New Zealand Police v Chiles [2019] NZDC 3860

Published 21 March 2019

Trial — failure to heed warning to desist unreasonably obstructing a public way — freedom of assembly — protest against defence industry weapons fair — Summary Offences Act 1981, ss 4 & 22 — New Zealand Bill of Rights Act 1990, ss 5, 6, 16 & 18 — Moonen v Film and Literature Board of Review (No 1) [2000] 2 NZLR — Hansen v R [2007] NZSC 7 — Morse v Police [2011] NZSC 45 — R v Lohnes [1992] 1 SCR 167 — Brooker v Police [2007] 3 NZLR 91 — Oosterman v Police, HC Auckland, CRI-2005-404-251, 24 August 2006 — Stanton v Police [2012] NZHC 3223. Two defendants faced charges under s 22 of the Summary Offences Act ("the Act"), namely that they had not heeded a warning from police to stop unreasonably obstructing a public way. The defendants had been arrested at a protest against a New Zealand Defence Industry Forum after blocking gates to Westpac Stadium in order to disrupt the arrival of 500 delegates who were expected to attend the forum. In order for the defendants to be found guilty, the Police had to prove beyond reasonable doubt that each defendant was on a public way, they obstructed that public way, that they were warned to desist and that each defendant either continued with the obstruction or desisted but then re-obstructed in circumstances in which it was reasonable to deem the warning still applied to the new obstruction. Failure to prove any of these elements beyond reasonable doubt would mean the defendants could not be found guilty. A verdict of not guilty would also result if the defendants could establish they had reasonable excuse to obstruct the public way. There was no doubt that the protest took place on a public way, being Westpac Stadium. The defendants invoked their rights to freedom of expression, association, movement and peaceful assembly under the New Zealand Bill of Rights Act ("BORA"). In order to determine whether the defendants had been unreasonably obstructing a public way, s 22 of the Act had to be able to be given a meaning consistent with ss 5 and 6 of BORA. The Judge considered the ordinary meaning of the words "unreasonably", "impedes" and "passage" as well as relevant case law. Precedent established that protesting on a public way was not unlawful and freedom of assembly on a public way is an exercisable right. The purpose of s 22 of the Act was to facilitate police operations in a manner consistent with the freedom of assembly rather than to limit the rights protected in BORA. The Judge found that the actions of both defendants did not amount to unreasonable impediment to normal passage along a public way. Their protest was a common use of a public way and not unreasonable. Both defendants were therefore found not guilty. As the Police could not prove the defendants had unreasonably obstructed a public way, the Judge did not need to consider whether the remaining elements of the offence had been made out. Judgment date: 5 March 2019