Winston v QPS
[2015] QDC 306
•3 December 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
Winston v QPS [2015] QDC 306
PARTIES:
DAVID CHARLES WINSTON
(appellant)
v
QUEENSLAND POLICE SERVICE
(respondent)
FILE NO/S:
D100/15
PROCEEDING:
Criminal Appeal
ORIGINATING COURT:
Magistrates Court at Maroochydore
DELIVERED ON:
3 December 2015
DELIVERED AT:
Brisbane
HEARING DATE:
27 November 2015
JUDGE:
Jones DCJ
ORDER:
Appeal dismissed
APPEARANCES:
C. Ryan of counsel for the appellant
A. Stark of counsel for the respondent
This proceeding is concerned with an appeal pursuant to s 222 of the Justices Act 1886. On 17 June 2015 the defendant was found guilty of one charge of wilful exposure pursuant to s 9(1) of the Summary Offences Act 2005, the particulars of that charge being:
“That on the 11th of January 2015 at Noosa Heads in the Magistrates Court’s district of Maroochydore one David Charles Winston without reasonable excuse wilfully exposed his genitals in a public place namely Alexandra Beach Noosa Heads.”
The Court below found that the offence was very much at the lower end of the scale of criminality and, accordingly, having found the offence proved imposed no further punishment and no conviction was recorded.
Subsection 9(1) of the Summary Offences Act 2005, under which the appellant was charged, simply provides:
“A person in a public place must not wilfully expose his or her genitals, unless the person has a reasonable excuse.”
“Expose” is defined in the Macquarie Dictionary as “to present to view, exhibit, display and ‘to display the genitals to expose one’s self’” and it is defined in the Oxford Dictionary as “the act of showing something that is usually hidden.”
The initial ground of appeal was that the Court below made an error at law which rendered the conviction unsafe and unsound. However, the written outline of submissions filed on 11 September 2015 sought leave to add the following grounds of appeal:
“2. The magistrate made an error of law in determining that that act of exposure is the act of undressing in the public place and not the act of exposing the genitals to another or being so reckless as to the exposure that others may view the genitalia in line with the test of wilfulness in R v Lockwood ex parte the Attorney-General (1981) Qd R 209.
3. The magistrate made an error of law in deciding that a ‘wilful exposure’ does not have as an element time and place and conduct that is needed to be proved by the prosecution.
4. The magistrate made an error of law in deciding that it could not be a reasonable excuse to attend the beach which was known as a beach where naturists would go to sunbathe or swim without clothes, and where the appellant had a plan to cover his genitals if a clothed person came nearby, and where no member of the public had actually seen the appellant.”
Leave to add those grounds was granted.
The approach to be adopted in appeals such as this was conveniently stated by Judge McGill SC in Dawson v Commissioner of Police:[1]
“This is an appeal by way of rehearing so it is necessary for me to consider the evidence and make up my own mind on questions in issue in the proceeding, having due regard to the advantage possessed by the magistrate in seeing and hearing the witnesses at the trial. It is also necessary for the appellant to show that there was some error on the part of the magistrate in deciding the matter.” (footnotes deleted)
[1][2015] QDC 295 at [31].
The following facts seem to be uncontroversial:
(i) Alexandria Beach was clearly a public place, but was not one that could be accessed without some effort. The arresting officer’s own evidence was that to access the beach one had to travel through a pathway through the national park and then gain access down what was described as a “steep walkway”.
(ii) The Police officer was conducting a patrol of the beach.
(iii) When the Police officer observed the appellant he was naked standing in the water.
Other evidence involved various levels of controversy but I see no reason to disturb the acceptance by the Court below of the following evidence:
(i) Not only was the appellant in a state of undress but his genitals could be clearly seen by the Police officer, albeit possibly only after the officer asked the appellant to get out of the water.
(ii) The appellant had deliberately sought a location where it was common for persons to sunbathe and swim naked. In this regard, he made a number of inquiries, including attending an information centre at Noosa on three different occasions where he was advised that the beach had been known as a “nudist beach” for a period of some 30 years.[2]
[2]T5 ll 23-42.
(iii) On the relevant day there were approximately 20 people on the beach, about 15 of whom were unclothed and the balance being “clothed” but some 20 plus metres away.[3]
[3]T4 ll 37-47: T5 ll 1-9.
(iv) The situation was not a static one. The unchallenged evidence of the police officer was that some “clothed” members of the public were “walking on the beach.”[4]
(v) The appellant approached the former 15 people to pass on his greetings and there he disrobed “near where the other naturalists were and jumped in the water to cool off”.[5]
(vi) It was never the appellant’s intention to deliberately expose himself to any clothed members of the public.[6]
[4]T3 ll 17-22.
[5]T4 ll 37-47.
[6]T5 L 25.
The Court below proceeded on the basis that no member of the public came into contact with him and the Police officer was the only person who saw him naked.[7] With all due respect to the Court below, in circumstances where the appellant’s own evidence was that he disrobed in close proximity to 15 other people, I find it difficult to accept that conclusion. It seems tolerably clear that the finding really ought to have been that no “clothed” person saw the appellant naked, save for the police officer. Nothing turns on that though.
[7]T12 ll 40-45.
The central thrust of the case for the appellant in the Court below was that, first, he had not wilfully exposed his genitals in a public place and, in the alternative, if it was found that he had, then the defence of “reasonable excuse” would exonerate him.
Turning to the second ground of the amended notice of appeal I do not see how it can succeed. The Court below specifically referred to the defence submissions concerning R v Lockwood ex parte the Attorney-General (1981) Qd R 209 at p 7 between lines 16 and 24 of the decision. Indeed, the Court below at pp 9 and 10 between lines 42 and 20 went on to say:
“So in relation to my findings, firstly dealing with the issue of wilful exposure. It’s clear from – on the Lockwood definition of the phrase ‘wilful’ that in the particular factual circumstances of this case, that the wilfulness relates to the exposure of the genitals of the defendant in a public place. As the prosecution submitted I am satisfied that the act of exposure is the act of undressing in the public place which was the beach and that that in itself is sufficient to enliven the offence.
Mr Winston did admit in his evidence that he deliberately disrobed on the beach, although I do note that there was no disrespectful behaviour or other behaviour of note involved in that act. He undressed in the vicinity where there were other naturalists and there was, as I said, nothing in his behaviour to imply anything else. Mr Winston then gave evidence that he remained on the beach or in the shallows of the water for a period of time whilst he was undressed.
He answered the Police officer’s request to leave the water. The officer had apparently seen him naked prior to that time, but certainly saw him naked afterwards. The photograph that was tendered as evidence wasn’t clear as to – well. It was clear enough to see that Mr Winston didn’t have any clothes on, but it wasn’t any more graphic than that. And certainly at the time when the photograph was taken Mr Winston appeared to be walking and was not covering himself. And he accepted that at that particular time, he obviously wasn’t covering himself. He dressed when the officer – as soon as the officer asked him. I am satisfied on the evidence that Mr Winston, whilst in a public place, that being the beach did expose his genitals; that he did that by undressing and that that was a deliberate act, and could therefore satisfy the Lockwood concept of ‘wilful’. So I am satisfied on the evidence, that there was wilful exposure.” (emphasis added)
When the findings of the Court below are read in context it is clear that the Court, when addressing the principles addressed in Lockwood, was not focused solely on the undressing. Further, as will be addressed below, it is not an element of this offence that there be actual exposure of genitals “to another” person.
Accordingly, I reject the appellant’s submissions contained in paragraph 2 of the amended grounds of appeal. No error of law has been revealed.
As to the matters raised in paragraph 3 of the amended notice of appeal, it involves a consideration of how the Court below dealt with the decision of McAlister v Wenzel [2007] QDC 089. At pp 8 and 9 of the reasons of the Court below the following extract from Senior Judge Trafford-Walker’s discussion of the concept of “wilful exposure” was dealt with:
“The magistrate’s 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 the use of the word ‘exposed’ is open to contention, because it’s a word used in the legislation along with the word ‘wilfully’. And this is where there seems 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 of Criminal Appeal in Lockwood’s case, which is reported as the 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 of ‘wilfully’ in the code…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 – 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 the 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 a reasonable excuse. This, in my view leaves a flaw in the decision, and the decision on the evidence cannot stand.”
In considering this case the Court below said:[8]
“The real point of contention in argument before me was the statement by the learned judge that – relying on the Oxford Dictionary definition of ‘exposure’, which included the reference to the phrase ‘indecently’. That word and that concept is not part of the current s 9. Even if it could be imported, it would only be imported by the circumstances of aggravation in relation to subsection (3) of s 9, which has been charged in this case. The simpliciter offence has been charged. And so there is no requirement for any element of indecency or, in fact, any other behaviour beyond the fact of the exposure in a public place and that the exposure was done wilfully. So in my view that decision isn’t of import in relation to this matter.”
[8]T9 ll 32-40.
In my respectful opinion, one can readily understand how the Court below had difficulty with the reasoning in Wenzel. The rhetorical question posed by Judge Trafford-Walker assumed that the defence of reasonable excuse did not apply. In those circumstances it would seem that the question posed by his Honour ought to have been answered in the affirmative, but that time and place might be relevant to establishing whether a reasonable excuse existed. The Court below was correct in identifying that s 9 of the Act does not require there to be an indecent display of a person’s genitals to become operative.
Contrary to the assertion made in ground 3 of the amended grounds of appeal, time is not an element of the offence. Place is an element in the sense that the exposure must have occurred in a public place. The elements of the offence are:
1. there must have been exposure of the genitals;
2. that exposure must have been wilful;
3. the exposure occurs in a public place;
4. no reasonable excuse exists for the exposure.
The prosecution must prove the first three elements and refute the fourth beyond a reasonable doubt.
In any event, that “place” is an element of the offence in the sense just discussed, neither time nor place assist the appellant here. He was located in a discrete place but nonetheless it was a public place where up to 20 people were present in broad daylight. In this context I also note that while finding Wenzel to be of no “import”, her Honour clearly had regard to both time and place in any event.[9]
[9]E.g. T3 ll 16-22. And T10 ll 17-20.
The use of the term “expose” in the context of s 9 of the Act requires there to be a real risk; that is not a too remote or fanciful risk, of a member of the public seeing the exposed genitals. That is the mischief the Act is addressing. Even accepting that 15 people on the beach were of a like mind to that of the appellant, at least 5 were not.
Section 9 of the Summary Offences Act 2005 is not a total prohibition of a person wilfully exposing himself in a public place. The object of the Act is to ensure “…as far as practicable, members of the public may lawfully use and pass through public places without interference from acts of nuisance.” The inclusion of the words “as far as practicable” acknowledges that circumstances may arise where a person has a reasonable excuse.
In para 9.7 of the appellant’s Outline of Submissions the following submission was made:
“It cannot be the law that a person for example be [sic] alone at midnight on a beach and disrobes and thereby commits an offence. One could well imagine the absurdity of such a proposition where undressing in a communal change room, which is a public place, is in effect committing the offence of ‘wilful exposure’, for on her Honour’s view, time, place and conduct do not matter, the offence is complete regardless of these considerations once the person disrobes.”
I cannot accept that submission. First, it fails to have regard to the context of her Honour’s conclusion that the act of exposure was the act of undressing in a public place. As already identified, her Honour was well aware that the public place in question was a beach which was occupied by both naturalists and other beachgoers at about 9am.. Second, the submission fails to recognise that a person undressing in a communal change room may well wilfully expose himself but, clearly in such circumstances there would be a reasonable excuse for such conduct, provided the aggravating features in section 9(3) were not enlivened. As to the person naked and alone on the beach at midnight, the consequences might very much depend on where that beach was. The answer may be that he is not guilty of the offence. But not because there has been no wilful exposure, as there has been, but because circumstances such as time and place may enliven the defence of reasonable excuse.
In para 10.2 of the appellant’s submissions it is stated that the appellant had no intention to expose his genitals to any person who was not similarly disrobed. Section 9(1) of the Summary Offences Act 2005 does not require there to be either the intention to expose or actual exposure of genitals to a person. The purpose of the section is to make it an offence to engage in a course of conduct that creates a real risk of that occurring.
It seems to me that the argument for the appellant erroneously equates wilful exposure with actual exposure to a person. Wilful exposure is concerned with a person who intentionally or with reckless disregard disrobes in a public place in a way that creates a real risk that his genitals will be seen by another person.
The reference made on behalf of the appellant to the offence of wilfully and unlawfully exposing a child under the age of 16 years to an indecent act and the Benchbook reference are of no relevance. Both s 210 of the Criminal Code and the Benchbook reference are concerned with a person who intentionally or with reckless disregard actually exposes a child under the age of 16 to an indecent act. As already stated, s 9(1) of the Summary Offences Act 2005 does not have as an essential element the actual exposure to any identifiable person.
In this context at p 12 between lines 10 to 20 the Court below made the following observation:
“Mr Ryan had posited in his submissions – and it’s similar to Senior Judge Trafford-Walker’s comment in Wenzel’s case – whether it was wilful exposure if you expose yourself alone in a public place and nobody, including a Police officer, ever sees you. It appears to me from my reading of the section that the answer to that has to be yes. And I guess it’s somewhat similar to (sic) are you committing the offence of speeding if you drive on a road over the speed limit but nobody else is on the road and the Police don’t see you. The answer has to be yes, because it seems to me that the intent of this section is to provide a protection to people so that they’re not placed in that position, rather than trying to rectify the position after it occurs. And in that way, it is a potential protection to the public, as I said, as well as an actual one.”
In a sense her Honour was correct to answer the first scenario in the affirmative. If the person wilfully disrobed in a public place to the extent that his genitals were exposed then there is wilful exposure. But the scenario is a nonsense. The Act is concerned with circumstances where there is a real risk of a member of the public observing the exposed genitals. As to the analogy of the speeding car I am not convinced that it is an appropriate one but that is of no consequence.
In the subject case it may well be that the Police officer was the only person who observed the appellant but that is not to say that at any given time one of the so-called clothed members of the public might not have decided to walk along that section of the beach where the appellant was bathing and see his exposed genitals.
On the evidence before me there can be no reasonable doubt that the appellant had on that day wilfully exposed his genitals in a public place. I agree with the finding made by the Court below. Accordingly ground 3 is dismissed.
Turning then to ground 4, the question of reasonable excuse, her Honour seems to have accepted that the appellant deliberately located himself away from those persons who decided to remain clothed. While rejecting the appellant’s evidence that he had covered his genitalia with his hands when the Police officer first arrived and only exposed himself when he was told to turn around and come out of the water, the following evidence of the appellant seems to have been accepted at p 5 between lines 2 and 8:
“After he cooled off in the water he moved about 20 metres up the beach from the others for some privacy. He said he thought it was a nice private place for a dip but he kept his clothes nearby for if anyone came along and he needed to cover up. He said that he had seen other people on the beach at long distance but he couldn’t notice if they were clothed or not because they were too far away. And he estimated they would have been at least 20 metres up the beach. He said if someone clothed came along he would cover up with a towel or sit down or stay in deeper water and face out to sea so that no one was able to see that in fact he didn’t have clothes on.”
Her Honour went on to discuss those matters further at p 10 between lines 27 and 37:
“The second issue then is whether or not a reasonable excuse exists, on the evidence as provided for in this section. The defence submission in relation to a reasonable excuse, as I said, was that Mr Winston had disrobed in front of nudists, that he went there to commune with likeminded people, that he knew that the beach was at least known as a nudist beach, that he had a plan to cover up if members of the public or any other person who was clothed approached him, that he kept his clothes a short distance away and that, in fact, no members of the public did approach him or come close to him or see him. And as I said, the Police officer was the only person who actually saw him.”
At page 12 of the decision of the court below, her Honour said:
“I am satisfied as I said, that Mr Winston has wilfully exposed himself in a public place and cannot rely on his excuse as being a reasonable excuse under the section and consequentially I find him guilty…..”
The basis for that conclusion can be found at pages 11 and 12 of the decision of the court below. After citing the following passage from R v Taikato (1996) 186 CLR 454:
“The reality is that when legislature enacts defences such as reasonable excuse, they effectively give an intent to give to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until the court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence. That being so the courts must give effect to the will of Parliament and give effect to their own ideas of what is a reasonable excuse in those cases.”
Her Honour continued:
“And the rest of the paragraph refers specifically to the section that that case revolved around.
So it’s important to look at the effect of the will of the Parliament, in relation to looking at the context of the Act in which the section that I’m dealing with relates. I do consider that the – well, I do – I am satisfied that the objects of Division 1 in which Section 9 appears in the summary Offence Act are to protect members of the public from public nuisance when they’re lawfully using public places.
I accept the police submission that reasonable excuse provides a defence but that interpreting whether or not that defence applies on the particular facts, that the reasonable excuse should not thwart the objects of the provision. There’s a further reference to Taikato at the second paragraph under the heading that I’ve referred to which reads:‘The term ‘reasonable excuse’ has been used in many statutes and is the subject of many reported decisions, but decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual but also on the purpose of the provision to which the defence of reasonable excuse is an exception.’
And then there’s a further discussion about the issue, particularly in relation to the possession of a firearm under that particular section.
The reasonable excuse relied upon by the defendant is – concerns his understanding of the beach being a nudist area, that he was with likeminded people at the outset, that no one else was around and that he had plans to cover up if anybody approached him. It seems to me that that excuse as relied on by the defendant is not reasonable, in the circumstances, when there’s consideration given to the object of the Act – of the Division in the import of the particular section: which, as I said is to protect people from public nuisance when they’re lawfully using public places. It is a potential protection as well as an actual one.”
Determining whether a reasonable excuse existed required an assessment of the evidence concerning the factual circumstances surrounding the appellant’s nakedness that morning. Whether the steps taken by the appellant provided a reasonable excuse maybe one about which minds may differ. However, on the evidence before me I have reached the same conclusion as the Court below, namely that the defence of reasonable excuse does not apply. In my view, no error has been revealed in respect of either the identification of what the relevant evidence and facts were or the conclusions or inferences that were reasonably open on that evidence. It was open for the Court below to be satisfied beyond a reasonable doubt that the defence was not available to the appellant.
For the reasons given the appeal is dismissed.
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