Porter v Tuaati [1985] CKHC 7; J.P Appeal No. 5.1985 (22 August 1985)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA

J.P. APPEAL NO. 5/85

IN THE MATTER
of Section 76 of the Judicature Act
1980-81

AND

IN THE MATTER
of the convictions and
sentences of BRETT PORTER
of Aroa, Rarotonga, entered
and imposed in Rarotonga on
the 4th day of July 1985

BETWEEN

BRETT PORTER of Aroa,
Rarotonga, Company Director
APPELLANT

AND

SOLOMON TUAATI of Avarua,
Rarotonga, Police Officer
RESPONDENT

Date of hearing: 22 August 1985
Date of Judgment: 22 August 1985

T.C. Clarke for appellant
T. Manarangi for respondent

JUDGMENT OF ROPER J.

This is an Appeal against conviction and sentence on charges using obscene language in a public place and assaulting a Constable in the execution of his duty. He was fined $20 on the first charge and $30 on the second charge with cost. There is no serious dispute on the facts.

At about 11a.m. Saturday 8th June 1985, Constable Tangaroa saw the Appellant driving his motorcycle with a child in front of him. The Appellant stopped outside South Seas International. Constable Tangaroa queried the fact that the Appellant had a child riding on the motorcycle in front of him which is an offence. He asked the Appellant his name which he apparently received and probably received also the Appellant's address. At that point the Appellant would have no further part in the matter; got off his motorcycle, went towards the store telling the Constable to "fuck off". It appears he repeated these words when they were in the store and when the Constable wanted him to come outside so that they could discuss the alleged offence. The Appellant refused and a little later, struck the Constable to the effect that he was in fact knocked to the ground.

Mr Clarke has made two main submissions. These were made also in the Lower Court but apparently the Justice made no comment on them. The first was that the Constable acted unlawfully in that he assaulted the Appellant in the first instance by placing his hand on the Appellant's arm. There is evidence that in the store the Constable put his hand on the Appellant's arm and possibly held his arm obviously in an endeavour to restrain him from moving away so that the alleged offence could be further discussed. Although it may be said technically there was a form of assault, I see it as no justification for the assault upon the Constable which followed.

As for the obscene language, the point has been made, this was directed to the Constable. It is submitted in all the circumstances it was not serious enough to warrant the intervention of the law. Whether particular words are obscene or not must depend on all of the circumstances of the case. This incident occurred at 11 on a Saturday morning outside a major store and it is relevant that the offending words were used on more than one occasion; once outside the store and the second inside the shop which according to the evidence of the shopkeeper was a full shop. I am satisfied that the circumstances justified a conviction for using obscene language.

In my opinion, the Appellant is very much the author of his misfortune. The whole unhappy incident could have been avoided if he had co-operated in the first instance. The life of a Constable is difficult enough without being subjected to this kind of arrogance. Consequently the Appeal against sentence, on which there was no real complaint, and conviction is dismissed.