Brooker v Police

The judgment of Chief Justice Elias traversed the legal history of section 4(1)(a) of the Summary Offences Act and the approach of other Commonwealth jurisdictions to similar crimes, before observing,

It is clear that behaviour which is disorderly under s 4 need not be likely to lead to violence because behaviour likely to cause that effect is covered by s 3. What is essential however is that the behaviour is disruptive of public order and is not simply a private affront or annoyance to a person present or to whom the behaviour is directed.[12]

On that assessment Elias CJ held that Brooker's protest was not disorderly.[13]

Justice Blanchard also held that Brooker's behaviour was not disorderly noting, "In my view Mr Brooker's question [to a police officer outside Croft's house] "Is it disorderly yet?" was in point. My answer would be in the negative."[14] Similarly to the decision of Elias CJ, Blanchard J observed,

[S]omeone should not be convicted of disorderly behaviour unless there has been a substantial disruption of public order in or about a public place, although that disruption does not have to have created or been likely to create a breach of the peace. Causing annoyance, even considerable annoyance, to citizens does not suffice.[15]

Justice Tipping formulated what he saw as the correct test of disorderly behaviour as;

Conduct in a qualifying location is disorderly if, as a matter of time, place and circumstance, it causes anxiety or disturbance at a level which is beyond what a reasonable citizen should be expected to bear. Unless that is so, the conduct will not warrant the intervention of the criminal law. If it is so, the public has a legitimate interest in proscribing the behaviour, and thereby protecting citizens from it. In this way public order is protected.[16]

Tipping J noted that Constable Croft was the only person affected by Brooker's protest and that, "His behaviour, viewed objectively, did not in all the circumstances cause anxiety or disturbance at a level beyond that which a reasonable person in Constable Croft’s shoes should be expected to bear."[17]

Justice McGrath, alongside Thomas J, gave one of the two dissenting judgments in the Court's decision. McGrath J focused his judgment on "reconciling the conflicts" between Brooker's right to protest and Constable Croft's right to privacy before stating that,

Under s 5 of the New Zealand Bill of Rights Act, all fundamental rights and freedoms may be made subject to such reasonable limits, prescribed by law, as can be demonstrably justified in a free and democratic society. In order to be such a limit on the protester’s right of free expression, the offence of disorderly behaviour must be restricted to conduct that amounts to a sufficiently serious and reprehensible interference with the rights of others to warrant the intervention of the criminal law. At that point the protester’s legitimate exercise of freedom of expression ends.[18]

McGrath J thought that Brooker's disturbed the constables "enjoyment of tranquility and privacy in her home" and as a result held Brooker's protest "went well beyond what any citizen, public official or not, should have to tolerate in her home environment."[19]

Justice Thomas dissented alongside McGrath J, and his lengthy judgment observes that the meaning of disorderly behaviour is largely indeterminate; that the law should provide the test of the reasonable person; and should seek to balance all of the rights, values and interests which are in issue in each particular case.[20] In conclusion Thomas J argued strongly against the majority stating, "I would much prefer that both freedom of expression and privacy be recognised as fundamental values and, as such, weighed one against the other in a manner designed to afford the greatest protection to both."[21]