Jessett v New Zealand Police
[2021] NZHC 528
•1 April 2021
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2021-485-000009
[2021] NZHC 528
BETWEEN VINCENT JESSETT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 March 2021 Counsel:
C Nicholls for Appellant
H M L Farquhar for Respondent
Judgment:
1 April 2021
JUDGMENT OF ISAC J
Introduction
[1] Mr Jessett appeals his conviction on a charge of doing an indecent act with intent to assault or offend1 after a judge alone trial before Judge Tompkins (the Judge).2
[2] There is no dispute that on 30 June 2020 Mr Jessett was walking down his father’s driveway. The neighbour, Mr Hope, had set up CCTV cameras capturing the drive. As he walked, Mr Jessett pulled the top of his pants down and momentarily exposed part of his genitalia to the camera. He did this deliberately. Mr Jessett contends he did so as a protest against Mr Hope’s invasion of his family’s privacy.
[3]The grounds of appeal are:
1 Crimes Act 1961, s 126, maximum penalty two years’ imprisonment.
2 New Zealand Police v Jessett [2021] NZDC 1542.
JESSETT v NEW ZEALAND POLICE [2021] NZHC 528 [1 April 2021]
(a)the conduct was protected under s 14 of the New Zealand Bill of Rights Act 1990 (NZBORA);
(b)the conduct was not indecent; and
(c)the appellant did not act with intent to insult or offend.
[4]The appellant was sentenced to come up if called upon within six months.
[5] Having reviewed the evidence, I am satisfied that the relevant act – fleeting exposure of the defendant’s genital area to Mr Hope’s CCTV camera – does not constitute an indecent act. That conclusion should not be taken by Mr Jessett or others as any form of approval of the conduct. As I explain in this judgment, had the nature of the exposure been different, or the quality and clarity of the image better, the result of the appeal is likely to have been very different.
Background
[6] A shared driveway leads to the appellant’s father’s house as well as Mr Hope’s. It is a double drive, in the sense that the driveway is sufficiently wide to permit separate vehicular access on each side to both properties. For that reason it appears that the Jessett family at least consider their “side” of the shared drive to be their own driveway.
[7] There is also a longstanding feud between these neighbours. Mr Hope has set up CCTV cameras on his property. The cameras stream footage to screens which can be viewed in Mr Hope’s garden shed. The footage is also recorded.
[8] One of the cameras on Mr Hope’s side of the driveway captures the Jessett side as well. Mr Jessett was aware of the cameras and that Mr Hope might view the footage captured.
[9] While walking up the driveway on 30 June 2020, the appellant momentarily exposed part of his genital area by opening his fly and pulling the top of his pants
down as he moved past one of Mr Hope’s CCTV cameras. He did so without stopping or breaking his stride.
[10]Mr Hope later saw the camera footage and contacted the police.
[11] When first spoken to by police the appellant said the he flashed his penis at the camera because of “a really long family feud” between his father and Mr Hope. No mention was made of a protest. When the appellant gave evidence at trial he said he often shows his middle finger, smiles or waves at the camera. He said he does such things to show Mr Hope that he and his family know Mr Hope watches them. At trial Mr Jessett claimed his conduct was a form of protest.
District Court decision
[12]The Judge identified three issues:3
(a)Was the act was indecent?
(b)Did the appellant intended to insult or offend Mr Hope? and
(c)Did the appellant’s conduct amounted to an exercise of his right to freedom of expression under s 14 of the NZBORA.
[13] The Judge began by outlining the law relating to s 126.4 He cited Rowe v R where a majority of the Supreme Court held that two elements must be satisfied in order to establish an offence under s 126: the first objective element is that an indecent act was done, and the second subjective element is that the person who did the indecent act intended to insult or offend.5
3 New Zealand Police v Jessett, above n 2, at [6].
4 At [10].
5 At [10] citing Rowe v R [2018] NZSC 55 at [26]. Mr Rowe had taken photographs of teenage girls in bikinis at the beach without their knowledge and saved those photos to his computer. The issue was whether this behaviour fell within the scope of s 126.
[14] The Judge noted that the Supreme Court declined to follow the previous approach of the Court of Appeal in R v Annas,6 instead finding that:7
Drawing these threads together, the textual considerations discussed suggest that s 126 is primarily directed at exhibitionism, as understood broadly, or display by a person to someone else. That approach is supported by the historical origins of ss 125 and 126 because of the link to the common law offence of outraging public decency.
[15] He also noted the Supreme Court’s finding that the approach to be undertaken when determining if an act is indecent is an assessment of the quality of the act itself,8 and that the surrounding circumstances such as the defendant’s motive or purpose cannot make indecent an act that otherwise is not.9
[16] Burley v Police, a decision prior to Rowe v R, was then cited.10 There, the defendant was in the study in his home, completely naked except for a balaclava over his face. He employed various sex toys on himself for 10 to 15 minutes in full view of his neighbours, who were young women. Mr Burley said he thought the prospect of being seen by the young women – with whom he made eye contact several times – excited him, and he thought they might enjoy his performance.11 Mr Burley denied intending to cause offence to the women.12 The Judge summarised Gendall J’s ultimate finding that Mr Burley had committed the offence under s 126, as Mr Burley was clearly aware that he might be seen by his neighbours, and was in fact seen, but continued in open view of them.13
[17] Next, the Judge looked at cases involving nudity and the right to freedom of expression under s 14 of the NZBORA.14 He noted the test for what may fall within
6 At [12], citing R v Annas [2008] NZCA 534.
7 At [13] citing Rowe v R, above n 5, at [62].
8 At [14], citing Rowe v R, above n 5, at [63].
9 At [14], citing Rowe v R, above n 5, at [63]. The Judge noted that the majority of the Supreme Court declined to outline the exact scope of s 126 but held that it was clear that Mr Rowe’s actions were not indecent and did not satisfy the first element of the test under s 126.
10 At [16], Burley v Police [2015] NZHC 324.
11 At [16], citing Burley v Police, above n 10, at [5].
12 At [16], citing Burley v Police, above n 10, at [5].
13 At [18], citing Burley v Police, above n 10.
14 At [19], citing Pointon v Police [2012] NZHC 3208 (Mr Pointon, a naturalist, was encountered running fully naked in a park. He was charged with offensive behaviour under the Summary Offences Act 1981. Heath J found that Mr Pointon was exercising his right to freedom of expression, and that a reasonable person would not have been offended to a degree to warrant the invocation of the criminal law); Lowe v Police HC Wellington CRI-2009-484-135, 2 March 2010
the bounds of freedom of expression under s 14 was discussed in the Court of Appeal’s decision in Attorney-General v Smith.15 The Court held that the meaning Parliament intended for s 14 of NZBORA was that it only applies to cases in which a party is conveying or attempting to convey a meaning to others.16
[18]The Judge then turned to the first issue: whether the act was indecent.
[19] He was of the view that the act itself – the appellant exposing his penis – was an indecent act within the scope of the approach taken in Rowe v R.17 He noted the Supreme Court in Rowe v R considered the purpose of s 126 is to deal with exhibitionism, the display by a person to someone else.18 That is exactly what the appellant did by displaying his penis to a camera owned by Mr Hope, and the appellant knew that his actions would result in the footage Mr Hope would see.19
[20] The Judge also concluded that the appellant intended to insult or offend Mr Hope.20
[21] He considered the appellant’s actions stemmed from the longstanding animosity between the families, before noting that the appellant himself said that his intentions were to be “rude”21 and that his actions on this occasion “went a bit too far I think, obviously.”22
[22] The Judge acknowledged the appellant’s conduct was less prolonged and less serious that the conduct in Burley v Police23 but said it was clear that the appellant
(Mr Lowe, a naturalist, was seen riding a bike. Clifford J found that Mr Lowe’s behaviour was not offensive, as he was a genuine naturalist, the complainant never actually saw Mr Lowe’s genitals, and although she was disgusted by the behaviour, this was not enough to meet the (then) test for offensive behaviour).
15 At [22], citing Attorney-General v Smith [2018] NZCA 24. Mr Smith, a prison inmate, considered that it was a breach of his right to freedom of expression not to allow him to wear a wig while in prison.
16 At [22], citing Attorney-General v Smith, above n 15, at [49].
17 At [25], citing Rowe v R, above n 5.
18 At [26].
19 At [26].
20 At [27].
21 At [27].
22 At [28].
23 At [29], citing Burley v Police, above n 10.
intended to offend and insult Mr Hope with his actions; it was both a continuation of and an escalation of his past behaviour towards Mr Hope’s cameras.24
[23] Lastly, the Judge turned to consider whether the appellant’s conduct was protected by s 14 of the NZBORA.25
[24] The Judge reiterated the test in Attorney-General v Smith that whether someone is exercising their right to freedom of expression is dependent on whether they conveyed, or attempted to convey, some meaning with their actions.26 He noted it was clear that the appellant was attempting to convey some meaning to Mr Hope with his actions, which was to offend him, even if it was in the form of a protest as the appellant asserted.27
[25] The Judge considered the appellant’s case differed from Pointon and Lowe,28 both of which concerned whether nudity constituted offensive behaviour under the Summary Offences Act, rather than an indecent act under the Crimes Act.29 Despite this, the Judge considered the reasoning and commentary from those cases to remained useful.30 He said in both those cases the nudity was not seen as offensive because both men were naturalists who often went about and exercised naked.31 And, the men did not intend to offend anyone but were merely exercising their right to freedom of expression, to show themselves as naturalists.32
[26] President Kós’ comments in Attorney-General v Smith were said to be particularly relevant:33
Protected expression is involved, for the reasons noted above at [33] of this judgment. But if Mr Pointon then puts his clothes on for the run home from the forest, the situation is quite different. In now adopting orthodox attire, he conveys no particular meaning to anyone seeing him.
24 At [29].
25 At [30].
26 At [32], citing Attorney-General v Smith, above n 15.
27 At [32].
28 At [33], citing Pointon v Police, above n 14, and Lowe v Police, above n 14.
29 At [33].
30 At [33].
31 At [34].
32 At [34].
33 At [35] citing Attorney-General v Smith, above n 15, at [50].
[27]The Judge concluded:
[36] Mr Jessett’s momentary exposure of his penis to Mr Hope’s security camera is undoubtedly offensive. Although Mr Hope explains that he was motivated by a wish to protest, he nevertheless intended to do, and did, an offensive act. It would be a somewhat unusual outcome if a person’s right to freedom of expression under s 14 of NZBORA affirmed them legal protection to offensively expose their penis at a camera whenever they objected to the camera filming them.
[37] Put another way, I do not consider that protection under s 14 of NZBORA should allow a person, who has deliberately exposed their penis to another person (albeit via a camera), to escape conviction for an offence that the majority of the Supreme Court in Rowe v R determined was expressly created to deal with such exhibitionism.
[28] The Judge therefore found that the appellant’s actions amounted to an indecent act,34 the appellant intended to insult or offend Mr Hope with this act,35 and that s 14 of the NZBORA did not protect the appellant from criminal responsibility for his actions.36 The test under s 126 of the Crimes Act had been met.37
Approach on appeal
[29] An appeal against conviction entered following a Judge-alone trial will only be successful if the appeal court finds that the trial court erred in its assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that “a miscarriage of justice has occurred for any reason”.38 A miscarriage of justice means any error, irregularity, or occurrence in relation to the trial that has created a real risk that the outcome of the trial was affected, or which resulted in an unfair trial.39
[30] In Sena v New Zealand Police the Supreme Court examined the role of s 232(2)(b) and the general function of an appellate court.40 The Court held that if an appeal court comes to a different view from that of the trial judge on the evidence, it follows that the lower court has erred and the appeal must to be allowed.41 This
34 At [38].
35 At [39].
36 At [40].
37 At [41].
38 Criminal Procedure Act 2011, s 232(2)(b) and (c).
39 Section 232(4).
40 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
41 At [38].
approach does not mean the role of the appellate court is to consider the issues de novo as if there had been no hearing at first instance. It remains for the appellant to show that an error has been made, and in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had.42
Submissions
Appellant
[31] The appellant says s 126 of the Crimes Act must be given a meaning consistent with the right to freedom of expression in s 14 of the NZBORA, if it can be given such a meaning. He acknowledges that s 126 is a restriction on the s 14 right, but that s 126’s scope depends on its meaning and purpose.
[32] Because s 126 appears in a sub-part of the Crimes Act entitled “Crimes against morality and decency”, the appellant submits the test requires consideration of what the community think of the behaviour in the context that it happened, and not what the individual witness who viewed footage of the behaviour thought.
[33] The appellant cites the Supreme Court’s – and particularly Elias CJ’s – decision in Brooker v Police, where the Court considered what amounts to disorderly behaviour for the purposes of the Summary Offences Act.43 He says the principles remain the same in this context. He draws particular attention to Elias CJ’s statement that:44
Unpopular expression will often be unsettling and annoying to those who do not agree with it…A tendency to annoy others, even seriously, is insufficient to constitute the disruption to public order which may make restrictions upon freedom of expression necessary.
[34] In this regard, the appellant says the focus ought to be on public morality and decency. Should the public be offended by what the appellant has done? When assessed in context,45 the appellant fleetingly exposing himself as a protest to what
42 At [38].
43 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91, (2007) 23 CRNZ 346.
44 At [12].
45 The appellant also referred to the Court of Appeal’s decision in R v Brooker (2004) 22 CRNZ 162, [2004] NZAR 680 (CA) to establish that the meaning given to an offence as defined depends on context, and that the Court of Appeal treated the offence of disorderly behaviour as entailing a question of degree: was the behaviour such as to merit criminal law sanction when measured by its tendency to annoy or offend a reasonable person?
Mr Hope was doing (which the appellant found intrusive and violating) was not objectively offensive.46
[35] The appellant also argues it was wrong for the Judge to find beyond reasonable doubt that he intended to insult or offend Mr Hope, given he was protesting.
[36] He contrasts these facts with those of Burley v Police.47 In the present case, it is said, there was a momentary exposure of the appellant’s penis to the camera, but that went “nowhere near as far as the appellant in Burley.” Although it can be inferred the appellant expected Mr Hope to review the footage, it is reasonably possible that he did not intend to insult or offend; rather just be noticed expressing himself that he did not like being filmed on his father’s driveway.
[37] The appellant also says the Judge’s analysis of how s 14 should be interpreted in reliance on Rowe v R48 appears to conflict with the analysis of the Supreme Court in Brooker v Police.49
Respondent
[38] The respondent says that it was established on the evidence before the Judge that the appellant did an indecent act and did so with an intention to insult or offend.
[39] The appellant’s conduct is clearly the kind of conduct that constitutes an “affront to the public” and was intended to be captured by s 126.
[40] It was equally established to a standard beyond reasonable doubt that the appellant intended to offend or insult Mr Hope. It was clear on the evidence that the
46 The appellant says judicial notice ought to have been taken of the fact that it is only recently that CCTV technology has become available to the general public relatively inexpensively and has allowed people like Mr Hope to set up numerous cameras around his residential property. He says the New Zealand public may consider being watched 24-7 on their own property to be extremely uncomfortable and unsettling.
47 Burley v Police, above n 10. At [42] Gendall J observed that Mr Burley’s “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…” And at [53] Gendall J concluded that “he [the appellant] 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.”
48 Rowe v R, above n 5.
49 Brooker v Police, above n 43
appellant was aware he was being observed directly by the CCTV camera but also that Mr Hope was likely to review the footage and see the appellant exposing himself. And it was clear that the appellant’s intention was to insult or offend Mr Hope. The act occurred against a backdrop of ongoing animosity between the families, and the appellant acknowledged in his evidence that he often walked past the camera and did something “rude”.
[41] The respondent submits although the appellant says that his intention was to protest the presence of cameras, this does not preclude a simultaneous intention to insult or offend.50
[42] In relation to the NZBROA argument, the respondent accepts that the appellant’s act in this case constituted “expression” and that s 126 places a limit on the appellant’s right to expression but says the conditions of s 5 of the NZBORA are easily satisfied. Section 126 prevents people exposing their genitals where the purpose is to insult or offend and is clearly justified in a free and democratic society; it is a matter of public safety and decency. And the means – the prohibition under s 126 – is also justified. The harm posed by people exposing their genitals to insult or offend is sufficiently serious to warrant criminal sanction.
[43] In accordance with the Hansen methodology, the apparent inconsistency with s 14 is demonstrably justified under s 5. Section 6 of the NZBORA is therefore not engaged.51
Analysis
Indecent act
[44] Mr Jessett’s case does not engage a fundamental human right such as freedom of expression or the right to protest. Rather, it turns on whether the relevant act was indecent.
[45]Section 126 of the Crimes Act provides:
50 Citing Burley v Police, above n 10, at [25].
51 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [88]-[92] per Tipping J.
Every one is liable to imprisonment for a term not exceeding 2 years who with intent to insult or offend any person does any indecent act in any place.
[46] As noted by the District Court, there are two elements to the s 126 offence: the doing of an indecent act, and an intention to insult or offend. The test for the first element is objective. The second element raises a subjective question.52 The act need not occur in public, but it must be done with an intention to insult or offend others.53
[47] In Rowe v R, the Supreme Court observed that s 126 is directed towards exhibitionism or display by a person to someone else.54 Exposure of the genitals or masturbation are classic examples of conduct proscribed by the section.55
[48] Central to the Supreme Court’s conclusion that Mr Rowe’s covert photography of girls on a beach was the finding that the focus is on the quality of the act. There must be something in the nature of the act that is an affront to the public so as to make it indecent.56 Surrounding circumstances such as the defendant’s motive or intention cannot make an act that would not otherwise be indecent into an indecent act under s 126.57
What was the indecent act here?
[49] An unusual feature of the present case is that the exposure was not directly to a human observer. It was captured by a video camera, which was later seen by Mr Hope in his home. In this sense, this case is different from cases such as Rowe, as it is the content – and not the act of taking – of the photograph or image that is in issue.58 Does that make any difference?
[50] In my view, it does. The relevant act in this case was the presentation to the camera and the image that was then captured. The intermediation of the camera is important. The act did not involve a direct visual confrontation with the observer,
52 Rowe v R, above n 5, at [26].
53 At [32].
54 At [32].
55 At [33].
56 At [63].
57 At [63].
58 Rowe v R, above n 5.
which is a common hallmark of cases of indecency involving exposure, and a factor in my view going directly to the assessment of whether the act is indecent.59
[51] The question is therefore whether exposure to the camera is an indecent act? In my view, having seen the content of the video, it was not. I consider the extent, duration and lack of clarity of the exposure in the present case can be distinguished from cases involving flashers and other forms of direct exposure that have been found to constitute an offence under s 126.60
[52] The video is 13 seconds long in total. It is taken during the day, but it is raining and the sun is low on the horizon causing significant shadows and light reflections.
[53] The picture quality is also very poor. While it is certainly possible to discern Mr Jessett Snr’s driveway, some shrubs separating part of it from Mr Hope’s drive, and the pavement and road outside the front of the driveways, the picture is grainy and unfocussed.
[54] As the video begins, a person can be seen entering Mr Jessett Snr’s driveway walking with the sun behind their back. They appear as a black shadow.
[55] The shadowy figure walks towards the camera, but remains in shadow with no features discernible until seven seconds into the video. At that point, the individual can suddenly be seen to be wearing a blue-coloured top, dark pants and a rain-jacket draped over their head. It is not possible to see their face at this point.
[56] While walking towards the camera, and without stopping, slowing or breaking their stride, the figure can then be seen to open what may be a fly on their pants. At the nine second mark, the front of the fly is pulled open and down momentarily, revealing for what might be half a second a grainy view of the pubic area and, most likely, part of a penis. This occurs when the figure is some distance from the camera,
59 Burley v Police, above n 10, Bulloch v Police HC Rotorua AP 27/99, 15 May 2000 and Lowe v Police, above n 14 (albeit that the charge of offensive behaviour was not made out).
60 This case highlights whether provisions in the Crimes Act dealing with crimes against morality and decency are applicable to situations involving digital recording devices. If Mr Jessett’s act of creating a video of his genital area is looked at under the lens of the Films, Videos, and Publications Classification Act 1993, it is unlikely to constitute an objectional publication.
still moving, and is looking down toward the ground. And as noted, the relevant exposure lasts less than a second.61
[57] The individual’s pants are very rapidly closed and after walking a few more steps, after 11 seconds, the individual has moved out of the field of view captured by the CCTV camera.
[58] Viewed objectively, and judging the quality of the act itself rather than the appellant’s intention or motive, I am not satisfied it was indecent. Although I acknowledge it is a different context, viewers of public television after 8.30pm will be exposed to far more explicit, vivid and sustained images of the human body.
[59] And while I have no doubt that Mr Jessett did have an intention to insult or offend Mr Hope by this momentary exposure at his CCTV camera, in keeping with Rowe it is the quality of the act itself rather than the appellant’s state of mind that must render the act indecent.62
[60] Had Mr Jessett’s conduct been capable of being seen from a public place I also have no doubt the conduct could amount to offensive behaviour contrary to s 4(1) of the Summary Offences Act or indecent exposure under that Act. But the key factor here in my view is identification of the relevant act. I have found that the act was the most fleeting exposure by Mr Jessett of part of his genital area to a CCTV camera, and thus the creation of the image itself. Having viewed the image, it cannot be said to be indecent in the sense that it is an affront to the public,63 or – perhaps most fundamentally – is sufficiently serious to warrant the sanction of the law.64
[61] Also relevant to an assessment of whether the making of the image was indecent in my view are two further factors. First, it appears that Mr Jessett was on his father’s side of the driveway when he was filmed by Mr Hope. He was facing away
61 Little of this detail is likely to be clear from a single viewing at normal speed and without stopping the video.
62 Rowe v R, above n 5.
63 Rowe v R, above n 5, at [63].
64 See the trial Judge’s direction discussed and upheld in R v Dunn [1973] 2 NZLR 481 (CA), at 482–484.
from the road, and what he did could only ever have been seen by someone on private land, or who had access to the video feed from the CCTV camera.
[62] It has been said that community attitudes on what is indecent are likely to be more permissive where acts in question take place on private property, particularly where they are witnessed fortuitously.65 In Bulloch v Police,66 Rodney Hansen J observed that the question whether or not an actor could reasonably have foreseen that his or her conduct would be seen plainly would be a factor in coming to a final judgment as to whether the act could be said to be indecent. Going on to consider the tension between observation of potentially obscene acts occurring on private property, and the right to privacy, his Honour, albeit in obiter, stated:67
A judgment as to whether acts committed in the privacy of a home are to be characterised as indecent for the purpose of the criminal law ultimately requires a balancing of individual rights and the public interest. The individual right may be broadly identified with the right to privacy. Even if that does no more than give practical effect to the old maxim “A man’s house is his castle”, it reflects “a reasonable expectation of privacy which is part of our shared heritage”: R v Menzies [1982] 1 NZLR 40, 51 (CA).
The right to a measure of protection from prying eyes is recognised by the criminal law in New Zealand in the offence of peeping or peering into a dwelling house – s 30 Summary Offences Act 1981. That may more accurately reflect current community standards as to when it is appropriate for the law to intrude in cases such as the present. There may be a sizeable section of the public who, glimpsing through a window an act which would be indecent if performed in public, would see it as proper to immediately avert their eyes and hurry on.
[63] While the images here were not of Mr Jessett inside the home, they were of him making his way lawfully down his father’s driveway. The issue that has arisen is that Mr Hope’s desire to be kept safe from the unwanted attentions of the Jessett family have led him to install CCTV cameras which capture the Jessett side of the driveway. And to the extent he captures images of the Jessett family on their property, it calls into question their interests in privacy and to be free from unwanted observation or recording.
65 Bulloch v Police, above n 59, at [23].
66 At [23]. Bulloch involved an appeal against conviction under s 126. The circumstances were that the appellant had been observed by two women clearly masturbating in a room in his house. He was visible to them through a window. The Court found that rather than engaging in an obscene performance directed at the observers, unknown to them Mr Bulloch was in the middle of consensual relations with an intimate partner, and his actions were merely part of that congress.
67 At [24]-[25].
[64] Second, if the relevant act of indecency ends with the observation of the video footage, which arguably it does, there was always the prospect that no-one would be watching the live-stream as the exposure occurred, or that no-one would sit down later and watch the 11 seconds in issue. Regardless, the evidence suggests the viewing occurred in Mr Hope’s home, well removed in place and time from Mr Jessett, or his exposure to the camera. Those circumstances inform the quality of the act in question, in my view, and do not support a conclusion that the making of the image was an indecent act. As I understand the evidence, Mr Hope watched the video after it was brought to his attention by his wife. The fact Mr Hope actively went back through the footage does not of course excuse Mr Jessett’s behaviour, but the element of unexpected and unwanted confrontation implicit in the offence is significantly reduced in these circumstances. That in turn informs the assessment of whether the act was indecent.
[65] Overall, I disagree with the Judge’s approach. He appeared to accept, consistent with Rowe, that exposing genitalia was, per se, an indecent act.68 But in my view, the error of approach arose in the failure to focus on the nature of the exposure, the intermediation of the camera, and on the clarity (or lack of it), length and content of the footage itself. Committing an indecent act is a serious offence. While clearly there are a range of acts that will be caught by s 126, given the content of the video, I do not consider Parliament could have intended to criminalise the conduct in issue here.69
[66] Having arrived at this conclusion, I need to stress to Mr Jessett, his family and to the wider public that in no way should this judgment be taken as condonation of what Mr Jessett did. My judgment is very much confined to the particular facts of this case, and the nature of the footage captured on Mr Hope’s CCTV camera. Had the footage been clearer, more explicit, or had the act not been so fleeting, it is highly likely that Mr Jessett’s appeal would not have been successful. And given the troubled history between Mr Hope and the Jessett family, this decision should not at all be taken as any form of encouragement of Mr Jessett’s behaviour. It was offensive and inappropriate.
68 Rowe v R, above n 5.
69 The conduct might, of course, constitute an offence under other enactments.
Did Mr Jessett have an intention to insult or offend Mr Hope?
[67] Although given the findings I have reached it is not strictly necessary to address the second ground of appeal, as I have noted, I have little hesitation in concluding that Mr Jessett had an intention to insult or offend Mr Hope when he exposed himself to Mr Hope’s CCTV camera. The appellant knew the camera was there, it was operating, and that Mr Hope would review the footage. The appellant said:
I knew, I had a fair idea that Chris would go back and look for it.
[68] Equally, when asked in cross-examination whether sometimes the acts he did towards the camera were going to be insulting he said, “sometimes it is, yeah.”
[69] I have no doubt that the appellant exposed his penis as a form of what he thought amounted to a protest. But this concurrent intention does not preclude a finding that he also intended his actions to be insulting or offending. In Burley v Police, Gendall J accepted that intentions can exist simultaneously.70 There, the relevant intentions were sexual gratification and an intention to insult or offend. Here, the relevant intentions were to ‘protest’ and insult or offend.
[70] This subjective stage of the inquiry must of course be located in a context of ongoing animosity between the neighbouring families. This was not a friend “flashing” another friend where an intention to insult or offend would be less obvious.
NZBORA
[71] Given the conclusion I have reached on the first ground of appeal, it is unnecessary to traverse the final ground advanced in support of the appeal, based on the NZBORA.
Conclusion
[72] The appellant has established the Judge made an error to the extent a miscarriage of justice has occurred.
70 See Burley v Police, above n 10, at [25].
[73]The appeal is allowed and the conviction quashed.
Isac J
Solicitors:
Crown Law Office, Wellington
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