McAlister v Wenzel

[2007] QDC 89

[2007] QDC 089

DISTRICT COURT

APPELLATE JURISDICTION

SENIOR JUDGE TRAFFORD-WALKER

No BD2339 of 2006

CHAD RONALD McALISTER	Complainant (Respondent)
and
KENNETH ERNEST WENZEL	Defendant    (Appellant)

BRISBANE

..DATE 16/04/2007

JUDGMENT

HIS HONOUR:  On the 11th of July 2006 the appellant was convicted of the offence of wilful exposure.  He was charged that on the 27th day of July at Coolum in the Magistrates Court District of Maroochydore in the State of Queensland he without reasonable excuse wilfully exposed his genitals in a public place namely Coolum Beach.  for this offence he was fined the sum of $75.  He appeals to this Court against the Magistrate finding him guilty of the offence. 

The facts of the offence are not complicated and can briefly be stated.  On the 27th of July the appellant was lying naked on a beach called Third Bay Beach.  The Stipendiary Magistrate had before him a description of the beach in the evidence, its location, and a number of photographs of the beach.  It is clear on the evidence that access to this beach is difficult and that it is not one of the north coast's popular beaches.

At about 11.50 a.m. two police officers made their way on to the beach and commenced to walk towards the appellant.  The appellant saw them and covered himself with a towel of some description.  The police spoke to him and handed him a notice to appear in Court in relation to the matter.

The two police officers gave evidence for the prosecution.  The appellant gave evidence and called two witnesses.

On my reading of the transcript it would seem that most of the argument before the Magistrate centred upon the question of reasonable excuse.
The legislation provides as follows for this offence:

"Wilful exposure; a person in a public place must not wilfully expose his or her genitals unless the person has a reasonable excuse."

In his reasons for judgment the Magistrate states as follows:

"Findings of fact:  I wish to make it clear that I have considered fully and weighed carefully the whole of the evidence presented by both sides during these proceedings.  However, it is not my intention to recount at length that evidence.  Because I intend to refer to certain parts of the evidence adduced during the course of these proceeding which I consider to be relevant, it does not follow that I have placed undue emphasis on the matters that will be referred to.  Similarly, it does not follow that because evidence is omitted from this decision, the evidence omitted has been disregarded or not given sufficient weight.

Witnesses:  The prosecution has called two witnesses to support its case.  The witnesses called on behalf of the prosecution were Chad Ronald McAlister and Chenar Paterson.  The defendant, Kenneth Ernest Wenzel, has elected to give evidence on his own behalf, and has called evidence from John Stafford and Anita Joy Grigg.

Issues not in dispute:  this is not a proceeding where there is a significant dispute of fact.  The only real dispute between the parties is when the police officers first saw the defendant and when the defendant took action to cover himself with a towel.

At page 63 of the transcript the defendant gives evidence that the incident occurred around 11.50 a.m. on the 27th of July 2005 and at the time he saw police he had no clothes on.  At page 64 of the transcript the defendant admits that his genitalia was exposed to the public when he saw the police.  At page 65 of the transcript the defendant agrees that there are no beaches in Queensland where it is legal to be unclothed.

I therefore find beyond reasonable doubt that at about 11.50 a.m. on the 27th of July of 2005 the defendant was situated on Third Bay Beach, Coolum, in a location depicted by a red dot in photographs B and D of Exhibit 1 in these proceedings.  I also find beyond reasonable doubt that at that time, date and place the defendant, Mr Wenzel, had wilfully exposed his genitals."

The Magistrate quotes from evidence of the accused as I have just read, referring to pages 63 and 64.  There are other statements by the appellant in his evidence which indicate that as soon as he saw the police he covered himself and that he kept a towel ready to cover himself if persons did approach and that he did try to cover himself when any members of the public, clothed, did approach.

In any event, what is meant by his use of the word "exposed" is open to contention because it is a word used in the legislation along with the word "wilfully" and this is where there seems to me to be a problem.  What is meant by these words?

The Magistrate does not, in his reasons, give them a meaning or refer to the evidence upon which he bases his finding that it has been established by the prosecution that he did wilfully expose himself.  Is it sufficient for the prosecution to prove that at any time, in a public place, for a person to remove their clothes the person would be guilty of the offence of wilful exposure, assuming there is no reasonable excuse?

Is it not relevant to consider the time and place and does "wilful" have the meaning given to it by the Court or Criminal Appeal in Lockwood's case which is reported as R v. Lockwood, ex parte The Attorney-General, (1981) Queensland Reports, page 209 where a Court of five Judges came to the conclusion that the meaning given to "wilfully" in the Code one had to establish (1) an actual intention to do the particular kind of harm that was, in fact, done or (2) the accused did an act, that is a willed act, aware at the time that he did it that the result charged in the indictment was a likely consequence of his act and that he recklessly did the act regardless of that risk.  So one could argue that reading "wilful" and "exposure" together, time and place and conduct of an accused are all relevant to these matters which the prosecution must prove.

Unfortunately in his reasons for the decision which I have quoted, there is no mention of what meaning the Stipendiary Magistrate gave to the words "wilful" or "exposure" and reading the two together, I should also mention the meaning of "exposure" which, according to one meaning of the Australian concise Oxford Dictionary, includes this meaning, which seems most apposite to some arguments in this case, "display one's body indecently".

In any event, looking at what the Magistrate has said, one cannot see upon what basis he came to the conclusion that the Crown had proved these elements.  No meaning is given to them.  No evidence referred to but simply a bald statement that he accepted that the accused was guilty of wilful exposure and then he evaluated the evidence as to whether there was reasonable excuse.

This, in my view, leaves a flaw in the decision and the decision on the evidence cannot stand.  It becomes a question then of what we should do.  There are a number of possibilities under the legislation.  Under section 225 it seems to me that this is a case where one needs to hear the witnesses and examine the evidence before deciding these elements, so I am at a disadvantage in looking at the evidence myself and trying to arrive at those conclusions.  It seems to me that it may be more appropriate that the matter be examined again by another Magistrate.  I could refer it to the same Magistrate but, of course, the appellant might feel that that Magistrate has made decisions and he might not be satisfied that the same Magistrate then decide this issue having decided that one element has already been established.  So do you wish to make any submissions on it, first of all, perhaps Ms Greenwood?

MS GREENWOOD:  Your Honour, I would submit that it is well within your powers to find that the Crown was under an obligation to discharge its case beyond reasonable doubt and in fact that element had not been discharged beyond a reasonable doubt and that this defendant is entitled to an acquittal on that basis an I would submit it would be an appropriate exercise of your discretion to do so.

HIS HONOUR:  Yes, all right, yes, thank you, Ms Greenwood.  Do you want to make any submissions in relation to the matter, Mr Hungerford-Symes?

MR HUNGERFORD-SYMES:  Thank you, your Honour, yes.  My submission is that it ought to go back to the Magistrates Court.  As your Honour alluded to, the Magistrates Court has the advantage of seeing and hearing the witnesses at first instance.  That is the disadvantage that any appeal Court doesn't have.  So, in light of the fact that this further issue needs to be ventilated, I suppose, it should be sent back to the Magistrates Court at first instance.

HIS HONOUR:  Thank you, Mr Hungerford-Symes. 

I have come to the conclusion that there is evidence that needs evaluation having regard to the meaning of the words "wilful exposure" and that in the circumstances the Court in the best position to do that is the Magistrates Court.  I refer the matter back for a rehearing.

-----