Part 06 - Behaviour offences

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Table of Contents
2
Executive summary
5
Breach of the peace
6
Definition
6
Powers and duties in respect of breach of the peace
7
To prevent the continuance or renewal of a breach
7
What is 'reasonable'?
7
What is 'interfere to prevent'?
7
To arrest
7
To receive a suspect from a witness
7
After detaining a suspect
7
Procedures in respect of breach of the peace
8
Preventing an anticipated breach of the peace
8
Arresting a person
8
After arresting the person
8
Charging the person
8
Litter offences
10
Definitions
10
Depositing dangerous litter
10
Powers
11
Depositing litter
11
Powers
11
Wilfully breaking bottles or glass
11
Powers
11
Failing to comply with directions of a Litter Control Officer
11
Powers
11
Personating a Litter Control Officer
11
Powers
11
Refusal to give name to a Litter Control Officer
12
Powers
12
Wilful obstruction of a Litter Control Officer
12
Powers
12
Procedures in respect of litter offences
12
Public disorder offences
14
Definition of public place
14
Public disorder offences
14
Disorderly behaviour
15
Definitions
15
Disorderly behaviour
15
Insulting behaviour
15
Offensive behaviour
15
Riotous behaviour
15
Threatening behaviour
15
Ingredients and powers in respect of disorderly behaviour
15
Powers
16
Procedures in respect of disorderly behaviour
16

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17
Ingredients
17
Exception
17
Power of arrest
17
Unlawful assembly
18
Ingredients
18
Unlawful assembly
18
A lawful assembly can become unlawful
18
Exception when protecting a house
18
Power of arrest
18
Forcibly hindering
19
Ingredients
19
Direct participation or interference necessary
19
Power of arrest
19
Drinking in a public place
20
Ingredients
20
Minor drinking in a public place
20
Powers in respect of drinking in public places offences
20
Procedures in respect of persons other than minors drinking in public places offences
20
Alcohol bans and enforcement
21
Excreting in a public place
22
Ingredients and powers
22
Powers
22
Procedures in respect of excreting in a public place offence
22
Fighting in a public place
24
Ingredients and powers
24
Powers
24
Procedures in respect of fighting in a public place
24
Indecent exposure
26
Definitions
26
Ingredients and powers
26
Powers
26
Procedures in respect of indecent exposure
26
Intimidation
28
Definitions
28
Ingredients and powers
28
Powers
28
Procedures in respect of intimidation
28
Language offences
30
Definitions
30
Addressing indecent or obscene words
30
Powers
30
Addressing threatening, alarming, insulting or offensive words
30
Powers
30
Using indecent or obscene words
31
Powers
31

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31
Powers
31
Procedures in respect of language offences
31
Offensive behaviour
33
Definitions
33
Ingredients and powers
33
Powers
33
Procedures
33
Obstructing a public way
34
Definitions
34
Ingredients and powers
34
Powers
34
Procedures
34
Resisting and obstruction
36
Definitions
36
Ingredients and powers
36
Powers
36
Procedures
37
Throwing stones
38
Ingredients and powers
38
Powers
38
Procedures
38
Appendix A
39
Summary of behaviour related offences
39
Documentation
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Executive summary
This chapter covers:
breach of the peace
litter offences
public disorder offences.
Definitions, ingredients, Police powers and procedures are listed under each offence. Where possible, references to case
law are given.
The chapter deals with minor offences which should be dealt with quickly and with a minimum of fuss. The power to arrest
without warrant should be exercised with discretion. Use it only if the behaviour is violent or likely to precipitate violence,
and the suspect does not stop the behaviour when directed.
For information on the application of the New Zealand Bill of Rights Act 1990 when arresting, see the 'New Zealand Bill of
Rights' chapter of the Police Manual.
There are a number of behaviour offences that are commonly committed. However, 'breach of the peace' is not an offence,
although the Crimes Act provides the ability to use force, including arrest, to prevent the breach continuing or recurring.
Key, critical points for staff to note:
If a behaviour related offence is committed, consider warning, then formal warning, then charging.
For alcohol offences, if a warning is not appropriate, issuing of an Alcohol Infringement Offence Notice is the next
appropriate consideration.
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Breach of the peace
Definition
Under section 42 of the Crimes Act 1961, breach of the peace is not an offence, but there is provision for its prevention.
A breach of the peace is essentially violence or threatened violence.
There is a breach of the peace whenever harm is actually done or likely to be done to:
a person, or
a person's property, in that person's presence, or
a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance - R
v Howell (Errol) [1982] QB 416 (CA), at 427.
The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural
consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is
established.
Conversely, not all acts likely to provoke violence will necessarily amount to breaches of the peace - even if they are
clearly criminal in themselves. See Percy v DPP [1995] 3 All ER 124 (QB), at 131, Collins.
The type of violence which the act might provoke must be violence of a defensive nature, as opposed to violence of a
retributive nature. For example, the act of peeping through a bedroom window at night would not amount to a breach of
the peace even though its natural consequence was likely to frighten those in the house and cause a violent response from
them. Frey v Fedoruk, Supreme Court of Canada [1950] SCR 517.
The conduct complained of must be severe enough to cause alarm to ordinary people and threaten serious disturbance to
the community. In determining whether it is of this nature, regard must be had to the nature and quality of the conduct, its
likely consequences and the context in which it is taking place: R (Laporte) v Chief Constable of Gloucestershire
Constabulary [2006] UKHL 55; [2007] 2 AC 105 (HL): see also Dyer v Brady, Bullen, Jones and Munro [2006] HCJAC 72; [2006]
SCCR 629.
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Powers and duties in respect of breach of the peace
To prevent the continuance or renewal of a breach
If you witness a breach of the peace, you can interfere to prevent its continuance or renewal. You can use no more force
than is reasonably necessary - section 42(1) of the Crimes Act 1961 refers.
What is 'reasonable'?
'Reasonable' means having sound judgement, being moderate and ready to listen to reason - in all the circumstances of the
case.
What is 'interfere to prevent'?
A Police Inspector erected barricades around a sporting venue to prevent demonstrators from entering. This was done
because there had been disruption at a similar event two days earlier. It was held that erecting the barricade was
reasonable, and that the senior officer was justified in passing on to his subordinates, who did not have personal
knowledge of the reasons, the power to take proper steps to prevent the breach - Newnham v Police [1978] 1 NZLR 844.
'Interfere to prevent' may also include seizing and temporarily holding personal belongings - Minto v McKay (1987) 2 CRNZ
330 (CA).
Although a Police officer has the duty to take reasonable steps to prevent apprehended breaches of the peace, this section
only permits a person to be detained where a breach of the peace has occurred and is either continuing or likely to be
renewed: A-G v Reid 23/5/86, Thorp J, HC Auckland M920/85. It also only permits action to be taken against the person
actually committing the breach.
The interference must be reasonable. In determining whether it was reasonable, the immediacy of the breach is relevant.
To arrest
If you are at the scene when a breach of the peace is being committed, or if you have good cause to suspect that a breach
has been committed, you, or anyone lawfully assisting you, can arrest - sections 42(2) and 315(2) of the Crimes Act 1961
refer.
Note: You cannot arrest if you merely anticipate a breach - Reid v Attorney General [1983] 2 DCR 237.
To receive a suspect from a witness
You can receive from a witness and take into custody the person responsible for a breach of the peace. You must have
reasonable grounds for believing that the person handing them over was a witness to the breach - section 42(3) of the
Crimes Act 1961 refers.
After detaining a suspect
If you detain someone, you should either file further charges promptly or release the person - section 23(2) of the New
Zealand Bill of Rights Act 1990 refers.
Caution: Any undue delay could lead to a civil action against Police.
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Procedures in respect of breach of the peace
Preventing an anticipated breach of the peace
In Percy v DPP [1995] 3 All ER 124 (QB), at 131, Collins J, emphasised that "The conduct in question does not itself have to be
disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke
others to violence, and so some actual danger to the peace is established."
If you anticipate that a breach of the peace will occur, issue lawful instructions to the persons involved. If they fail to carry
them out, or breach them, arrest them for obstruction - Minto v Police (1991) 7 CRNZ 38.
Arresting a person
Where possible, it is better to arrest for a specific offence rather than breach of the peace. If you decide to arrest, follow
these steps.
Step Action
1
Note what each person is doing before and during arrest.
2
Tell each person they have been arrested for breach of the peace.
3
Give each the rights caution according to the Chief Justice's practice note on Police questioning.
4
Inform each person of their rights according to the New Zealand Bill of Rights Act 1990.
After arresting the person
Because breach of the peace is not an offence, you cannot lawfully obtain the arrested person's personal details, or take
photographs or fingerprints, unless:
you are filing a charging document for another charge, or
the person consents.
Decide in each case whether there is evidence of an offence to the extent that would satisfy the Evidential Test in the
Solicitor General's prosecution Guidelines. If there is not, release the person as soon as is practicable - see 'Release Notice'
form.
Note: Where further evidence is subsequently obtained, release at this stage does not preclude the person being
summonsed for an offence later.
Charging the person
If there is evidential sufficiency, also consider public interest considerations in then deciding whether to warn, issue a
summons or charge the person. This decision should be made in consultation with the custody supervisor.
Important: Do not delay this decision; you cannot hold a prisoner solely for the purpose of interrogation. Delay would only
be justified in situations where, for example, there were many prisoners to process, or a long distance to travel between
the scene and the station.
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If you decide to charge the person for an offence (breach of the peace is not an offence), follow these steps.
Step Action
1
Tell the person of the nature of the charges as soon as practicable.
2
Give the rights caution according to the Chief Justice's practice note on Police questioning.
3
Inform the person of their rights under the New Zealand Bill of Rights Act 1990.
4
Decide on summons, bail, release or formal warning.
5
Submit a file to your supervisor, including a report outlining the justification for the arrest and release, a copy of the
'Breach of the Peace release notice' and your notebook entry relating to the incident.
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Litter offences
Definitions
This table outlines definitions of terms under section 2 of the Litter Act 1979 relevant to this chapter.
Term
Definition
Depositing 'Depositing' in relation to litter includes:
casting, placing, throwing or dropping litter, and
allowing litter to be cast, thrown, dropped or, without reasonable excuse, to escape, from a motor vehicle
or trailer.
Litter
'Litter' includes any refuse, rubbish, animal remains, glass, metal, garbage, debris, dirt, filth, rubble, ballast,
stones, earth, or waste matter, or any other thing of a like nature.
Litter
'Litter Control Officer' means any person appointed as such under section 5 or section 6 of the Litter Act 1979.
Control
Officers
Note: Under section 6(1)(a) every Police constable is a Litter Control Officer.
Occupier 'Occupier', in relation to any land or premises, means any lessee, licensee, or other occupant of the land, and
includes the owner or the agent of the owner where there is no apparent occupier.
Private
'Private land' means every place other than a public place.
land
Public
'Public place' includes:
place
every motorway, road, street, private street, footpath, access way, service lane, court, mall, and
thoroughfare
any public reserve within the meaning of section 2 of the Reserves Act 1977 to which the public generally
has access, whether with or without payment of any fee, and any reserve under that Act classified as a
nature reserve or a scientific reserve
any park, garden, or other place of public recreation to which the public has access, whether with or
without payment of any fee
any beach or foreshore, or the bank of any river or stream, or the margin of any lake, to which the public
traditionally has access, whether with or without payment of any fee
any waters to which the public traditionally has access, whether with or without payment of any fee, for
bathing or other recreational purposes
every wharf, pier, or jetty (whether under the control of a harbour board or not) to which the public has
access
any conservation area within the meaning of the Conservation Act 1987
any airport within the meaning of section 2 of the Airport Authorities Act 1966
any cemetery within the meaning of section 2 of the Burial and Cremation Act 1964
any land vested in or controlled by any local authority (within the meaning of section 5(1) of the Local
Government Act 2002 or the Crown, being land that is not occupied pursuant to any lease, licence, or other
authority by any private person
any National Park constituted under the National Parks Act 1980
any other place whether public or private in the open air, including any walkway within the meaning of
section 4 of the Walking Access Act 2008, to which the public has access, whether with or without payment
of any fee
but does not include any site for the disposal of litter, or any receptacle installed in any such public place
pursuant to this Act or any other Act.
Depositing dangerous litter
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Under section 15(2) of the Litter Act 1979, you must prove the identity of the suspect and that they:
committed an offence against section 15(1) of the Litter Act 1979, and
the litter was likely to cause any person any danger, injury, disease or infection.
Powers
You can:
demand the suspect's name and address (section 7(5) of the Litter Act 1979)
arrest without warrant (section 315 of the Crimes Act 1961).
Depositing litter
Under section 15(1) of the Litter Act 1979, you must prove the identity of the suspect and that they:
without reasonable excuse, deposited litter, or having deposited it, left it, in or on any public place, or private land, without
the occupier's consent.
Powers
You:
can require the suspect to remove and dispose of the litter appropriately, and you can demand their name and
address (section 7(2) & (5) of the Litter Act 1979)
cannot arrest - any charge should be initiated by way of a summons.
Wilfully breaking bottles or glass
Under section 16 of the Litter Act 1979, you must prove the identity of the suspect and that they:
wilfully and without lawful authority
broke any bottle, glass or article made of glass
in or on any public place or private land.
Powers
You can:
demand the suspect's name and address (section 7(5) of the Litter Act 1979)
arrest without warrant (section 315 of the Crimes Act 1961).
Failing to comply with directions of a Litter Control Officer
Under section 17(1)(b) of the Litter Act 1979, you must prove the identity of the suspect and that they:
without lawful excuse
failed to comply, within a reasonable time, with the directions of a Litter Control Officer.
Powers
You:
cannot arrest - any charge should be initiated by way of a summons.
Personating a Litter Control Officer
Under section 17(1)(d) of the Litter Act 1979, you must prove the identity of the suspect and that they personated or falsely
pretended to be a Litter Control Officer.
Powers
You:
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cannot arrest - any charge should be initiated by way of a summons.
Refusal to give name to a Litter Control Officer
Under section 17(1)(c) of the Litter Act 1979, you must prove the identity of the suspect and that they:
were required to disclose name and address by a Litter Control Officer
and
refused to do so, or gave a false name or address.
Powers
You:
cannot arrest - any charge should be initiated by way of a summons.
Wilful obstruction of a Litter Control Officer
Under section 17(1)(a) of the Litter Act 1979, you must prove the identity of the suspect and that they:
wilfully obstructed a Litter Control Officer
were acting in the execution of their duties or powers, as conferred by the Litter Act 1979.
Powers
You:
cannot arrest - any charge should be initiated by way of a summons.
Procedures in respect of litter offences
For all of the Litter Act offences, follow these steps.
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Part 06 - Behaviour oﬀences
Step Action
1
Ask for and record any explanation.
2
Consider whether the explanation indicates wilfulness or lack of reasonable excuse.
3
Record the:
number and type of passers-by (this can be used as evidence to prove that people could have been
endangered)
suspect's sobriety
suspect's full particulars and verify these.
4
Decide whether to warn, report for summons or arrest.
If you decide to. . .
then. . .
warn
record your decision
report for summons
inform the suspect of this. It may be feasible to issue a summons at the same time
arrest (where that power
give the rights caution according to the Chief Justice's practice note on Police
exists)
questioning
tell the suspect their rights under the New Zealand Bill of Rights Act 1990
in conjunction with the Custody Supervisor, consider a formal warning if relevant
criteria are met.
5
If possible, have the suspect clean up the litter. If necessary, do it yourself.
6
Complete the file and arrange the filing of the charging document.
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Public disorder offences
Definition of public place
A number of provisions in the Summary Offences Act 1981 concern public disorder offences; that is, socially unacceptable
behaviour in a public place, or within hearing or view of a public place.
'Public place' means a place that, at any material time, is open to or is being used by the public, whether free or on
payment of a charge, and whether any owner or occupier of the place is lawfully entitled to exclude or eject any person
from that place; and includes any aircraft, hovercraft, ship or ferry or other vessel, train or vehicle carrying or available to
carry passengers for reward - section 2(1) of the Summary Offences Act 1981 refers.
Without limiting the definition of the term 'public place' in subsection 2(1) above, for the purposes of the Act, a person is in
a public place if they are in any aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle, which is in a public place
- section 2(2) of the Summary Offences Act 1981 refers.
Public disorder offences
Public disorder offences in this chapter include:
Disorderly assembly
Disorderly behaviour
Drinking in a public place
Excreting in a public place
Fighting in a public place
Indecent exposure
Intimidation
Language offences
Offensive behaviour
Obstructing a public way
Resisting and obstruction
Throwing stones
Unlawful assembly
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Disorderly behaviour
Definitions
This table outlines the key definitions of terms relevant to disorderly behaviour.
Term
Definition
'Disorderly behaviour' is behaviour seriously disruptive of public order. It must cause a disturbance to
Disorderly public good order which in the particular circumstances of time and place, any affected members of the
behaviour public could not reasonably be expected to endure because of its intensity and/or its duration - Brooker v
Police [2007] NZSC 30; Morse v Police [2011] NZSC 45
'Insulting behaviour' is behaviour that insults and seriously annoys one or more of those present -
Insulting
O'Connor v Police [1972] NZLR 379
behaviour
Within the legal framework post the New Zealand Bill of Rights Act 1990, the Supreme Court reformulated
Offensive
the test for determining whether conduct is disorderly or offensive in terms of s4(1)(a) Summary Offences
behaviour Act 1981 in that proof of disturbance of public order is required. The word 'offensive' is to be interpreted in
the context of a provision concerned with offences against public order. The offence must be to such an
extent, or of such a kind, that it disturbs or disrupts public order - Brooker v Police [2007] NZSC 30; Morse v
Police [2011] NZSC 45.
'Offensive behaviour' is behaviour that an ordinary and reasonable New Zealander would consider to
wound the feelings of, or arouse real anger, resentment, disgust or outrage in, the type of person actually
subjected to it.
In deciding this, consider:
what was done or said, and
the intent of the suspect, and
the age, sex and other characteristics of the person exposed to the behaviour, and
all the other circumstances, including the time and place of the behaviour.
O'Brien v Police (unreported, High Court Auckland, 12 October 1992, AP219/92) refers.
'Riotous behaviour' involves force or violence that is likely to cause alarm in at least one person of
Riotous
reasonable firmness and courage - Scott v Parkinson & Howard (1912) VLR 389.
behaviour
Riotous behaviour is more serious than disorderly behaviour, but falls short of the offence of riot. Because
it is also disorderly behaviour, it is rarely filed as a charge
'Threatening behaviour' has not been defined by the courts. According to the Police legal section's
Threateningcommentary on the Act, a threat is 'a declaration of an intention to punish or hurt'. If the person has the
behaviour power to carry out the threat, the offence may become an assault.
Ingredients and powers in respect of disorderly behaviour
Under section 3 of the Summary Offences Act 1981, you must prove the identity of the suspect and that they:
in or within view of any public place
behaved, or incited or encouraged any person to behave in a riotous, offensive, threatening, insulting or disorderly
manner that was likely to cause violence against persons or property.
In the case of insulting behaviour, you must also prove that the suspect knew that the person insulted was likely to be
present - O'Connor v Police [1972] NZLR 379.
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If a court finds that a charge under this section is not proven, it can convict under section 4, whether or not a charge has
been filed under that section - section 44 of the Summary Offences Act 1981 refers.
Additional information: See 'Offensive Behaviour'.
Powers
You can arrest under section 39(1) of the Summary Offences Act 1981.
Procedures in respect of disorderly behaviour
When faced with behaviour that contravenes section 3 of the Act, follow these steps.
Step Action
1
Obtain full details of the offending behaviour, the victim, the suspect and any witnesses, and verify. Check that the
offence occurred in, or within view of, a public place and obtain proof of disturbance of public order.
2
Record any injuries or damage, whether alcohol was involved, and the type and number of people present.
3
Find out if the suspect was driving or in charge of a motor vehicle at the time. At the discretion of the court, they may
be disqualified from driving.
4
Decide whether to warn, report for summons or arrest. Consider whether:
a breach of the peace is imminent
the conduct is likely to be repeated.
5
If the offence was minor, warn the suspect. If the offender is co-operative, no further action may be necessary. Verify
the identity of the offender before letting them go and record your decision.
6
If you decide to. . then. . .
.
report for
inform the suspect of this. It may be feasible to issue a summons at the same time
summons
arrest
caution (see PDF below) the suspect according to the Chief Justice's practice notes on Police
questioning
tell the suspect their rights under the New Zealand Bill of Rights Act 1990
in conjunction with the Custody Supervisor, consider formal warning if relevant criteria are
met.

7
Prepare the prosecution file and file the charging document.
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Disorderly assembly
Ingredients
In accordance with section 5A(2) of the Summary Offences Act 1981, you must prove the identity of the suspect and that
they:
were a participant in a disorderly assembly, and
were warned by an officer to disperse or otherwise desist;
and without reasonable excuse:
continued to participate in the assembly, or
participated in another disorderly assembly in circumstances in which it was reasonable to deem the warning to have
also applied to the new assembly.
Exception
Section 5A does not apply to any group of people who assemble in a public place for the purpose of demonstrating support
for, or opposition to, or otherwise publicising, any point of view, cause or campaign.
Power of arrest
You can arrest under section 39(1) of the Summary Offences Act 1981.
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Unlawful assembly
Note: For further information on 'Unlawful Assembly and Rioting' please refer to Part 7 of this chapter.
Ingredients
An assembly of 3 or more persons who, with
Three elements must be proven beyond reasonable doubt:
Unlawful intent to carry out any common purpose,
assembly
Assembly of at least three people;
assemble in such a manner, or so conduct
Those people had a common purpose. The common
Section 86, themselves when assembled, as to cause
purpose may be lawful or unlawful. Each defendant must
Crimes Act persons in the neighbourhood of the assembly
be a willing participant in the assembly and share the
1961
to fear, on reasonable grounds, that the
common purpose;
persons so assembled:
The members of the assembly must conduct themselves
in such a way as to cause the kind of fear described in (a)
(a)Will use violence against persons or property
and (b).
in that neighbourhood or elsewhere; or
The conduct causing alarm must relate to the common
(b)Will, by that assembly, needlessly and
purpose in that it was expected or reasonably anticipated by
without reasonable cause provoke other
the members of the assembly at the time they formed the
persons to use violence against persons or
intent to carry out their common purpose. Similar conduct by
property in that neighbourhood.
each defendant will not be sufficient for common purpose, for
example, when a social gathering turns into a riotous
disturbance.
A lawful assembly can become unlawful
In accordance with section 86(2) of the Crimes Act 1961, people who are lawfully assembled may become an unlawful
assembly if, with a common purpose, they conduct themselves in such a way that their assembling would have been
unlawful if they had assembled in that manner for that purpose.
Exception when protecting a house
In accordance with section 86(3) of the Crimes Act 1961, it is lawful for three or more people to assemble for the purpose of
protecting the house of any one of their number against persons threatening to break and enter that house in order to
commit a crime therein.
Power of arrest
You can arrest under section 315(2) of the Crimes Act 1961.
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Forcibly hindering
Ingredients
In accordance with section 21(2) of the Summary Offences Act 1981, you must prove the identity of the suspect and that
they:
forcibly hindered or prevented
any person from
working at or exercising
any lawful trade, business, or occupation.
Direct participation or interference necessary
Hindering must have been occasioned by direct participation or interference (Ports of Auckland Ltd v New Zealand
Seafarers Industrial Union [1999] BCL 80).
Note: To forcibly hinder or prevent a person from working requires actual physical force or a threat of it.
Power of arrest
You can arrest under section 39(1) of the Summary Offences Act 1981.
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Drinking in a public place
Ingredients
Under section 38(1) of the Summary Offences Act 1981, you must prove the identity of the suspect and that they:
in or on any aircraft, hovercraft, ship or ferry or other vessel, train or vehicle that is carrying passengers for reward
drank intoxicating liquor; or
supplied or offered intoxicating liquor to any other person for consumption there; or
had in their possession, or under their control, any intoxicating liquor for consumption there.
Note: These offences do not apply in licensed premises, e.g. ferries that have a alcohol licence.
Note: A conveyance carrying passengers under charter is deemed to be carrying them for reward - section 38(2) of the
Summary Offences Act 1981 refers.
Minor drinking in a public place
There are a number of offences involving a minor and alcohol, for which an Alcohol Infringement Offence Notice may be
issued. The penalty for each offence is $250. Consult the AION book for full details.
See the 'Minors' chapter in the Police Manual for good practice guidance on 'policing minors in public places'.
Powers in respect of drinking in public places offences
Under section 39(2) of the Summary Offences Act 1981, you can arrest any person if:
you see the offence
and
the suspect fails to give name and address on demand, or
you believe that the details given are false.
Note: You have no power of search prior to arrest.
If you intend to prosecute the suspect, you can seize and remove any intoxicating alcohol (and the vessels containing it)
that you have reasonable grounds to believe is intended for consumption in contravention of section 38.
If a person is convicted of an offence against section 38, the alcohol and vessels seized are forfeited to the Crown - section
45(1) and (2) of the Summary Offences Act 1981 refers.
Procedures in respect of persons other than minors drinking in public places offences
If you find someone other than a minor drinking in a public place, follow these steps.
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Step Action
1
Decide whether to warn, issue an AION, arrest or report for summons.
2
Consider whether:
you saw the offence
the suspect failed to give name and address
you believe the details given are false.
3
If you decide to. . then. .
warn
record your decision
Issue AION
Use AION book, penalty is $250
report for
inform the suspect of this. It may be feasible to issue a summons at the same time
summons
arrest
Caution the suspect according to the Chief Justice's practice notes on Police questioning
tell the suspect their rights under the New Zealand Bill of Rights Act 1990
in conjunction with the Custody Supervisor, consider formal warning if relevant criteria are
met.
4
Obtain all relevant details from the suspect and witnesses, and verify.
5
Prepare the prosecution file and file the charging document.
Alcohol bans and enforcement
See: 'Enforcement of alcohol bans'.
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Excreting in a public place
Ingredients and powers
Under section 32(1) of the Summary Offences Act 1981, you must prove the identity of the suspect and that they:
urinated or defecated
in any public place other than a public toilet.
It is a defence if the suspect had reasonable grounds for believing that they would not be seen - section 32 (2) of the
Summary Offences Act 1981 refers.
If the suspect was not seen, but you think further action is necessary, consider arresting or summonsing the suspect on a
charge of offensive behaviour.
Additional information: See 'Offensive Behaviour'.
Powers
Under section 39(2) of the Summary Offences Act 1981, you can arrest if:
you see the offence
and
the suspect fails to give name and address on demand, or
you believe the details given are false.
Procedures in respect of excreting in a public place offence
When you have reason to believe that a person has urinated or defecated in a public place, follow these steps.
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Step Action
1
Decide whether to warn, arrest or report for summons.
Note: The usual procedure is to warn or report.
2
Consider whether:
you saw the offence
the suspect failed to give name and address
you believe the details given are false.
3
If you decide to. . . then. . .
warn
record your decision
report for
inform the suspect of this. It may be feasible to issue a summons at the same time
summons
arrest
Caution the suspect according to the Chief Justices practice notes on Police questioning
tell the suspect their rights under the New Zealand Bill of Rights Act 1990
in conjunction with the Custody Supervisor, consider formal warning if relevant criteria are
met.
4
Obtain all relevant details from the suspect and witnesses, and verify.
5
Prepare the prosecution file and file the charging document.
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Fighting in a public place
Ingredients and powers
Fighting includes striking, punching, kicking, wrestling, mauling, slapping and scratching, between two or more people who
are each taking, or have been taking, a willing and active part.
Under section 7 of the Summary Offences Act 1981, you must prove the identity of the suspect and that they were fighting in
a public place.
Note: You need not prove that both parties were exchanging blows - Taylor v DPP [1973] AC 964.
Powers
You can arrest under section 39(1) of the Summary Offences Act 1981.
Note: You do not have to charge both or all the parties. If one suspect is not caught, the other can still be charged with
'fighting with a person or persons unknown'.
Procedures in respect of fighting in a public place
If two or more people are fighting in a public place, follow these steps.
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Step Action
1
Separate the suspects.
2
Ask each suspect to describe the incident out of the other's hearing. Find out if either suspect was simply acting in
self-defence.
3
Note each suspect's physical and mental condition, and any signs of intoxication.
4
Look for independent witnesses. This is the best way to find out what really happened and to ensure that you do not
arrest innocent people.
5
Check that all the ingredients of the offence are met.
6
Decide whether to warn, report for summons or arrest.
If you decide to. . . then. . .
warn
record your decision
report for
inform the suspect of this. It may be feasible to issue a summons at the same time
summons
arrest
Caution the suspect according to the Chief Justice's practice notes on Police questioning
tell the suspect their rights under the New Zealand Bill of Rights Act 1990
in conjunction with the Custody Supervisor, consider formal warning if relevant criteria are
met.
7
Obtain all relevant details from suspects, victims and witnesses, and verify.
8
Prepare the prosecution file and file the charging document.
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Indecent exposure
Definitions
This table outlines the key definitions of terms relevant to indecent exposure.
Term
Definition
Expose
This means to uncover, display or exhibit.
Genitals
Genitals are the sex organs, not including pubic hair or breasts.
Intentionally 'Intentionally' means on purpose.
Obscene
An act is obscene if it is objectionable or repugnant to an average person's standards of decency or morality -
Philpott v Police (unreported, High Court Christchurch, 13 July 1993, AP 138-142/93).
Ingredients and powers
Under section 27(1) of the Summary Offences Act 1981, you must prove the identity of the suspect and that they:
in, or within view of, a public place
intentionally and obscenely exposed any part of their genitals.
It is a defence to prove that the suspect had reasonable grounds for believing they would not be observed - section 27(2) of
the Summary Offences Act 1981 refers.
Note: If the act was intentional, obscene and witnessed, the suspect should be charged, even if they failed to cause offence.
Powers
You can arrest under section 39 (1) of the Summary Offences Act 1981.
Procedures in respect of indecent exposure
If an offence against section 27 appears to have been committed, follow these steps.
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Step Action
1
Decide whether the ingredients of the offence are met. Consider:
Did the offence occur in, or within view of, a public place?
Was it intentional?
2
If you have grounds for believing that an offence against section 27 has been committed, decide whether to warn,
report for summons or arrest.
If you decide to. . . then. . .
warn
record your decision
report for
inform the suspect of this. It may be feasible to issue a summons at the same time
summons
arrest
Caution the suspect according to the Chief Justice's practice notes on Police questioning
tell the suspect their rights under the New Zealand Bill of Rights Act 1990
in conjunction with the Custody Supervisor, consider formal warning if relevant criteria are
met.
3
Obtain all relevant details from suspects, victims and witnesses, and verify.
4
Prepare the prosecution file and file the charging document.
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Intimidation
Definitions
This table outlines the key definitions of terms relevant to intimidation.
Term
Definition
ForciblyThis means using intimidation or an implicitly menacing show of force, as well as violence. A picket line passively
obstructing access to a place is not displaying forcible prevention - Ihaia v Police [1982] 2 NZLR 211 (CA).
However, if a picket line offers a show of force, this is forcible prevention, even if the victim turns away and no
violence occurs - Police v Brown (1981) 1 DCR 145.
Intent Intent may be proved by the circumstances alone. Driving without lights past a person's house and then knocking
on the door at 1.00 am shows an intent to intimidate, even if the resulting encounter is civil -
Eiao v Police (unreported, High Court Masterton, 30 July 1986, M9/86).
Ingredients and powers
Under section 21(1) of the Summary Offences Act 1981, you must prove the identity of the suspect and that they, with intent
to frighten or intimidate:
threatened to injure the other person or a member of their family, or damage their property
or
followed that other person
or
hid any property owned or used by that other person or deprived them of it, or hindered them in its use
or
watched or loitered near the house or other place where the person lived, worked, carried on a business or happened to be
or
stopped, confronted or accosted that other person in any public place.
Under section 21(2) of the Summary Offences Act 1981, you must prove the identity of the suspect, and that they forcibly
hindered or prevented any person from working at or exercising any lawful trade, business or occupation.
For any of the offences under section 21, you need not prove the suspect intended to carry out the threat(s) - R v Syme
(1911) 6 Cr App R 257.
Powers
You can arrest under section 39(1) of the Summary Offences Act 1981.
Procedures in respect of intimidation
When dealing with a complaint of intimidation, follow these steps.
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Step Action
1
Decide whether the threat is genuine. Don't accept that the first person to complain is in the right.
Remember: Threats can be difficult to prove and some people tell lies, so be patient and get to the bottom of the
matter.
2
If the threat is genuine:
tell the CIB and your supervisor
interview the victim and obtain a statement including:
the suspect's identity, or as many clues to it as possible
full details of the threat and the accompanying conversation, including any weapons used
any motive for, or history behind, the threat
any previous threats
evidence of its source
any corroboration
if victim protection is needed, discuss it with your supervisor and take any necessary action
preserve the evidence (take possession of any letter or writing if possible, and photograph any damage)
interview independent witnesses promptly
make enquiries to find out whether the suspect had any excuse, colour of right, or lawful justification
interview the suspect and obtain a statement.
3
Decide whether to warn, report for summons or arrest.
If you decide to. . . then. . .
warn
record your decision
report for
inform the suspect of this. It may be feasible to issue a summons at the same time
summons
arrest
Caution the suspect according to the Chief Justice's practice notes on Police questioning
tell the suspect their rights under the New Zealand Bill of Rights Act 1990
in conjunction with the Custody Supervisor, consider formal warning if relevant criteria are
met.
4
Prepare the prosecution file and file the charging document.
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Language offences
Definitions
This table outlines the key definitions of terms relevant to language offences.
Term
Definition
Addressing Directing the language at a specific person or persons; usually accompanied by acts or gestures.
Alarming
Words that disturb, frighten or agitate; for example, shouting 'fire' in a crowded theatre.
words
Indecent
Words that an average person finds seriously repugnant or distasteful.
words
Insulting
Words with a meaning or double meaning that refer offensively to a person's character, upbringing or way of
words
life.
Obscene
Words used to refer to sexual acts or organs in a manner and in circumstances that make such references
words
offensive to the community's standards of propriety - Police v Drummond [1973] 2 NZLR 263 (CA).
Offensive
Words intended to outrage or hurt the feelings of the person to whom they are directed.
words
Reckless
Reckless use of language is more than careless; it is knowing the consequences of using certain words, and
using them anyway.
Threatening Words that convey an intention to harm a person, or that person's family, property or the like.
words
Addressing indecent or obscene words
Under section 4(1)(c)(ii) of the Summary Offences Act 1981, you must prove the identity of the suspect and that they:
in, or within hearing of, a public place,
addressed indecent or obscene words to any person.
In determining whether words are indecent or obscene, the court must consider the circumstances pertaining at the
material time, including whether the suspect had reasonable grounds for believing the hearer would not be offended -
section 4(3) of the Summary Offences Act 1981 refers.
Powers
You can arrest under section 39(1) of the Summary Offences Act 1981.
Addressing threatening, alarming, insulting or offensive words
Under section 4(1)(b) of the Summary Offences Act 1981, you must prove the identity of the suspect and that they:
in any public place
addressed words to a person
intending to threaten, alarm, insult or offend.
If the intent cannot be inferred from the words used, and if the suspect does not admit intent, a charge under section 4(1)
(c)(i) may be more appropriate.
Powers
You can arrest under section 39(1) of the Summary Offences Act 1981.
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Using indecent or obscene words
Under section 4(2) of the Summary Offences Act 1981, you must prove the identity of the suspect and that they:
in, or within hearing of, a public place
used indecent or obscene words.
It is a defence if the suspect had reasonable grounds for believing their words would not be overheard - section 4(4) of the
Summary Offences Act 1981 refers.
Powers
You can arrest under section 39(1) of the Summary Offences Act 1981.
Using threatening or insulting words
Under section 4(1)(c)(i) of the Summary Offences Act 1981, you must prove the identity of the suspect and that they:
in, or within hearing of, a public place
used threatening or insulting words
and was reckless about whether anyone was alarmed or insulted by them.
The words need not be addressed to any particular individual. The prosecution must prove, however, that the suspect used
them deliberately and took an unjustified risk that someone would be offended - Purves v Inglis (1915) 34 NZLR 1051.
Powers
You can arrest under section 39(1) of the Summary Offences Act 1981.
Procedures in respect of language offences
When dealing with a language offence, follow these steps.
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Step Action
1
Identify yourself and ask the suspect to stop using the language in question.
2
If. .
then. . .
the suspect complies with your no further action may be necessary
request
the suspect does not comply
decide whether to warn, arrest or report for issue of a summons. Consider:
whether the ingredients of the offence are met
whether anyone other than you heard the language
the suspect's behaviour and demeanour
if the conduct is likely to be repeated
the above considerations are
arrest and:
met
Caution the suspect according to the Chief Justice's practice notes on Police
questioning
tell the suspect their rights under the New Zealand Bill of Rights Act 1990
in conjunction with the Custody Supervisor, consider formal warning if
relevant criteria are met
you decide to report for
inform the suspect of this.
summons
3
Obtain full details of the offence, the victim, the suspect and any witnesses, and verify.
4
Prepare the prosecution file and file the charging document.
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Offensive behaviour
Definitions
For the definitions of disorderly behaviour and offensive behaviour, see 'Disorderly behaviour'.
Ingredients and powers
Under section 4(1)(a) of the Summary Offences Act 1981, you must prove the identity of the suspect and that they:
in, or within view of, a public place
behaved in an offensive or disorderly manner
seriously disrupted public order (in the circumstances of time and place and which affected members of the public
whom could not be expected to endure the behaviour because of its intensity and/or duration).
A court can convict under this section if a charge filed under section 3 is not proven. See 'Disorderly behaviour'.
Powers
You can arrest under section 39(1) of the Summary Offences Act 1981.
Procedures
See 'Disorderly behaviour'.
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Obstructing a public way
This section contains the following topics:
Definitions
Ingredients and powers
Procedures
Definitions
This table outlines two definitions of terms relevant to obstructing a public way under section 22(2) of the Summary
Offences Act 1981.
Term
Definition
Obstruct 'Obstructs', in relation to a public way, means unreasonably impedes normal passage along that way.
Public
'Public way' means any road, street, path, mall, arcade or other way over which the public has the right to pass
way
and re-pass.
Ingredients and powers
Under section 22(1) of the Summary Offences Act 1981, you must prove the identity of the suspect and that they:
without reasonable excuse
obstructed a public way
and
having been warned by a constable to stop
continued the obstruction, or
repeated it, or
moved it to another place to which it was reasonable to assume the warning also applied.
The obstruction does not have to be stationary - Gordon v Police (unreported, High Court Christchurch, 26 August 1985,
M322/85).
You need not prove that any particular person was obstructed, but rather that the obstruction impeded normal passage -
McLachlan v Police (unreported, High Court Christchurch, 26 August 1985, M323/85).
The obstruction need only partially diminish the space available for public traffic.
A warning is a precondition to the offence - Gordon v Police (unreported, High Court Christchurch, 26 August 1985, M322/85).
It should cover whatever time and area is reasonable in the circumstances. For example: "I am warning you not to obstruct
this footpath again, either here or in this street, while this football match is in progress."
Powers
You can arrest under section 39(1) of the Summary Offences Act 1981.
Procedures
When required to deal with a person obstructing a public way, follow these steps.
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Step Action
1
Obtain details from the victim.
2
Find independent witnesses and obtain their statements.
3
Confirm the situation at the scene yourself.
4
Warn the suspect(s) to stop the obstruction (you don't have to warn them individually).
If the suspect. then. . .
. .
complies
take no further action, but obtain the details for a Police 101
does not
decide whether to report for summons or arrest. If you decide to report for issue of a summons,
comply
inform the suspect.
5
If you decide to arrest:
give the rights Caution to the suspect according to the Chief Justice's practice notes on Police questioning
look for independent witnesses
obtain all relevant details from the suspect and witnesses, and verify
in conjunction with the Custody Supervisor, consider formal warning if relevant criteria are met.
6
Prepare the prosecution file and file the charging document.
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Resisting and obstruction
Definitions
This table outlines two definitions of terms relevant to resisting and obstruction.
Term
Definition
Acting in the An officer's duty has not been fully defined, but includes taking all necessary and lawful steps to:
execution of
keep the peace
duty
prevent and detect crime
protect life and property from criminal injury or damage
bring offenders to justice.
(Rice v Connolly [1966] 2 All ER 649)
Incite or
'Encourage' means to advise or suggest; 'incite' means to arouse or stimulate. The difference lies in the
encourage degree of 'encouragement'.
Intentionally Intentionally means on purpose. Intent is a question of fact and can be proved by direct evidence or from the
circumstances (Lloyd's Bank Ltd v Marcan [1973] 2 All ER 359).
Obstruction 'Obstruction' means preventing or retarding the progress of, impeding (The Concise Oxford Dictionary). In
more practical terms, it means "making it more difficult for the police to carry out their duties" (Hinchcliffe v
Sheldon [1956] 3 All ER 406).
Note: This may be physical obstruction, such as wedging oneself between a Police officer and the suspect; or
verbal obstruction, such as lying, or warning suspects of approaching Police. It may also be a matter of
delaying Police entry to premises or of failing to carry out instructions.
It is not obstruction to:
refuse to give name and address unless there is a statutory obligation to do so (Elder v Evans [1951]
NZLR 801)
ask Police to leave premises or to refuse to answer questions.
Resisting
Some degree of force on the part of the offender, for example, violently trying to break away from an officer
after arrest.
Ingredients and powers
Under section 23 of the Summary Offences Act 1981, you must prove the identity of the suspect and that they:
resisted or intentionally obstructed, or
incited another person to resist or obstruct:
a constable, prison officer or traffic officer acting in the execution of their duty (or a person helping any of
these), or
a Police dog working under the control of a Police Dog Handler.
You:
must prove that the suspect intended to obstruct (Police v Barcham (1983) 2 DCR 195)
do not have to prove that the suspect knew who you were or that you were carrying out your duties (Pounder v Police
[1971] NZLR 1080).
Powers
You can arrest under section 39(1) of the Summary Offences Act 1981.
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Procedures
If you have to take action for an offence under section 23, follow these steps.
Step Action
1
Ensure that you identify yourself as a Police constable.
2
If the suspect resists or verbally obstructs:
give a warning
if the offence continues, arrest.
3
If the obstruction is physical, or blatant - that is, if it really pushes you to the limit - arrest and:
Caution the suspect according to the Chief Justice's practice notes on Police questioning
look for independent witnesses
obtain all relevant details from the suspect and witnesses, and verify
in conjunction with the Custody Supervisor, consider formal warning if relevant criteria are met.
4
Prepare the prosecution file and file the charging document.
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Throwing stones
Ingredients and powers
Under section 34 of the Summary Offences Act 1981, you must prove the identity of the suspect and that they:
threw or discharged any stone or other object
in a manner that was likely to cause injury or damage.
This includes objects discharged from slings, catapults, bows and other such weapons. Objects discharged by firearms are
covered by the Arms Act 1983. See: 'Arms' chapter.
This charge is brought only when no injury or damage results. If injury or damage occurs, the suspect should be charged
with assault under section 9 or intentional damage under section 11 of the Summary Offences Act 1981.
Powers
You can arrest under section 39(2) of the Summary Offences Act 1981 if:
you see the offence
and
the suspect fails to give name and address on demand, or
you believe that the details given are false.
Procedures
If you have reason to believe that a person has committed an offence against section 34, follow these steps.
Step Action
1
Note the result of the action.
2
Locate any independent witnesses.
3
Isolate and interview the suspect, obtaining full details.
4
Decide whether to warn, report for issue of a summons or arrest. Consider whether:
you saw the offence
the suspect failed to give name and address
you believe the details given are false.
5
If you decide to report for summons, inform the suspect.
6
If you decide to arrest:
Caution the suspect according to the Chief Justice's practice notes on Police questioning
in conjunction with the Custody Supervisor, consider formal warning if relevant criteria are met.
7
Prepare the prosecution file and file the charging document.
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Appendix A
A guide to categories of offences can be found in section 6 of the Criminal Procedure Act 2011.
Widely understood definitions for 'offence' and 'crime' were repealed as one consequence of major changes heralded by
the introduction of the Criminal Procedure Act 2011. The following informal definition is intended to provide assistance and
has been drafted with assistance from legal experts.
'Offence' and 'crime' are words that are used interchangeably in statute, and there is no material difference between them.
They may be described as any act or omission that is punishable on conviction under any enactment, and are demarcated
into four categories as defined in section 6 of the Criminal Procedure Act 2011.
Summary of behaviour related offences
This table summarises the offences associated with behaviour.
Offence
Category
Breach of the peace
*Not an offence
Section 42 - Crimes Act 1961
Note: Although there is a power of arrest, breach of the peace is not an offence
Disorderly, offensive, threatening, insulting behaviour
Category 2 offence
Section 3 - Summary Offences Act 1981
Offensive behaviour
Category 1 offence
Section 4(1)(a) - Summary Offences Act 1981
Language offences
Category 1 offence
Section 4(1)(b)&(c) - Summary Offences Act 1981
Using reckless or obscene words
Category 1 offence
Section 4(2) - Summary Offences Act 1981
Fighting in a public place
Category 1 offence
Section 7 - Summary Offences Act 1981
Intimidation
Category 2 offence
Section 21 - Summary Offences Act 1981
Obstructing a public way
Category 1 offence
Section 22 - Summary Offences Act 1981
Resisting and obstruction
Category 2 offence
Section 23 - Summary Offences Act 1981
Indecent exposure
Category 2 offence
Section 27 - Summary Offences Act 1981
Excreting in a public place
Category 1 offence
Section 32 - Summary Offences Act 1981
Throwing stones
Category 1 offence
Section 34 - Summary Offences Act 1981
Drinking in a public place
Category 1 offence
Section 38 - Summary Offences Act 1981
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Version number:
2
Owner:
Director: Capability
Publication date:
03/03/2016
Last modified:
22/03/2021
Review date:
31/12/2020
Printed on : 03/05/2021
Printed from : https://tenone.police.govt.nz/pi/part-06-behaviour-offences
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