Police v Wenzel

[2008] QMC 11

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. Further, signs at the top of the dune warn of such dangers.

1. Now, after negotiating a rough path to the beach, the evidence of the officers is that when they were some 80 to 105 metres from the defendant they observed him and another male naked. The defendant was amongst trees and the other male on the exposed beach next to rocks leading to Point Cartwright. When both police officers were some 30 metres from the defendant, their evidence is that they both observed his genitalia prior to the defendant reaching behind him and using a towel from a tree to cover himself.

1. The defendant takes no issue with the fact that he covered himself once it was obvious that persons were coming in his direction, but he maintained that he was fully covered when the police officers were some 75 metres from his position. Further, Mr Wenzel questioned the accuracy of the police officers' observations in relation to exposed genitalia from a distance of some 75 metres.

1. The defendant accepted that there are no legally designated nude beaches in Queensland and that if he went nude sunbathing on a busy open beach such as Coolum in the view of the public, it would be an offence, but he does not accept that going nude on a secluded, quiet beach, out of view of anyone other than other nude persons and taking steps to cover up to risk offending others when their presence is known, he won't accept that that is a criminal offence.

1. On that point, there was an exchange between Senior Constable McAlister and the defendant about legislation and Parliament and the like on the issue of nude beaches. Police officers should never allow questioning to degenerate to the point of an exchange of argumentative observations as occurred in this case. Of course, McAlister's argumentative observations are excluded as evidence in the case.

1. Senior Constable McAlister was offended by the defendant's nudity and Constable Paterson expressed a dislike of viewing males naked in public. The defendant could not understand why McAlister could be offended after viewing him from a distance of 75 metres, which I may have alluded to earlier.

1. Whereas generally credibility was not an issue in relation to both police officers, and for that matter the defendant, reliability of the police officers' evidence in relation to their point of initial observation of the defendant was the subject of scrutiny.

1. I form the opinion that the defendant's contention that he would have been first clearly observed by the police officers when they were some 30 metres from him was the more credible testimony and further, that he had his towel covering his genitalia at that time. Accordingly, I reject the evidence of both police officers that they observed the defendant with his genitalia exposed, from a distance of 75 metres from the defendant.

1. Further, I accept the evidence of the defendant, and as a consequence reject the testimony of both police officers and find that when the defendant was seen by the officers at a distance of 30 metres, he was in fact covered by the towel he kept for that purpose.

1. At this point I must state that I found it hard to reconcile Senior Constable McAlister and Constable Paterson being offended at, to use the words of McAlister - and disliking, in the words of Paterson - the nudity of the defendant when naked persons were the target of their covert casual clothed exercise. The officers found their target and could not have been surprised by the result of their search on the day.

1. I reserve those specific parts of the officers' comment for particular comment, as I found both unconvincing in that area.

1. I proceed to apply the facts of this case to the law and judicial precedent.

1. The alleged offence is defined in section 9 of the Summary Offences Act 2005, which states that "A person in a public place must not wilfully expose his or her genitals unless the person has a reasonable excuse."

1. During the passage of the bill that led to the particular legislation, on 28 September 2004, during the second reading of the bill, Honourable J C Spence, the Minister for Police and Corrective Services stated:

"Wilful exposure. Clause 9 creates a clear differentiation between situations where a person wilfully exposes himself or herself for the purpose of urination and attempts to find a place out of view for that purpose, as opposed to those people who expose themselves for shock value or for sexual gratification. It is intended that the smaller fine portion of the offence will apply where a person intends to urinate out of public view, but through circumstances at that time, is viewed by a member of the public. The circumstance of aggravation will apply where a person commits the offence so as to offend or embarrass another person. Instances of this nature would include a person who urinates in full view of members of the public, for example, against a building in the Queen Street Mall, or a person who exposes himself or herself to a member of the public for the purpose of shocking that member of the public or for the purpose of sexual gratification."

1. Further, Ms Male, the member for Glasshouse, on 23 February 2005, in Hansard stated:

"I think clause 9, which relates to wilful and accidental exposure is common sense. There is the odd occasion which people get caught short without a toilet facility being available. This should clearly not be treated in the same manner as wilful exposure. The community finds wilful exposure to be unacceptable, particularly where it occurs to vulnerable groups such as young people, the elderly or the disabled."

1. Explanatory notes to the bill and commentary of section 9 echo the honourable member's views that I've just read into the record.

1. Elements of wilfulness and exposure must be established by the prosecution, and if the prosecution prove those elements beyond reasonable doubt, it is still open to the defendants on balance of probability to raise reasonable excuse as a defence to the charge.

1. Of course, as is the case in all criminal prosecutions, if the defence of reasonable excuse is properly raised, it is incumbent on the prosecution in the discharge of its primary onus to negate such a defence.

1. In this particular case, the reasoning in R v Lockwood (1981) Qd R 209, on the point of wilfulness does not assist the prosecution as I find that the defendant had no intention to expose his genitals to anyone other than fellow nude persons, and at those points in time, it was not a likely consequence that his genitals would be exposed to the police officers, or any persons other than nude bathers, as he did not act recklessly, regardless of any such risk.

1. I find that Mr Wenzel took precautions to avoid exposure to members of the public other than fellow nude bathers, in that he immediately placed a towel in place in the tree so that he could promptly cover up well before non-nude persons approached his partially secluded position on the beach in question.

1. On the point of "exposure", I find that it would be a nonsense to find that mere uncovering is exposure for the purpose of this legislation. Defence counsel has pointed to any number of ridiculous scenarios which could arise if that were the case. I add my own. For example, using the male urinals in this Court complex is an uncovering, and perhaps changing in the Loo with a View at the beach at Mooloolaba would also be an uncovering.

1. Perhaps his Honour, Judge Trafford-Walker lit the beacon to be followed when the defendant's Appeal was heard when His Honour suggested that exposure in the context of this act means to display one's body indecently.

1. There is no element of indecent display of his genitals by the defendant in this case. It is an exercise doomed to failure if you look for intent to shock others, satisfy sexual urges, or embarrass anyone.

1. There was no wilful exposure of his genitals by the defendant to either police officer, nor to any person or persons other than nude bathers.

1. It is at this point that I consider if the defendant had reasonable excuse to expose his genitals to other nude bathers.

1. On the basis that reasonable excuse is reasonable cause, I consider the following.

1. In Taikato -v- The Queen (1996) 186 CLR 454 Brennan CJ, Toohey and Gummow JJ stated:

"The reality is that when legislatures enact defences such as reasonable excuse, they effectively give and intend to give to the Courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference and have no content until the Court makes its decision."

1. The words obviously bear their ordinary grammatical meaning and an excuse need not be one recognized by law as sufficient justification because the question is one which depends upon the facts established by the evidence.

1. I find that the defendant had a reasonable excuse in wilfully exposing his genitals in the company of fellow nude bathers, as this was a consensual act of like-minded individuals who took no offence at each others' actions. The prosecution led no evidence to the contrary and failed to negate the defence of reasonable excuse once it was properly raised by the defendant.

1. The Prosecutor did submit that in some way the doctrine of Mens Rea had application to this case. I find clear authority to the contrary. Griffiths CJ in Widgee Shire Council v. Bonney (1907) 4 CLR 977 at page 981 stated:

"Under the Criminal Code of Queensland as defined in the Criminal Code, it is never necessary to have recourse to the old doctrine of Mens Rea."

1. And further, Philp J in Anderson -v-- Nystrom 1941 State Reports 56 at 69 stated:

"In Queensland, criminal responsibility depends only upon the interpretation of statutory enactments, unfettered by decisions on the common law doctrine of Mens Rea."

1. I cannot leave this case without raising this question now. Is this a State that on the one hand allows nudity in large numbers on some beaches , for example, Alexandra Bay, Noosa, and in particular, the so-called nude olympics? Does this State allow that to go unchallenged by police intervention, yet on the other hand seeks out elderly nude males, partially concealed by vegetation on semi -secluded beaches, for example, Third Bay, Coolum, and lays charges against those individuals for alleged criminal conduct?

1. If the answer is "yes", and I feel it is, this Court shall not be a party to such patent victimization and double standards. It remains for me to find that the prosecution has failed to satisfy me of each and every element of the offence charged beyond reasonable doubt. I find the defendant not guilty of the offence charged. Such charge is dismissed. The defendant is discharged.

1. Now, in relation to costs sought by the defendant, I heard Mr O'Shea. The Prosecutor does not wish to be heard on the point. Of course, the discretion to award costs is to be found now in section 158A of the Justices Act of Queensland, and it has been said that some comment should be made in relation to each matter mentioned there.

1. I can't find that the proceedings were neither brought nor continued in good faith. I found that the prosecution was not justified. I don't think anything that the prosecution did or failed to do would have avoided the bringing of the proceedings. I would have thought that the Appeal Court spelt out a message in relation to the ultimate fate of the charge but the prosecution still proceeded which was their right.

1. I can't find that the investigation was conducted in a proper way. The defendant was initially given a notice for a public nuisance offence and then this charge substituted on the hearing date and it failed. There's no dismissal on a technical nature. Did the defendant bring suspicion on himself by engaging in conduct constituting the commission of the offence? He brought himself to the notice of police but no offence was made out at the end of the day. He did not decline an opportunity to give his version. It was well known and the prosecution proceeded. And there was no delay that could be placed on the defendant for prolonging proceedings.

1. That said, costs are never awarded to punish and in this case, the unsuccessful Crown - costs if awarded are to be fair, just and reasonable, to go some way to compensate the defendant in relation to costs necessarily outlaid in defending himself against the charge and he was subsequently found not guilty of the charge.

1. I proceed now to order that Senior Constable Chad Ronald McAlister pay the sum of $2000 costs for and on behalf of the defendant in relation to these proceedings, and that same be paid within 2 months, which is the timeframe set out in the relevant legislation.