Thompson v Police [2012] NZHC 2234 (31 August 2012)

The New Zealand High Court dismissed the appellant’s appeal against convictions for disorderly behaviour on the ground that the appellant’s conduct did not involve an exercise of her right of freedom of expression pursuant to section 14 of the Bill of Rights Act 1990 (NZ). The High Court found that the appellant’s conduct (“calling for stray cats”) had caused a disturbance which the public could not reasonably be expected to endure.

Facts

The appellant, Ms Thompson, was charged with disorderly conduct pursuant to section 4(1)(a) of the Summary Offences Act 1981 (NZ). The charges arose out of complaints from residents about the appellant calling for stray cats.

It was alleged that Thompson screamed for hours, several times a week, to get the attention of local stray cats. Evidence was led by three residents as to the significant disturbance caused to the enjoyment of their private life.

Ms Thompson was convicted on the charges of disorderly conduct in the District Court and appealed to the High Court on the ground that the findings of disorderly conduct did not adequately consider her right to freedom of expression in calling for the stray cats.

Decision

In considering the test for disorderly behaviour, Justice Priestly observed that the enactment of the Bill of Rights had the effect of redefining the former test for disorderly behaviour. His Honour referred to Brooker v Police [2007] 3 NZLR 91 (SC), in which the Supreme Court had sought to redefine the test for disorderly behaviour, observing that:

…in a post – NZBORA [New Zealand Bill of Rights Act] legal framework, a test for disorderly behaviour that focuses on the tendency of the behaviour to annoy those present is more restrictive of freedom of expression than is necessary to protect the public order.

Justice Priestley considered that such a restrictive test would offend section 6 of the Bill of Rights which prefers a meaning of an enactment that is consistent with the rights and freedoms contained in the Bill of Rights.

In circumstances where the relevant “disorderly” conduct involves a right under the Bill of the Rights, Justice Priestley considered that:

• It was necessary to conduct a balancing exercise of rights against the background of the alleged disorderly behaviour and its context. Privacy considerations and the right to freedom of expression were examples given by His Honour of the type of interests which would likely be at the forefront of rights to be balanced.
• The balancing exercise was required to determine the legitimate restriction to be placed on such rights in accordance with section 5 of the Bill of Rights. Section 5 provides that rights in the Bill of Rights may only be subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Justice Priestley considered that two of the majority judgments in Brooker v Police had, in substance, determined that section 5 is directed towards determining what a reasonable person could endure.

Justice Priestley then sought to address the issue of whether the alleged “disorderly behaviour” had engaged the right to freedom of speech. His Honour determined that the appellant’s conduct in calling for stray cats did not constitute expressive conduct deserving of protection under section 14 of the Bill of Rights. His Honour concluded that:

[w]hile it is dangerous…to exclude from “expression” certain types of conduct lest the right itself be diluted, equally it is farcical to suggest that every human activity is an exercise of the right to free expression. Care must be exercised to ensure that “expression” which has a protected status is not confused with mindless human utterances or sounds.

Accordingly, the appellant was not protected by section 14 of the Bill of Rights. His Honour held that even if he was wrong in this assessment, the “volume, duration, location and effect of [the appellant’s] raucous callings would still need to be balanced against section 14.” His Honour dismissed the appeal, concluding that the appellant’s behaviour had caused a disturbance which affected members of the public could not reasonably be expected to endure.

Commentary

Section 7 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is comparable to section 5 of the Bill of Rights. Both instruments provide in effect that a human right may be subject under law only to reasonable limits as can be demonstrably justified in a free and democratic society. The Charter, however, provides additional guidance as to how to assess whether a right will be limited including consideration of the nature and the extent of the limitation, the relationship between the limitation and its purpose and any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

This decision is available online at: http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZHC/2012/2234.html

Brooke Silcox is a Law graduate at Allens.