Brooker V Police SC 40/2005 [4 May 2007]

N 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.