IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY CRI-2016-485-15
(2016) NZHC 1495
BETWEEN JAYNE ROUTHAN
AND NEW ZEALAND POLICE
Hearing: 28 June 2016
Judgement: 1 July 2016
JUDGEMENT OF WILLIAMS J
- Following a judge-alone trial in the District Court, Ms Routhan was convicted of trespass. She represented herself. Judge Boshier ordered by way of sentence, that she come up to Court for sentence if called upon within nine months.
- Ms Routhan was convicted pursuant to s3(1) of the Trespass Act 1980. This provides that it is an offence to trespass on any place and refuse to leave after being warned by an occupier. This is generally referred to as the ‘single event’ trespass offence. This is to be constrasted with a s4(4) of the Act. That provides it is an offence to trespass within two years of having been earlier warned by an occupier to stay off. That is the ‘two event’ offence.
- Ms Routhan was, and remains, very unhappy with various decisions ACC had made about her and wished to protest about this. At some time between 12pm and 1 pm on 2 September 2015, Ms Routhan visited the Wellington Branch of ACC. She set herself up in the foyer within the building. She displayed two placards each containing handwritten text to the general effect that ACC would kill her through bad, lawless or neglectful decisions. She also displayed a painting in somewhat abstract form of a person with stab wounds in his or her back. The items embedded in the persons back included a knife on which the letters “ACC” were painted.
- She sat on the floor in the reception area next to an armchair and a coffee table. By being located in this spot she blocked the fire exit door. A security guard repeatedly asked her to leave the premises. She refused. The manager was called and she too asked Ms Routhan to leave. Ms Routhan still refused. The police were then called.
- Meanwhile, the building was partially locked down in the sense that reception staff vacated that area and took refuge behind glass doors. Automatic sliding doors at the entrance to the reception area were then set to exit only. Ms Routhan would be permitted to leave, but clients could not enter. Business was brought to a standstill.
- When the police arrived, they also asked Ms Routhan to leave. They arrested her when she again refused to do so.
District Court Decision
- The judge summarised the evidence of the security guard, the manager and the arresting constable. She also summarised Ms Routhan’s evidence.
- The judge then found that all elements of the offence of one event trespass were met. The manager had the necessary delegated authority to act as the occupier of the premises. Both the security guard and the manager had asked Ms Routhan to leave. She had refused to do so.
- The judge also recorded the manager’s reasons for asking Ms Routhan to leave was that she was blocking the fire exit, the placards and painting were disturbing to clients and here was a risk to client and staff safety. There were also issues, the Judge noted, in terms of the ability of ACC to transact its ordinary business in light of the partial building lock-down. These factors entitled the manager to ask Ms Routhan to leave the judge found.
Submissions and issues
- Comprehensive and thoughtful submissions were provided by counsel for the appellant raising a number of separate grounds by which, it was argued, the judge’s decision should be overturned.
- In light of the view I take of this case, only one ground need be discussed. This relates to the applicability of the reasonableness standard in the New Zealand Bill of Rights Act 1990 (NZBORA) to decisions to invoke s 3 of the Trespass Act in relation to public buildings.
- Ms Bolland, for Ms Routhan, argued that Ms Routhan could invoke rights of assembly and expression protected by NZBORA and that this required the officials who involved the Trespass Act to be satisfied that doing so was reasonably necessary in the circumstances. There was, Ms Bolland submitted, no evidence that officials had made such assessment. Further, she said, there was no evidence either that Judge Boshier undertook her own analysis of that issue or even understood that NZBORA was relevant. It followed, Ms Bolland submitted, that the judge had made an error of principle and the conviction should be set aside accordingly.
- In response, Mr Woods argued that although the judge did not explicitly consider NZBORA or any reasonableness test, she noted that there was evidence of three reasons for the manager asking Ms Routhan to leave and when those reasons taken together, they amounted to sufficient evidence that invoking the Trespass Act was reasonable. The Judge, in her reasons, took these matters into account. They were that MS Routhan was blocking the fire exit; the painting showing stab wounds in which ACC was implicated was disturbing for staff and clients; and Ms Routhan’s presence in the building had caused a partial lock-down, interrupting thereby, the ordinary work of the office. In such circumstances, it was submitted, Ms Routhan’s behaviour was in fact unreasonable, and the corollary was that invoking the Trespass Act was reasonable. Therefore, even if the Judge had erred, her error would not have affected the result
- It is now beyond argument that those exercising public authority may only invoke the Trespass Act against when this is ‘reasonably necessary’, in light of the freedom of peaceful assembly and freedom of expression rights protected by ss 14 and 16 of NZBORA. Kos J in an earlier case involving Ms Routhan provided the following non-exhaustive list of considerations to be factored in to assessing whether invoking the Trespass Act is, in any particular case, reasonable. They were:
- whether the assembly was unreasonably prolonged;
- the degree to which the rights and freedoms of other people are affected by the trespass notice;
- the degree to which the assembly or protest interfered with the rights of the occupier to use the premises for ordinary business or duties free of nuisance;
- the size of the assembly and its duration;
- the content of what is being expressed, if the message is one of hatred, racial abuse, intolerance or obscenity; and
- whether the notice is justified on the grounds of maintenance of public order (such as lack of prior notice to police of the time and location of the event or in terms of management of street traffic).
- In my view it is plain that Judge Boshier was unaware that NZBORA rights were in play even though the matter had been raised both in evidence and argument. For that reason, she did not subject the case to the justified limitations analysis required by s 5 of the Act. That is (in short) that Ms Routhan’s freedom to express her views in government spaces could only be curtailed if this amounted to a reasonable limit, prescribed by law and “demonstrably justified in a free and democratic society”.
- It follows that the judge necessarily made an error of principle.
- But was Mr Woods right when he argued that the error was not material because, on the facts, such limitation was reasonable? This question requires me to assess, in hindsight, the relevant facts alluded to by the Judge. I am inevitably drawn into making my own assessment in light of the Judge’s failure to do so at first instance.
- In my view it cannot be said that trespassing Ms Routhan, in the circumstances that obtained on the day in question in the reception area, was reasonable. She sat there quietly expressing her views that she was entitled to express in terms of s 14 of NZBORA. She was not aggressive or violent. She said nothing unless spoken to. She made it clear that in her view she had a right to do what she was doing.
- The written placards were not offensive. The painting was not either. I accept that the painting might have been if the image had been a photo of a human body with gaping knife wounds, but it was not. Whatever its merits, it was an abstract work of art and protest. No reasonable person could have viewed it as offensive. It is true that the building went into semi lock-down as a result of Ms Routhan’s presence in the reception area. But that was ACC’s response to Ms Routhan’s presence. That response too has to be measured against a reasonableness standard. Mr Woods said that ACC had had experience of Ms Routhan’s protests in the past and management responded as much to their experience of her as they did to her actions on the day. Whatever Ms Routhan had done in the past, she was being very careful to behave civilly, courteously and reasonably on the day in question. If she had come to learn where the line was, beyond which freedom of expression crossed into unreasonable interference in the lives of others, then it seems to me that was a good outcome. She ought not to be prejudiced for having learnt to modify her behaviour so as not to offend, annoy or be a nuisance.
- Finally, and perhaps most powerfully from ACC’s perspective, MS Routhan was, it was said, blocking a fire exit. This, it must be accepted, could amount to unreasonable interference with staff and public use of the area. But whether invoking the Trespass Act is a reasonable response requires a general consideration of the reasonable alternatives that would have been available to officials. An obvious one comes to mind. Either the security guard of the manager (or the Police for that matter) could have advised MS Routhan that she was entitled to sit silently and express her views through her placards and painting, but she could not block the fire exit. An invitation to move a metre or two to the left or right was all that was required. If she refused, then unreasonable interference in the use of the public space is necessarily established. If she acceded to the request, then she was safely on her side of the freedom of expression/trespass divide. There was no evidence of such an invitation being made to Ms Routhan.
- The appeal must be allowed accordingly. The conviction and sentence are quashed.