Monday, 11 April 2011

Tiki Taane arrest a blow for freedom of speech? - Audio Player - Audio - RadioLIVE

Tiki Taane arrest a blow for freedom of speech? - Audio Player - Audio - RadioLIVE

The arrest of musician Tiki Taane for the Summary Offences Act offence of disorderly behaviour likely to cause violence raises a number of issues, indeed the blogosphere has been hot with views of what did or did not occur. What we do know is that Mr Taane was arrested while performing at 3-00am. He has been charged with disorderly behaviour likely to cause violence to start or continue. Police reports suggest he was arrested "when things got out of hand." I've got no idea what that phrase means - it could easily mean that someone in a position of power got annoyed at the song. But in any event I have seen no evidence to date of any violence caused by or initiated by Mr Taane, or any information that violence was about to start or continue as a result of Mr Taane's actions in singing a protest song. The only violence I have read of (so far) is that used in bending a musician's hands behind his back, applying handcuffs and marching him through a crowd and banging him up in a cell overnight. The point being that if there is no evidence of violence being used, incited or threatened then Police will have some significant problems.

First did the Police exercise their arrest discretion appropriately? By this I mean was Mr Tanne's behaviour such that it merited the exercise of the arrest discretion by Police at all? Second was it appropriate to handcuff Mr Taane and was it appropriate to take him into custody? This was an occasion of an arrest without warrant. The balancing of the discretion to arrest with the seriousness of the offence with the New Zealand Bill of Rights received careful consideration in Bruce James Neilsen v Attorney-General NZCA 03/05/2001. It may be arguable that the actions of the police in arresting the Mr Taane were unlawful in Neilson terms in that the arrest resulted from a failure to exercise proper discretion in line with General Instruction A291 and detailed guidance given in the Manual for Detectives:

General Instruction A291 states:

(1) The power to arrest without Warrant, especially for minor offences, is to be exercised with discretion. Where persons can be brought before the Courts by way of Summons, this course should be followed.
(2) The question uppermost in the mind of a member considering arresting a person without Warrant should be whether the Prosecution is the best way of resolving the matter, or if there is a more appropriate alternative such as a warning, caution, counselling or referral to another Agency.

Further and more detailed guidance is given in the Manual for Detectives, Second Edition, issued by the Commissioner on 7 November 1983. Chapter 3 is directed to arrest and referring to the discretion under s 315 the Manual provides at 3.6 to 3.7:

Use of Discretion
1 The power of arrest without warrant is to be exercised with discretion at all times.
2 The purpose of arrest is to —
(a) Bring an offender to justice, or
(b) Prevent —
(i) A breach of the peace, or
(ii) The commission of further offences.
3 Arrest deprives a person of his liberty before he has been proved guilty. Proof of guilt may not necessarily result in a custodial sentence.
Unnecessary arrests damage the reputation of the Police and cause ill feeling and antagonism.
4 The utmost restraint and discretion should be used in using the power to arrest children and young persons without warrant.
5 When minor offences are committed by persons who can be brought before the Court on summons, there is no need to arrest.
6 Factors to consider before making an arrest are —
(a) The nature and gravity of the offence
(b) The likelihood of —
(i) Further offences being committed
(ii) Accomplices being warned
(iii) Witnesses being interfered with
(iv) Evidence being destroyed or concealed
(v) The offender absconding to avoid Court
(c) Offender’s —
(i) Character, reputation and criminal history
(ii) Family circumstances, place of abode, and employment
(iii) Condition - it may justify an arrest in his own or the public interest.
[Paras 35-36, Neilsen]

Similarly another person was arrested for resisting or obstructing a Police Officer in the execution of his/her duty. The question was did that person believe that the officer was acting in the execution of their duty? In the case of R v Thomas the Court of Appeal held:

It is now settled law in New Zealand that in the ordinary class of case where the prosecution must prove mens rea “an honest belief in a state of affairs or as to the existence of a fact, which if true would make the act innocent, will provide a defence itself. It is not then incumbent on an accused to establish reasonable grounds for such belief although such may be relevant in testing the honesty of the belief in the first place” — per McMullin J in Millar v Ministry of Transport [1986] 1 NZLR 660 at 673. It is for the prosecution to prove that the accused had no such belief once an evidentiary basis for it has been established …

Therefore the intent to obstruct the constable in the course of her duty is an element of the offence. The prosecution has to prove that the appellant assumed that the person he assaulted was a constable acting in the course of his/her duty and that he did intend to obstruct him/her in the performance of her duty. In R v Christiansen the Court of Appeal confirmed that the use of excessive force takes a constable outside the scope of his or her duty and an accused would lack the intent if he or she had an honest belief that the constable was using excessive force in effecting an arrest.

Further section 48 of the Crimes Act states:
Every one is justified in using, in the defence of himself or another, such force as, in the circumstances, as he believes them to be, it is reasonable to use.

If a defendant believed Tauranga Police used excessive force against Mr Taane then he would lack the mens rea element of the offence. It would also afford a defence under s 48 if he believed the circumstances were such that it would be reasonable to use force.

So these simple charges will provide some interesting discussion for some time to come. I have not even touched the freedom of speech points - but this will be a very interesting case to watch. As the Privy Council said in the case of Sir Robert Jones v Attorney General sued on behalf of New Zealand Police, "While this incident was on one view minor and mundane, no abuse of police power (if such occurred) is ever trivial."

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