Semester 1 Disorderly behaviour notes PDF

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Summary

Criminal law is a part of “public law” which is “State v Individual”. It always involves the breach of a statute or delegated legislation. The purpose of criminal law is:a) To establish whether a crime has been committed beyond all reasonable doubt (burden of proof is on the prosecution); and b) To ...

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Criminal law is a part of “public law” which is “State v Individual”. It always involves the breach of a statute or delegated legislation. The purpose of criminal law is: a) To establish whether a crime has been committed beyond all reasonable doubt (burden of proof is on the prosecution); and b) To sentence on conviction The result is either conviction or acquittal. Civil law contains all parts of “private law” which is “Individual v Individual”. Always involves non-observance and facilitation of any part of the private law, including: -

Breach of Confidence Negligence Defamation Formation of a company

The purpose of civil law is to: a) Declare rights of parties involved (burden of proof is on the plaintiff, standard of proof is on the balance of probabilities); and b) To compensate and necessary damages or provide another remedy The result is judgment for one party. Keywords Criminal proceedings Prosecution Breach of an Act Sentencing Conviction Reserved (regarding a decision) Employment Relations Authority (ERA) Commerce Commission Judgment

Civil proceedings Judgment Compensation Injunction Damages

Answers to “Jurisdiction of NZ Courts” exercise: a) A claim under a will. High Court. b) A contractual dispute involving $150,000. District Court. c) A person buys another’s bike valued at $4200 and won’t pay the full sum because it’s faulty. Disputes Tribunal. d) Prosecution for perjury with maximum imprisonment of 3 years. District Court: category 3 offence. e) Tenancy-related matter involving $4000. High Court. f) Dispute regarding ownership of the Queen Charlotte ocean liner. High Court. g) Action regarding division of property valued at $160,000 for couple ending de facto relationship. Family Court. h) Appeal against drink driving (category 2 offence). High Court. i) Bankruptcy petition where debtor owes $100,000. High Court.

j) Non-payment of i) $8,000. District Court. ii) $80,000. District Court. iii) $800,000. High Court. k) Appeal against murder conviction entered in High Court. Court of Appeal. l) Jury trial for theft of prize bull terrier (category 3 offence). District Court. m) Dispute over section worth $400,000. District Court.

Reading: “Lord Denning: The Due Process of Law” notes In 1978 the Law Commission made their Report on the Matrimonial Home (co-ownership and other occupation rights). Husband cheats on wife and buys another home with another woman. He suggests his wife can continue living in the home with their invalid son but wants her to divorce him. She refuses. He takes this matter to the court and the judge states that in common law, the husband has no right to turn his wife out of the house even though he is the home owner. The wife has done nothing wrong and it is the house that he has provided as the matrimonial home. He has no right to claim possession from her. The judge proceeded on s 17 of the Married Women’s Property Act 1882. In the case of a question between husband and wife about property, that section allowed any High Court judge to make order as he sees fit. The principle was scotched 20 years later in Pettitt v Pettit where the House declared s 17 to be procedural only and did not affect legal rights of either party.

The disorderly behaviour cases below show how the law can be adapted. Note the change of requirements needed to prove disorderly behaviour.

Case reading: “Kinney v Police” notes Criminal law – disorderly behaviour – conduct must be more than unmannerly or disorderly for basis of conviction – Police Offences Act 1927 s30 Appeal against conviction on a charge of disorderly behaviour. After a daylight festival, the appellant waded in an ornamental duck pond and was arrested after 1-2 mins. The appeal was granted, applying Melser v Police [1967] NZLR 437, 444/ “This section is not designed to enable police to discipline every irregular or inconvenient or exhibitionist activity or to put a criminal sanction on over-exuberant behaviour” (p.926, line 1). The question was whether the appellant’s behaviour was considered criminal under s3D of the Police Offences Act 1927. “Every person commits an offence… who, in or within view of any public place… behaves in a riotous, offensive, threatening, insulting or disorderly manner, or uses any threatening, abusive or insulting words.” Appellant gave evidence and endeavoured to persuade the learned Magistrate that he had walked into the duck pond to wash his feet. It seemed plain to the Magistrate that the appellant had decided to put on an exhibition to his friends as a mildly incongruous prank. The officer expresses that people watching from their homes may have been offended by the appellant’s actions because of the presence of goldfish in the pond. This was accepted by the Magistrate and used as the basis for his decision.

Case reading: “Police v Christie” notes Police offences – Disorderly behaviour. Whether it is necessary that behaviour should be such as to provoke or be calculated to provoke a breach of peace – Police Offences Act 1927, s3D (Police Offences Amendment Act (No. 2) 1960, s2). To support a charge of disorderly behaviour under s3D of the Police Offences Act as enacted by s2 of the Police Offences Amendment Act (No. 2) 1960, it is not necessary to show that the conduct was such to provoke a breach of the peace or be calculated to do so – Police v Ward (1935) 30 MCR 76 and Jones v Carkeek (1929) 24 MCR 150, 153. The question is whether that decision was erroneous of the law. Before one gets convicted of disorderly behaviour, the court should be satisfied that the defendant’s conduct was considered by persons in the public place in view of whether the incident took place, a reasonable apprehension that his conduct might “provoke a breach of the peace”. In this case, the learned Magistrate agreed that no authority was given for that statement. S 3D now reads as follows: “Every person commits an offence and is liable to imprisonment for a term not exceeding three months or to a fine not exceeding 100 pounds ($2000NZD)”. It is unhelpful and misleading to construe “disorderly” when used in connotations such as “disorderly house” or “idle and disorderly” to name two instances which both have common law and statutory histories. The word must be construed in a sense which marks the type of behaviour at which it is aimed. The standard for disorderly ought to be reasonable and not limit freedom of movement of speech or impose restrictions or conditions that are too narrow. A conviction should not be entered unless the conduct or behaviour constitutes an attack on public values that ought to be preserved. The respondent is a 30-year-old man who at 10:25pm followed an 18-year-old woman while she was walking up High Street on her way home. She was unaccompanied and unknown to the defendant. He followed her for 100 yards and did not communicate to her in any way. She tried to shake him off by walking into the doorway of the Chalet Hospital and waited for some time. She didn’t see him when she came out but saw him shortly after, just behind her. She tried to shake him off again. The respondent entered the gateway of a house with seemingly no business to enter there. The woman crossed the road to get away from the entrance of the gateway. As she passed by, the respondent came out and walked up the street parallel to her. As she drew near her home, she ran diagonally across the road and went inside her house. The respondent does not live in Grant nor High Street. His address was not in locality. He had not informed the Court of his business in the area. It must have been obvious to him that his actions would cause the Plaintiff distress and anxiety. The young woman suffered considerable inconvenience and psychological disturbance. Police v Ward and Jones v Carkeek (supra) do not, in Henry J’s view, correctly define “disorderly behaviour”. Henry J feels the learned Magistrate was wrong in dismissing the information based on the grounds that s3D was aimed only at the suppression of the breaches

of the peace and conduct calculated to make such breaches. Nothing in s3D illustrates that there are such restrictions in its meaning and nothing in it requires/supports such a narrow construction. The American courts correctly state the law in NZ in saying, “one who commits a breach of the peace is guilty of disorderly behaviour, but not all disorderly conduct is a breach of the peace”. This distinction caused a wrong construction to be placed on the statute in this case. Appeal allowed.

Case reading: “Melser and others v Police” notes Criminal law – Police offences – Disorderly behaviour – Persons chaining themselves to pillars in view of public place – Refusing to move until arrival of State visitor – Whether guilty of disorderly behaviour – Police Offences Amendment Act (No.2) 1960, s2(1) Criminal law – Police offences – Public place – Parliament grounds – Whether a public place – Police Offences Act 1927, s40 (m) Disorderly behaviour: The conduct must have caused or been likely to cause disturbance or annoyance to others present. Must annoy or insult persons sufficiently deeply or seriously to warrant interference of the criminal law. Must be conduct not only disorderly but also likely to cause disturbance or annoy others considerably. There was sufficient evidence that appellants were within view of a public place. Appeal dismissed. Four appellants were found by police, chained to pillars at entrance of Parliament House. Chains were round the pillars and bodies so that padlocks needed to be unlocked or chains cut for appellants to be released from pillars. Appellants were demonstrating against visit of the Vice President of the United States to NZ. Appellants stated they did not have keys and did not intend to move until after the VP’s arrival. They stated they were an independent group making a passive demonstration on their own account. Not vocal or offensive in any way, only standing quietly chained to pillars. VP could not have entered Parliament House without passing by. Around 200-300 gathered in front of steps, some carrying banners protesting America’s participation in the Vietnam war. Police would not have taken action if appellants joined the rest of the crowd. When asked to move, appellants refused and were arrested. Police cut chains with bolt cutters. Mr Taylor (for the appellants) submitted: a) There was no sufficient proof that the Parliament House steps and pillars were a public place or in view of a public place b) Conduct of appellants was not serious enough to be considered disorderly c) No proof that anyone was offended/otherwise adversely affected

Mr Horton (for the state) submitted: a) Parliament grounds were a place for public resort, or open to and used by the public b) Appellants’ conduct was disorderly c) Appellants were rightly convicted “Every person commits and offence… who in or within view of any public place as defined by s40 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” – s2 Police Offences Amendment Act (No. 2) 1960. “In this part of the Act if not inconsistent with the context, “public place” shall, in addition to the meaning assigned thereto in s2 thereof, be deemed to include: a) Any public park, garden, reserve or other place of public recreation or resort; or b) Any public place as defined in s2 hereof and every other place open to or used by the public, whether on the payment of money or otherwise.” – s40(a) Police Offences Amendment Act (no. 2) 1960. Tompkins J: The fact that 200-300 people went to Parliament grounds to make a public demonstration is evidence that sufficiently shows that it is a place open to or used by the public. Appellants behaviour was disorderly on the basis they refused to move and purposefully stopped their removal by proper authority to be able to defy orders from police or Parliament House attendants to move from the pillars. Police have a duty to preserve order and keep public within proper bounds when important visitors of State are passing and entering Parliament House on official business. Conduct seriously offended against values of orderly conduct. From this judgment, the four appellants appealed to the Court of Appeal. Barton (for appellants): No restriction upon freedom of speech/expression should be tolerated. The test applied by the learned Magistrate and Tompkins J was wrong and the court should overrule this decision. Assuming the test was right, the conduct did not amount to disorderly behaviour. There was no sufficient proof that conduct was within view of a public place. No element of actual or likely annoyance or disturbance. Appellants were stationary or almost so at all times. Carried no placards and uttered no words. Presence caused embarrassment and put some people to some difficulty but not enough to say they caused annoyance or disturbance to anyone. Police knew of defendants’ position from 8:20am but took no action until almost 8 hours later. Judge adopted the wrong approach when defining disorderly by giving the definition and placing emphasis on “orderly” then saying anything that isn’t orderly is disorderly. The closer antonym to orderly is “disordered” rather than “disorderly”. On one occasion that 200-300 were present is not enough to establish that those grounds are open to/used by the public. Whitney v Police [1966] NZLR 1025, 1026. Appeal failed. Case dismissed with costs to the respondent of 20 guineas and disbursements. North P Mr Barton failed to persuade that conduct of appellants was not at least likely to cause

annoyance to others present. Court is fully entitled to take notice of the fact that Parliament grounds, to common knowledge, is a place open to and commonly used by the public. Turner J Appeal turns not on a point of law but on the conclusion of mixed laws and fact. Question is not whether appellants conduct is sufficiently disorderly but the degree of disorderly. It is impossible not to say the appellants’ behaviour went some considerable distance towards provoking breach of the peace. McCarthy J Freedom of opinion is accepted as a fundamental human right. However, democracy means some freedoms conflict with others. Right to protest, if exercised without constraint, means interference with other peoples’ right to privacy and freedom from molestation. Freedoms are of different qualities and values. Higher and more important values should not be unduly restricted in favour of lower, less important ones. Although appellants have a right to protest, the speaker and members of Parliament have a right to freedom from interference at the doorway of their House on the part of intruders.

Reading case reports The date in brackets [ ] is the year the case was reported. The numbers after the brackets signifies the volume number. The case report series (or book) follows the year. E.g. N.Z.L.R. Page number follows the title of the series. For example: Morse v Police [2012] 2 NZLR 1

The judge’s name will be stated at the beginning of the cases. For example, Woodhouse J. The “J” following the name stands for “justice” and is orally spoken as Justice Woodhouse. “CJ” stands for “chief justice”. *See page 7 of the style guide for variations in terminology when referring to a judge A summary of the case details precedes the judgment and is written by the editor, not the judge. At the end of each judgment, you will either see appeal allowed or appeal dismissed.

Terminology Stare decisis: To follow Ratio decidendi: To distinguish Obiter dicta: To overrule Current Supreme Court bench: The Honourable Justice O’Regan The Honourable Justice William Young The Right Honourable Dame Sian Elias Chief Justice The Honourable Justice Glazebrook The Honourable Justice Ellen France Precedent Lower courts are bound by the decisions of higher courts, or “precedent”. For example, the District Court is bound by the High Court. The High Court is bound by the Court of Appeal, etc. Court decisions from other jurisdictions (other countries) are not binding on New Zealand courts – they can be persuasive only.

The hierarchy: 1. 2. 3. 4.

District Court (lowest) High Court Court of Appeal Supreme Court (highest)

SC: Will only depart from its own decisions very rarely CA: Will only depart from its own decisions very rarely HC: Not bound by its own decisions DC: Not bound by its own decisions A hierarchy exists to spread the workload and provide a system of appeal for unsuccessful litigants and basis for precedent. Binding precedent: Precedent from a higher court with higher jurisdiction. Persuasive precedent: Precedent from a lower court or different country. Dissenting judgment: Judge(s) that disagree(s) with majority-wins cases “dissent” from majority decision. If the judge is well-regarded, his/her judgment often illuminates/clarifies the majority’s decision. It can provide a dialogue and possible impetus for future development of the law.

Christie ratio: Disorderly behaviour is behaviour that occurs in or within view of a public place that seriously offends against those values of orderly conduct recognised by right-thinking members of the public. The behaviour in question need not cause a breach of the peace. Melser and others exercise: 1. Cur adv vult or curia advisari vult means ‘the court wishes to be advised’ or ‘the court took time to come to its decision’. 2. There are five judgments, three from CA. 3. There were four respondents who chained themselves to the pillars in front of the entrance of the Parliament House. The chains were round the pillars and their bodies It was impossible for them to be released from the pillars without the padlocks being unlocked or chains cut They said they did not have keys and intended to stay until after the VP had arrived They refused to leave when asked twice 4. Henry J defined disorderly as the antonym of orderly. Burton said that the word ‘disorderly’ stood on its own. 5. Yes. 6. Turner J: Must be sufficiently serious or deep to warrant interference of criminal law. 7. By joining the other protestors. 8. The VP 9. Tompkins J states “no penal restriction upon the rights of freedom of speech and freedom of expression should be tolerated.” McCarthy J states “freedom of opinion, including the right to protest against political decisions, is now accepted as a fundamental human right in any modern society which deserves to be called democratic… but a democracy is compounded of many freedoms, some of which conflict with others… freedoms are of different qualities and values and the higher and more important ones should not be unduly restricted in favour of lower or less important ones”. 10. The conduct of the appellants went some considerable distance toward provoking a breach of the peace and was certainly calculated to give serious annoyance to the public. – Turner J

When writing an answer to a problem question:   

Compare and contrast facts between the problem and relevant cases Consider how different/similar the cases are Extract the law (rule, ratio, reasoning) from relevant cases

Koriko problem The answer is formatted in “ILAC” format: Issue, law, application, conclusion.

*Lay out the material facts when identifying the issue – Where? How? Impact on those present? Koriko Issue: Whether the protestors’ actions in holding up graphic banners depicting whale slaughter at Millbrook Golf Course close to the play and causing upset to at least one competitor and officials is disorderly behaviour in terms of s 3D Police Offences Act 1927. Law: For behaviour to be within the scope of s 3D of the Police Offences Act 1927 it must occur in or within view of a public place. Public Place the definition in s 40 of the Act includes: (a) Any public park, garden…or other place of public recreation or resort; or … (m) Any public place as defined in s 2 hereof, and every other place open to or used by the public, whether on the payment of money or otherwise. A public place is “a place which is open to, and commonly used by, the public.” (North P in Melser). Accord...