscene words to any person.

[30] The reform of the previous law achieved by the Summary Offences Act divides disorderly behaviour into the more serious offence where violence is likely (where it is associated with "riotous, offensive, threatening, insulting" behaviour), and the lesser offence (associated with "offensive" behaviour only), where it is not necessary to establish the likelihood of violence. There are three points to be made about this gradation.

[31] First, I do not think the word "disorderly" can have a different meaning in ss 3 and 4.39 The additional element of seriousness in s 3 arises from the likelihood of violence. As the heading "Offences Against Public Order" suggests, and as the word "disorderly" itself conveys, disorderly behaviour is behaviour which disturbs public order. If the behaviour comprises an expression of opinion, it is not sufficient if it annoys or even wounds the feelings of the person addressed unless it is disruptive of public order. In Coleman v Power, the High Court of Australia was divided on the question whether the offence of using insulting words (under a provision equivalent to s 3D of the Police Offences Act)40 required the likelihood of a breach of the peace.41 But it was in agreement that the legislation served "public,

not private purposes".42

[32] A similar conclusion was reached by the Supreme Court of Canada in

considering what constitutes the offence of causing a disturbance in or near a public place under s 175(1)(a) of the Criminal Code.43 The Court rejected the submission that emotional disturbance was sufficient. In this conclusion, the Court thought it significant that the offence was confined to acts in or near a public place:44 Had Parliament sought to protect society from annoyance and anxiety, the section would not be confined to acts occurring in or near a public place, nor would it single out particular forms of objectionable conduct - many other types of conduct disturb us.

39 A view taken in relation to "insulting behaviour" by Gleeson CJ in the High Court of Australia in Coleman v Power (2004) 220 CLR 1 at para [5]. 40 Section 7 of the Vagrants, Gaming and Other Offences Act 1931 (Qld) provides: (1) Any person who, in any public place or so near to any public place that any person who might be therein, and whether any person is therein or not, could view or hear - (a) sings any obscene song or ballad; (b) writes or draws any indecent or obscene word, figure, or representation; (c) uses any profane, indecent, or obscene language; (d) uses any threatening, abusive, or insulting words to any person; (e) behaves in a riotous, violent, disorderly, indecent, offensive, threatening, or insulting manner; shall be liable to a penalty of $100 or to imprisonment for 6 months ...

41 Gummow, Kirby and Hayne JJ held that it did, to avoid unacceptably eroding the constitutional right to express political views. Gleeson CJ, McHugh, Callinan and Heydon JJ held it did not, influenced in particular by the fact that the Australian legislation had removed the  arlier requirement of breach of the peace (as the New Zealand legislation had also done). 42 Gummow and Hayne JJ at para [179]. See also Gleeson CJ at para [32]; McHugh J at para [35]; Kirby J at para [224]; Callinan J at paras [296] - [297]; Heydon J at para [324].

43 R v Lohnes [1992] 1 SCR 167. Section 175(1)(a) of the Canadian Criminal Code made it an offence to cause a disturbance "in or near a public place" by "fighting, screaming, shouting, swearing, singing or using insulting or obscene language".

44 At para [22]. ... By addressing "disturbance" in the public context, Parliament signaled

that its objective was not the protection of individuals from emotional upset, but the protection of the public from disorder calculated to interfere with the public's normal activities. [33] The line which divided the High Court of Australia in Coleman v Power has

been drawn by the legislation in New Zealand. It is clear that behaviour which is disorderly under s 4 need not be likely to lead to violence because behaviour likely to cause that effect is covered by s 3. What is essential however is that the behaviour is disruptive of public order and is not simply a private affront or annoyance to a person present or to whom the behaviour is directed. [34] The second point to be made about s 4(1)(a) is that, although it describes an offence properly characterised as minor, it is nevertheless a criminal offence. A person thought to be behaving in a disorderly manner may be arrested without warrant. The existence of the offence impacts directly on personal freedom and liberty and has the capacity to be a tool to control unpopular and unwelcome speech. In particular, the power to arrest permits prior restraint of freedom of expression. It would therefore be wrong to be complacent about an expansive meaning of s 4(1)(a) because the penalty for transgression is a fine only. It is an offence which is capable of significant impact upon important freedoms.45

[35] The third point to be made is that while the offences contained within s 4 overlap to some extent, they describe a general scheme. Section 4 subdivides aspects of behaviour formerly lumped together with disorderly behaviour in s 3D of the Police Offences Act. In some cases it adds an additional element to a particular offence which could be undermined if an expansive meaning is given to an overlapping offence under the section which does not contain the additional element. So, words addressed in a public place to any person, if not indecent or obscene, are not an offence under s 4(1)(b) or (c) unless they are intended to "threaten, alarm, insult, or offend" the person to whom they are addressed, or unless they are themselves words properly characterised as "threatening or insulting" and are used

words properly characterised as "threatening or insulting" and are used  45 Including the right to freedom of movement and right to peaceful assembly, in ss 16 and 18 of the New Zealand Bill of Rights Act respectively. recklessly as to whether they alarm or insult. I do not think disorderly behaviouras to whether they alarm or insult. I do not think disorderly behaviour  under s 4(1)(a) can consist solely of words directed at any person without the identified intent or recklessness, even if their effect is to "threaten, alarm, insult, or offend" or even if the words themselves can be properly characterised as "threatening or insulting". I accept that behaviour covers both the words used and the manner in which they are used. But unless there is something additionally disruptive of order about the manner of expression, words which are predictably annoying to the person to whom they are directed would otherwise amount to disorderly behaviour on a lower standard than is provided for in s 4(1)(b) or (c). (iii) The wider context [36] As indicated, I think it clear from the structure and language of the Summary Offences Act that the offence of disorderly behaviour protects public order. I also think the same conclusion is prompted by wider contextual considerations: the general protections provided by law for values other than public order; the uncertainty of the scope of the offence if not confined to preservation of public order (an uncertainty which is both inconsistent with basic principle in criminal law and which erodes freedom of expression); and the distortion entailed by judicial identification and application of values to restrict rights under  he New Zealand Bill of Rights Act.

[37] Many provisions of our law are designed to protect interests and values which qualify the scope of the rights contained in the New Zealand Bill of Rights Act. Thus s 21(d) of the Summary Offences Act (under which Mr Brooker was first charged) protects against unlawful interference with the home, an aspect of privacy interests recognised in art 17 of the International Covenant as permitting restriction of the scope of freedom of movement and freedom of expression.46 In Hosking v  Runting,47 Gault P and Keith J reviewed the statutory  rovisions which provide Runting,47 Gault P and Keith J reviewed the statutory provisions which provide Runting,47 Gault P and Keith J  eviewed the statutory provisions which provide Runting,47 Gault P and Keith J reviewed the statutory provisions which provide Runting,47 Gault P and Keith J reviewed the statutory provisions which provide Runting,47 Gault P and Keith J reviewed the statutory provisions which provide 46 Article 17 provides:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference and attacks. 47 [2005] NZLR 1 at paras [91] - [107] and [185] - [201]. protection for privacy interests in New Zealand. So, the Trespass Act 1980 makes it an offence to trespass after being warned to leave by the occupier of premises or after being warned to stay off.48 The Harassment Act 1997  ecognises that behaviour which may seem trivial in isolation may amount to harassment when seen in context.49 It provides protection through criminal offences and civil remedies, including restraining orders. Acts capable of constituting harassment include loitering near or watching a person's place of residence or making contact in any way with a person.50 To constitute harassment, the specified conduct  ust occur on at least two separate occasions within a period of 12 months.51 In addition, as the judgment in the Court of Appeal in the present case notes,52 civil remedies under the general law of defamation are available to those who are defamed. This framework of legal protection is part of the context in which s 4 of the Summary Offences Act falls to be considered. It suggests that an expansive  eaning of s 4(1)(a), unconnected to public order, is unnecessary. [38] A narrower interpretation of "disorderly behaviour", anchored in disruption of public order, is also more consistent with the fundamental principle that criminal law must be predictable. That was a  onsideration which influenced the Supreme Court of Canada in concluding in Lohnes that a public "disturbance" was an overt disturbance of the use of public space, rather than the creation of emotional upset in those present. McLachlin J, for the Court, took the view that the  nterpretation was driven by the principle of legality "which affirms the entitlement of every person to know in advance whether their conduct is illegal".53 Imprecision in the criminal law which leaves it to judges to identify what is deserving of penalty is inconsistent with the rule of law for reasons also identified by the Permanent Court of International Justice in the Danzig Legislative Decrees case:54 48 Sections 3 and 4. 49 Section 6(1). 50 Section 4. 51 Section 3. 52 At para [31]. 53 At p 180. 54 Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City (Advisory Opinion) 1935 serié A/B, No 65, 39 at p 53; referred to by Lewin in an article on the Summary  ffences Act: "Spirit of reform ...?" (1986) 16 VUWLR 55. See generally Ashworth, Principles of Criminal Law (5th ed, 2006), p 405. [A] man may find himself placed on trial and punished for an act which the law did not enable him to know was an offence, because its criminality

depends entirely upon the appreciation of the situation by the Public Prosecutor and by the judge. [39] In the same vein, the European  ommission of Human Rights was of the opinion that the expression "prescribed by law"55 (used in art 19 of the International Covenant to  ndicate how the qualified right to freedom of expression may be restricted) leads to two requirements: first, that the law be adequately  ccessible to citizens; secondly, that it "be formulated with sufficient precision to enable the citizen to regulate his conduct and foresee with reasonable certitude the consequence which a given action may entail".56 If it is impossible to know whether conduct expressing a particular view or conveying information constitutes an offence, freedom of expression is inhibited.57 The more elastic the meaning, the  ider the discretion left to enforcement officers and the greater the difficulty of any check for legality after the event.

[40] Moreover, I have misgivings about whether it is open to the courts (which are bound by s 3 of the New Zealand Bill of Rights Act) to  djust the rights enacted by Parliament by balancing them against values not contained in the New Zealand Bill of Rights Act, such as privacy,58 unless the particular enactment being applied unmistakably identifies the value as relevant. If "disorderly behaviour" is not   chored to protection of order in and near public places and can be used to protect other values identified by the judge, the register of rights  nd freedoms contained in the New Zealand Bill of Rights Act may well be distorted.59 (iv) Conclusion [41] It is consistent with the right of freedom of expression that restrictions on that right may be imposed where necessary to protect interests such as privacy or 55 In art 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 213 UNTS 221. The same expression is  ound in s 5 of the New Zealand Bill of Rights Act, with which we are not in my view directly concerned in the present appeal. 56 Steel v United Kingdom (1998) 28 EHRR 603 at p 627. See also Hashman v United Kingdom (1999) 30 EHRR 241 at p 256.

57 See Keith, "The Right to Protest" in Keith (ed), Essays on Human Rights (1968) 49, p 51. 58 See Hosking v Runting at para [181] per  eith J. 59 See R v Central Independent Television Plc [1994] Fam 192 at p 203 per Hoffmann LJ (CA). residential quiet, as art 19 of the International Covenant permits. But s 4(1)(a) is not designed for that end. It exists for the purpose of preservation of public order, not to protect privacy or personal sensitivities alone. Other criminal provisions protect these values to the extent that the legislature has  onsidered necessary. Section 4(1)(a) of the Summary Offences Act cannot be used as a grab-bag to scoop up any behaviour thought to be deserving of condemnation through criminal law, unless the behaviour is disruptive of public order. 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  ehaviour 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. Disorderly behaviour must be seriously disruptive of public order: creation of annoyance is not enough [42] As foreshadowed in para [12], I consider that the meaning of disorderly behaviour adopted in Melser v Police does not comply with s 6 of the New Zealand Bill of Rights Act. It is more restrictive of freedom of expression than is  ecessary in protection of public order. I accept that what disrupts public order cannot be divorced from the circumstances and ultimately entails a value judgment. But its measure must not be too nice. I agree with the views expressed by Douglas J in Terminiello v Chicago: freedom of speech should be restricted for reasons of public : freedom of speech should be restricted for reasons of public  order only when there is a clear danger of disruption rising far above annoyance. [43] McLachlin J, speaking for the Supreme Court of Canada in   ohnes, made the point that a commitment to freedom of speech requires toleration of much activity in the streets which disturbs and annoys others sharing the public space or in its vicinity. She suggested it was necessary that the behaviour, to be criminal, should be

such as to lead to "some external manifestation of disorder in the sense of interference with the normal use of the affected place".60 The Supreme Court of 60 At p 181. Canada took the view that in providing for offences of disorderly behaviour, Parliament had in mind "not the emotional upset or annoyance of individuals, but disorder and agitation which interferes with the ordinary use of a place".61 It was "far from self-evident that the goal of peace and order in our public places requires the criminal law to step in at the stage of foreseeability of  ental annoyance". The conduct must rather cause "an overtly manifested disturbance which constitutes an interference with the ordinary and customary use by the public of the place in question".62 [44] In Coleman v Power, Gleeson CJ, while disagreeing with the view that

insulting words must amount to "fighting talk" likely to provok  a breach of the peace, nevertheless considered that:63 In the context of legislation imposing criminal sanctions for breaches of public order, which potentially impairs freedom of speech and expression, it would be wrong to attribute to Parliament an intention that any words or conduct that could wound a person's feelings should involve a criminal offence.

... Intimidation and bullying may constitute forms of disorder just as serious as the provocation of physical violence. But where there is no threat to the peace, and no victimisation, then the use of personally offensive language in the course of a public statement of opinions on political and governmental issues would not of itself contravene the statute. However, the degree of personal affront involved in the language, and the circumstances, may be significant.

[45] I have found these views helpful. Behaviour which amounts to intimidation, victimisation, or bullying is disruptive of public order even if no violence is reasonably in prospect.64 Such behaviour is likely to alarm or be seen as threatening by those present. It is likely to cause others to withdraw from or avoid the area and it is behavior which inhibits normal public use of the place. 61 At p 179. 62 At p 177. 63 At paras [12] and [15] respectively. 64 It is not necessary for the conduct to give rise to a likelihood of violence, because s 3 of the Summary Offences Act is directed to preventing that measure of disruption. For that reason, the reasoning of the majority in the High Court of Australia in Coleman v Power in interpreting "insulting language" as language likely to give rise to a breach of the peace (in order to protect the constitutional right of freedom of political expression) is not directly applicable to s 4(1)(a). [46] Such a standard for disorderly behaviour is I think consistent with the scheme of s 4(1) of the Summary Offences Act. Where criminal liability attaches under s 4(1)(b) to words addressed to another person, they must be intended to "threaten, alarm, insult, or offend that person". Where criminal liability attaches unders 4(1)(c) the words themselves must be "threatening or insulting" and they must be used recklessly as to whether they cause any person to be "alarmed or insulted by those words". In each of these provisions, the word "insult" is associated with "alarm" and "threat" and must comprehend comparably serious effect. The effects of alarm or apprehension of threat therefore provide some measure for what behaviour is disorderly, given that the penalty for the three offences under s 4(1) is the same. The culpability provided for would not be comparable if the effect produced by disorderly behaviour is simply annoyance or embarrassment. [47] I accept that in a residential area interference with the "ordinary and customary use" of the area may be more readily created than in a shopping mall or outside a railway station. The victimisation or bullying inherent in a sustained or intrusive targeted protest against a particular home is likely to disrupt public order in the sense of causing alarm or perception of threat. But a peaceful protest or picket which is simply annoying or embarrassing and which does not seriously interfere with use of the neighbourhood by others does not become disorderly simply because it is conducted in a residential street.65

Was Mr Brooker's protest disorderly behaviour?

[48] For the reasons given, I am of the view that courts below did not focus on thecritical question whether Mr Brooker's behaviour was disruptive of public order andapplied the wrong standard for disorderly behaviour. Their approach was in error of

law. I would allow the appeal on this basis. The matter does not seem to me towarrant rehearing and I would quash the conviction.

65 In Frisby v Schultz 487 US 474 at p 480 (1988) per O'Connor J the Supreme Court of the UnitedStates affirmed that the right to protest in the street is not limited to non-residential areas. [49] It is strictly speaking unnecessary, given the approach I take, to express a conclusion on the question of whether the behaviour was disorderly. Since other members of the Court have divided on this point, however, I think it appropriate to indicate that, had the matter been approached correctly, I am of the view that a conviction could not have been entered. My reasons for this assessment do not differ in substance from those expressed by Blanchard and Tipping JJ. They can be put shortly.

[50] The protest itself was not sustained for long. It began after Mr Brooker had retr eated to the street immediately after being told to leave. It seems to have lasted approximately 15 minutes. I do not agree that the behaviour can properly have included Mr Brooker's knocking on the door to ascertain whether the constable was at home. The inference that he deliberately woke the constable up is not one I would be prepared to draw from the evidence. And it is significant that the District Court Judge did not.66 While the constable said she felt  ntimidated while Mr Brooker was outside her house, it is clear that her concern was with his presence rather than with his behaviour. In any event, I do not think his behaviour can be characterised as intimidatory on any objective view. He immediately left the property and withdrew to the roadside when told to leave. The District Court Judge held that Mr Brooker did not intend to intimidate the constable (had he such intent, the charge under s 21 of the Summary Offences Act would have been maintained). There is no suggestion that any of the messages Mr Brooker was conveying were in themselves objectively alarming or threatening. They were expressed without abuse or bad language and with apparent good humour. They were delivered in a "normal singing voice" and so were not unduly coercive or intrusive in volume. There was no evidence of 66 The suggestion was not put to Mr Brooker. He had attempted to find the constable at 4:30 pm the previous afternoon both at her house and at the police station. That does not suggest that waking her up was an intended part of his protest. While Mr Brooker had been told at the police station the preceding afternoon that she would be coming on night duty (and decided that a protest at night outside the police station would not suit his purpose of making a public protest), I do not think it can be confidently inferred that he expected the constable to be asleep at 9:20 am. Mr Brooker did realise when she came to the door that the constable had been asleep. But his remark that she did not like being woken up may have been a comment on her immediate reaction to him. Such matters cannot properly be resolved on appeal. disruption to use of the road; Mr Brooker immediately moved his car when told it was in the way. The behaviour occurred during the daytime. There is no evidence that members of the public were aware of the protest, much less  hat they were alarmed or disturbed in their use of the neighbourhood by it. The police officers who responded to the constable's telephone call did not give evidence of any disturbance of public order. If it had been necessary to do so, I would on this basis also have allowed the appeal and quashed the conviction.

BLANCHARD J

[51] This appeal requires the Court to consider when behaviour which involves protest action can properly be called disorderly for the purposes of a conviction under s 4(1)(a) of the Summary Offences Act 1981. Section 4 reads in relevant part: 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  isorderly 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 anyperson. (2) Every person is liable to a fine not exceeding $500 who, in or within hearing of any public place, uses any indecent or obscene words. [52] The section deals with offending which can be truly described as minor. It is one of a number of provisions grouped under the collective heading "Offences Against Public Order". Subsection (1) subjects a convicted person to no more than a fine of a maximum amount of $1,000, the same maximum penalty as is  rescribed for fighting in a public place.67 It can be seen from that modest level of penalty and from the position in which the section  ppears in the statute that it is intended to provide the sanction of a criminal penalty for conduct regarded by the legislature as deserving of condemnation and punishment but falling at the least significant end of the spectrum of criminal offending. In contrast, when behaviour in  r within view of a public place is "riotous, offensive, threatening, insulting, or disorderly" and "is likely in the circumstances to cause  iolence against persons or property to start or continue" (in other words, a breach of the peace), the conduct is regarded more seriously and under s 3 of the same Act can attract a prison term not exceeding three months or a maximum fine of $2,000. [53] For conduct to come within s 4 it must have a public element. Under para (a), it is not enough that the conduct is offensive or disorderly. It must have occurred in or within view of a public place. Under para (b), words addressed to a person intending to threaten, alarm, insult or offend them must have  een said in a public place. Under para (c), if threatening or insulting words were used with recklessness as to whether they caused  larm or insult, they must have been so used in or within hearing of a public place; so must any indecent or obscene words addressed to a person. Mere use of indecent or obscene words, without the relevant intent and not addressed to any person, is punishable under subs  2) only if done in or within hearing of a public place, and then subject to a maximum fine of only $500. The behaviour intended to be proscribed by s 4(1) is thus less serious than conduct which is likely to cause a breach of the peace but more blameworthy than the mere utterance of indecent or obscene words in or within hearing of a public place. [54] Section 4(1)(a), like s 3, distinguishes between  ehaviour which is offensive and that which is disorderly. The two words are not synonyms but obviously some behaviour could be both disorderly and offensive at the same time. In terms of maximum penalty the sections treat each type of conduct as of potentially the same seriousness. 67 Section 7. [55] Both words bear their ordinary meanings in everyday speech. Behaviour which is offensive is behaviour in or within view of a public place which is liable to cause substantial offence to persons potentially exposed to it. It must, in my view, be capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind  ctually subjected to it in the circumstances in which it occurs.68 [56] Disorderly behaviour is not necessarily offensive in that way. It is   haviour 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  ubstantially 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  ntensity or its duration or a combination of both those factors. [57] Whether behaviour can truly be characterised as disorderly therefore depends not only upon what the defendant says and does but also upon when and where the behaviour occurs and its effect on the lives of other people. Whilst the meaning of "disorderly behaviour" is constant, the application of that expression will adjust to the circumstances. Something which could not properly be seen as a disorderly act when done in a public place during daylight hours may be in breach of s 4(1)(a) if done there in the middle of the night; and it is likely to take less to disturb public order in a quiet suburban street than in a busy city square. I would observe that it is not just in locations which are entirely residential that public order may be more easily found to have been disturbed to a degree meriting the sanction of the criminal law during the hours when people in general have a heightened expectation that their sleep will not be intruded upon by noisy activity. The Canadian Supreme Court in R v Lohnes69 said that the court must "weigh the degree and intensity of the conduct 69 said that the court must "weigh the degree and intensity of the conduct  complained of against the degree and nature of the peace which can be expected to prevail in a given place at a given time".

68 O'Brien v Police (High Court, Auckland, AP 219/92, 24 September 1992). 69 [1992] 1 SCR 167 at p 180. [58] In 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 dimension. The court merely determines whether, bearing in mind the seriousness of any criminal conviction, in all the circumstances the defendant's conduct in or in view of the particular public place can properly be described as causing a substantial disturbance to persons in the environs of that place at the time in question.

[59] But when the beviour in question involves an  exercise of the right to convey information or express an opinion,70 which is protected by s 14 of the New Zealand Bill of Rights Act 1990, or engages some other right guaranteed by that Act there is a further and most important consideration. A characterisation of the behaviour of the defendant as disorderly then cannot be made without an assessment against the overriding requirement of s 5 of the Bill of Rights that the exercise of any guaranteed right may be subjected only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The value protected by the Bill of Rights must be specifically considered and weighed against the value of public order. The court must ask itself whether treating the particular behaviour in the particular circumstances as disorderly constitutes a justified limitation on the defendant's exercise of the right in question. As a result, public order will less readily be seen to have been disturbed by conduct which is intended to convey information or express an opinion  han by other forms of behaviour. The manner in which the defendant chose to exercise the right and the time and place are of course relevant to that inquiry. [60] As discussed above, the fact that s 4(1)(a) is concerned with behaviour in or within view of a public place necessarily influences the meaning of "disorderly". In this instance, as will often be the case, the public place was a street. Members of the public are ordinarily entitled to use a public street for any purpose consistent with the passage of vehicles and persons.71 Streets are also customary places for people to gather and to exchange their opinions, sometimes in the form of protest action. That will be a more common activity in some street locations than in others. The exercise 70 Something going beyond mere vulgar abuse. 71 Director of Public Prosecutions v Jones [1999] 2 AC 240. of the s 14 right in the form of a protest is not confined to non-residential streets.72 However, what has to be borne by residents in an exclusively or predominantly residential area will be less than in areas where there is little or no residential character. This is because the common law has long recognised that men and women are entitled to feel secure in their homes, to enjoy residential tranquillity - an element of the right to privacy. They are justifiably entitled not to be subjected there to undue disturbance, anxiety or coercion.73 The State's interest in protecting the well-being, tranquillity, and privacy of the home has been described by the United States Supreme Court as "certainly of the highest order in a free and civilized society".74 It may be an important consideration in assessing whether the conduct of a defendant has disturbed public order and is therefore in breach of the statutory prohibition on disorderly behaviour.  [61] In considering whether behaviour in the nature of a protest is disorderly in terms of s 4(1)(a), a court should weigh the manner but not the content of the expression. If the concern is that what was said and done was offensive to those affected by the protest in the sense and to the degree described in para [55] above, the charge should be one of offensive behaviour. At the extreme, other provisions of the criminal law could be invoked, for example where there are expressions of racial or ethnic hatred.75 [62] Nor is activity disorderly merely because it is directed at an individual as the target of a protest, whether personally or as a representative of some organisation. It is in the nature of protest that it if targeted; as Thomas J remarked during argument in this case, the purpose of protest is to make someone listen to something they do not want to hear. 72 "[A] public street does not lose its status as a traditional public forum simply because it runs

through a residential neighborhood": Frisby v Schultz 487 US 474 at p 480 (1988) per O'Connor J, delivering the opinion of the United States Supreme Court. 73 In Frisby at p 493 Brennan J said in his dissenting opinion, in which Marshall J joined: A crowd of protesters need not be permitted virtually to imprison a person in his or her own house merely because they shout slogans or carry signs. But so long as the speech remains outside the home and does not unduly coerce the occupant, the government's heightened interest in  rotecting residential privacy is not implicated.

74 Carey v Brown 447 US 455 at p 471 (1980) per Brennan J, delivering the opinion of the Court. 75 See s 131 of the Human Rights Act 1993; King-Ansell v Police [1979] 2 NZLR 531 (CA). [63] Section 4 and its predecessors have always been easier to explain or interpret in the abstract, as I have attempted to do, than to apply to the facts of an individual case. The difficulty increases for a trial judge when there is a need to factor in a provision of the Bill of Rights. Little guidance can now be obtained from pre-Bill of Rights cases. The leading case in that period involving protest action was the decision of the Court of Appeal in Melser v Police,76 in which the common theme in two of the judgments affirming the convictions was that the defendants' behaviour was "of a character which is likely to cause annoyance to others who are present"77 or "conduct at least causing annoyance to well-conducted citizens".78 That, it seems to me, is an inappropriate test of what is disorderly behaviour, especially in a case involving protest action. It would criminalise behaviour which, while impolite or inconsiderate to other persons, is not necessarily a cause of public disorder. McCarthy J was minded to require something more, for his test was that the defendant's conduct must have been "likely to cause a disturbance or to annoy others considerably".79 That formulation is also unsatisfactory, even in cases which do not involve the Bill of Rights, because it does not sufficiently recognise that someone should not be convicted of disorderly behaviour unless there has been a substantial disruption of public order in or about a public place, although that disruption does not have to have created or been likely to create a breach of the peace. Causing annoyance, even  onsiderable annoyance, to citizens does not suffice. I should perhaps make it clear, however, that in criticising the tests enunciated in   elser I am not expressing a view on the result in that case on its own facts.

[64] In the course of time trial courts will be informed by a body of individual cases applying s 4(1)(a) to differing factual situations. It may be that in the meantime there will be room for the minds of judges to differ as to results, as they clearly have done in the present case. But, as I have already indicated, I see that as inevitable, at least at the present stage of our legal development, when courts are confronted with provisions such as s 4(1) which address a potentially wide range of factual situations using everyday language which is relatively  precise.

and degree, circumstances may well arise where the courts would not regard protest action in a residential area as disorderly behaviour. For example, a protest outside a house situated further back from the road than three metres, or on a right of way, or up a long drive, or obscured and protected by trees, might not attract the same 228 Statistics New Zealand, New Zealand Time Use Survey (1999). The percentage can be expected to be higher today.

censure. Again, an orderly procession passing along or through a residential street may not amount to disorderly behaviour in the circumstances. Similarly, protest action outside an embassy of a foreign state might not necessarily be considered

disorderly behaviour. In short, I am not promoting a blanket ban on protest action in residential streets. Accepting, however, that there is no absolute bar on protest action in residential areas, the burden of the question remains whether, in the circumstances of this case, Mr Brooker's exercise of his right to freedom of expression outweighs the value of Ms Croft's privacy.

And so, the balance

[274] First and foremost, I would revert to my analysis of the value to be placed on Mr Brooker's right to freedom of expression in the circumstances of this case. His expression does not serve any of the recognised theories or bases for the right in any significant way. Divorced from the abstract, the value of Mr Brooker's protest action does not merit the full panoply of the protection the law is prepared to accord freedom of expression.

[275] In contrast, the value of being let alone in the seclusion of the home in a residential area must be accorded considerable weight. In all of the human rights instruments referred to above,229 the "home" is expressly referred to as part of the right to privacy. The sanctity of the home, and the family in the home, is to be respected. Ms Croft was entitled to enjoy the seclusion that sanctity provides and to have it respected.

[276] The public interest in upholding the right to freedom of expression and the value of privacy in the circumstances of this case follow from this analysis. Certainly, the public generally have a real interest in securing the "right" to protest and ensuring that the boundaries of legitimate protest are not drawn too narrowly in response to the unreasonable sensitivities or the expectations of a targeted person or persons or those likely to be targeted. But the public interest in securing the right to freedom of expression, including protest action, must also be seen in the context of

229 At paras [215] - [218].

the facts of this case. I do not consider that on those facts, the public interest is negated when the right is exercised outside a private home in a residential neighbourhood, more particularly, when the expression takes the form of protest action and is directed at a particular individual. Conversely, the public have an interest in privacy, including the interest in being let alone in the home. In some circumstances, such as the present, the public interest in privacy is every bit as important as the right of freedom of expression and the "right" to protest. The fabric of our democratic and civil society would lose nothing if the right to freedom of expression were required to give way to a reasonable recognition of privacy and the interest of being let alone in the seclusion of the home. Indeed, I believe that society would be all the stronger in being prepared to protect the sanctity of the home.

[277] Throughout this judgment it has been convenient for the most part to refer to Ms Croft's interest in the privacy of her home. Certainly, it was Ms Croft personally who was the casualty of Mr Brooker's protest action. For the purpose of the balancing exercise involved, however, it would be more apposite to speak of the resident occupying a home in a residential area who was the object of Mr Brooker's protest action and outside whose home he carried out that activity. Framed in this way it can be seen that Ms Croft's "sensibilities" are irrelevant. We are concerned with a member of the public occupying a home whose sensibilities remain unknown.

Further considerations

[278] I have already acknowledged that Mr Brooker had a grievance which he was entitled to express and that the public have an interest in ensuring that expression of his grievance is not suppressed. His grievance against Ms Croft, or the police generally, may or may not be well-founded. The courts cannot judge that issue in these proceedings. But even if his claims are sound and his motives understandable, I do not think they have a significant, if any, bearing on the issue in question beyond establishing that he was genuinely protesting. His protest, in other words, was not a façade; it was genuine protest against a perceived wrong done to him and, it can be accepted, a protest designed to constrain police conduct of that kind being repeated in respect of himself or others. But this consideration does not enlarge the value of his right. Mr Brooker's motivation does not bear on the impact of his behaviour on "public order".

[279] I also acknowledge that Mr Brooker did not adopt a particularly intense means of making his protest felt. Although he chanted in a "relatively loud voice" that would have been audible to neighbours,230 he did not shout. Nor did he use a

megaphone (at just over three metres he hardly needed one) and his placard was relatively innocuous. Such points as these, while relevant, are of a negative nature. They are certainly relevant to penalty. Ultimately, however, regard must be had to

the degree of disturbance and annoyance involved in what Mr Brooker actually did.  What he did was calculated. Frustrated that Ms Croft was not on duty, he deliberately targeted her in her home in a residential neighbourhood. Ms Croft's

home was a relatively short distance from the roadway, a bare three metres.231 Small wonder, having regard to the proximity of her home to the roadway, that she complained in evidence that his very presence intimidated her. The District Court

Judge observed in his oral judgment that he had "no doubt about that".232 [280] I do not accept that the fact Mr Brooker's protest action may have taken a relatively short time precludes his behaviour from being held to be disorderly. The

disturbance to Ms Croft and the intrusion into the privacy of her home was complete well before he was arrested. She became a "captive" to Mr Brooker's expression

and an "unwilling listener". Moreover, there is something artificial in the notion that

behaviour which is not an offence against public order may become an offence

against public order only if persisted in for what the court considers an unreasonable

period of time. Privacy is not temporally elastic.

[281] While I do not regard the duration of Mr Brooker's behaviour as critical, I am

not satisfied that his protest activity was as brief as is claimed; the "entire episode

took perhaps 25 minutes, at the outside" although his protest behaviour on the grass

verge "seems to have lasted approximately 15 minutes" (Chief Justice, paras [14]

and [50]), and "about 15 minutes" (Blanchard J, para [65]). The figure of 15 minutes

230 Police v Brooker (DC) at para [11].

231 Inspector Morris, who attended the scene, said in evidence that Mr Brooker, while on the grass

verge, was standing "very close" to Ms Croft's front fence.

232 At para [12].

is based on the evidence of Mr Brooker to the effect that he protested for about that

length of time. His evidence was not challenged in cross-examination. The District

Court Judge said only that Mr Brooker arrived at Ms Croft's home at "about

9:00 am".233 He did not make a finding as to how long the protest lasted or at what

time Mr Brooker was arrested. In fact, it would appear that the duration of the

episode exceeded 30 minutes. Ms Croft stated in evidence that she was awoken by

heavy footsteps on her porch and heavy knocking on her door at about 9:20 am.

Both Inspector Morris and Senior Sergeant Paxton, who attended the scene, testified

that they arrived at the property at about 9:50 am, that is, 30 minutes after Ms Croft

heard Mr Brooker on her porch and telephoned the police. Further activity would

have added another five to ten minutes before Mr Brooker was arrested.234

[282] Finally, I place considerable weight on the fact that Mr Brooker's protest

action was directed at Ms Croft in the privacy of her home. This case is far removed

from a case where a protestor or protesters carry out protest action in a public place

relating to a public issue. It was not, for example, a march by protesters down

Ms Croft's street protesting at police corruption generally. Rather, while containing

an element of public interest, Mr Brooker's protest action reflected a personal

grievance and was largely, if not wholly, directed at Ms Croft personally.

[283] For these reasons I believe Mr Brooker's behaviour was beyond the pale.

That view, I am satisfied, would be the view of the reasonable person seized of the

circumstances and alert to the respective values and interests in issue, including the

rights affirmed in the Bill of Rights. Having regard to the time, location and

circumstances it was not a necessary or desirable exercise of the right to freedom of

expression, or "right" to protest, and constituted an unwarranted intrusion into the

privacy and seclusion of Ms Croft's home. If the reasonable person had any initial

doubts, those doubts would ultimately be dispelled by the fact that Mr Brooker

targeted a particular residence. The balance falls in favour of the "right" or interest

233 At para [10].

234 The time it took for the police officers to observe Mr Brooker's activity, for Inspector Morris to

talk to Ms Croft and then with Mr Brooker, and for Mr Brooker, on instructions from the Police,

to remove his car which was straddling the footpath. Mr Brooker was then given one minute to leave and, when he did not do so, he was arrested. to be let alone in the seclusion of the home and the public's interest in preserving that right or interest.

[284] I would dismiss the appeal with costs.

Concluding note

[285] It is impossible not to feel some disquiet about the outcome of this case. The issue has been resolved by vesting the exercise of the right to freedom of expression with paramount status and requiring the citizen's privacy and interest in seclusion in the home to be justified as a limit on that right. In the result, the true value of that right and that interest has been consciously or subconsciously distorted. I would much prefer that both freedom of expression and privacy be recognised as fundamental values and, as such, weighed one against the other in a manner designed to afford the greatest protection to both.

[286] The value placed by the majority on a resident's privacy, and his or her interest in seclusion in the home, provides a stark contrast with the sentiments of the Supreme Court of the United States, which I have referred to above.235 That Court, which is otherwise noted for its commitment to an almost absolute concept of freedom of speech, expresses sentiments which find no, or only a faint, echo in the judgments of the majority. Why is there this difference? Does Parliament have to expressly affirm privacy as a right before it can be recognised as a fundamental value and given the weight of a fundamental value?

[287] A number of specific factual points may also give rise to concern. Take the prevalence of night shift workers in the labour force. If the Court were to hold that Mr Brooker's protest action would not constitute disorderly behaviour if carried out in the middle of the night, its decision would be regarded, as not just wrong, but as an aberration. Some explanation is required as to why the same activity carried out in daylight hours should not be regarded as disorderly having regard to the significant number of residents who work at night and must necessarily seek the 235 See paras [260] - [265] above.

privacy and seclusion of their home to rest in the daytime.236 Further, and significantly, it is surely a key material circumstance that the boundary of the street where Mr Brooker's protest action took place is a bare three metres from Ms Croft's house. Yet, there is not a single mention of this fact in the judgments of the majority.237

[288] The outcome of this appeal will also, I believe, cause some concern that the scope for protest action has been extended beyond that traditionally recognised in permitting persons with a grievance or grudge, and an understandable desire to obtain publicity for their cause, to protest in residential neighbourhoods outside the home of a particular resident and deliberately target that resident. What has been abandoned, in pursuit of an exalted perception of the right to freedom of expression, is the notion that s 4(1)(a) can be applied to promote public order in the sense of decorum and orderliness in public places to the benefit of all citizens. This objective can be achieved without proscribing trivial or inconsequential behaviour. No more is required than that, in a democratic and civil society, citizens exercise their rights responsibly with concern and consideration for their fellow citizens.

SolicitorCrown s: Law Office, Wellington

236 See paras [266] and [269] - [270] above.

237 See paras [196] - [197], [273] and [279] above.


 

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