I v Police HC Auckland CRI-2010-404-301

[2010] NZHC 1899

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-301

BETWEEN  I

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         4 October 2010

Appearances: V Letele for the Appellant

E R Harrison for the Respondent

Judgment:      4 October 2010

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

V Letele, P O Box 76456, Manukau 2241. Fax: [phone] [email protected]

E R Harrison, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]

I V NEW ZEALAND POLICE HC AK CRI-2010-404-301  4 October 2010

The appeal

[1]      This appeal challenges a conviction entered against the appellant by Judge

Hikaka in the Manukau District Court on 10 August 2010.

[2]      The Judge convicted the appellant on a charge laid under s 125(1) of the

Crimes Act 1961 being, wilfully doing an indecent act in a public place.

[3]      Having convicted the appellant the Judge fined him $400 and ordered him to pay $130 court costs and reparation to the victim for emotional harm in the sum of

$140.

The offending

[4]      Section 125 provides:

125      Indecent act in public place

(1)       Every one is liable to imprisonment for a term not exceeding 2 years who wilfully does any indecent act in any place to which the public have or are permitted to have access, or within view of any such place.

(2)       It is a defence to a charge under this section if the person charged proves that he had reasonable grounds for believing that he would not be observed.

...

[5]      Thus in any prosecution the prosecutor must prove beyond reasonable doubt first the actus reas of doing an indecent act in a public place and secondly the mens rea element of wilfulness.  As is frequently the case, the mens rea will be a matter of inference.

[6]      The importance of establishing the mens rea is if anything underlined by subs 2  which  provides  a  defence  if  a  defendant  proves  reasonable  grounds  for believing he would not be observed.

[7]      The alleged offending occurred in the lavatory facilities of a learning institute in Manukau at approximately 7.25 pm in March 2010.

[8]      In essence the Police case was that the appellant entered a female toilet block; urinated in it; and at some stage stood on the seat or toilet bowl and peered over the cubicle wall at the complainant who was sitting on the adjacent toilet.

[9]      I interpolate a reference to an impassioned submission by Ms Letele that ideally the  appellant  should  have  been  charged  with  a  lesser  offence  under  the Summary Offences Act 1981.   Counsel tells me from the bar there was some discussion along these lines between her and the officer-in-charge.   For whatever reason the prosecution decided to proceed on the s 125 charge rather than accept a guilty plea on a lesser charge.  With the advantage of hindsight perhaps this option should have been explored more fully.  It is irrelevant, however, to the merits of this appeal.

The hearing and the Judge’s decision

[10]     The Police called evidence from the complainant who was cross-examined. A  police  constable  was  also  called  to  the  scene  and  arrived  approximately  45 minutes later.  To his credit the appellant remained at the scene (with his partner) until the arrival of the police.  The appellant gave evidence at the trial which was supplemented to some extent by evidence from his partner.

[11]     The appellant seems to have made a statement to Constable Davies.  There was also a DVD of an interview.

[12]     The relevant portions of Judge Hikaka’s decision are set out below.  There can be no quarrel with the Judge’s methodology.  He appears to have summarised accurately the evidence he heard.

[13]     Critical to the prosecution case was the evidence of the complainant.   She said that she went into the female toilet.  There was no one there when she entered. She felt unwell at the time.  She went into a cubicle, sat down, and locked the door. Shortly afterwards she heard someone else entering the toilet.  She heard someone urinating in the adjacent lavatory.  She, as is often the situation, kept quiet.  She then looked up and saw the appellant observing her across the cubicle wall from above.

She appears to have asked the appellant what he was doing.  She then adjusted her clothing and left.

[14]     The appellant’s evidence was that he was effectively “caught short”.   He wanted to defecate.   Both toilet cubicles in the men’s toilet were occupied.   He therefore went to the women’s toilet.  For reasons not satisfactorily explained (partly embarrassment, partly because he considered the women’s toilet was “yukky”, but certainly not for any cultural reasons), instead of sitting on the seat provided he stood on it.  He was, according to his counsel unable to defecate in either a standing or squatting position.  He urinated.   It was only after he had completed this function that he stood up to his full height and was, so he says, observed by the complainant.

[15]     The Judge dealt with this clear conflict and indeed the charge he had before him in this way:

[15]     I  was  concerned  to  hear  the  inconsistencies  in  the  defendant’s evidence.  First he told Constable Davies that the boys’ toilets were locked, later he said they were in fact occupied, and that he waited two minutes and could wait no longer.   I have already referred to the inconsistency with respect to the direction that he was facing within the cubicle while standing on the toilet bowl or seat.  He referred to first facing the wall, he made that statement to Constable Davies orally and it was recorded in his notebook. He repeated that as the direction he faced on the DVD but, as I have already indicated, when the physical complications arising as a result of the direction he was facing with what he intended to do in the toilet were put to him, he changed his mind and said that he was in fact facing the door of the cubicle.

[16]     The indication was that when he first went to use the toilet in the cubicle of the female toilets he heard someone and left.  The evidence was not entirely clear from the defendant on that so I do not place too much weight.   He also referred to the girl standing looking at him, and that he urinated and in embarrassment left.

[17]      I prefer the complainant’s evidence.   She was clear, her evidence was uncomplicated.   It is the first time anything like this has happened to her.  She had a good recollection of what happened, and I am satisfied that her evidence was that she was the only person in the female toilets.   She heard in the cubicle next door someone urinating, she said it went quiet and looked up to see the defendant looking down at her.  She then stood, pulled her pants up, and left.

[18]      Applying the tests to which I have referred, to those circumstances; it was at night, it was in the women’s toilets, there was just the complainant in  those  toilets  prior  to  the  defendant  entering,  the  men’s  toilets  were available according to one version of the defendant’s evidence, the defendant stood on a seat, he looked at the woman in the cubicle next door, there were

multiple cubicles in those female toilets and he entered the one next to the occupied one and used it, and, as I have indicated, he stood on the seat next to the only occupied cubicle and looked down at the occupant.

[19]     In my view that behaviour does offend against the reasonable and recognised standard of decency which ordinary and reasonable members of the community ought to observe in this day and age.   People using toilet facilities are entitled to a degree of privacy, and particularly so if you are a woman alone at night in a publically available toilet.  Accordingly the onus on the prosecution has been discharged to the requisite standard.

[20]      I have not overlooked the defence submitted as being available to the defendant, and that he had reasonable grounds for believing he would not be observed.  I do not believe that defence is available to the defendant, because by standing on the seat he behaved in a manner that made it more likely rather than less likely, that he would be observed.   Had the scenario been something like he was desperate, needed to use the toilet, the male ones were occupied so he used the female ones and stood on the floor of the room and urinated in the toilet bowl and then left, notwithstanding concern about him being in there in the first place, perhaps s 125(2) may have been an available defence.  But it is not in this case and accordingly, as indicated, the charge is proven beyond reasonable doubt.

Discussion

[16]     Ms Letele advanced two major points.   Her first submission was that the Judge was wrong in inferring that, when the appellant stood on the toilet seat, he did so with the intention of looking into the cubicle next door.  Although accepting this mode of using a toilet by a man was unusual, it did not necessarily follow that the inference of wilfulness should be drawn or that the appellant was standing on the seat for an illegal or an indecent purpose.

[17]     The second major submission was that, although the Judge (having been referred to it by counsel), dealt with the s 125(2) defence, he should have allowed that defence because, at the time he was standing on the toilet seat or bowl, the appellant did not believe he would have been observed and it was effectively only an accident that the complainant saw him when he straightened himself up.

[18]     Ms Letele, who has done an excellent job in both this Court and the District Court  for   the   appellant,   also   pointed   out   that  there   were   possible   gender discrepancies; women waiting in long queues in public toilets frequently availed themselves of vacant cubicles in men’s toilets, maybe casting sideways glances as

they entered.  Nor on the evidence was it necessarily conclusive of intention, so far as s 125 was concerned, to be standing on the toilet bowl, although Ms  Letele accepted (the appellant being Samoan) there was no cultural reason for him using the lavatory in this manner.

[19]     Ms Letele also observed that ideally the appellant, whose standard of English was  not  the  best,  should  have  been  assisted  by  an  interpreter.    The  appellant, however, instructed his counsel before the District Court hearing that he did not need an interpreter.  She submitted the Judge had placed too much weight, when referring to possible inconsistencies in the appellant’s various explanations, on the alleged inconsistency between telling Constable Davies the men’s toilets were “locked” and later saying they were “occupied”.  I rather suspect that the meaning is the same and most people occupying a toilet cubicle will lock it in any event.

[20]     There is also some reference by the Judge to possible inconsistencies between the appellant’s first  explanation that when standing on the toilet seat to relieve himself he was facing the cistern and subsequently turned the other way.

[21]     I am left with the view that, had the appellant turned his mind to exactly what was involved, it should have been obvious that some cogent explanation would need to  be  advanced,  in  the  face  of  the  charge  he  faced,  to  neutralise  what  would otherwise be the inference that men who are using toilets for either of the two natural functions in New Zealand society do not stand on the seat facing in either direction. Although it is being wise after the event, for this defence to be run with any reasonable prospect of success, measurements and photographs of the toilet cubicle would need to have been obtained.   The Judge was well aware of this issue, he having asked a question of Constable Davies as to whether measurements had been obtained.

Result

[22]   I am satisfied, having given close attention to Ms Letele’s competent submissions, that the Judge cannot be faulted in the findings that he made.  Although I have considerable sympathy with the position that the defendant was originally

overcharged by deploying s 125, nonetheless there was no challenge (and it cannot be seriously challenged) that the act of standing on the seat of a toilet and peering over into an adjacent cubicle occupied by a female would, on the part of a male, be an indecent act.  The Judge was correctly referred to R v Dunn.1   Indecency needs to reflect contemporary standards.  Although I suspect Ms Letele is right that the mere act of one gender entering a toilet assigned for the use by another gender could not

possibly be regarded as indecent (particularly in the age of unisex toilets), totally different considerations apply to a male peering over a partitioning wall into an adjacent cubicle at a female.

[23]     The findings of the Judge were open to him both as to the actus reas of s 125 and also the mens rea.

[24]     I appreciate concerns the appellant may have over a conviction for what on its face looks to be a serious charge.  However, given that the maximum penalty is one of two years imprisonment and given the Judge only imposed a $400 fine, anybody looking at the appellant’s criminal history would inevitably conclude that the offending was at the lower end of what s 125 contemplates.  I specifically state that it does occupy that region.

[25]     It is of some significance too that the Judge who heard and saw both the complainant and the appellant felt minded to order reparation.  Clearly there was a degree of distress caused to the complainant.  The fatal flaw in the appellant’s entire stance were the unusual logistics which he deployed by standing on the toilet.

[26]     For these reasons the appeal is dismissed.

.......................................… Priestley J

1           R v Dunn [1973] 2 NZLR 481 (CA).