A conviction for offensive behaviour for burning the New Zealand flag at an Anzac ceremony was a breach of the right to free speech, the High Court in Wellington was told today.
Two protesters who disrupted Wellington’s Anzac Day dawn service last year by setting fire to the flag and blowing a horn were convicted in Wellington District Court last November.
Flag burner Valerie Morse was fined $500 plus $130 court costs for offensive behaviour while Mark Daniel Rawnsley, 29, was convicted and discharged for resisting and obstructing police.
Their lawyer, Mark Lillico, today asked Justice Forrest Miller to quash the convictions.
He argued that Judge Oke Blaikie had not applied the right balance between the right to protest and the right to be protected from offence.
Mr Lillico said freedom of expression on political views had to have higher protection despite the likelihood it would cause offence.
His clients had been specifically protesting about New Zealand’s military deployment in Afghanistan and had every right to do this.
He did concede under questioning from Justice Miller that those attending the ceremony had gone there to mark their respects for much more than what the protesters were demonstrating about and that the day had become a de facto second national day.
Mr Miller said those who protested had the right to question sacredly held beliefs and institutions even though this would cause offence and be provocative.
“Free speech is sometime an uncomfortable process for those hearing it,” Mr Lillico quoted from legal authorities.
The district court judge had also handed down half the maximum sentence and this was excessive for the offence.
He argued that Rawnsley had honestly believed that the officer who tried to take a horn off him had no power to do so and the convictions for the actions that followed should not have been imposed.
Ian Murray for the crown said the issue was not about the right to free speech or protest, but the manner in which it was undertaken.
The burning of a flag was particularly offensive to those who had gathered to commemorate the dead and the veterans, Mr Murray said.
“Freedom of expression was not a blank cheque to act as one wishes,” Mr Murray said.
People had a right to protest but in this instance had gone to far.
Justice Miller asked whether it was possible that the burning of the flag could be taken as a political protest against the decision to send people to war, not as an insult to those who had gone and died.
Mr Murray believed that was possible, but many at the ceremony would not have taken it that way.
He said Rawnsley’s defence was not legally valid and he knew the man taking the horn was a police officer.
At the initial hearing Judge Blaikie had ruled Anzac Day was a time for sombre reflection, which held an aura of dignity and respect.
“It is appropriate to assume that those people who attend are reflective and can legitimately expect to participate without offensive intrusion from others,” he said then.
A number of witnesses at that hearing said they had been highly offended by the burning of the flag and the disruption of the service.