Police v Wenzel

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Wenzel [2008] QMC 11

PARTIES:

POLICE

(prosecution)

v

KENNETH ERNEST WENZEL

(defendant)

FILE NO/S:

MAG8526/06(1)

DIVISION:

Magistrates Courts

PROCEEDING:

Charge – Summary Trial

ORIGINATING COURT:

Magistrates Court at Maroochydore

DELIVERED ON:

28 April 2008

DELIVERED AT:

Maroochydore

HEARING DATE:

28 April 2008

MAGISTRATE:

Barrett BD

ORDER:

I find the defendant not guilty of the offence charged. Such charge is dismissed. The defendant is discharged.

CATCHWORDS:

CRIMINAL LAW – REGULATORY OFFENCES – wilful exposure – reasonable excuse

Summary Offences Act 2005, s 9

COUNSEL:

O’Shea for defendant

SOLICITORS:

1. The defendant was charged that on 27 July 2005 at Coolum in the Magistrates Court District of Maroochydore in the State of Queensland, one Kenneth Ernest Wenzel, without reasonable excuse, wilfully exposed his genitals in a public place, namely Coolum Beach.

1. I heard evidence for the prosecution from Senior Constable Chad Ronald McAlister and Constable Chenar Daniel Paterson. The defendant elected to give evidence on his own behalf. In all charges of this nature, it is of course the case that the prosecution bears the onus of proof. The standard of proof is proof beyond reasonable doubt and at no stage does that onus revert to the defendant.

1. Now, a further preliminary matter is that, I place on record, I had the opportunity to observe first-hand the demeanour of all witnesses. Those observations are still fresh in my memory at this point, aided by notes made at the time. I am aware that as a Justice of the first instance, having seen and heard those witnesses, the impressions that I form as regards any particular witnesses, their demeanour, hesitation or displays of partisanship place me in a permanent position of advantage in relation to others who may follow.

1. I attempt to deliver the decision by not recounting facts at great length. The transcript, of course, is the entire record. If I mention some matters and not others, it cannot be taken as a failure to refer to the unmentioned matters as it is the case that all evidence has been equally considered.

1. The evidence in this case is that at approximately 11.50 am on 27 May 2005, Senior Constable McAlister and Constable Paterson were on duty dressed in casual attire targeting nudists on several beaches including Third Bay, Point Cartwright.

1. It is common in the evidence that persons frequent Third Bay and nude sunbathing takes place on such beach. The defendant contended that this beach has been a nude beach for some 30 years. The photographic exhibits and the evidence of all witnesses established that Third Bay is a fairly secluded beach and very few people frequent such beach. The beach and ocean are not visible or clearly visible from the top of access tracks due to vegetation. It cannot be said that Third Bay is easily accessible. In fact, rough, descending terrain would make access to the actual beach by the very young or aged persons in the community a most difficult and dangerous task.…