SUPREME COURT Girl Student Appeals Over Flag-Burning Incident

Press, Volume CVI, Issue 31221, 19 November 1966, Page 25

SUPREME COURT Girl Student Appeals Over Flag-Burning Incident

The display of a burning Union Jack at the new University of Canterbury on August 19 seemed a political demonstration, but if the manner of that demonstration was offensive, it amounted to offensive behaviour, said Mr Justice Wilson in the Supreme Court yesterday. A 27-year-old arts student, Leonie Rae Derbyshire, who had waved the burning Union Jack as the Governor-General (Sir Bernard Fergusson) arrived to open the new science block, was appealing against her conviction under the Police Offences Act for offensive behaviour in a public place. His Honour indicated that he rejected, as a ground of appeal, the contention that her conduct had not been offensive within the meaning of the act. But he reserved decision on whether the area where the flag-burning took place—the forecourt of the science block —was a public place or not. The appellant’s counsel, Mr A. P. C. Tipping, presented extensive legal argument on the definition in the Police Offences Act that a public place is one “open to, or used by, the public.” [The appellant did not give evidence at the lower-court trial of her case, relying on a legal defence that the science-block forecourt was not a public place.] The magistrate, said Mr Tipping, had accepted the bare assertion of Inspector R. P. Silk, unsupported by objective facts, that the forecourt was “used by” the public. “I submi* there was no evidence of that,” Mr Tipping said. But for the Crown, Mr C. M. Roper submitted that the mere presence of the public —which could fairly be inferred from photographs of the incident—was sufficient to make the forecourt a public place. The university itself, with the comings and goings of a wide cross-section of the community, could be regarded as a public place. Mr Roper quoted an English appeal court decision of 1884, the Queen v. Allard, where Lord Coleridge had said that the meaning of the words “public place” must vary from time to time, and in which Air Justice Grove had said: “A public place is one where the public go, whether they have a right or not. The right is not the question.”

Mr Tipping, however, had submitted that the words “open to” in the definition of a public place meant that there must be an express or implied invitation to the public to be there. There was no evidence that that was so at the science forecourt—in fact, invitation to the opening ceremony had been by ticket only. Nor had any members of the public been called as witnesses. Inspector Silk’s evidence that members of the public had been there was simply hearsay—based on what he had been told when he made inquiries. Inspector Silk’s evidence, as quoted by Mr Tipping, was: “There were members of the public in a position by the open court, and this forecourt was open to, and being used by, the public.”

His Honour: Persons shown in the photographs might be members of the public.

Mr Tipping: With respect, sir, “might” be. His Honour: There are two women taking photographs, and another woman watching them, and a person who appears to be of teen-age. They do not seem to be gowned, or dressed like university students.

Mr Tipping: I don’t think your Honour can take judicial notice of the dress of university students. (Laughter.) Mr Tipping quoted an Australian legal decision that there should be more than occasion or casual use of a place to make it a public one. This proposition was contested by Mr Roper, who said tha*: courts in the past, when considering what was, or was not, a public place had taken a fairly common-sense view, and had not drawn “too fine a line.”

There was evidence that members of the public were in the forecourt: it was a fair inference from the photographs that they were not persons associated with the university or its construction. The test was, submitted Mr Roper, whether there were in fact members of the public present, without their positive ejectment, or restriction on their entry. “It is a matter of fact, and degree, in every case,” Mr Roper said. “During the period of the Governor-Gene-ral's visit to the university—which obviously attracted the public—it was, I submit, a public place.”

Offensive Behaviour Aspect On the aspect of offensive behaviour, Mr Tipping said he accepted evidence, given by Inspector Silk and a university technician, that the appellant’s waving of the burning flag had been offensive—but argued that it was not offensive behaviour under the Police Offences Act As his Honour had accepted that the flag-burning was a political demonstration —which the magistrate had not—and as the Police Offences Act was not designed to impede that the demonstration could not be held as offensive behaviour under the act. His Honour: Even if it was a political gesture, that does not prevent it being offensive. . . . You are not persuading

me there should be some immunity given to political gestures. He would be the first, said his Honour, to uphold a person’s right to express a political opinion—but if the manner of expressing it was offensive, then that was offensive behaviour.

His Honour took the analogy of an interjector at a political meeting thumbing his nose at a candidate, and saying it was a demonstration against the candidate’s political views. But the thumbing of the nose must be held, in the circumstances, as offensive behaviour.