Morse v The Police Sc

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,Blanchard J,Tipping J,McGrath J,Anderson J
Judgment Date06 May 2011
Neutral Citation[2011] NZSC 45
Docket NumberSC 10/2010
Date06 May 2011

[2011] NZSC 45



Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ

SC 10/2010

Valerie Morse
The Police

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

C L Mander and C J Curran for Respondent

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.

The issues on appeal were: the meaning of offensive behaviour under s4 SOA; whether the Courts below had applied an incorrect interpretation of offensive behaviour; and whether M was protected by s14 New Zealand Bill of Rights Act 1990 (“NZBORA”) (freedom of expression).

Held: Section 4(1) was one of a group of provisions that were concerned with public order. Therefore the words “offensive” and “disorderly” were directed at the preservation of public order. On that view, “offensive” behaviour was behaviour that objectively assessed was productive of disorder. It was not sufficient that others present were offended if public order was not disrupted. The behaviour had to interfere with use of public space by any member of the public.

That was not the meaning that had been given to offensive behaviour in the Courts below. The Courts had been mislead by comments in Brooker v Police when Blanchard J had considered the meaing of disorderly behaviour in respect of s 3. The DC had looked to the effect produced on those present without referencing the touchstone of public order and as such the hearing had miscarried.

The text and purpose of s4(1)(a) SOA made it clear that it was concerned with the protection of the public from disorder rather than the protection of individuals from upset. However the test did not exclude ordinary notions of causing offence. The behaviour had to be such that it was capable of woundingfeelings or arousing real anger, resentment, disgust or outrage so as to result directly or indirectly in a disturbance to public order.

Burning the national flag in the course of a protest was expressive conduct protected by s14 NZBORA. However, if in the circumstances, a protest went beyond mere disruption and affected public order, then s4 SOA could be properly invoked. For s4(1)(a) SOA to limit the rights under the NZBORA, the conducthad to interfere with the use of a public place by others to an extent that went beyond what a democratic society was expected to tolerate. Verbal and behavioural expression was protected by s 14 NZBORA; for either to be an offence by virtue of s 4(1) SOA it must have the propensity or likelihood to cause public disorder.

The conviction had been entered on an erroneous view of the elements of the offence. A retrial was inappropriate.

Appeal allowed; the conviction was set aside

  • A The appeal is allowed.

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


Para No

Elias CJ


Blanchard J


Tipping J


McGrath J


Anderson J


Elias CJ

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.


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 Police3 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

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.


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

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.

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


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...

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