Morse v The Police Sc

• Jurisdiction: New Zealand
• Judge: Elias CJ,Blanchard J,Tipping J,McGrath J,Anderson J
• Judgment Date: 06 May 2011
• Neutral Citation: [2011] NZSC 45
• Court: Supreme Court
• Docket Number: SC 10/2010
• Date: 06 May 2011

Valerie Morse

and

The Police

[2011] NZSC 45

Court:

Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ

SC 10/2010

IN THE SUPREME COURT OF NEW ZEALAND SC

Appeal against conviction for offensive behaviour under s4(1)(a) Summary Offences Act 1981 (offensive behaviour or language) — appellant burnt New Zealand flag in view of people attending ANZAC service as protest against New Zealand military involvement in Afghanistan — application of s14 New Zealand Bill of Rights Act 1990 (freedom of expression) — meaning of “offensive behaviour” — whether offensive behaviour required public disorder or merely offendingfeelings of those present.

Counsel:

A Shaw, F E Geiringer and S J Price for Appellant

C L Mander and C J Curran for Respondent

• A The appeal is allowed.

• B The conviction entered against the appellant in the District Court for offensive behaviour is set aside.

JUDGMENT OF THE COURT

REASONS

	Para No
Elias CJ	[1]
Blanchard J	[59]
Tipping J	[68]
McGrath J	[75]
Anderson J	[121]

Elias CJ

1 By s 4(1)(a) of the Summary Offences Act 1981, it is an offence, punishable by a fine not exceeding $1,000, to behave “in an offensive or disorderly manner … in or within view of any public place”. The appellant was convicted in the District Court under s 4(1)(a) of behaving in an offensive manner in a public place,?namely Victoria University, Lambton Quay”. 1 The charge particularised theoffensive behaviour as “burning [the] NZ Flag”. The appellant acknowledged setting fire to the New Zealand flag in the grounds of the Law School of Victoria University in Wellington, behind but within view of the people assembled at the Wellington Cenotaph for the dawn service on Anzac Day 2007. She was part of a small group of people who had taken up position inside the University grounds to protest against New Zealand military involvement in Afghanistan and other foreign conflicts. Theappellant maintained that her expression of opinion in this way was not offensive behaviour but was expression protected by s 14 of the New Zealand Bill of Rights Act 1990:

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.

2 On conviction, the appellant was fined $500, and ordered to pay court costs and witness fees. Her appeals to the High Court and the Court of Appeal against conviction have been dismissed. 2 The further appeal to this Court raises both the meaning of s 4(1)(a) and its application to expression of opinion, matters considered by this Court in Brooker v Police 3 in the context of the disorderly behaviour limb of s 4(1)(a). I consider that the disposition of the appeal turns on the meaning of s 4(1)(a). For the reasons given below I conclude that “offensive” and “disorderly” behaviour are two sides of the same coin, both directed at the preservation of public order. On this view,“offensive” behaviour is behaviour productive of disorder. It is not sufficient that others present are offended if public order is not disrupted. On the other hand, it is not necessary that the conduct be violent or likely to lead to violence

since behaviour with that effect constitutes the more serious offence described by s 3 of the Summary Offences Act. The behaviour must however be such as to interfere with use of public space by any member of the public, as through intimidation, bullying, or the creation of alarm or unease at a level that inhibits recourse to the place. 4

3 That is not the meaning given to offensive behaviour in the Courts below. Because the District Court Judge looked to the effect produced on those present without reference to the touchstone of public order, 5 I consider that the hearing miscarried. In my view the criminal penalty under s 4(1)(a) does not attach to behaviour held after the event to tip a balance between freedom of speech and the reasonable feelings or other interests of those present. In s 4(1)(a), the legislature has struck the balance at preservation of public order. The text, purpose, and context of the offences described by s 4(1)(a) make it clear they are concerned, not with the protection of individuals from upset, but rather with “the protection of the public from disorder calculated to interfere with the public's normal activities”. 6 On this view, s 4(1)(a) is not concerned with offending others, but withprovoking disorder in the sense of inhibiting use of the public space. Offensive and disorderly behaviour are both productive of such effect.

4 The conviction was entered on an erroneous view of the elements of the offence. What constitutes “offensive” behaviour was wrongly treated as a contextual judgment arrived at after balancing the interests of the appellant against the impact of her expression on the feelingsof those present.

The appeal

5 Offensive behaviour, unlike disorderly behaviour, was thought by Judge Blaikie to require no tendency to disrupt public order. Rather, he considered, it was behaviour “capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind actually subjected

to it in the circumstances in which it occurs”. 7 Whether behaviour capable of giving rise to such feelings amounts in the particular case to offensive behaviour, contrary to s 4(1)(a), was treated as requiring a judgment of degree, arrived at after balancing the rights and interests of those present against the rights and interests of the defendant, including the right to freedom of expression

6 In both the suggested test, and in the approach which balances freedom of expression only in its application (rather than by interpreting s 4(1)(a) consistently with the rights and freedoms in the New Zealand Bill of Rights Act), the District Court Judge and the appellate Courts after him relied upon the judgment of Blanchard J in Brooker. Although Tipping, McGrath and Thomas JJ in Brooker also reached their conclusions as to whether the behaviour was disorderly after balancing the interests of the defendant in freedom of expression against the interests of thepolicewoman who was the subject of the protest, 8 Blanchard J was the only member of the Court in Brooker to consider the meaning of offensive behaviour directly. 9 He took the view that, while “disorderly” behaviour is “behaviour which disturbs or violates public order” 10 “offensive” behaviour is behaviour “which is liable to cause substantial offence to persons potentially exposed to it”. 11 Although he accepted that expression of views could amount both to disorderly and offensive behaviour, Blanchard J suggested that disorderly behaviour concerned the manner of expression, if disruptive of public order, whereas offensive behaviour was concerned with the content of expression, if it was “offensive to those affected by the protest inthe sense and to the degree described” in the suggested test. 12

7 In Brooker I discussed the meaning of s 4(1)(a) without distinction between disorderly and offensive behaviour. 13 I consider that s 4(1)(a) as a whole is concerned with the preservation of public order. I am unable to agree with the view tentatively put forward by Blanchard J in Brooker that disorderly behaviour is

concerned with the manner of expression, and offensive behaviour with its content. For reasons more fully developed below, the terms incontext appear to me to be complementary and to cover the field in which behaviour constitutes criminal disruption of public order (but in circumstances where violence is not likely). Section 4(1)(a) thus prohibits conduct that is productive of disorder as well as conduct which is itself properly characterised as disorderly. Such meaning isconsistent with the association of the two terms in s 4(1)(a). In many cases the terms may be used interchangeably aboutthe same behaviour. 14 But unless behaviour is disruptive or provocative of disruption of public order, objectively assessed, it is neither “disorderly” nor “offensive” within the meaning and purpose of s 4(1)(a)

8 It is not clear that Blanchard J intended to suggest that impact on public order is unnecessary to constitute offensive behaviour. 15 It may be that the impact upon those affected was in his view pitched in the suggested test at a level which necessarily impacts upon public order. 16 And he may have intended that, at the second-stage balancing he proposed for cases where freedom of expression is in issue on the facts, it wouldbe balanced against the value of public order (as he made clear was necessary with respect to disorderly behaviour), 17 rather than against wider interestsnot identified by the statute but left to be identified in the circumstances by the judge. But in the Courts below in the present case the view has been taken that whether behaviour is offensive turns, not on its impact on public order, but on whether those present are offended.

9 In the District Court and in the High Court on appeal, this view of the meaning of the section seems to have been acquiesced in by the appellant. It was only on appeal to the Court of Appeal that the appellant argued that “offensive” behaviour is concerned with behaviour properly characterised as indecent and, in the alternative and if covering other behaviour, that it requires disruption of public order. Both suggested meanings were rejected in the Court of Appeal, which applied the test

suggested by Blanchard J in Brooker and the balancing methodology he adopted in its application. Young P and Arnold J applied both without modification. 18 Glazebrook J would have modified the test to apply general community values, tolerant of minority viewpoints and unpopular views, rather than the reasonable reactions of those actually present. 19 She preferred to leave open the question whether disruption of public order is...