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State v Sang [2008] FJHC 11; HAA127.07 (1 February 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 127 of 2007

Between:

THE STATE
Appellant

And:

HOON SANG
Respondent

Hearing: 25th January 2008
Judgment: 1st February 2008

Counsel: Ms N. Tikoisuva for State
Mr. P. MacDonnell for Respondent

JUDGMENT

On the 21st of July 2006, there was a party at the Suva Lawn Tennis Club. As the music continued, the residents of Gladstone Road and Williamson Road became annoyed. They complained, then laid complaints with the police. The Manager of the Club was charged with common nuisance contrary to section 187 of the Penal Code. The trial was held on the 16th of April 2007. The learned Magistrate found that although some residents found the party to be a nuisance he needed to have some objective or scientific evidence of a nuisance. He acquitted the manager. The Director of Public Prosecutions disagrees with this finding and appeals against it.

The charge read as follows:

Statement of Offence

COMMON NUISANCE: Contrary to section 187 of the Penal Code, Act 17.

Particulars of Offence

HOON SANG, on the 21st day of July 2006 at Suva in the Central Division, being the Manager of Suva Lawn Tennis Club played music to a volume that caused inconvenience or annoyance to the public residing at Gladstone Road, Williamson Road and Cakobau Apartment.

Section 187 of the Penal Code reads: "Any person who does an act not authorized by law or omits to discharge a legal duty and thereby causes any common injury, or danger, or annoyance, or obstructs or causes inconvenience to the public in the exercise of common rights, commits the misdemeanour termed a common nuisance, and is liable to imprisonment for one year. It is immaterial that the act or omission complained of is convenient to a larger number of the public then it inconveniences, but the fact that it facilitates the lawful exercise of their rights by a part of the public may show that it is not a nuisance to any of the public."

The evidence of Richard George Kay was that he lived 150 metres away from the Club, and that he had an 11 months old daughter. On the 27th of July 2006, the music from the Club got louder and louder until it finally stopped at 1am. He rang to complain on three occasions but whoever answered the telephone at the Club, hung up. He then went to the Police Post to lodge a complaint. He said that the noise disturbed his peace, kept the baby awake and that the loud music disturbed his experience of Fiji.

Lynette Lusby gave evidence that she lived at the Cakobau Apartments, 75-100 metres away from the Club. She came home at 8pm on the 21st of July 2006 and heard the noise from the Club. She said she had to change her bedroom so she could avoid the noise which was so loud that she could not hear her television. She said she had previously complained about the noise but that she did not do so on that night.

Desmond Whiteside lives at 49 Gladstone Road, 200 metres away from the Club. On the 21st of July 2006, there was a live band at the Club and he had to triple the volume on his television to hear it. He could not sleep and even after the music stopped at 1am, many people from the party stood outside his bedroom yelling at the "top of their voices until 1.15 in the morning." He made a complaint to the police on the same day.

Corporal Bogidua of the Suva South Police Post recorded the complaint but he was also able to hear the music. He said "that night the music was very loud and I hated it." When he reported off duty at 11pm, the same volume of noise was coming from the Club.

Taka Bennion of the Suva City Council gave evidence that the Suva Lawn Tennis Club had a business licence and that it had breached by-laws, under section 131 Suva (Noise Prevention) By Law.

The Respondent was interviewed under caution by Constable Punja Chand. He said he was the Manager of the Tennis Club and that on the 21st of July the National Fire Authority Graduation Dinner had been held there. It started at 7.30pm and ended at 11pm. The National Youth Band provided live music. The music was amplified by loud speakers at "moderate" volume. He said he was not aware that the noise had disturbed residents but that he had been aware of complaints in the past. He said "noise was at a tolerable level and it ended at 2300 hours with the lights on."

Also tendered was the statement of the Commissioner Central, Inoke Devo, who said that he had approved a liquor licence for the Club and that it had also been issued with a Club licence.

The prosecution closed its case. The defence submitted that there was no case because the patrons of the Club were simply exercising their rights as members of the public to particulate in a social occasion at a legitimate public place. The learned Magistrate found a case to answer. The hearing continued on 23rd February 2007. The Respondent gave evidence which was identical to his police statement. He said that the Club could operate from 6am to 1am daily, and denied that the music was loud until 1am. Under cross-examination he said he was not concerned about the by-laws, that the music was played from 7.30pm and that it did not go on until 1am.

The defence submitted that the elements of the offence were that the accused did an act, which had caused inconvenience to the public in the exercise of common rights and said that there was no unlawful act nor was there a failure to discharge a legal duty. Counsel submitted that one man’s noise could be music to another’s ears and that the courts should apply an objective test as to what a common nuisance was. He submitted that the subjective opinion of some members of the public could not be allowed to curtail the rights of other members of the public and that the test should be whether there was "a real interference with the comfort or convenience of living according to the standards of the average man."

The learned Magistrate delivered his judgment on the 16th of April 2007. After reviewing the evidence and the law, he adopted the objective test suggested by the defence. He then said:-

"I have no problem at all, in holding the accused liable from the evidence of the prosecution that they have been inconvenienced part of the neighbourhood by the noise that came from their club at the material time. However the test that is required in criminal law is a higher test. In order for me to be convinced in this criminal jurisdiction that the noise from the Lawn Tennis Club was unlawful, there must be a [sic] scientific proof of some decibel measurement instrument proving that the sound were so excessive that it has become a common nuisance in criminal law."

He found that the prosecution had not proved the element of unlawfulness and that the "statutory defence" was also available to the defence. He acquitted the Respondent.

The appeal

The Director’s petition of appeal sets out the following grounds of appeal:

(1) That the Magistrate’s decision is unreasonable based on the fact that:

(a) the learned magistrate erred in fact and in law when he found that the law required scientific proof in terms of measured decibels in order for conduct to amount to common nuisance.

(b) the learned Magistrate erred in law and in fact when imposing a requirement not founded in the provision of section 187 Penal Code, and which was unreasonable.

(c) the learned Magistrate erred in fact and in law in rejecting the incontrovertible evidence of the State witness relating to the annoyance and inconvenience caused by the excessive noise."

In her submissions in court, counsel for the State said that the section 187 offence was derived from the common law, and that the test was whether a representative cross-section of the community was affected in a negative way. She relied on the definition of nuisance in R v. Shorrock [1993] 3 All ER 917 to argue that the learned Magistrate was wrong to apply the civil test for nuisance, and that the evidence should have led to a conviction. The Respondent repeated his submissions from the lower court.

The offence of nuisance under section 187 of the Penal Code was derived directly from the common law offence of public nuisance. At common law a person commits a nuisance who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to "all Her Majesty’s subjects" (Stephen’s Digest of the Criminal Law 8th Ed. 1900 p.184). This definition survived the European Convention on Human Rights with the added requirement of proof that the defendant "knew or ought to have known, because the means of knowledge were available to him, that as a result of his action or omission a public nuisance would occur." (R v. Shorrock ante). In R v. Rimmington; R v. Goldstein [2005] UKHL 63; [2006] 1 AC 459, the House of Lords held that the offence of public nuisance was defined in clear enough terms to satisfy the European Convention protection against laws which might lack certainty and fail to prescribe punishment in clear enough terms.

The test adopted by the English courts is therefore useful in Fiji, because the definition is the same. The only additional element in common law, is that the accused knew or ought to have known that a public nuisance would occur, as a consequence of his or her act. I consider that section 181 creates an offence of basic intent, and that the State only needs to prove that the accused intentionally and willingly did an act which he should have known would create a nuisance.

A nuisance can therefore be committed by an act or by an omission. A nuisance becomes a "public" or a "common" nuisance when, as the English Court of Appeal said in Att-Gen v. P.Y.A. Quarries Ltd. [1957] 2QB 169 it "materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects." Whether or not the members of the community who give evidence constitute a sufficient number of persons is a question of fact in each case (per Romer LJ). Denning LJ had a simpler definition. He said (at pages 190-191):

"I prefer to look to the reason of the thing and to say that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility at large."

The difference between a private nuisance (which gives rise to an action in tort) and a public nuisance (which leads to criminal prosecution) is usually the degree of the nuisance. A single act of nuisance is capable of being a public or common nuisance as long as there is a negative impact on the community or on a significant section of it (R v. Rimmington; R v. Goldstein ante) and of course the same act of nuisance can give rise to both civil and criminal liability.

In R v. Shorrock (ante) the appellate had let his field to three people for £2000. He then went away for the weekend. He had been told that the field would be used to raise money for a special school. In fact it was used for a party at which drugs were consumed and it was attended, over 15 hours by between 3000 to 5000 people. The police received 275 complaints from people living up to 4 miles away. The appellant was charged with public nuisance. His defence was that he did not know a public nuisance would be committed on his land. The House of Lords held that actual knowledge was irrelevant, as long as he was responsible for a nuisance which he knew or ought to have known would be the consequences of activities on his land.

In the old case of R v. Moore [1832] EngR 401; (1832) 3 B&Ad 184 [1824-34] All ER 527, the test was differently worded. In that case the defendant ran a shooting range which involved the shooting at pigeons. Large numbers of people gathered outside his land on the public highway in order to shoot the pigeons which escaped. The defendant was charged with public nuisance. Lord Tenterden CJ said on appeal from his conviction:

"If a person collects together a crowd of people to the annoyance of his neighbours, that is a nuisance for which he is answerable. And this is an old principle."

And Littledale J (at p.528) said that:

"It has been contended that to render the defendant liable, it must be his object to create a nuisance, or else that must be the necessary and inevitable result of his act. No doubt it was not his object, but I do not agree with the other position; because if it be the probable consequence of his act, he is answerable if it were his actual object. If the experience of mankind must lead anyone to expect the result, he will be answerable for it." (my emphasis)

I see no real difference between the common law offence of public nuisance and the Penal Code offence of common nuisance. I find that the elements of the offence are:

1. the accused;
   
2. did an act not authorized by law or omitted to discharge a lawful duty;
   
3. thereby caused;
   
4. any common injury or danger or annoyance or obstructs or causes inconvenience to the public in the exercise of common rights.
   

It is a defence to the charge to show that the accused could not have known that his/her act would lead to the nuisance because the nuisance is not a probable consequence of the act. It is also a defence to the charge to show that the act complained of "facilitates the lawful exercise of their rights by a part of the public."

The first question for the learned Magistrate was therefore to ask whether there was any act not warranted by law. The second was whether the act complained of caused annoyance or inconvenience to members of the public. The third was whether the numbers inconvenienced were sufficient to satisfy him that the nuisance was a "common" one, that is whether sufficient numbers of people were inconvenienced. And the fourth was whether the accused claimed that he did not know and could not have known of the acts which constituted the nuisance.

Ground 1

The learned Magistrate clearly accepted the evidence of the witnesses who were inconvenienced. He decided that the noise inconvenienced "part of the neighbourhood." He erred when he went on to ask whether there was scientific proof of the level of noise. What he should then have asked is whether the persons who gave evidence were representative enough of the community, and whether in the words of Denning LJ in the PYA Quarries case, the nuisance was so widespread in its range or indiscriminate in its effect that it ...... should be taken on the responsibility of the community at large."

Certainly there was evidence to allow the learned Magistrate to draw his conclusions on the matter, but he failed to ask that question. He did not require scientific proof. Ground (a) succeeds, and for the same reason, Ground (b) also succeeds.

The third ground of appeal is that the State evidence as to annoyance and inconvenience should have been accepted. The learned Magistrate did accept it. However he was not satisfied as to the degree of it. A common nuisance is not proved because three members of the community give sworn evidence that they are annoyed or inconvenienced. There must be inconvenience or annoyance (or obstruction, injury or danger) to the public in the exercise of common rights. That is the difference between a private nuisance and a public nuisance. What is a representative sample of witnesses and when the public’s enjoyment of common rights is interfered with are questions of fact for the trial judge or magistrate.

In this case, the witnesses called were indeed representative of the public. One had a baby, two others could not watch television and the police officer at the Post was distressed by the excessive noise. The noise was objectionable up Gladstone Road and Williamson Road. Certainly there was strong evidence to point to a common nuisance. The learned Magistrate, having accepted the evidence of these witnesses should have proceeded to convict.

This ground also succeeds and I quash the acquittal and enter a conviction in its place.

The last of his findings, that is that the Respondent was entitled to the statutory defence, is not the subject of this appeal. However, for the sake of clarity in this area of the law, I deal with it anyway.

The proviso to section 187 says: "It is immaterial that the act or omission complained of is convenient to a larger number of the public than it inconveniences, but the fact that it facilitates the lawful exercise of their rights by a part of the public may show that it is not a nuisance to any of the public." What does this mean? This proviso may not protect the organizers of the Hibiscus Festival who argue that more people enjoy the festival than are inconvenienced by the noise. It may protect churches, temples and mosques, which argue that the crowds attending services, or the ringing of temple and church bells allow their congregations to lawfully exercise their freedom to worship. This proviso is about the balancing of public and private rights. It is to allow for freedom of movement, of religion and of association, even when such freedoms inconvenience the rights of some members of the public. In order to rely on this proviso, the accused has the evidential burden of showing that his act facilitates the lawful exercise of the rights of a part of the public. Thus an act which is inconvenient to some, may be justified in the interests of the protection of the rights of others.

For instance section 34(1) of the Constitution gives to all persons the right to move freely within Fiji, but also says that a law may limit that right "in the interests of national security, public safety, public order, public morality or public health." Section 35 of the Constitution guarantees the right to freedom of conscience, religion or belief, and the right to manifest their belief but a law may limit that right "to prevent a public nuisance." The proviso to section 187 leaves open the possibility of an argument that a minority community may be permitted to inconvenience or annoy the majority in the exercise of its right to worship and to manifest its beliefs. In order for the proviso to apply, the accused must show that he or she has facilitated the rights of some members of the public.

In this case, that defence does not appear to be available. That is because the abatement of the alleged nuisance was not the deprivation of the rights of some to attend a graduation party, but to lower the volume of the festivities. There is no right to noisy parties. The Hibiscus Festival itself does not necessarily create a common nuisance. It is the degree of noise, the length of it, and the deprivation of the rights of those who wish to attend that determine the applicability of the proviso. As in all cases where the rights and freedoms of individuals are in issue, the trial court must balance competing interests. The proviso allows for such balancing.

Result

Having found that the learned Magistrate was in error in the test he applied, this appeal must succeed. I quash the acquittal entered, and substitute a conviction. I will now ask counsel to make submissions on sentence.

Nazhat Shameem
JUDGE

At Suva
1st February 2008