IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-269 [2014] NZHC 914

UNDER	the Summary Proceedings Act 1957	

IN THE MATTER	
of an appeal pursuant to s 115 of that Act	

BETWEEN	
ANTHONY RAYMOND KENRICK Appellant	

AND	
POLICE Respondent	

Hearing:	5 February 2014	

Appearances:	
T Beach for Appellant
A Boberg for Respondent	

Judgment:	
6 May 2014	

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on
6 May 2014 at 11.00 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Corban Revell, Auckland
Meredith Connell, Crown Solicitors, Auckland
Counsel:
T Beach, Auckland

KENRICK v POLICE [2014] NZHC 914 [6 May 2014]

[1]       Following  a defended  hearing  before Judge Wilson  QC  in  the Auckland District Court, the appellant, Mr Kenrick, was convicted on a charge of disorderly behaviour laid under s 3 of the Summary Offences Act 1981.  He was then ordered to come up for sentence if called upon.

Background

[2]       The appellant was part of a group on Karangahape Road in the early hours of Sunday 9 December 2012, having attended a stag party with his son Sean and others. All of them had been drinking.  As they moved between nightclubs Sean bumped into a person on the footpath.  There was an altercation in which Sean was punched. There were police in the vicinity, because it was the night of Christmas in the Park, and past experience was such that as patrons left the Domain and travelled across Grafton Bridge to Karangahape Road disorderly behaviour could be anticipated.

[3]       A number of police officers arrived at the scene of the altercation, including Sergeant  Steven  Clarke.    Sergeant  Clarke  gave  evidence  that  there  were  large numbers of people present, consisting of the normal clientele of the various establishments in the area as well as the crowds who had been at Christmas in the Park.

[4]       The Judge accepted that the appellant was influential in moving Sean away and also counselled others in the group to leave.  He took Sean to the other side of the road,  but  Sean’s  behaviour  at  that  point  was  such that  he was  arrested  for disorderly behaviour.   Sergeant Clarke explained that Sean was aggressive and struggling with his friends who were trying to restrain him.  The Sergeant tried to calm him down, at which point he attempted to hit him and used abusive language. The Judge recorded a concession made by the appellant in his evidence at the trial that the police had been quite justified in arresting Sean, because of the latter’s disruptive behaviour and the language with which he had addressed the police.

[5]       After these events Sergeant Clarke decided that the police should move on. However, the Judge accepted the police evidence that the appellant had remonstrated with them, resisting the efforts of his associates who were trying to pull him back and pursuing the police as they endeavoured to withdraw, questioning them about the

basis upon which his son had been arrested.   It appears that the appellant was agitated, and wanted to know why the police had not followed up on the man who had punched his son.   Sergeant Clarke said that the appellant was abusive and aggressive, and he decided that he should not be left in the area:  even if the police left, he could not be confident that the appellant would modify his behaviour.  He thought that either he would assault someone, or someone would assault him.

[6]       The Judge said:

[12]      My assessment here is that Mr Kenrick lost his cool because he thought police enquiries should have gone in a different direction.  What that does not take account of is that the police were faced with a situation which had already been volatile and that volatility was likely to return.   What Sergeant Clarke said about it was that he was concerned that if Mr Kenrick maintained his aggressive behaviour towards police that somebody in the community might take exception to him and that he might be the subject of violence because of that assessment.

[13]      I accept the evidence that he (Mr Kenrick senior) was in fact being restrained by people with him and I accept that evidence because the comparison between the evidence of Sergeant Clarke and Mr Kenrick leaves me persuaded that Sergeant Clarke’s appraisal of the situation was in fact correct.   That police  had vacated  the  scene, it was  all over,  but it was Mr Kenrick, the defendant, who then remonstrated further with the police and his own friends recognised that there was a problem with his behaviour.

[14]      He had the right to ask, yes he did. He had the right under the Bill of Rights Act to a freedom of expression, but where that freedom of expression was  constituted  by  his  aggressive  behaviour  towards  police,  where  he stepped out in the direction of the police who had left him behind, where he continued to remonstrate with him in circumstances which were likely to cause violence against persons to start, he offended against this provision of the Summary Offences Act.

[15]      I do not accept his evidence that he was not warned.  I do accept his evidence that he used a raised voice.  I accept his evidence that he was upset. Those matters in themselves would not be enough, it is because it was in a volatile situation, which should have been well left alone, that he behaved in a disorderly manner and in the circumstances at that time in the early hours of the morning on Karangahape Road that was likely to cause violence against persons to start.

The grounds of appeal

[7]       The appellant advances four grounds of appeal.  He argues that:

(a)       The transcript of the hearing in the District Court is inadequate.

(b)       The Judge did not provide adequate reasons for his decision, and in particular had not referred to the evidence of key defence witnesses (whose evidence was not, or only partially, recorded in the transcript).

(c)       The Judge erred in law by not properly addressing what had to be established for a conviction under s 3 of the Summary Offences Act. In this respect, the appellant submits that the Judge wrongly found that there was a real risk of violence as a result of the appellant’s behaviour.    Further,  he  argued  that  it  is  implicit  in  s 3  that  the prosecution must establish that the appellant was aware of the risk of violence occurring, and there was no evidence that he was aware of such a risk.

(d)       The appellant’s behaviour involved an exercise of his right to convey information or express an opinion protected under s 14 of the New Zealand Bill of Rights Act 1990.

The transcript

[8]       There was a preliminary argument on the adequacy of the transcript.  That issue came before Lang J on 9 December 2013.  In his judgment issued on that day, he noted that there were “quite significant deficiencies” in the transcript, and that approximately 40 minutes of hearing time had not been transcribed.1   The omission affected significant portions of the defence case.  Lang J recorded a submission made by counsel for the appellant that the Judge was essentially required to determine an
issue of credibility and needed to assess the evidence given by witnesses called for the defence;   it would not be possible for that issue to be considered properly on appeal given the state of the transcript.

[9]       While  Lang J  thought  the  issue  was  “finely balanced”  he  noted  that  the evidence in chief of both the appellant and his son had been fully transcribed, the omissions being in the parts of their evidence where they were cross-examined.  He
also  noted  that  most  of  the  evidence  given  by  the  police  witnesses  had  been

1	Kenrick v New Zealand Police [2013] NZHC 3269 at [4].

transcribed and that the Judge reached his ultimate conclusion as a matter of “logic and common sense” based on inferences that he drew from the prosecution evidence. He was, therefore, satisfied that the Court would be able to determine the appeal based  on  the evidence  that  had  been  transcribed.    For that  reason,  he was  not prepared to allow the appeal and direct a rehearing on the preliminary issue.   He noted, however, that it would be a matter for the Judge who heard the substantive appeal to determine whether a rehearing should in fact be ordered.

[10]     In advancing this ground of appeal, Mr Beach submitted that as the appeal was  by  way  of  rehearing  under  s 119(1)  of  the  Summary  Proceedings Act  the appellate Court must come to its own conclusion after considering the evidence. Where there is an inadequate transcript of the evidence, the appellate Court was prevented from discharging that obligation.  He noted that the Judge had not made any adverse finding as to the credibility of any defence witness apart from the appellant.  Indeed, the other witnesses called by the defence had not been discussed in the Judge’s decision.

[11]     He noted that the defence had called six witnesses, the appellant, his son and four others.  Of the six, Mr Beach submitted that “material particulars” were missing from the transcript in respect of each of them.   Of the two police witnesses, only Sergeant Clarke’s evidence had been recorded;   Constable Tippett’s evidence was missing.

[12]     One of the defence witnesses called was Mr Wiremu Pulham.   There is a passage at the commencement of his evidence of some five minutes.  However, the transcript  commences  at  the  point  in  time  when  the  appellant’s  son  was  being arrested.   Although the appellant was “quite close by” and was arrested shortly thereafter, the witness did not see this occurring.  He did not hear anything that the appellant said at the time, and was not “paying much attention”.  Given the nature of this evidence it is most unlikely that anything turns on the absence of the transcript of the first five minutes and Mr Beach, who conducted the defence in the District Court, was not able to refer me to anything of significance that might have been omitted.

[13]     Another witness called by the defence was Mr Finau.  The transcript of his evidence appears to be complete.

[14]     Another defence witness, not identified by name in the transcript would have been (by a process of elimination) either Lisa Roberts or Maurice Ellingham.  This witness’s evidence evidently described a stage prior to the altercation which led to the appellant’s arrest, when the appellant had been influential in persuading one of the group to go home in a taxi. The witness was able to say that at that stage, prior to anything that had happened on Karangahape Road, the appellant did not appear to be intoxicated.  Mr Beach again did not refer to anything significant that may have been missing from this witness’s evidence and I infer from the transcript which does exist that it cannot have been significant.

[15]     The other of the defence witnesses not identified in the transcript by name is evidently called at page 20 of the transcript, where the words “New Witness” appear. While there is a reference to “missing audio” after this witness is called, it can be inferred from what is in the transcript that the evidence intended to be led was that of a solicitor, to whom the appellant spoke some hours after the incident, and concerned the appellant’s demeanour at that time.   Unsurprisingly, the Judge considered this evidence to be “completely inadmissible”.  I add that it is by no means clear that the “missing audio” related to anything said by the witness:  it is more likely that what was omitted was largely exchange between the Judge and Mr Beach.

[16]     That leaves for consideration the state of the transcript in respect of the evidence given by the appellant himself, and Sean Kenrick.

[17]     There were several passages in the transcript where there was a reference to “missing audio” during the appellant’s evidence.  The first omission occurred at a stage when the appellant was covering his presence with other members of the group in a bar on Karangahape Road.  When the transcript resumes, there is a discussion between Mr Beach and the Judge, following which the appellant continued with what was plainly narrative evidence by referring to standing next to his son whilst a police officer told him to calm down, and to stop yelling out abuse.   This was immediately prior to his son’s arrest.  It does not seem to me that the missing audio

at  this  point  would  have  been  of  significance  to  the  issues  the  Judge  had  to determine.

[18]     The  next  omission  in  the  transcript  is  again  at  a  point  where  there  is discussion  between  Mr Beach  and  the  Judge.    The  Judge  has  raised  an  issue concerning the relevance of certain questions being put by Mr Beach but it is plainly after the appellant has been arrested and taken to the cells at the police station.  The transcript resumes when the appellant’s cross-examination by the prosecutor is already underway.  Once again, I do not consider that the omission in the transcript at this point could have been of significance to the findings made by the Judge. Subsequent omissions were also during the cross-examination and perhaps (it is unclear) of the re-examination.  Mr Beach made no specific submissions about these particular omissions in the transcript.   I assume that if anything favourable to the appellant had been omitted in either case, Mr Beach would have referred me to it. He did not do so and I am not persuaded in the circumstances that anything of significance would have turned on the omitted passages.

[19]     The transcript does not record the point at which Sean Kenrick was called. Insofar as he is concerned, his evidence in the transcript begins at a point when he is being examined in chief by Mr Beach and he is asked what the appellant was doing once they had crossed the road.  The witness responded that the appellant was still holding him back and making sure he did not go back over to the police.  He then gave evidence that the appellant had asked the police why they were arresting him, because he was not the one who had started the problems.   He said he was not swearing.

[20]     The evidence in chief is otherwise complete, and any omissions are at the end of the cross-examination (a little under two minutes) and re-examination (if any). Once again, Mr Beach did not make any submissions as to anything of importance from the appellant’s point of view being omitted in those parts of the transcript.

[21]     Overall, I am not persuaded that the ground of appeal based on omissions in the transcript gives rise to any issue of substance.  I have concluded that the issues

raised on the appeal can properly be considered on the basis of the transcript as it exists.

Adequacy of reasons

[22]     The second ground of appeal alleges that the Judge failed to give adequate reasons for his decision, and in particular that he did not refer to three key defence witnesses, or give reasons for rejecting their evidence.  The appellant contends that the evidence of those witnesses was inconsistent with the Judge’s finding that the appellant had behaved in a disorderly manner that was likely in the circumstances to cause violence against persons to start.

[23]     In advancing this submission, Mr Beach relied in particular on observations made by Randerson J in Takarei v Police:2

Where credibility is in issue, the presiding Judge should ordinarily give reasons for rejecting the evidence of a witness whose evidence is material to the outcome.   The extent of the treatment required will depend on the circumstances of the case, but the reasons given should be “adequate to the occasion”:3

[24]     The three defence witnesses  to  whose evidence Mr  Beach  referred  were Mr Pulham, Mr Finau and Mr Sean Kenrick.  I have already referred briefly to the evidence of Mr Pulham above.  I have also noted the witness’s evidence that he was not paying much attention, and did not hear anything that the appellant said near the time of his arrest.  In fact, he had his back to him.  Mr Beach made the point that Mr Pulham cannot have been one of those associates of the appellant who were restraining him.  However, that fact does not mean that the appellant was not being restrained by others.   I do not consider the fact that the Judge did not refer in particular to Mr Pulham’s evidence to be of any significance, or material to the outcome.

[25]     Mr Finau claimed to have been “a couple of metres” from the appellant when he was arrested.  He saw the appellant approach the police and ask what they were
charging Sean with and where they were taking him.  He said he was not shouting,

2	Takarei v Police HC Hamilton AP77/02, 22 November 2002 at 14.
3	R v Awatere [1982] 1 NZLR 644 (CA) at 649.

and that he could not hear whether he swore at the police.  He also gave evidence the appellant had not been abusive.

[26]     However,   in   cross-examination   he   admitted   that   he   had   not   been concentrating on what the appellant was doing or saying and that plainly reduced the force of his evidence.  Given the circumstances, I do not consider that the Judge was obliged specifically to refer to Mr Finau’s evidence before accepting the account given by the police witnesses.

[27]     As  to  the  evidence  of  Sean  Kenrick,  Mr  Beach  noted  that  he  said  the appellant had asked the police why they were arresting Sean and that he was not swearing.  As observed earlier, the transcript of the cross-examination is incomplete and, in fact, does not cover the point at which the appellant was arrested.  Focusing on the evidence-in-chief, it is unclear from what Sean Kenrick said whether his evidence related to the actual point at which the appellant was arrested;  his focus appears more likely to be related to the point at which he himself was arrested.

[28]     It is clear from Sergeant Clarke’s account that the conduct for which the appellant was arrested occurred after Sean’s arrest.  According to the sergeant after Sean had been arrested for disorderly behaviour, he was handcuffed and placed in the back of a police van.  All of the police then left the scene except for Sergeant Clarke and Constable Tippett. They returned to their vehicle, whereupon the appellant:

[Came] out between two parked cars towards us, towards where the patrol cars were parked.  His friends and associates of his were trying to pull him back.  He continued to abuse and be aggressive, and at that stage I made the decision that I could no longer leave him in that position or leave him in that arena.  I had no confidence that he would … modify his behaviour even if we did leave him there, and I had no choice left but to arrest him.

[29]     It seems to me that those events occurred after the point which Sean Kenrick was asked to address in his evidence-in-chief.  Once again, in the circumstances, I do not consider that the Judge was obliged specifically to discuss this evidence and give reasons for rejecting it, before accepting Sergeant Clarke’s account.

Risk of violence

[30]     Mr Beach submitted that in order to secure a conviction under s 3 of the Summary Proceedings Act it was necessary for the prosecution to establish that the appellant’s behaviour was such as was likely to cause violence to persons or property to start or continue.  He submitted that this requirement could not be met where the only likely  response  was  from  police  seeking  to  restrain  the  alleged  disorderly behaviour.  In this respect, he referred to the decision of the Court of Appeal in R v
Ali’imatafitafi.4

[31]     Mr Beach also submitted that there is an implicit requirement in s 3 that the prosecution must establish that a defendant was aware of the risk of violence, or at the very least aware of circumstances making that an obvious risk.  He contended that the evidence at the hearing fell well short of establishing that the appellant was aware of such a risk, or aware of circumstances making it an obvious risk.

[32]     Section 3 of the Summary Offences Act provides:

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.

[33]     The requirement that the defendant’s conduct is likely in the circumstances to cause violence against persons or property to start or continue is not a requirement of the offence of “offensive behaviour”, contained in s 4(1) of the Act.  That provision is as follows:

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 whether any person is alarmed or insulted by those words; or

(ii)       Addresses  any  indecent  or  obscene  words  to  any person.

[34]     As can be seen, the conduct proscribed by s 3 attracts a more substantial potential penalty than that proscribed by s 4.  Mr Beach argued that the requirement to  prove  knowledge  of  the  risk   implicitly  arose  because  the  offence  was imprisonable.

[35]     In R v Ali’imatafitafi, in the passage relied on by Mr Beach the Court of

Appeal said:5

It is evident that s 3 is aimed at conduct of a disorderly nature in or within view of a public place which is likely to result in disorder of a violent nature either continuing or starting.  Where the only response likely is that of police officers seeking forcibly to restrain the alleged disorderly behaviour, there is generally no threat to public disorder.  Indeed, a police response which seeks to restrain or arrest the offender is designed to have the opposite effect, i.e. to bring the offending behaviour to an end.  In doing so, the police officers are exercising their statutory duty to prevent a breach of the peace:  s 42 of the Crimes Act 1961. As such, their actions would be entirely lawful.

[36]     However, that statement does not assist the appellant in the circumstances of this case.

[37]     I have already set out part of Sergeant Clarke’s evidence above.   It is also

relevant to record his evidence that:

There were large numbers of members of the public, all in varying degrees of intoxication.  This is K Road on a Saturday night, it is a high-risk area for violence.  I had no confidence that if I left the defendant in that vicinity with his demeanour and his attitude and his angry demeanour, that I had  no confidence there would be no further issues.   Either he would assault somebody or somebody would assault him.

[38]     I consider that, in view of that evidence, the Judge was entitled to conclude that the appellant’s behaviour at the relevant time and place was likely to cause violence against persons to start, as he did in the passage quoted above.6   This was not a case where it could be concluded, as in Ali’imatafitafi that the only possibly violence response would be that of police officers seeking forcibly to restrain the alleged disorderly behaviour, with no evidence to suggest that any member of the general public was likely to be provoked into a violent response in consequence of the appellant’s behaviour.7

[39]     Mr Beach’s submission about what the prosecution had to establish in terms of the appellant’s awareness of the risk was based on what is said in Adams on Criminal Law.8   The learned authors there note that the terms of s 3 do not appear to import a requirement of mens rea, except where incitement or encouragement is alleged.   However, because s 3 is punishable by imprisonment and requires a real risk of violence, they perceive an implied requirement that the defendant be aware of the risk, or aware of circumstances making it an obvious risk.

[40]     I accept that the Judge did not specifically address this issue.  However, the factual findings that he made were such that I am satisfied the requirements of the statute were made out.   The police were dealing with a volatile situation, as the Judge found.  The appellant must have been aware of that because he had played a role at an earlier point in trying to prevent those in his group engaging further with others in the vicinity following Sean being punched.  There were crowds of people and the appellant must have been well aware of the circumstances described by Sergeant Clarke in evidence, as well as the way in which he himself was acting.

[41]     This ground of appeal also fails.

Freedom of expression

[42]     The  final  point  raised  is  based  on  the  appellant’s  rights  under  the  New

Zealand Bill of Rights Act 1990.  Mr Beach argued that the appellant’s conduct was

6	Kenrick v New Zealand Police, above n 1, at [15].
7	R v Ali’imatafitafi, above n 2, at [51].
8	Bruce Robertson (ed) Adams on Criminal Law – Offences and Defences (online looseleaf ed, Brookers) at [SO3.06].

protected by s 14 of the Act because it involved an exercise by him of the right to convey information or express an opinion.  He submitted that the Judge failed to give sufficient  weight to the right of freedom of expression.   He submitted that the appellant’s conduct should have been subject to an analysis by the Judge under s 5 of the Act, to ascertain whether convicting him of an offence would be a restriction on his  s 14  rights,  that  could  be  “demonstrably  justified  in  a  free  and  democratic society”.

[43]     It  is  clear  that  Mr  Beach’s  submission  assumed  that,  on  the  facts,  the appellant had been “only seeking further information from the police”, that he had not used abusive language in addressing the police and had not behaved in a disorderly way.  It will be apparent from the discussion above that the facts would not support that approach.

[44]     I  am  satisfied  that  the  appellant’s  behaviour  was  such  as  justified  his

conviction under s 3 and no Bill of Rights issue arises on the facts.

Result

[45]     The appeal is dismissed.