An anti-war protester who burned the New Zealand flag during an Anzac Day dawn service in Wellington has lost her appeal against conviction for offensive behaviour.
Valerie Morse had been fined $500 by Judge Oke Blaikie in Wellington District Court for burning the flag during the 2007 service when another protester blew a horn to disrupt one of the speeches.
The conviction was later upheld by the High Court and now by the Court of Appeal on a two-to-one basis.
At issue was whether Morse's action was legitimate freedom of speech.
Morse's lawyers argued that it was criminal punishment for expressing ideas.
Justice Terence Arnold and Justice Willie Young turned down the appeal but Justice Susan Glazebrook said she would have allowed it.
Justice Arnold said that the flag-burning on such an occasion was well capable of being regarded as offensive or causing wounded feelings, anger, outrage and disgust.
It was a solemn occasion that commemorated not only the 2700 New Zealanders who lost their lives at Gallipoli but also those who died or were injured in other fields of conflict.
"At such a commemoration, the national flag assumes a special symbolic importance, representing our national identity," Justice Arnold said.
It would have had an even greater significance for the returned service personnel and their families attending the ceremony.
The judge said that the objective of the flag-burning and the horn-blowing was to disrupt the free speech of others.
He said that if the police had not intervened it was likely that some of those at the ceremony would have taken matters into their own hands.
Justice Young agreed that Morse's conduct was offensive.
She deliberately set out to disrupt a ceremony for those who died in the service of their country and her flag-burning could be regarded as particularly disrespectful to the fallen and their families.
"I accept that there must be a fair degree of give and take in a free and democratic society but, given the solemnity of the occasion on which she chose to act in this way and the responses which her behaviour could be expected to evoke from those present, I think that what she did was properly categorised as offensive," he said.
Justice Glazebrook said that while Morse's behaviour could be regarded as highly disrespectful, it was not offensive.
"In my view, the burning of the flag by itself on university grounds as a genuine exercise of the right to express political opinions could not be seen as offensive," she said.
Not all witnesses found the flag-burning particularly offensive, and those who did were free to avert their gaze, particularly as Morse was on university grounds some distance from the crowd.
Her intention was to make a political point, genuinely held.
The judge said that such a commemoration service for those who died in wars past might be seen as a particularly apt time to protest against current and future wars.
"The content of Ms Morse's message was clear from the surrounding circumstances as an anti-war message which could not in any way legitimately be seen as offensive," Justice Glazebrook said.