Police v ROSSER - [2008] SASC 151

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v ROSSER
[2008] SASC 151
Judgment of The Honourable Justice David
11 June 2008
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA - STATUTORY OFFENCES - DISPLACEMENT OF PRESUMPTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - INDECENT OR OBSCENE LANGUAGE OR BEHAVIOUR AND PROFANE OR OBJECTIONABLE LANGUAGE - GENERALLY
Prosecution appeal against decision of magistrate dismissing charge of indecent behaviour - respondent charged pursuant to s 23(1)(a) of the Summary Offences Act 1953 (SA) - whether behaviour was indecent - held: behaviour was committed in a public place and action of respondent was objectively indecent - whether intention an element of the offence - held: offence is one of strict liability - whether defence of honest and reasonable belief that behaviour not indecent disproven - held: honest not reasonable belief - appeal allowed.
Summary Offences Act 1953 (SA) ss 4(1), 23(1)(a); Magistrates Court Act 1991 (SA) s 42, referred to.
Normandale v Brassey [1970] SASR 177; Police v Pfeifer (1997) 68 SASR 285; Proudman v Dayman (1941) 67 CLR 536, applied.
Prowse v Bartlett (1972) 3 SASR 472; He Kaw Teh v The Queen (1985) 157 CLR 523, discussed.
Police v Cadd (1997) SASR 150, considered.

POLICE v ROSSER
[2008] SASC 151
Magistrates Appeal
DAVID J.
Introduction

This is a prosecution appeal, pursuant to s 42 of the Magistrates Court Act 1991 (SA), against a decision of a magistrate dismissing a charge of indecent behaviour. The respondent was charged on complaint with behaving in an indecent manner in a public place, pursuant to s 23(1)(a) of the Summary Offences Act 1953 (SA). This appeal focuses on the question whether it has to be proved beyond reasonable doubt that a person intended to behave in an indecent manner in a public place before a charge against s 23(1)(a) can be made out. In the magistrate’s view, no such intention was proved in this case and, therefore, the charge was dismissed. The appellant now argues that the magistrate erred.
Background Facts
The case presented by the prosecution at trial was that on 16 June 2007, at approximately 11.20 am, a female witness (whom I will refer to as “C”) gave evidence that she had been watching her son playing soccer on the sporting fields on the northern side of Greenhill Road, near the Greenhill Road/Glen Osmond Road intersection. C’s vehicle was parked on Greenhill Road, facing north. As she walked back from the playing field to her vehicle with her son after his game had finished, C noticed a silver BMW four‑wheel drive with a male occupant (whom was the respondent) in the vehicle. It was parked to the east of her vehicle. C gave evidence that she walked between the two vehicles, to the rear of her vehicle, in order to place a chair in the boot. She then made her way back to the front of her vehicle, with the intention of getting in it and driving it away. Before getting into her car, she said she noticed a sunshade on the rear window of the four‑wheel drive, and thought there might have been a baby in the vehicle. C then gave evidence that as she walked past the respondent’s vehicle, she looked through the window and saw a reflection of the respondent in the front windscreen. She gave evidence that the respondent was masturbating. C said that she saw that his left arm and shoulder were moving rhythmically, and his penis, as seen in the reflection in the windscreen, was exposed. C gave evidence that the respondent’s hand appeared to be in a gripping hold around the shaft of his penis.
The respondent gave evidence on oath at trial and called one witness of character. He admitted being the male occupant of the vehicle at the time and place in question. His explanation as to his admitted behaviour was that prior to the alleged offence he had consulted his general practitioner concerning a lump on his penis which was causing him discomfort, especially when sitting. The magistrate heard evidence that an ultrasound revealed that there was a dilated vein with a prominent valve. The respondent gave evidence that the condition caused him pain. He had been advised that, when the pain occurred, he should relieve it by standing and pulling his penis downward. The respondent gave evidence that this was what he was doing on this occasion, not masturbating. He said that he had pulled the car over and parked it in the position where he was seen in order to settle his baby daughter, and to pass some time so as not return home too early and disturb his wife, who was studying for university exams. The respondent said he thought he was out of view. He said he did not contemplate using public toilets to perform the action to alleviate the pain, because he did not want to leave his baby daughter unattended in the vehicle. The respondent did not dispute the fact that he was tugging his penis, but his evidence was that he was doing it because he was in pain, and he was not masturbating.
The Magistrate’s Decision
In his reasons the magistrate found that he could not discount the respondent’s explanation as to why he behaved in the way that he did. There appeared to be no dispute between the actions he described and the actions described by the prosecution witness C, other than that the appellant maintained he was not masturbating, but performing those actions for other reasons, as described. The magistrate also said in his reasons, “The complainant must prove mens rea in this matter.” Further on in his reasons he said that having heard the facts and accepting, at least as a reasonable possibility, that the respondent was telling the truth, “I’m left in serious doubt as to whether [the] prosecution has proven intent on his behalf to behave in an indecent manner in a public place.”
Appeal
The appellant now argues that the magistrate erred in finding that the complainant must prove mens rea, and erred in holding that the prosecution had to prove that the respondent intended to behave in an indecent manner in a public place. There appears to be no argument about the magistrate’s finding that the respondent’s version of events was, at least, a reasonable possibility. The appellant further argues that if it is an objective test as asserted, then the offence is clearly made out on the respondent’s own evidence.
The respondent argues that it has to be proved that there was, at least, an intention to masturbate, rather than to alleviate pain, on the part of the respondent. He argues that even if no such intention is required, in viewing the matter objectively the question of whether the behaviour is indecent and is committed in, or visible from, a public place has to be answered in context. The offence would not be made out by a person behaving in the way in which it was proved the respondent behaved (i.e. seated high off the ground and low within his vehicle, and acting for medical reasons), being observed by a person who took the trouble to look into the vehicle and see his actions by way of reflection.
Was the Offence Committed in a “Public Place”?
The appellant argues, and the respondent does not contest, that the conduct the subject of the charge occurred in a “public place”. The definition of “public place” contained in s 4(1) of the Summary Offences Act includes:
a road, street, footway, court, alley or thoroughfare which the public are allowed to use…
In addition, the appellant argues that the conduct would, in any event, fall within s 23(1)(a) on account of it being “visible from a public place”.
The respondent argues that where the conduct occurred, while it is agreed it occurred in a public place, is nevertheless relevant to the question of whether the conduct was indecent. In support of this argument, the respondent cites the comments of Bray CJ in Prowse v Bartlett.[1] The decision in that case concerned the question of whether it was necessary to call evidence to establish the standard to be applied in determining whether particular conduct is indecent. Bray CJ held that the assessment of the decency or otherwise of the conduct was for the tribunal of fact alone. When Bray CJ refers to the context of the conduct, I understand him to be referring to it in relation to a finding of the standard applicable. I also agree with the appellant, that this argument sways too far into the sphere of subjectivity. Indeed, if a finding that conduct is indecent were to depend upon the particular public place and circumstances in which it occurred, it would render the definition of a “public place” under the Summary Offences Act pointless.
[1] (1972) 3 SASR 472.
Is the Offence One of Strict Liability?
In Normandale v Brassey[2] Wells J considered whether a magistrate had erred in requiring the prosecution to prove an element of intent in order to make out a charge pursuant to s 23 of the Police Offences Act 1953-1968 (SA) (now s 23 of the Summary Offences Act). After considering the terms of the legislation, its subject matter and purpose, Wells J concluded that:[3]
…where a person, in a place other than a public place, intentionally commits the act forbidden by the statute, that is, behaves in a manner that may be described as “indecent”, with the result that someone is offended or insulted by his behaviour, he commits an offence against sub-s. (1) of s. 23, whether he had a special intention to offend or insult someone or not. Intention would, of course, be relevant to penalty.
Although Wells J held that the prosecution nonetheless had to prove that the Proudman v Dayman[4] defence did not apply, the magistrate had made factual findings excluding any mistaken belief held on reasonable grounds. More specifically, the magistrate found that because the defendant in that case knew he was visible through the window and did not advert to the probability that he would be seen, he simply could not have formed a mistaken belief as to that fact.[5]
[2] [1970] SASR 177.
[3] Ibid 181.
[4] (1941) 67 CLR 536.
[5] Normandale v Brassey [1970] SASR 177, 183.
In Police v Pfeifer,[6] Doyle CJ (with whom Debelle and Lander JJ agreed) discussed whether an element of intention had to be proved for an offence to be made out under s 7(1) of the Summary Offences Act. He discussed previous decisions of this Court, both in relation to that section, and in relation to other sections in the legislation which similarly deal with offences against public order. To determine whether the presumption in favour of intent forming an element of the offence was rebutted, he applied the test in He Kaw Teh v The Queen.[7] After considering the terms of the legislation, its subject matter and the consequence of adopting the view that intent or knowledge need not be proved, Doyle CJ said:[8]
In the light of those particular considerations which incline me to the view that neither intent nor knowledge must be proved, I come back to the purpose of the particular provision.
It appears to me to be a provision intended to protect members of society from disturbance and annoyance through offensive behaviour, intended to prevent the sort of disputes and disturbances that might arise if such behaviour is not prevented by law with the consequence that members of society react to it or resist it in other ways. To convict only those who intentionally or knowingly offend will achieve a good deal, but does not go that extra step of requiring members of society to take care to ensure that they do not breach generally accepted standards of behaviour.
For those reasons I conclude that any presumption that intent or knowledge is an essential element of the offence is rebutted. If it is established that the relevant conduct is offensive in the required sense, a person charged will be convicted if the prosecutor proves that the person did not honestly and reasonably believe that the conduct was not offensive. If the magistrate dismissed the complaint because an intention to offend, or knowledge that the conduct would offend, was not proved, the magistrate erred.
Doyle CJ having followed the decision of Wells J in Normandale v Brassey, it is clear that the same considerations apply to the present charge against s 23(1)(a) of the Summary Offences Act (formerly s 23(1)(a) of the Police Offences Act).
[6] (1997) 68 SASR 285.
[7] (1985) 157 CLR 523.
[8] Police v Pfeifer (1997) 68 SASR 285, 292‑293.
I therefore find that the magistrate has erred in requiring proof of an intention on the part of the respondent to commit the offence, and in dismissing the charge on the basis of his finding that the respondent lacked that intention.
I look at the matter afresh. I note that an appeal pursuant to s 42 of the Magistrates Court Act is an appeal by way of rehearing.[9] Since the magistrate had the advantage of observing the witnesses, I accept the magistrate’s findings of fact in relation to the respondent’s intention and belief at the time of the offence. As there is nothing in the magistrate’s approach, which suggests that he erred in the factual conclusions that he reached, I do not think it appropriate to remit the matter to the magistrate for further hearing.
[9] Police v Cadd (1997) 69 SASR 150, 189.
The magistrate came to the conclusion that the respondent’s behaviour was due to his medical condition and was not an act of masturbation. However, even on the facts as the magistrate found, and looking at the matter objectively, the behaviour is clearly indecent, the respondent’s motives being irrelevant.
Although the respondent was in a position in his vehicle, which was not easily visible to those outside, and he was only seen with the aid of a reflection, his vehicle was nevertheless parked in a very public place, namely adjacent to Greenhill Road, near an open park where young people were playing sport.
Does the Proudman v Dayman Defence Apply?
The respondent argues in support of the magistrate’s decision requiring mens rea, and therefore puts that this defence is unnecessary. He does not seek to advance an argument that the prosecutor failed to disprove an honest and reasonable belief on the part of the respondent that his conduct was not offensive. In the light of the error by the magistrate, it nevertheless now falls upon me to consider whether the prosecution disproved the application of this defence.
The appellant argues that though there was an inquiry before the magistrate into the respondent’s belief as to whether anyone could see his behaviour, the magistrate did not make a finding as to the reasonableness of that belief. Having accepted the respondent’s evidence, the magistrate made the following findings and comments, which are now relevant to the applicability of the defence:
[The defendant] explained why he thought he was not able to be observed by anyone doing what he was doing, (in effect, because of the type of car that he was in)…He explained further why he did not use public toilets, or the KFC toilets, viz. given that he had a child in the capsule and wouldn’t leave her alone and unattended.
I accept that he didn’t realise that there was anyone that was able to or had observed him. In fact I note that he was only visible to [C] by her observations of him from his reflection in his windscreen.
…
On the issue of public place, the height of his car, is evidence that I have taken into account in the defendant’s favour. That evidence was corroborated in [C’s] evidence who stated she couldn’t see the lower part of his body from outside the car.
Although the magistrate did not expressly make a finding as to the reasonableness of the respondent’s belief, a finding that the belief was honest can certainly be inferred from both the acceptance of the respondent’s evidence in relation to his belief and the favourable assessment he gave to that evidence.
Looking at the matter objectively and taking into account the position of the respondent’s vehicle, the time and day, and the activities taking place in close proximity to the vehicle, the respondent’s belief cannot be considered reasonable. I therefore find that the prosecution has disproved an honest and reasonable belief on the part of the respondent that his conduct was not offensive.
Conclusion
I allow the appeal and I substitute a finding of guilt in relation to the charge. I will hear the parties as to penalty.