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Case name and citationBrooker v Police [2007] NZSC 30, [2007] 3 NZLR 91CourtSupreme CourtStatement of material factsThe appellant, Mr Allistair Brooker (Brooker), believed that the constable had acted unlawfully towards him when she acquired a search warrant to search Mr Brooker’s home. 1 Mr Brooker...

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Case name and citation Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91

Court Supreme Court

Statement of material facts The appellant, Mr Allistair Brooker (Brooker), believed that the constable had acted unlawfully towards him when she acquired a search warrant to search Mr Brooker’s home.1 Mr Brooker then decided to protest outside the constable’s home. He first went and knocked on her door to ensure she was home. When he was told to leave, he retreated to the grass near the road to start his protest. Mr Brooker had a sign facing the road that said, “… No more bogus warrants”.2 He also was singing in what was described as a “… normal singing voice”3 by a police witness. The constable then called the police. The inspector advised Mr Brooker that if he did not leave he would be arrested for intimidation. Mr Brooker refused and held out as hands. He was then told that if he did not move his car from the pavement, it would be towed; Mr Brooker went and moved his car before returning to his protest. He was later arrested for intimidation when he was asked to leave for a second time.4

Procedural history The District Court convicted Mr Brooker “… of behaving in a disorderly manner in a public place.”5 He was fined and convicted under s 4(1)(a) of the Summary Offences Act 1981 (SOA)6. Mr Brooker then appealed to the High Court against the conviction, his appeal was dismissed. He then appealed to the Court of Appeal against the conviction and his appeal was once again dismissed. He then appealed to the Supreme Court.7

1 Brooker v Police [2007] NZSC 30, [2007] NZLR 91 at [13]. 2 Brooker v Police, above n 1, at [14]. 3 Brooker v Police, above n 1, at [14]. 4 Brooker v Police, above n 1, at [13] and [14]. 5 Brooker v Police, above n 1, at [18]. 6 Summary Offences Act 1981 s 4(1)(a). 7 Brooker v Police, above n 1

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Issue/grounds for appeal The ground for the appeal is whether or not “… the appellant’s conduct was capable of being disorderly within the meaning of the s 4(1)(a) of the Summary Offences Act 1981.”8

Summary of the court’s analysis Elias CJ used a combination of both the literal and purposive approach in interpreting s 4(1)(a) of the SOA9. This means that she looked at the ordinary meaning of the words based on everyday language as well as the purpose of the Act. Her Honour also looked at the Police Offences Act 1884 (POA)10, which was replaced by the SOA11, to further understand the meaning of disorderly behaviour. Elias CJ also considered the judgments of the High Court of Australia and the Supreme Court of Canada who had similar cases. Before starting her analysis, Elias CJ states, in reference to this case, that the New Zealand Bill of Rights Act 1990 (NZBORA)12 says that, “… 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.”13 The District Court had contemplated the meaning of disorderly behaviour which was precedented by cases, Police v Christie14 and Melser v Police15, under s 3D of the POA16. Elias CJ talked about how the Courts had used the above cases on the assumption that the meaning of disorderly behaviour, as established by the above cases, remains good law in spite of the repeal of the s 3D of the POA17 and in spite of the enactment of the NZBORA18 and the SOA19. S 3D of the POA20 was about how everyone who in or in the view of a public place behaves in a way that is offensive, threatening or behaves in a 8 Brooker v Police, above n 1, at 93; and Summary Offences Act 1981, above n 5. 9 Summary Offences Act, above n 5 10 Police Offences Act 1884 s 3D. 11 Summary Offences Act, above n 5. 12 New Zealand Bill of Rights Act 1990. 13 Brooker v Police, above n 1, at [24]; and New Zealand Bill of Rights Act 1990 s 6. 14 Police v Christie [1962] NZLR 1109. 15 Melser v Police [1967] NZLR 437 . 16 Police Offences Act, above n 7. 17 Police Offences Act, above n 7. 18 New Zealand Bill of Rights Act 1990. 19 Summary Offences Act 1981. 20 Police Offences Act, above n 7. 1

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disorderly manner commits an offence.21 This provision also included people who use “… threatening, abusive or insulting words.”22 Elias CJ noted that the reason that this provision was repealed and replaced by the SOA23 was because it placed restrictions on how people can behave in public and what they can say.24 Another reason was that s 3D of the POA25 had the “… potential to reach into the area of free speech”.26 The SOA27 splits the offence of disorderly behaviour into two separate sections. One section was about disorderly behaviour similar to the type described above which could result in imprisonment or a fine. The second section was a lesser offence where someone behaves in a way that is offensive or disorderly in a public place and uses words that have the intention of threatening, insulting or offending someone, this offence results in a fine.28 After looking at both the POA29 and the SOA30, Elias CJ believes that there cannot be two different meanings for the word disorderly. Her Honour also states that:31

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.

Next, her Honour looks at the case of Coleman v Power32 which was a case heard in the High Court of Australia. The Court was divided on whether the offence of using offensive words “… required the likelihood of a breach of peace.”33 However, they agreed that the legislation served “… public, not

21 Police Offences Act, above n 7. 22 Police Offences Act, above n 7. 23 Summary Offences Act 1981 24 Brooker v Police, above n 1, at [31] 25 Police Offences Act, above n 7. 26 Brooker v Police, above n 1, at [28]. 27 Summary Offences Act 1981 28 Brooker v Police, above n 1, at [29]. 29 Police Offences Act 1884 30 Summary Offences Act 1981 31 Brooker v Police, above n 1, at [31]. 32 Coleman v Power [2004] 220 CLR 1. 33 Brooker v Police, above n 1, at [31]. 2

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private purposes.”34 The Supreme Court of Canada also reached a very similar conclusion in R v Lohnes.35. Although the decisions of other jurisdictions are not binding in New Zealand, they can be persuasive in the decision of the Court, which is how these two cases have been used by Elias CJ in her judgment. Before moving on and talking about the wider context, her Honour concludes with:36

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 used can be properly characterised as “threatening or insulting”. … 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).

While looking at the wider context, her Honour states that it is clear from the structure and the language of the SOA37, s 4(1)(a) protects public order.38 Her Honour also went on to say that there are many provisions in our law that are made to protect interests and values that are covered by the NZBORA39. Elias CJ gave an example of a case where the lawyers reviewed the Trespass Act 1980 and the Harassment Act 1997 which specifically protected the private interests of a person. This example showed that there are provisions in the law like the two Acts above that protect the personal interests of a person. This suggested that it was unnecessary for s 4(1)(a) of the SOA40 to be given an expansive meaning that wasn’t associated to public order. 41

Her Honour also noted that a narrower interpretation of disorderly behaviour, strongly associated with public order, is more coherent “ …with the

34 Coleman v Power, above n 28, at [179] 35 R v Lohnes [1992] 1 SCR 167. 36 Brooker v Police, above n 1, at [35]. 37 Summary Offences Act 1981 38 Brooker v Police, above n 1, at [36]. 39 New Zealand Bill of Rights Act 1990 40 Summary of Offences Act, above n 5 41 Brooker v Police, above n 1, at [37]. 3

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fundamental principle that criminal law must be predictable.” 42 In R v Lohnes, McLachlin J, for the Court took the stand that the interpretation was motivated by the principle of legality “which affirms the entitlement of every person to know in advance whether their conduct is illegal.”43 Elias CJ further explained what McLachlin J was trying to convey, which was that if people do not know whether what they are doing, in this case expressing their opinion, is an offence then their freedom of expression is suppressed.44 Her Honour also makes the point where:45

If ‘disorderly behaviour’ is not anchored to protection of order in and near public places and can be used to protect other values identified by the judge, … the rights and freedoms contained in the New Zealand Bill of Rights Act may well be distorted.

This means that if the meaning of disorderly behaviour is expanded to protect private interests and not just the protection of order in and near public places, then it defeats the purpose of rights like the freedom of expression in the NZBORA46. Her Honour also states that she doesn’t think that the meaning of ‘disorderly behaviour’ that was adopted in Melser v Police47, which was, “behaving in a way that right-thinking members of the public would consider inappropriately annoying to members of the public”,48 complies with the NZBORA49 and that the meaning is not good law anymore. Elias CJ does however agree with Douglas J who in Terminiello v Chicago50 expressed that “… freedom of speech should be restricted for reasons of public order only when there is a clear danger of disruption rising far above annoyance.” 51 Returning to the facts of the case, Elias CJ stated that:52

42 Brooker v Police, above n 1, at [38]. 43 R v Lohnes, above n 31, at 180 44 Brooker v Police, above n 1, at [39]. 45 Brooker v Police, above n 1, at [40]. 46 New Zealand Bill of Rights Act 1990 47 Melser v Police [1967] NZLR 437. 48 Melser v Police [1967] NZLR 437. 49 New Zealand Bill of Right Act 50 Terminiello v Chicago 337 1 (1949) 51 Brooker v Police, above n 1, at [42]. 52 Brooker v Police, above n 1, at [50]. 4

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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 disruption to [the] use of the road; … .There is no evidence that members of the public were aware of the protest, much less that they were alarmed or disturbed in their use of the neighbourhood by it.

The decision Elias CJ stated that s 4(1)(a) of the SOA53, “… exists for the purpose of preservation of public order, not to protect privacy or personal sensitivities alone.”54 Elias CJ believed that the other Courts had not focussed on the “… question whether Mr Brooker’s behaviour was disruptive of public order.”55 After interpreting s 4(1)(a) of the SOA56 and the relevant cases, she came to a conclusion that Mr Brooker’s behaviour was not disorderly under s 4(1)(a) of the SOA.57

Order made by the Court The orders by the Court were to allow the appeal and to quash the conviction.58

Ratio decidendi Elias CJ held that, “ … 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.”59 This ratio has authority and will be legally binding to the inferior courts in New Zealand until such date that it is no longer good law. For example, if s 4(1)(a) of the SOA60 is repealed like the s 3D of the POA61. This ratio can be applied to other issues around disorderly behaviour and can help with issues on what constitutes as an offence under this section. 53 Summary Offences Act, above n 5. 54 Brooker v Police, above n 1, at [41]. 55 Brooker v Police, above n 1, at [48]. 56 Summary Offences Act, above n 5. 57 Summary Offences Act, above n 5. 58 Brooker v Police, above n 1, at [48]. 59 Brooker v Police, above n 1, at [41]. 60 Summary Offences Act, above n 5 61 Police Offences Act, above n 7 5

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Bibliography A Cases

1 New Zealand Brooker v Police [2007] NZSC 30 Melser v Police [1967] NZLR 437 Police v Christie [1962] NZLR 1109 2 Australia Coleman v Power [2004] 220 CLR 1

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3 Canada R v Lohnes [1992] 1 SCR 167

4 United States of America Terminiello v Chicago 337 US 1 (1949)

B Legislation 1 New Zealand Summary Offences Act 1981 Police Offences Act 1884 New Zealand Bill of Rights Act 1990

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