We have all seen the incident where the streaker at the All Blacks – England match gets “owned” by the security guard.
It was a pretty decent hit on a guy that didn’t appear to be running away or putting up a fight.
The scenario could be straight out of a law school exam, so let’s explore how the problem can be “tackled” and consider the rights of ordinary people to use force, or “arrest” people.
There are two sources of authority. Firstly, under statute, and secondly under the contract created when the streaker bought his ticket (i.e. the terms and conditions of entry).
The Crimes Act 1961 lists a number of “defences” or “justifications” (i.e a defence rather than a right) for private citizens. A private citizen’s rights to use force are quite limited.
To work out what “justifications” apply we need to start by analysing the offence committed.
He has been charged with “offensive behaviour” under section 4 Summary Offences Act 1980 which has a maximum penalty of a $1,000 fine.
A stiffer alternative would be “indecent exposure” under section 27 Summary Offences Act 1981 with a maximum penalty of 3 months imprisonment or a $2,000 fine where one “in or within view of any public place, intentionally and obscenely exposes any part of his or her genitals”.
The game was not designated as a “major event” under the Major Events Management Act 2007 therefore the offence of “pitch invasion” under section 27 of that Act doesn’t apply.
I’m nor sure that the Crimes Act 1961 assists much. While section 125 makes it an offence to do an indecent act in a public place, a streaker at the rugby probably doesn’t cross the line and amount to an offence under that Act. Canadian authority suggests that male streaking at sports games does not amount to an indecent act. “In order for an act to be indecent there must be moral turpitude in some degree and, generally speaking, I am satisfied that there is no sexual deviation or exploitation in ‘streaking’” (R v Springer (1975) 24 CCC (2d) 56).
Last year’s notorious State of Origin streaker (and Kiwi ex-pat) Wati Holmwood was convicted of obscene exposure in a public place after he pleaded guilty to the charge. That is the equivalent of “indecent exposure” under section 27 Summary Offences Act 1981. One the basis of the Canadian authority above he may have had a defence. If only he called…
Sections 35-38 Crimes Act 1961 provide for “citizen’s arrests”. Those provisions provide limited justifications for arresting persons found, or believed to be committing offences against the Crimes Act.
Section 35 justifies the arrest of a person found committing any offence against the Crimes Act for which the maximum punishment is not less than 3 years' imprisonment, or any offence against the Act committed at night.
Section 36 protects people from criminal responsibility (but not civil liability) for arresting any person whom found at night in circumstances giving reasonable and probable grounds for believing that the person is committing an offence against the Crimes Act.
Section 37 protects people from criminal responsibility (but not civil liability) where an offence against the Crimes Act has been committed and the person believes, on reasonable and probable grounds, a particular person has committed that offence and arrests that person, whether or not that person committed the offence. A guard could believe by reference to time place and circumstances, an indecent act has occurred (notwithstanding a later analysis that no offence had in fact been committed.
Section 38 protects where a person purports to arrest a person taking flight.
These sections are all based on an offence against the Crimes Act. If such an offence hasn’t occurred, and unless reasonable or probable grounds to believe that such an offence has occurred (and here I mean section 125 by doing an indecent act), then none of these “justifications” apply.
Section 42 of the Crimes Act allows any person who witnesses a breach of the peace to interfere to prevent its continuance or renewal, including detaining any person committing a breach of the peace in order to hand them over to a constable provided that only “reasonable” force is used.
“Breach of the peace” relates to “violence” or “threatened violence”, not streaking. Therefore that section doesn’t assist either.
“Self defence” doesn’t help either. It can’t be said that the security guard was acting in the defence of himself or another.
Section 56 Crimes Act comes closest to applying. It provides “everyone in peaceable possession of any land or building, and everyone lawfully assisting him or acting by his authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him therefrom, if he does not strike or do bodily harm to that person”.
The problem here is that that, quite clearly, the security guard did strike the streaker.
A number of “justifications” are couched in terms allowing the use of “reasonable force”. What is “reasonable” is viewed objectively. A forceful hit from behind may well be considered to not be reasonable.
That brings section 62 of the Crimes Act into rather sharp focus: “Every one authorised by law to use force is criminally responsible for any excess, according to the nature and quality of the act that constitutes the excess”.
Enough said.
What about the second limb of my assessment – the contractual position. It is possible to consent to force being used against you.
The stadium’s terms of entry don’t go far enough to justify the force used by the security guard. The terms include:
Ticket Direct’s terms provide:
14. The Ticket Holder will be required to leave the venue if he or she
While both the stadium’s terms and those of Ticket Direct include giving consent to searches on entry, they do not include giving consent to being physically removed from the venue, much less being crash tackled.
At the end of the day, the answer is not clear cut. What needs to be emphasised is that security guards need to understand the limits of their authority, and venues need to be specific with patrons as to what rights security staff have as part of the terms of entry.
Facebook
LinkedIn