Burley v Police
[2015] NZHC 324
•2 March 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-000070 [2015] NZHC 324
BETWEEN MARTIN BURLEY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 5 February 2015 Appearances:
S W Rollo for Appellant
D J Orchard for RespondentJudgment:
2 March 2015
JUDGMENT OF GENDALL J
[1] On 16 April 2014, the appellant (Mr Burley) was convicted on one count of performing an indecent act with intent to insult or offend1 before Judge O’Driscoll in the Christchurch District Court.2 Subsequently he was sentenced to pay emotional reparation of $1,500 divided amongst the victims.3 Mr Burley now appeals against his conviction on the following grounds:
(a) The Judge erred by failing to apply the correct subjective test and analysis to the question of the Appellant’s intention and instead:
(i) was guided by considerations of reasonableness; and
(ii) adopted an approach that was substantively objective.
1 Crimes Act 1961, s 126, carrying a maximum penalty of two years’ imprisonment. This section replaced the predecessor provision in the Crimes Act 1908, s 156(b), which itself replaced the Criminal Code Act 1893, s 138(2).
2 Police v Burley [2014] DCR 314 (DC) [Conviction Judgment].
3 Police v Burley DC Christchurch CRI-2013-009-9298, 2 July 2014 [Sentencing Notes].
BURLEY v NEW ZEALAND POLICE [2015] NZHC 324 [2 March 2015]
(b)The Judge erred by conflating the taking of risks with an intention to cause offence and thereby applied a standard equating to recklessness.
(c) The Judge’s view of what the consequences of accepting the defence submissions would be was wrong in law and should not have been taken into account.
(d)As a result of the above matters the Judge erred in finding that there was sufficient evidence to prove beyond reasonable doubt that the Appellant intended by his actions to cause offence.
Background
[2] The facts giving rise to this charge can be stated succinctly. At around
12.30 pm on 26 September 2013 Mr Burley was at his home in Ferry Road, Christchurch. He was in the study, completely naked except for a balaclava hiding his face, together with certain other sexual paraphernalia he was employing.
[3] In full view of an outside window in his study, Mr Burley put pegs on his nipples and began sucking on a pink sex toy through the small aperture in the balaclava for his mouth whilst masturbating. Eventually Mr Burley removed the sex toy from his mouth, inserted it into his anus and began whipping himself with a leather whip whilst continuing to masturbate. This performance endured for approximately 10 to 15 minutes. He then got dressed and proceeded to do his laundry.
[4] Three young women in the neighbouring property facing his study witnessed Mr Burley’s performance. They first saw him whilst he was standing in the window sucking on the pink sex toy and masturbating, but continued catching glimpses for the entire time. The women claim that Mr Burley knew that they could see him, as in fact he was staring right at them through the two small apertures in the balaclava for his eyes.
[5] In explanation for his actions, Mr Burley said that the possibility of getting caught excited him, that he thought the women might like his performance if they
did see him, that he did not intend to cause offence to the women and he regretted having done so.
Jurisdiction
[6] Mr Burley is able to appeal his conviction as of right.4 As first appeal Court, this Court must allow the appeal if it is satisfied that Judge O’Driscoll erred in his assessment of the evidence to such an extent that there is an error or irregularity which has created a real risk that the outcome of the trial was affected or that it has resulted in a trial that is unfair or a nullity.5
[7] This is a somewhat unusual case in that Judge O’Driscoll dealt with the matter on the papers. No oral evidence was given. Both parties had agreed to this approach. A suggestion is made therefore that Judge O’Driscoll was not in an ideal position to make actual credibility or reliability findings. This Court is therefore in the same effective position.
District Court Conviction Judgment
[8] Judge O’Driscoll noted that the procedure by which this case came before him was not without limitations, but he did concede that many cases come before the Court where a defendant elects against giving evidence.
[9] It was then noted that the nub of the case was whether or not Mr Burley intended to insult or offend. Both parties conceded that Mr Burley’s actions were indecent. Judge O’Driscoll reminded himself that the Police must also prove that at the time Mr Burley performed the acts, he intended to offend someone. However, he did observe that intent is a matter that must be ascertained from the circumstances as they then existed, which permits resort to a variety of indicia.
[10] After discounting the possibility that recklessness would suffice, canvassing
several relevant authorities and reviewing the evidence, Judge O’Driscoll said:
4 Criminal Procedure Act 2011, s 229.
5 Section 232(2)(b) and (4).
[25] I have decided to take a pragmatic and common sense assessment of this issue.
[26] If I was to accept the defence submission and accept the defendant’s assertion that he did not intend to offend anyone when performing his acts, it would mean that anyone could perform any variety of gross or depraved sexual activities and argue that they were not caught by s 126 as there was no intention on his part to offend anyone.
[27] While reasonableness is not a concept to the defendant’s intention in s 126, in my view, it is not necessary that I accept the defendant’s explanation to the police that he did not intend to offend anyone and I believe that I am entitled to look at the time, place and circumstances of the defendant’s acts to determine what the defendant’s intention was when he performed the acts on himself.
[28] The defendant continued to perform sexual acts in view of his neighbours knowing that he was being observed by them. The defendant commented that there was a “teasing element” in his performance and considered that the neighbours might like what they saw.
[29] The neighbours clearly did not like what they saw and were offended by the defendant’s actions to such an extent that they called the police. I appreciate the test is not whether the neighbour was offended but whether the defendant intended to offend the neighbour.
[30] I do not accept the defendant’s explanation to the police that he thought his neighbours might enjoy seeing what he was doing. Throughout the defendant’s statement there are elements of various attempts by him to minimise his actions and justify his actions.
[31] I have no doubt that throughout the defendant’s performance there were a number of purposes, intentions and motivations behind his conduct. There is clearly no evidential foundation for the defendant to claim that the neighbours might have enjoyed his performance. This may have been one of the purposes for him acting the way he did but he cannot use this as an excuse to say he did not intend to offend his neighbour.
[32] The defendant has sought to draw a distinction between his neighbours seeing him and someone going up his driveway and catching him performing sexual acts. In my view this is a distinction without a difference. The defendant talks about the possibility of being caught doing the sexual acts as something that gets him “off”. This clearly indicates the defendant knew he was doing wrong and knew his actions would offend anyone that came across his performance.
[33] I do not accept the submission that the defendant could only be found guilty if the Court could infer that the defendant knew to a certainty that any person including witnesses who saw what he was doing would be offended. Once the defendant performed the indecent acts with an intention to offend that is sufficient for the purposes of s 126. There is no requirement that the defendant must have intended every single person that might have seen him to be offended. It is no defence to claim that one person might not have been offended.
[34] Once the defendant knew that he was being observed by others and continued to perform in the way that he did, I find that one of the intentions of the defendant was to offend his neighbours.
[35] I have not considered the issue of recklessness in this decision. Clearly the defendant’s actions were reckless. He cannot perform sexual acts on himself and attempt to assess issues of risk of either being caught and/or risk of offending persons and carrying on committing those acts. The defendant cannot argue that he will take the chance of continuing to perform the acts in the hope that whoever sees him may not be offended and may like what he is doing. Such recklessness in my view, borders on clear intention on his part.
The evidence
Mr Burley’s statement to the Police
[11] It is useful here to set out in full the signed statement Mr Burley made to the
Police when they arrived shortly after the incident took place:
Q. What’s gone on today?
A. I was standing in the study, I had been talking to my friends, one on the computer and one on an app on my phone. We had been talking about some kinky stuff so I was a bit excited. That’s when I went into the study.
Q. What happened next?
A. I used some of the toys, I had a mask on myself and a blind fold at times. I had no clothes on and I had pegs on my nipples and I was stroking myself. I noticed someone in the house behind mine looking, I recognised her as one of the neighbours that lives there, she was in the kitchen. She could see me because where I was standing in the study there is a full length window and the curtains and the blinds were open. I’m not sure how much she could see of me because there is a fence between the properties but I could see her over it. She watched for a moment then went away and then came back.
Q. What toys were you using?
A. Not all at the same time, but the dildo, clothes pegs, collar, face mask, and 1 wrist cuff.
Q. What were you doing with the dildo?
A. I was sucking on it at first and then I slid it into me, I wasn’t really
using it, just kept it in me.
Q. Did your neighbours see you do this?
A. I don’t know. I was only looking at their window briefly, not the whole time.
Q. Why were you masturbating, standing naked and using toys in a sexual manner in your study in front of the full length window that had its blinds and curtains open if full view of your neighbours’ house?
A. It wasn’t really about them as they weren’t in their kitchen window to begin with, it was more about the fact that anyone could walk up the driveway and see me. It’s the thrill of getting caught – well not getting caught, but the possibility that I could get caught that gets me off because it’s a little bit dangerous and exciting. I didn’t mean to cause any harm or offend the girls. I knew they could see me but I thought that if they had a problem with what I was doing then they would move away and not look. They didn’t have to look but they kept peeking.
Q. How many girls saw you masturbating in the study?
A. It was just one of the neighbours at first, but then I saw that there were two of them looking at me from the kitchen. When I saw there was two that’s when I stopped and put my clothes on. They could have closed their blinds, it wasn’t my intention to cause offense. There has been one time previously when they have seen me naked in my kitchen, yet in the days afterwards they greeted me friendly and I thought there was no problem. I thought it was low risk of being seen by them. I thought if they saw me it was a low risk of offence being caused.
Q. Does the balaclava hat you were wearing have eye holes that you can see out of?
A. Yes it has 2 eye holes and a mouth hole.
Q. Could you see your next door neighbours house when you were wearing it?
A. Yes, but after a while it got a bit sweaty so I took it off.
Q. How long did your neighbours stand in their kitchen and watch you? A. I can’t be sure how long they were standing there continuously
because I wasn’t looking at them the whole time. They came back
and looked about 5 times in about 10 minutes.
Q. Do you think that by them looking, going away and then coming back to look that they were offended and just checking to see if you had stopped?
A. I thought that unlikely because they didn’t pull their blinds or go
away for ½ an hour, they kept looking in a short amount of time.
Q. Could you tell what their reaction was or their expression when they saw you?
A. No but when I saw two of them together, and I was in my kitchen they looked like they were talking together and I guess they seemed a bit concerned.
Q. Did you ejaculate? A. No.
Q. What made you stop?
A. I had been doing it more for the teasing element I guess. Q. What do you mean by teasing element?
A. I had said to a friend online that I was going to give her a call at
12.30 pm we were going to have a phone call that was going to be erotic in nature and I guess I was just preparing myself beforehand. I went back into the kitchen because I thought I heard my phone go off. Then I got dressed.
Q. Your computer is going to be examined. What’s going to be on it?
A. There’s a skype video call to a friend and emails about the erotic
tasks that my friend had performed for me.
Q. If you get a thrill out of the possibility of getting caught then you must know that if you did get caught, like today, that it is unacceptable behaviour and causes offence to other people.
A. I wouldn’t take a risk of getting caught where I thought there was a significant chance of the person catching me would get offended. I definitely agree that intending to offend or alarm people is wrong. But that is not what I’m into and if they were shocked or offended that they would just close the blinds.
Q. They have called the police today and are clearly upset and offended.
What do you have to say about that?
A. I regret that they are offended by my behaviour. I thought that if they did see me they might like it.
Statement of Constable Abbey Kelly
[12] Constable Kelly was the officer who took Mr Burley’s statement. Her
statement relevantly reads:
12. He said he didn’t necessarily want to be caught, just that the
possibility of getting caught added to his pleasure.
13.I asked the defendant who else lived in the house with him he told me that he lived there with his wife and that they had an open relationship. He told me that he had lived at this address for about four years and that the neighbours in the address behind him had
only been there for a few months and he didn’t know them very
well.
14.He admitted to knowing that the females in the address behind his could see him when he was masturbating in his study and that he could see them.
Statement of Constable Richard Bell
[13] Constable Bell was the officer who interviewed the three complainants in this matter. His formal written statement relevantly states:
5.I spoke to [redacted] who informed me that she had observed her neighbour masturbating out of his window towards their house.
6. She was at the house with two of her friends, namely [redacted] and
[redacted].
7.They all informed me that they observed a male wearing a gimp mask, dog collar around his neck, a peg on each of his nipples and leather bands on his wrists. He had no other clothing on. He started to spank himself with a black leather whip, whilst sucking on a pink dildo. He inserted the pink dildo inside his bottom.
8.He continued to masturbate for several minutes before putting on some clothing and going outside to retrieve his clothing off the washing line.
9.The girls stated that Police Communications informed them to have turns at observing the male as they were so disturbed by the male’s actions.
Complainant statements
[14] The complainants’ statements all corroborate the version of events set out above. In terms of what Mr Burley was doing, there were various comments offered. These included comments that the act was deliberate and that “he would definitely have seen us”, that one of the girls was disbelieving, horrified and disgusted by what she saw, that Mr Burley must have been carrying out the acts for the purpose of disturbing the girls, that they were so horrified they had to walk away from the window because they were so disgusted, and other similar comments.
Discussion
[15] It is common ground that the only issue in this case is whether Mr Burley
intended to “insult or offend” in doing what he did, or in other words, did he possess
the requisite mens rea or mental intent at the time he performed the acts described above at [2]–[5], acts which are conceded by counsel to amount to indecent acts at law.6 The obligation is incumbent on the Crown to prove every element of the offence beyond reasonable doubt. Mr Burley has no obligation to prove or disprove anything. There was no requirement that he give evidence before Judge O’Driscoll.
Intent generally
[16] It is often stated judicially that the term “intention” needs no explanation as everyone knows what it means. By way of example, however, it has been said that intention:7
… connotes a state of affairs which the party ‘intending’ … does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition.
[17] It is not uncontroversial to observe that intent is a very simple concept. As I have said, it requires resort to plain language and needs no judicial explanation or embellishment. At least this is the case in the abstract. In reality, it is impossible for anyone other than an alleged offender to know, with any degree of certainty, their state of mind concurrent with the alleged offending. Thus, the difficulty for the criminal law is plainly one of proof.
[18] In the absence of an ability to peer into the minds of alleged offenders, finders of facts must resort to extrinsic indicia in order to find proved beyond reasonable doubt that the required intent existed at the relevant time.8 This was
discussed by Kirby J in the Australian decision Peters v The Queen:9
6 There has been judicial comment that what amounts to an indecent act in public may differ from that which is required to amount to an indecent act in the privacy of one’s own home. The test is effectively reflective of societal standards: Bulloch v Police HC Rotorua AP27/99, 15 May 2000 at [22]–[26]. I note that the New Zealand Bill of Rights Act 1990, s 5 requires that limitations on freedom of expression must be justified in a free and democratic society.
7 Cunliffe v Goodman [1950] 2 KB 237 (CA) at 253.
8 One touchstone of determining whether intent existed can be to postulate whether or not the defendant would consider their actions a failure if the prohibited result did not eventuate: see Hyam v DPP [1975] AC 55 (HL).
9 Peters v The Queen (1998) 192 CLR 493 at 551 (citations omitted).
Absent a comprehensive and reliable confession, it is usually impossible for the prosecution actually to get into the mind of the accused and to demonstrate exactly what it finds was there at the time of the criminal act. Necessarily, therefore, intention must ordinarily be inferred from all of the evidence admitted at the trial. In practice this is not usually such a problem. But the search is not for an intention which the law objectively imputes to the accused. It is a search, by the process of inference from the evidence, to discover the intention which, subjectively, the accused actually had.
[19] In this respect, I am of the view that what is called oblique intent10 which I shall address later in this judgment, is in reality no more than another string in the evidential bow.11 It is not a separate species of intent. It is merely one method of inferring that the state of mind has been proved to the required standard. The issue of oblique intent will arise where one consequence of the defendant’s prohibited act is a virtual or practical certainty of the actions of the defendant, though the defendant does not act in order to bring that outcome about.12 Glanville Williams provides the following formulation of the concept.13
…Where the defendant desires result x, that another result, y (forbidden by law), will also be involved, as the direct consequence of x and almost as part and parcel of it, then the defendant will be taken to intend both x and y.
[20] The greater the probability of the consequence occurring, and the closer the proximity between the act and the consequence, the more likely it will be that it is possible to infer intent. However, the degree of probability required before the doctrine becomes extant is that it must be a moral, virtual or practical certainty. In other words, a finding of oblique intent requires that the ordinary human experience would indicate that if a person does x, it is all but certain that y will occur.
[21] While it has previously been suggested that the doctrine of oblique intent is objectionable on the basis that it unduly broadens the scope of intention, this
10 See for example R v Wentworth [1993] 2 NZLR 450 (HC).
11 As to the notion of oblique intent being a concept belonging to the law of evidence, see R v
Moloney [1985] AC 905 (HL) at 928; R v Hancock [1986] 1 AC 455 (HL) at 472.
12 One example is where a speleologist, leading a spelunking expedition, gets trapped in the mouth of a cave during the groups’ egress. He or she is of considerable girth such that it is impossible to move them before the tide comes in, which would drown the remainder of the group stuck
behind him or her. There is no other way out. If the group elects to use an explosive to blow up
the lead speleologist, doing so solely in order to save their own lives, it is nonetheless a virtual or moral certainty that he or she will die in the process. In these circumstances, the doctrine of oblique intent would be deployed to found an inference that the person planting and igniting the explosives intended the death of the lead speleologist.
13 G Williams “Oblique Intention” (1987) 46(3) Cambridge Law Journal 417 at 419.
objection can readily be met.14 As I have noted, the doctrine is no more than an evidentiary tool of proof. Where this narrow doctrine has operation, it may (though certainly not must) be relied on to infer intent. This is on the basis that where two acts are inseparable, to intend one is to intend the other.
New Zealand authorities
[22] Turning now to address s 126 Crimes Act 1961, the leading case on the elements of this section is R v Annas, where the Court of Appeal stated:15
[55] We find it unnecessary to enter the debate upon the English cases, which would require examination of the particular legislation. Here there are two elements of the offence. One is the performance of an indecent act. The other is that the act was performed with intent to insult or offend.
[56] Whether what was performed is an indecent act is an objective question to be answered by what the jury assesses to be the standards of right-thinking members of the community (R v Stamford [1972] 2 QB 391 (CA)); whether the defendant intended to insult or offend is a distinct subjective question.
[57] Whether the photographing of a naked child is objectively indecent will depend upon the circumstances. One extreme is a photograph taken in good faith in the course of a medical examination, or by loving parents of a child playing in a pool or at the beach. Neither will satisfy the objective test. The same photograph taken for obviously pornographic purposes could.
[58] The subjective element is a different matter. Again in the former cases it would not be satisfied. In the latter a film taken to expose a child's naked body to prurient gaze could well satisfy the subjective element. The fact that the child does not realise that she is being abused is beside the point.
[23] In light of R v Annas I will briefly comment on R v Price, an early case involving a man inviting a seven year old girl to put her hand into his pocket, which he had cut away, and “feel for ‘the dolly’”.16 She put her hand in the man’s pocket and indeed “felt his privates and promptly withdrew her hand.”17 Chapman J
directed the jury thus:18
14 At 425.
15 R v Annas [2008] NZCA 534. This is virtually identical to the Canadian conception of the comparable offence articulated by the Ontario Court of Appeal in R v Jacob [1996] OJ No 4304,
142 DLR (4th) 411, 112 CCC (3d) 1 at [18] per Osborne JA as concurred by Austin JA, though
not Weiler JA’s conception at [60]–[61].
16 R v Price [1919] GLR 410 (SC) at 410.
17 At 410.
18 At 410 (emphasis added).
There is evidence from which you may infer that the child felt herself insulted and was offended. That is not necessary if you think that the tendency of such an act is to insult or offend a normal person. As to the intent, it may be that the prisoner had another motive for his act, namely, some form of animal gratification, but when you come to consider his intent it is open to you to conclude that he must have known that the tendency of such an act was to insult or offend, and if you so conclude you are entitled to find that he did the act with that intent.
[24] It seems to me that this statement may no longer be entirely representative of the law in New Zealand. The Court of Appeal in Annas made it clear that the second limb is a subjective test. Thus, falling short of oblique intention, the finder of fact is not entitled to impose their own findings of what a person in the shoes of the defendant must have known, lest the test become objective.
[25] What is clear, however, is that the purpose for which an act commenced, such as sexual gratification, is quite capable of altering over time. For example, it has been noted that, if a person begins masturbating in a private room with the curtains open, their purpose or intent at inception may be sexual gratification. However, if they subsequently become aware that they are being observed, it is possible that the masturbating party’s intent could evolve from sexual gratification to an intent to
insult or offend.19 It may also be the case that both of these intentions exist
simultaneously.
[26] It is essential, however, that there be an identifiable scintilla in time in which the mens rea is concurrent with the actus reus. All of this also tends to the conclusion that it would likely be difficult to establish that a person had intent to insult or offend if they were unaware they were being observed whilst in the throes of their indecent act.20 This does not, however, assist Mr Burley here as it is common ground that he was quite aware throughout that he was being observed, and
indeed he wanted to be seen.
19 Bulloch v Police HC Rotorua AP27/99, 15 May 2000 at [6], citing Farnham v Police HC Christchurch AP117/91, 5 June 1991. In Bulloch the appeal against conviction was allowed due to the appeal court taking a different view of evidential revelations that came to light at trial.
20 For example, in Gregg v Police [2013] NZHC 1023 it was held on appeal that there was reasonable doubt as to whether the appellant knew he was being observed whilst performing his indecency. The conviction was quashed.
Canadian guidance
[27] Canadian courts have also had occasion to consider the equivalent provision in the Canadian Criminal Code.21 In R v Hebert, Thomas J commented:22
61 Relatively few sections of the Criminal Code require the Crown to prove a specific intent. Section 173(1)(b) is one of those sections. Intent to insult or offend is an essential element of the offence. The prosecution must prove the specific intent beyond a reasonable doubt…
62 It was open to the trial judge to infer that the man did intend to insult or offend having regard to his findings of fact which are supported by the evidence. The intent of the offender must be inferred and to the extent that the Crown relies upon circumstantial evidence to prove guilt, the trial judge must be satisfied beyond a reasonable doubt that guilt is the only reasonable inference to be drawn from the proven facts.
[28] In both R v Hebert and R v Simon, convictions were overturned on appeal because of deficiencies in the Court of first instance.23 In R v Mills a complete denial of the requisite intent in the comparable Canadian legislation was sufficient to found a reasonable doubt,24 and the facts in that case are not altogether dissimilar from those in the present case.
United Kingdom guidance
[29] From England there is a dearth of authority precisely on point. Their legislative landscape is quite different from that which exists in New Zealand. Until its relatively recent repeal, s 4 of the Vagrancy Act 1824 (UK) provided that every
person had committed an offence who:25
21 Criminal Code RSC 1958 (Can.), s 173(1)(b). For an outline of Canadian cases in this area refer R v JH [2002] NSJ No 525 at [12]–[22], which also addresses the question of when a ‘place’ will be public. This is an interesting issue in New Zealand for actions such as those of Mr Burley and whether it might be said that s 125 of the Crimes Act could have application because it could be argued that the neighbour’s house was a place where the public (or a small section of the public) have access. I have not considered this in any detail, but simply mention it in passing.
22 R v Hebert [2004] OJ No 2577 (SCJ) (emphasis added), followed by Howden J in R v Simon [2010] OJ No 4986 at [12], where the pre-Charter case of R v Parsons [1963] 3 CCC 92 was not followed.
23 R v Hebert, above n 22 (a new trial was contemplated); R v Simon, above n 22 (it was considered
there was no need for a new trial and the conviction was accordingly vacated).
24 R v Mills [2005] OJ No 4436.
25 Every person who was convicted of this offence was “deemed a Rogue and Vagabond”, with the offence punishable by a term of hard labour not exceeding three months. See too the Town Police Clauses Act 1847, s 28 (UK).
…wilfully, openly, lewdly, and obscenely exposes his person26 in any Street, Road, or public Highway, or in the view thereof, or in any place of public Resort, with Intent to insult any Female…
[30] In 2003 that Act was repealed and in its place the Sexual Offences Act 2003 (UK) was enacted. Section 66 provides for an offence of exposing genitals:
66 Exposure
(1) A person commits an offence if—
(a) he intentionally exposes his genitals, and
(b) he intends that someone will see them and be caused alarm or distress.
[31] There also remains available in England a miscellany of other possibilities, such as prosecution of the common law offence of outraging public decency,27 or offences against ss 4 or 5 of the Public Order Act 1986 (UK). It is unnecessary to explore the United Kingdom position in any depth. However, the following passage from Rook and Ward on Sexual Offences Law & Practice is insightful:28
The defendant must expose his genitals intentionally and intend that someone will see them and be caused alarm or distress. It is not sufficient if his purpose is simply to obtain sexual gratification. … It is not enough that the defendant suspects that someone will see his exposed genitals: he must intend someone to see them. And even if he intends someone to see them, it is not enough that he suspects that that person will be caused alarm or distress: he must intend that alarm or distress will be caused.
Australian guidance
[32] There are various laws covering this type of conduct across the Australian states and territories.29 They either create a virtually identical offence to s 126 or cover generally the same conduct. However, a review of the Australian authorities
provides negligible additional guidance at least for present purposes.
26 For clarity it is observed that the term “Person” in this section referred only to the male penis:
see Evans v Ewels [1972] 1 WLR 671 (QB).
27 See HH Judge Peter Rook QC and Robert Ward CBE (eds) Rook and Ward on Sexual Offences
Law & Practice (4th ed, Sweet and Maxwell, London, 2010) at [14.26]–[14.54].
28 At [14.65].
29 See generally Crimes Act 1900 (ACT), ss 392 and 393; Summary Offences Act 1988 (NSW), ss 4 and 5; Criminal Code Act 1983 (NT), s 133; Summary Offences Act (NT), ss 47 and 53 ; Criminal Code Act 1899 (Qld), ss 227 and 228; Summary Offences Act 2005 (Qld), s 9; Criminal Law Consolidation Act 1935 (SA), s 58; Summary Offences Act 1953 (SA), s 23; Criminal Code Act 1924 (Tas), s 137; Summary Offences Act 1966 (Vic), s 19; Criminal Code Act Compilation Act 1913, ss 202 and 203.
Analysis
[33] I now turn to review this second, subjective, limb of the s 126 test as outlined in R v Annas.30 As a preliminary matter, I note that because of the way in which the present case was presented before Judge O’Driscoll, I need to consider the totality of the file and statements before the Court and come to a view. It will be from this touchstone that I determine whether the threshold for an appeal against conviction has been made out.
[34] In submissions before me there was argument as to whether the doctrine of oblique intent, which I have referred to at [19] above, has application here. For my part I need to say at the outset that, although not entirely clear, it is unlikely this doctrine will have a place in offending of the kind involved in this case. In the situation where one physical act is a virtual certainty of another which is carried out, there is little problem in applying the doctrine. However, in the case of a physical act by one person intended to affect the mental state of another person, the application of the oblique intent doctrine becomes more problematic. Turning to the present case, the gamut of human sexuality is vast. What one person considers normal another may deem aberrant. It is often difficult to identify those acts of a sexual nature which, if witnessed, would be virtually, morally, or practically certain to cause insult or offence. In cases such as the present I am of the view, although I reach this view with some degree of reluctance, that it is really a step too far to import the doctrine of oblique intent. Put another way, there is a difficulty the Courts have in drawing a line in the sand, falling on the one side in cases where there is sexual activity which is certain to cause insult or offence and, on the other, in those cases falling short of that standard. In the present case therefore I do not rely on oblique intent given its difficult application in cases such as this.
[35] I put on one side therefore this issue of oblique intent which as I have already noted is really only one method of inferring the state of mind to be proved to the required standard. This leaves the Crown with the general requirement to establish that the tenor of the evidence, and the inferences to be drawn from that evidence, discharge its obligation to prove the requisite intent on the part of Mr Burley here
beyond reasonable doubt. This is a case where I have no doubt of certain aspects. There is no question that Mr Burley intended to perform an indecent act. There is no doubt, at least in my mind, that he knew it to be in some way morally wrong. I also have no doubt that Mr Burley was reckless, at least in that he perceived that there was some risk of his actions insulting or offending his spectators, but that he elected to proceed nonetheless. If the standard contained in s 126 was recklessness, this appeal would have been entirely fruitless. I would have had no hesitation in dismissing it at the outset.
[36] None of these states of mind, however, are what s 126 calls for. What is required is proof beyond reasonable doubt that Mr Burley committed the indecent acts with the specific intent to insult or offend “any person”. Shortly, I will review the evidence of this in some depth, but initially, there are certain matters of concern that need to be mentioned. I turn to these aspects now.
[37] First, the physical evidence, namely the photographs provided by the Police, appear to show that there is some considerable distance between the two houses. It may also suggest to some extent that the fence separating the two properties, when viewed from the complainants’ house, could in fact block a small portion of the window in which Mr Burley was ‘performing’. This raises two issues. The first is that, even though there were three complainants, the distance could have been such that it is possible that Mr Burley was unable to discern between them. Secondly, it might not be possible perhaps to exclude the possibility here that Mr Burley considered he was at least partially concealed by the fence. The evidence before the Court of both the complainants and Mr Burley and his acknowledgements to the Police would seem to negate this however.
[38] Secondly, Mr Burley’s contemporaneous statements to the Police contain some denials that he ever had any specific intent to either insult or offend. He candidly acknowledges that he carried out the acts for sexual gratification, in anticipation of an upcoming sexual phone call. Mr Burley states also that the driving force behind his exhibition was the prurient excitement stemming from the risk of being caught, and that he realised there was a risk that people might be offended, but he claims that he did not think this would be the case. What could be argued,
however, is that getting excited by a risk of being caught on its own cannot be conflated with an intent to insult or offend. They are not at all the same thing. Equally, foresight of consequences, but running the risk in spite of them might be seen as reckless, but not intentional, and thus, this would not meet the threshold of s 126.
[39] Thirdly, it is no exaggeration to observe that Mr Burley’s views of sexuality fall outside what might be termed “usual” or “normal” sexual behaviour engaged in by “most” people. This incident makes that apparent. He also states that he is in an open relationship with his wife, and engages in text-based and oral exchanges with multiple partners in a sexual manner. The nature of subjectivism is such that Mr Burley’s state of mind, at the time he carried out his performance, to some extent might be viewed through lenses tinted by his unique sexuality. This, it could be said, is not a one-size-fits-all aspect of life.
[40] Fourthly, Mr Burley claimed to Police that he had previously been seen naked by one of his neighbours in his kitchen and had been treated no differently in the wake of this. To his mind, therefore, some degree of overt sexuality might be seen as permissible. In this light, there is a possible argument that it is not inconceivable that Mr Burley considered the complainants’ intermittent snatching of glances perhaps to be some form of tacit endorsement of his actions. This is particularly so given that he claims the complainants manifested no discernible condemnation of his actions, such as shutting curtains, or so far as he could tell, by abusing him via words or actions.
[41] Fifthly, though I readily acknowledge that Mr Burley’s performance most certainly did insult and offend the complainants in fact, it is not their state of mind that is in issue in this proceeding. Rather, the reality is that the complainants’ perceptions of the performance may provide little insight into Mr Burley’s state of mind at the time. Indeed, in England it has been said that:31
The Sexual Offences Review noted that the problem of male indecent exposure was often referred to as “flashing”, a term with connotations of pathetic and inadequate men who need not be taken seriously. But research
showed that exposure of the penis may have a serious impact on those who witness it, and that some men commit it as part of a wider pattern of sexual offending…
[42] In this case the performance went a considerable way beyond mere
‘flashing’, or a momentary exposure of the penis or genitals. It involved continuous masturbation, whipping and the use and insertion of sex toys, which all continued for some time. Clearly it could therefore have a significantly more serious impact. As I have previously indicated, this is not appropriate behaviour. However, inappropriateness by itself is not the touchstone of s 126.
[43] Sixthly, as I have noted above (at footnote 8), one touchstone of intent is the concept of failure. If the intention is not carried out, there will be a sense of failure in the protagonist. In the present case, it might be suggested that Mr Burley would not have considered his exhibitionistic performance a failure if no one was offended. He might attempt to argue in the circumstances here that he would even have considered his performance a success had he not been observed at all, but was sexually gratified. As he said, it is the thrill resulting from the risk of getting caught that excites him.
[44] Seventhly, it is trite in law and fact to suggest that a person is capable of having more than one intention. Ms Elsmore for the Crown made a vague suggestion at one point that Mr Burley could have intended to gratify himself sexually, as well as intending to please or excite his audience but also intending to insult or offend them. In my view this is not an issue in the circumstances prevailing in this case, but if it was, and if I was to find that one of Mr Burley’s intentions was to titillate his audience, it is difficult to appreciate how a concomitant intent to offend could simultaneously sit alongside that. The two intentions would seem to be mutually exclusive.
[45] Eighthly, and finally, I do need to acknowledge that Judge O’Driscoll may have erred to an extent in his comments at para [26] of the Conviction Judgment, which are set out at para [10] above.32 Inherent in s 126 is the possibility that a defendant might genuinely deny the specific mens rea element of the offence, no
matter how indecent their acts may be. Though it has been a common theme throughout this judgment, I repeat that the Crown must prove every element of the offence beyond reasonable doubt. A specific intent such as this can at times be difficult to prove. Often, however, there will be a specific confession, but that is not the case here, (although Mr Burley did express some views to the Police about why he was acting as he had). Or, in other cases, there may be inferences to be drawn from the evidence, which fall overwhelmingly on one side to show that there was such an intent to insult or offend. In those cases the Crown will have discharged its obligations. I now turn to consider whether this is just such a case.
[46] Turning back to Judge O’Driscoll’s decision, he drew a number of inferences from matters which were before him and made a number of factual findings. For reasons I will now outline, I am satisfied that this was a proper thing for him to do, given the material which was before him.
[47] It is clear that Judge O’Driscoll also did not accept the submissions advanced for Mr Burley on the basis of the evidence before him. He found Mr Burley’s evidence in a number of respects quite inconsistent. For example, when Mr Burley was asked the question “What made you stop?” at one point he stated that he stopped when the second girl saw him from the neighbouring property, but elsewhere said that he stopped because he heard the telephone go off, given that he was expecting the 12:30 p.m. call.
[48] Judge O’Driscoll also found first, that Mr Burley sought to minimise and justify his actions throughout and secondly, that there can be no doubt that one of his clear intentions was to offend his neighbours. Mr Burley’s acknowledgment that getting caught excited him must have meant that he knew his actions were wrong and offensive and an intention he held clearly must have been to offend the neighbours. This intention could co-exist with his other acknowledged intention, being one of self gratification, even if that may have constituted his primary motive at times.
[49] Judge O’Driscoll also went on to describe this as a matter of standing back and looking at the issues with a common sense approach. Doing this, he said, on the
basis of the facts he found proven (linked with his rejection of some of Mr Burley’s claims and evidence) he was led to the conclusion that, at some point during his lengthy sexual performance, Mr Burley’s subjective intention must be seen in part at least as being one to offend. Thus he found the provisions of s 126 were satisfied.
[50] On all of these matters, when considering the entire circumstances surrounding this lengthy incident, I find that the inference is clear that in behaving as he did, Mr Burley intended to offend. This was in the sense that he realised his grossly indecent behaviour would give offence to any person who saw it (such as someone, including a child or adolescent, who may be coming up the driveway) let alone the neighbouring girls (probably of late teenage years) who he soon became aware were watching him. Even if this intention to offend may not have been his primary motive at the outset, in my view this would have become a significant intention once time passed and events unfolded and the neighbouring girls returned, on their evidence, considerably shocked at what they were seeing.
[51] Even leaving aside the other evidence here, on his own admissions in his statement which was before the Court, Mr Burley made what I consider to be a number of significant and telling concessions:
(a) He said he believed his actions posed only a “low risk of offence being caused” and not that they posed “no risk”. This comment in itself was not simply about taking risks. It was an acknowledgment that an intention to cause some offence to a person was likely to be at least part of Mr Burley’s motivation here. And, after all, it was that distinctly, and the thrill that he could “get caught”, that he said excited him.
(b) Mr Burley said:
I wouldn’t take a risk of getting caught where I thought there was a significant chance of the person catching me would get offended. I definitely agree that intending to offend or alarm people is wrong. But that is not what I’m into and if they were shocked or offended that they would just close the blinds…I thought that if they did see me they might like it.
(Emphasis added)
Again this is an acknowledgment that, to a significant degree if caught or seen undertaking this form of sexual act, the person seeing Mr Burley would get offended which he acknowledged was wrong. To suggest the girls in the neighbouring house “might like it”, given their evidence as to their reactions over what were continuing events for some 10 or 15 minutes, is rather difficult to accept. And, Mr Burley’s reference to a person “just closing the blinds if they were offended” is somewhat puzzling, when one considers his earlier claim about his “thrill of getting caught…if anyone could walk up the driveway and see me”.
(c) And, developing this last aspect further, I turn again to Mr Burley’s
specific acknowledgment that:
Anyone could walk up the driveway and see me, it’s the thrill of getting caught. Well not getting caught but the possibility that I could get caught that gets me off, because it’s a little bit dangerous and exciting.”
(emphasis added)
His reference to “anyone” walking up the driveway and seeing him would necessarily include children and adolescents, with obvious degrees of sensitivity, all of whom even Mr Burley’s counsel conceded before me, would clearly be offended.
And again, the reference to “getting caught” and “dangerous and exciting,” leads to the conclusion again that Mr Burley must have known his actions were wrong and offensive to most, (in the sense that they were repugnant to the prevailing sense of what is decent or moral). The risk of apprehension he said was a source of some excitement to him. (and, indeed, it is not insignificant here that one definition of “caught” or “to catch” in the Collins Dictionary of the English Language is “to arrest”.)
(d)Mr Burley stated on several occasions that if the girls here had a problem with what he was doing then they would move away and not look and if they were shocked or offended they would just close the blinds or go away for half an hour rather than returning and looking at him. Thus, effectively Mr Burley was suggesting that it was incumbent here on the girls who were watching him to take steps to block out the vision otherwise his view was that he was entitled to continue and to assume that they were not offended by his behaviour. It was on this basis it seems that he endeavoured to suggest that he did not intend to offend or alarm anyone, although he noted that offending or alarming in itself was wrong. In my view these claims by Mr Burley are specious. To suggest as Mr Burley does that there was a real obligation on anyone viewing his indecent acts (including for example children and adolescents who happened upon it whilst walking up the driveway) to give some indication to him that they were offended by it before he should be required to stop and thus it follows as he claims that he did not intend to offend, in my view, is unsupportable in all the circumstances here.
(e) And, after all, Mr Burley must have been aware that there was nothing here to stop the girls’ photographing (on cell phones or otherwise) his continuing exhibitionist and indecent acts and posting these on the internet as available pornography for all to see. This must also, as I see it, place a gloss on Mr Burley’s claims that he had no intention to offend or insult anyone.
(f) For Mr Burley to claim first, that he did not mean to cause harm or offence to anyone, not least to the girls (who he acknowledged were quite young, in late teenage years) and then secondly, to suggest that he was at “low risk of being seen by them” with a “low risk of offence being caused”, and thirdly, that “if they were shocked or offended that they would just close their blinds”, as I see the position is contrived, self-serving and scarcely believable. This conclusion is supported by a number of Mr Burley’s own acknowledgments at his police
interview. When asked if he could tell what was the girls’ reaction
when they saw him, he replied:
…when I saw two of them together, and I was in my kitchen, they looked like they were talking together and I guess they seemed a bit concerned.
(Emphasis added)
[52] Under the circumstances here I am satisfied that it is reasonable to infer from all the evidence before the Court that Mr Burley, despite his claims to the contrary, in carrying out the repeated sexual acts he did, had an intention to offend as required by s 126. This was not a case of a random and momentary act on his part. If as he claims he was hoping that the girls in the neighbouring property might “like what they saw” initially, this most certainly would have changed after a few minutes given the reaction that all three of them had to his behaviour clearly viewed by his looking at them throughout. For him to suggest otherwise in my view is just simply not conceivable, and his reference noted at [51](f) above that “they seemed a bit concerned” in my view clearly supports this conclusion.
[53] I find at the very least that Mr Burley did have the intention of causing offence in repeatedly carrying out for some time the various acts he did, in the sense that he would have realised his grossly indecent behaviour would give offence to any normal child or adult who saw it, and in particular the teenage girls he became aware were watching him directly. In my view he said as much, although in a somewhat veiled way, in his own police statements. There was no credible evidence advanced to suggest that Mr Burley did not appreciate what would have been glaringly obvious to any other observer over the 10 or 15 minutes that these incidents occurred, that is, that these young women or indeed any other person (potentially including young children or adolescents) walking up the driveway would be offended by his behaviour. It is inescapable that this was a real likelihood. Indeed Mr Burley has gone some way to specifically acknowledge this himself with his “I guess they seemed a bit concerned” comment noted at [51](f) above.
[54] For all these reasons I find that Judge O’Driscoll was entitled to judge the credibility of the self serving parts of Mr Burley’s unsworn and untested statements
against the admissions contained in those statements, the other evidence, and general common sense considerations. That is what he did as he was entitled to.
[55] I find therefore that Judge O’Driscoll did not err either in law, nor in his assessment of the evidence to such an extent that there is an error or irregularity which has created a real risk that the outcome of Mr Burley’s trial was affected or that it has resulted in a trial that is unfair or a nullity. No miscarriage of justice has occurred here.
[56] For all these reasons this appeal is dismissed.
...................................................
Gendall J
Solicitors:
Steven Rollo, Christchurch
Raymond Donnelly & Co, Christchurch
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