Warren v R [2024] PNCA 1 (1 November 2024)

IN THE COURT OF APPEAL OF THE PITCAIRN ISLANDS

CA 1/2024
[2024] PNCA 1

UNDER	the Judicature (Appeals in Criminal Cases) Ordinance
IN THE MATTER	of an application for appeal against Supreme Court decision 3/2022 [2024] PNSC 1 in respect of conviction and sentence in the Magistrate’s Court
BETWEEN	MICHAEL CALVERT WARREN
	Appellant
AND	THE KING
	Respondent
Hearing:	13 October 2024 on Pitcairn Island (via AVL)
	14 October 2024 New Zealand
Coram:	Young P
	Dobson JA
	Dean JA
Counsel:	A J Ellis for Appellant
	K Raftery KC and D E Kelly for Respondent
Judgment:	1 November 2024

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JUDGMENT OF THE COURT

______________________________________________________________________

Introduction

[1] This is a second appeal from convictions of the appellant (Mr Warren) on three charges of acting in an indecent manner in a public place.

The offending

[2] No material objection was taken to the summary of the facts in the judgment of the Chief Justice in the first appeal. Heath CJ summarised the facts as follows:^[1]

[7] The charges were heard in the Magistrate’s Court on 6 December 2021. The Island Magistrate and the Assessors heard oral evidence from two witnesses. Evidence from a third, a police officer, was read due to the unavailability of the witness for health reasons.
[8] The first witness was Mr Nicholas Kennedy. At the time, Mr Kennedy was the Administrator on Pitcairn Island. He gave evidence by audio-visual link from the United Kingdom. Mr Kennedy deposed that, just after 6am on 29 January 2020, he and his wife went for a walk. At about 6.25am, they reached a point in the road close to Mr Warren’s house. Mr Kennedy saw Mr Warren (from the back) walking fully naked on the road ahead of him. After seeing Mr Warren, Mr Kennedy turned around, manoeuvring his wife so she did not see Mr Warren, and walked away. This evidence formed the basis of the first charge.
[9] Ms Nadine Faulkner was the second witness. She gave evidence that at about 6.00am on 8 June 2020, she was on the deck of her home. She looked out towards the road and saw Mr Warren naked. She saw him from side on. During the hearing, counsel for the Crown asked Ms Faulkner if she had anything personally against someone who makes a choice to be a nudist or a naturist. She responded: “Not at all. You can do that. I just don’t want to see it”. Ms Faulkner’s evidence supported the second charge.
[10] The third witness was Senior Constable Warrender. His statement was read by the Deputy Registrar. During 2020, Senior Constable Warrender was the Community Police Officer based on Pitcairn Island. In that capacity, he had interviewed Mr Warren about the incidents on 29 January and 8 June. He went to Mr Warren’s home, at about 5.50am on 9 June 2020, in an endeavour to “deter [him] from repeating the same behaviour”. At about 6.05am, Senior Constable Warrender saw Mr Warren walking naked, along the road, towards him from a westerly direction. That behaviour gave rise to the third charge.

[3] Mr Warren accepted at the trial that:

• (a) he was the individual observed by the witnesses;
• (b) his decision to walk naked along the roads was deliberate; and
• (c) the road represented a “public place” for the purposes of s 5 of the Summary Offences Ordinance.^[2]

[4] Those admissions meant that the only issue the prosecution was required to prove was that Mr Warren’s conduct on the three occasions that were the subject of the charges was indeed indecent.

The Magistrate’s Court trial

[5] The charges were heard by the Island Magistrate (the Magistrate), who is not legally qualified, and two Assessors (also lay people). Both the prosecution and the defence were represented by experienced counsel, who also appeared on the first appeal and on this appeal.
[6] After hearing the evidence and the closing submissions, the Magistrate and the Assessors adjourned for two hours. On their return to court, the Magistrate is recorded as stating:^[3]

[Counsel] thank you very much indeed to both counsel for their submissions today and we’ve [namely, the Island Magistrate and the Assessors] carefully considered all of the issues that have been raised by counsel. The submissions have covered, but not limited to, the following. [a] Is there evidence that the behaviour occurred. [b] Was it deliberate. [c] Was there an intention to offend. [d] Is there evidence it took place in a public place. [e] Are the occurrences of walking naked on Pitcairn Island considered to be behaving in an indecent manner. [f] Is it reasonable to accept walking naked in public is a constitutional right provided for under the freedom of expression when there is an overlap of personal rights impeding on another’s. The requirements that exist in a democratic society are to balance one person’s rights with another. [g] Was there a sexual content to the events. [h] How far would the rights to shock, horrify or offend others be allowable without the act itself becoming illegal. Having considered all these and other points raised, we move to a verdict. With regards to the verdict. In accordance with section 32(1) of the Justice Ordinance, at the conclusion of the evidence I require the assessors to state their opinions.

[7] The Magistrate then required the Assessors to state their opinions, which were that they both considered Mr Warren guilty of all three charges. The Magistrate then pronounced his verdicts. Being in agreement with the Assessors, he found Mr Warren guilty on all of the charges. His verdicts were accompanied by the statement in relation to each:^[4]

The assessors, representing our community, do consider walking naked around Pitcairn Island on our public roads to be a violation of section 5 of the Summary Offences Ordinance in that it is behaving in an indecent manner, and I agree with them both.

[8] The Magistrate then sentenced Mr Warren to fines of $50 in respect of each conviction.
[9] On behalf of Mr Warren, Dr Ellis had objected to the absence of reasons from the Assessors as to how they had come to their opinions. In response, and with the consent of all involved, one of the Assessors, Mrs Warren, delivered a statement in the following terms:^[5]

Mrs Warren: Just so that there’s no confusion, I offered to do this. I had written this down before I even spoke to [the Island Magistrate]. It’s my opinion that I represent the community and it is my belief that the majority of the community finds Michael’s nude behaviour offensive, embarrassing, and quite disgusting. However, if he wants to parade around in the nude, do it at home on his property where no one has to witness it. That’s pretty much all I can say. It pretty much sums it up. Thank you.

[10] The other Assessor declined to provide any explanation for his opinion.

The appeal to the Supreme Court

[11] Heath CJ heard the appeal on 9 August 2023 (Pitcairn time) and delivered a comprehensive judgment on 9 January 2024 (the New Zealand dates being one day later). It is unnecessary in this appeal to respond to arguments raised in support of Mr Warren’s first appeal where they are not directly relevant to the grounds pursued on the present appeal. In essence, the Chief Justice rejected grounds of appeal that:

• (a) it had been necessary for the Magistrate to sum up the case for the Assessors;
• (b) there were inadequate reasons given for the verdicts;
• (c) the offence of indecent behaviour was unconstitutional; and
• (d) the verdicts were not justified on the evidence.

[12] We will traverse the Chief Justice’s reasoning on the issues that are now challenged in the second appeal, in analysing the appellant’s criticisms.

Jurisdiction for this appeal

[13] The appeal is brought pursuant to s 21(1) of the Judicature (Appeals in Criminal Cases) Ordinance (JACCO) which provides for an appeal to this Court from a first appeal in the Supreme Court on a matter of law, but not on a matter of fact or mixed fact and law.
[14] The present appeal also sought to challenge the sentence imposed on the three convictions. A proviso in s 21(2) of the JACCO confines such appeals to cases in which the Court considers the sentence imposed was an unlawful one or passed in consequence of an error of law.
[15] The appeal was not lodged within the requisite 28-day period from receipt of the Supreme Court judgment. Dr Ellis sought leave to appeal out of time and that application was not opposed. Accordingly, leave is granted to extend time for commencement of the appeal by the period of approximately a fortnight that was involved.

Grounds advanced on the conviction appeal

[16] Dr Ellis advanced two grounds:

• (a) first, that the Magistrate had failed to direct the Assessors on relevant questions of law and that Mr Warren was accordingly not given a fair trial;
• (b) second, that insufficient reasons were given for the guilty verdicts.

[17] In the introduction to his oral submissions on these grounds, Dr Ellis reasonably acknowledged that the first was the more substantial of the grounds and that if he failed to persuade the Court on that ground, the prospects for a successful appeal were not promising.

Was there an obligation to sum up in this case?

[18] Heath CJ dealt at some length with the history of the use of Assessors in various Pacific jurisdictions and the nature of their role. He considered decisions of the Full Court of the (then) New Zealand Supreme Court sitting on appeal from different Pacific jurisdictions and reasoned why it was not appropriate to adopt the procedure preferred in those cases. The Chief Justice then surveyed the course of the Magistrate’s Court hearing and concluded that there was no binding obligation on the Magistrate in this case to sum up the case to the Assessors, and further that the absence of a summing up did not deprive Mr Warren of a fair trial.
[19] Dr Ellis accepted, as he had to, that there was no provision in s 32 of the Justice Ordinance dealing with cases heard by a Magistrate that required the Magistrate to sum up in a trial for the Assessors. Instead, he submitted that the complexity of the one issue on which they had to opine required that they be given directions in a summing up on the legal elements required to be proven as to whether the conduct that was the subject of the charges was indecent. The aspect that most required direction, on Dr Ellis’s argument, was that adequate weight had to be given to the right to freedom of expression and that the standard of behaviour preferred by the majority had to be weighed against the rights of the minority to conduct themselves differently, even to an extent that offended or embarrassed the majority who preferred other standards.
[20] Dr Ellis submitted that the procedure adopted by Tompkins J in an earlier trial of Mr Warren was a precedent the Magistrate was bound to follow by giving a summing up and written instructions. That case involved charges of possession of indecent materials.^[6] It had been transferred to the Supreme Court for hearing with more serious charges and, with the agreement of counsel, Tompkins J sat with Assessors. Although the indecency charges in that case similarly involved the single issue as to whether the items in question were indecent (here, whether Mr Warren’s conduct was indecent), the trial occurred in a different jurisdiction along with more complex charges.
[21] The procedure for Supreme Court trials with Assessors provides in s 9(3) of the Judicature (Courts) Ordinance that the Judge may sum up the evidence. There is no comparable provision in s 32 of the Justice Ordinance requiring a summary of the evidence by a Magistrate with Assessors. It simply requires that the Assessors state their opinion at the conclusion of the evidence. The Magistrate is only required to give reasons if the verdict is against the opinion of the Assessors.
[22] Mr Raftery’s response for the Crown included the point that the legislative rationale for not including an obligation for a Magistrate to provide a summing up was to support the continued community involvement in the Islands’ judicial system.
[23] Heath CJ saw the legislative distinction between the Supreme Court and the Magistrate Court trials as significant. We agree. Generally, the issues in Supreme Court trials will be more complex than those arising in Magistrate’s Court trials. Further, they are presided over by legally qualified judges whose competence to analyse the legal issues in a summing up could not, with respect, be expected uniformly of non-legally qualified Magistrates.
[24] Accordingly, the procedure adopted by Tompkins J cannot provide a binding precedent that had to be followed by the Magistrate in this case.
[25] More generally, Dr Ellis argued that the absence of directions on the law led to the risk of the Assessors analysing the issue inconsistently with the law.
[26] Mr Raftery’s first response as to the adequacy of the references to the approach the Assessors should take in considering whether the conduct was indecent was that it was a question of fact not open to challenge on this second appeal under s 21 of the JACCO.
[27] Secondly, on the substance of the criticism, Mr Raftery relied on the thorough analysis undertaken by the Chief Justice, who had read the entire transcript of the Magistrate’s Court proceedings. The Chief Justice had been satisfied that the issue was adequately canvassed. In his submissions, Mr Raftery (who along with Dr Ellis had been counsel at the trial) summarised the extent of references to the issue in his written submissions to this Court as follows:

(a) There was extensive reference to the freedom of expression in evidence, legal argument and closing submissions, and the relevance of freedom of expression to the offence of indecency, including the need to balance competing rights, and the right to “shock, horrify or offend”, was extensively canvassed;

(b) The trial was less than one day, and this was the single issue the court had to determine, and so these issues were canvassed only a short time before the court considered its conclusion;

(c) The Island Magistrate gave a summary of the issues in the case before the verdicts were taken, which demonstrated that freedom of expression and the need to balance competing rights was centre of mind for him (and by inference the assessors), stating:

Are the occurrences of walking naked on Pitcairn Island considered to be behaving in an indecent manner. Is it reasonable to accept walking naked in public is a constitutional right provided for under the freedom of expression when there is an overlap of personal rights impeding on another’s. The requirements that exist in a democratic society are to balance one person’s rights with another. ... How far would the rights to shock, horrify or offend others be allowable without the act itself becoming illegal.

[28] Dr Ellis did not dispute the accuracy of Mr Raftery’s summary of the references to the issue at the trial.
[29] The test as to whether indecent behaviour has been made out as an element of a criminal offence does require an assessment of the conduct by reference to community standards.^[7] Those standards have to accommodate respect for the rights of minorities to conduct themselves inconsistently with the standards preferred by the majority. Directions on the analysis required are reflected in the Magistrate’s summary quoted at [6] above. In particular, the elements that are endorsed in the quote by the Chief Justice as [e], [f] and [h] adequately reflect the law.
[30] The extent to which the issue was aired with the Assessors renders Dr Ellis’s complaint one of form, rather than substance. We agree with the Chief Justice that the assessment of whether the admitted conduct was indecent was more than adequately defined for the Assessors. There can be no concern that the absence of a summary of what they had heard on the issue from the Magistrate in any way deprived Mr Warren of a fair trial.
[31] The first ground of appeal cannot succeed. However, before leaving it, there are two further matters that warrant comment.
[32] First, Dr Ellis criticised the manner in which Heath CJ had analysed the earlier decisions of the Full Court of the New Zealand Supreme Court. His particular objection was to the observation by the Chief Justice:^[8]

... I consider that the decisions of the Full Court should be reconsidered.

[33] Dr Ellis characterised this as the Chief Justice embarking on a folly of his own, because Dr Ellis treated the Chief Justice’s analysis as purporting to overrule the decisions of the Full Court of the New Zealand Supreme Court when he had no jurisdiction to do so sitting alone as Chief Justice of the Pitcairn Islands Supreme Court.^[9]
[34] That characterisation is misconceived. The Chief Justice was considering the possible application of authorities that could have been of persuasive relevance, but which were not binding on him. After analysing distinguishable features, the Chief Justice decided, because of differences in the criminal trial procedures in those other jurisdictions, that they were not usefully adopted for Pitcairn. There can be no suggestion that the reasoning on this point involved any relevant error.
[35] The second matter to comment upon was raised by Mr Raftery in his submissions for the Crown. In the Chief Justice’s judgment, after concluding that the absence of a summing up did not undermine Mr Warren’s fair trial rights, he made observations including the following:^[10]

... it is important that I emphasise the need, in most criminal case[s], for a summing up or (at least) the provision of an appropriate question trail for the assessors to follow.

[36] Mr Raftery suggested that the Chief Justice’s consideration of summary trial procedure for Pitcairn may have been influenced by a sequence of unusually complex trials conducted there. He submitted that the generality of criminal matters determined in the Magistrate’s Court have been – and he suggested will continue to be – straightforward matters such as whether a defendant charged with assault did in fact hit the complainant. Charges that are more complex legally are likely to be heard in the Supreme Court, where different procedures (including specific provision for the prospect of a summing up) will apply. Mr Raftery respectfully suggested that the Chief Justice’s reference to “most criminal cases” at the outset of his observation might more appropriately refer to “some” criminal cases, and that is a modification of the Chief Justice’s observation that we would endorse.
[37] It is important to have continued community involvement in summary trials in Pitcairn, without legally qualified participants. The burden imposed on a non-legally qualified Magistrate to sum up to Assessors is, with respect, likely to be unrealistic in some contexts and could be both unnecessary and potentially unhelpful.

Inadequacy of reasons for verdicts

[38] The second ground of appeal was that the Chief Justice was wrong to dismiss the appellant’s criticism that there was a breach of an obligation either on the Magistrate or the Magistrate and Assessors to provide reasons for the verdicts. The Chief Justice had treated himself as bound by the Court of Appeal judgment in an earlier appeal by Mr Warren, where the Court found the trial was not rendered unfair or in breach of Mr Warren’s constitutional right to freedom of expression by the absence of reasons.^[11] Dr Ellis’s narrow point was that the Chief Justice wrongly treated himself as bound to follow the conclusion of the Court of Appeal in Mr Warren’s earlier appeal because the circumstances of that trial were, on his submission, materially different from the trial in the present case.
[39] More broadly, Dr Ellis referred to the decision of the European Court of Human Rights in Taxquet v Belgium as recognising a need for reasons to afford a fair trial, so that the accused and the public are able to understand the verdict, that being a vital safeguard against arbitrariness.^[12] Dr Ellis cited Taxquet in the earlier Warren Court of Appeal argument and before the Chief Justice on the first appeal in this case.
[40] In supporting the Chief Justice’s conclusion that no requirement for reasons (or further reasons) were made out, Mr Raftery submitted that the context of the trial in issue in Taxquet was materially different. The case there was factually and legally complex, the trial lasted more than two months, involving many witnesses and experts giving evidence. The indictment against the defendant and the jury questions both omitted sufficient information as to the applicant’s involvement in the commission of offences and under the Belgian system there was no provision for an ordinary appeal.
[41] The Court of Appeal in Mr Warren’s earlier appeal considered the differences between Taxquet and Mr Warren’s case were indeed material.^[13] Those differences were also recognised by the Chief Justice in considering Taxquet in this case.^[14]
[42] As Dr Ellis was inclined to agree during oral argument, context is everything. The trial in the present appeal took less than a day and the single issue was aired extensively.^[15]
[43] It is unnecessary to decide whether the Chief Justice was indeed bound by the ruling in the earlier Court of Appeal decision on Mr Warren’s complaint about the absence of reasons. Differences in the mode of trial are less relevant than an evaluation of the context in which the trials proceeded to their conclusion. In that respect, the two criminal proceedings against Mr Warren are materially similar. He cannot have been left with any reasonable doubt as to the basis on which guilty verdicts were arrived at. There can be no suggestion of arbitrariness which motivated the European Court to recognise a potential need for reasons. Nor, notwithstanding Dr Ellis’s submissions on the first issue, is there a realistic risk that the Assessors applied an incorrect legal test in determining indecency.
[44] It is not a case in which there were no reasons given, as occurs in criminal trials heard with juries. Before inviting the Assessors to give their opinions, the Magistrate reviewed the relevant issues, their opinions were expressed in the context of that review. When the Magistrate delivered his verdicts on each charge, he provided his own reasoning for finding the conduct indecent.^[16] Those were adequate to enable observers of the trial, including the defendant, to understand why guilty verdicts were returned. We agree with the Chief Justice’s analysis on this point, without having regard to Mrs Warren’s explanation. We do that, respecting Dr Ellis’s request, explained below.
[45] One aspect of Dr Ellis’s submissions on this ground related to the status of the explanation provided by Mrs Warren, one of the Assessors, after the verdicts had been delivered.^[17] In oral submissions, Dr Ellis urged the Court to disregard what she had said, in assessing the adequacy of reasons for the verdicts.^[18]
[46] Mrs Warren’s statement was made after Dr Ellis raised a concern on delivery of the verdicts that the Assessors should provide their reasons. After consideration, and with the consent of all involved, Mrs Warren provided her explanation, as recorded at [9] above. Dr Ellis’s position before us was, in effect, that whilst he had complained about the absence of reasons, and consented to the explanation then being given at trial, the legally correct response to his complaint should have been that the verdicts had to rest on the statements already made by the Magistrate. The response to his complaint should have been for Mrs Warren to decline to provide any explanation, which is what the other Assessor did. Without necessarily accepting Dr Ellis’s current criticism, we have acceded to his request to disregard the Assessor’s comments.
[47] We are not persuaded that the second ground of appeal has any validity.

Sentence appeal

[48] On the first appeal, Dr Ellis had argued that because the circumstances of the three occasions giving rise to the charges were different, the Magistrate was required to consider them separately and reflect the shades of seriousness in different levels of fine imposed on each.
[49] The Chief Justice accepted that:^[19]

... there is some merit in Dr Ellis’ submission that the Island Magistrate ought to have separated out the three offences and addressed each individually ...

[50] However, the Chief Justice immediately went on to state that there was no basis on which he was prepared to interfere with the sentence imposed.
[51] On this appeal, Dr Ellis contended that was an error, which ought to be corrected if the conviction appeal failed. His submissions on the proposed sentence appeal concluded by repeating a submission he had made on the first appeal for:

A penalty of $25 for the least culpable offence, then $50, then $100, which whilst greater ($175) than $150 sets some rational indicators of what repeat offenders might receive.

[52] The Chief Justice had a discretion whether to interfere with the sentences or not. They were not unlawful nor could they be challenged as manifestly excessive or in other respects unreasonable.
[53] The only jurisdiction to entertain a second appeal against sentence is if the sentence imposed was an unlawful one, or was passed in consequence of an error of law. When asked, Dr Ellis was not able to identify how the proposed appeal qualified within these narrow grounds. We are satisfied there is no jurisdiction within the scope permitted by the Ordinance.
[54] Even if we were wrong in that conclusion, we, like the Chief Justice, see no basis for interfering with the Magistrate’s discretion to treat each conviction the same for sentencing purposes. In the context of a summary trial, there can be no requirement for dealing individually with each of three occurrences of the same offence, even where the extent of discomfort or embarrassment suffered by those observing it might be ranked differently.

Outcome

[55] The appeal against conviction is dismissed.
[56] The appeal against sentence is dismissed for want of jurisdiction.

________________________

Justice Young
President

________________________

Justice Dodson

________________________
Justice Dean

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^[1] Warren v R [2024] PNSC 1.
^[2] The term “public place” is defined by s 2(1) of the Interpretation and General Clauses Ordinance of 2017 to include “every place to which the public are entitled or permitted to have access whether on payment or otherwise”.
^[3] Warren v R, above n 1, at [12]. The bolded letters [a] to [h] were added by the Chief Justice.
^[4] Warren v R, above n 1, at [13].
^[5] Warren v R, above n 1, at [113].
^[6] R v Warren [2016] PNSC 1.
^[7] R v Nazif [1987] NZCA 307; [1987] 2 NZLR 122 (CA) at 127.
^[8] Warren v R, above n 1, at [56].
^[9] The Full Court decisions involved were Latoatama v Williams [1954] NZLR 594, Re Moke Ta’ala [1956] NZLR 474 and Tangi Puri v R [1967] NZLR 328.
^[10] Warren v R, above n 1, at [120].
^[11] Warren v R [2016] PNCA 1 at [39].
^[12] Taxquet v Belgium [2009] ECHR 2279 and [2010] ECHR 1806 at [90].
^[13] Warren v R, above n 11, at [37]–[39].
^[14] Warren v R, above n 1, at [46].
^[15] See citation from Mr Raftery’s submissions at [27] above.
^[16] See [7] above.
^[17] Quoted at [9] above.
^[18] This submission was contrary to the appellant’s case in the Supreme Court where Dr Ellis had relied on Mrs Warren’s statement as evidencing the imposition of the majority view of what was indecent, without balancing the rights of minorities to freedom of expression.
^[19] Warren v R, above n 1, at [169].