Kinney v Police [1971] NZLR 924 (SC)
WOODHOUSE J. The incident giving rise to the charge occurred on 26 October 1970 at the end of a holiday occasion which had attracted a large number of people to the Botanical Gardens at Napier. As he was leaving the Gardens, the appellant stepped barefooted into an ornamental pond and, wading up to his knees, took a few steps in the direction of two mildly interested ducks. “rithin a minute or so he had returned to dry land at the injunction of a nearby police officer, and was thereupon arrested.
The simple question is whether or not his behaviour on the occasion was criminal in the sense contemplated by s 3D of the Police Offences Act 1927. That section is comparatively new. It was introduced into the Act as recently as 1960. It provides that:
“Every person commits an offence … who, in or within view of any public place … behaves in a riotous, offensive, threatening, insulting, or disorderly manner, or uses any threatening, abusive, or insulting words.”
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The incident which involved the appellant occurred at 5.30 pm. The function was ending and the last of the bands was silent. But as the appellant made his way to the road. he found himself passing the pond which I have mentioned. Normally it is occupied only by goldfish and a few wild ducks, but on this occasion they were joined for a few brief moments by the appellant. The ducks seemed unperturbed – they remained on the surface of the water with scarcely an increase in their rate of stroke. The attitude of the goldfish is unknown. As for bystanders, there were few people about at the time, although there is evidence that. some persons were looking across towards the Gardens from their homes on the far side of the road.
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In my opinion, the section should not be allowed to scoop up all sorts of minor troubles and it certainly is not designed to enable the police to discipline every irregular or inconvenient, or exhibitionist activity or to put a criminal sanction on over-exuberant behaviour, even when it might be possible to discern a few conventional hands raised in protest or surprise.
As I indicated during the hearing of this short case, it remains open to the local authority to issue an edict in the form of a bylaw regulating the paddling by persons in the City ponds, should so solemn an injunction seem necessary.
Strictly obiter 