Ker v Police
[2014] NZHC 1227
•3 June 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000089 [2014] NZHC 1227
BETWEEN BRIAN KER
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 26 May 2014 Appearances:
D Nairn for Appellant
J Barry for RespondentJudgment:
3 June 2014
JUDGMENT OF VENNING J
This judgment was delivered by me on 3 June 2014 at 5.00 pm, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland
Copy to: D Nairn, Auckland
KER v NZ POLICE [2014] NZHC 1227 [3 June 2014]
Introduction
[1] Following a defended hearing before Judge J Bergseng in the District Court at Manukau Brian Ker was convicted of indecent exposure under s 27 Summary Offences Act 1981 (the Act).1 Mr Ker appeals against conviction.
Background
[2] On 18 November 2013 Mr Ker was in a carpark behind East Tamaki Primary School. Mr Ker’s vehicle, a Isuzu Trooper, and his large covered trailer, uncoupled from the Isuzu, were parked in the carpark. The Isuzu and trailer were visible from two classrooms on the school grounds. Mr Ker, who was living out of his Isuzu and trailer at the time, decided to have a sponge bath. To this end he took a tub from the Isuzu, undressed and washed himself in a space between the Isuzu and trailer.
[3] As a result of information received, Constable Fox was directed to the carpark at about 11.55 am. As he drove into the carpark he saw Mr Ker walking around the side of his Isuzu. Mr Ker was naked. When Mr Ker saw the officer he went into the trailer and put on a pair of shorts before emerging again. Constable Fox called for back-up. Constable Dalton arrived and spoke to Mr Ker. Mr Ker was arrested and charged with indecent exposure. He made a statement to Constable Dalton. Constable Fox took a number of photographs of the surrounding area demonstrating the layout of the carpark and the line of sight between Mr Ker’s Isuzu and trailer and the school grounds and classrooms.
[4] Constable Dalton gave evidence that the appellant told him:
“From this morning I was up I did a few errands, I then did a bit of, did a bit of painting, it was very hot I began to swelter, I was wearing long pants and a shirt, I thought I had better get changed, but because I had been [sweating] I thought I had better have a wash. To clarify my errands did not take me away – so it didn’t take me away from my trailer I was doing things at the trailer.
I said, “So to have a wash did you have to take off clothing?” He said, “Yep, but I didn’t just take it off, I know there’s kids around so I waited until there were none around I also keep out of sight. So I looked around and decided it was okay at that time so I had a wash and saw a police car there.”
I said “Why are there kids around?” “So why are there kids around?”
He said, “Well there’s a school there just next to the big six foot fence but the grass goes up and the buildings are high. My trailer is completely out of view.”
I said, “The place where police spoke to you are you living out of your car there?”
He said, “Yes, I don’t like to say “living” I’m parked there for the moment.” I said, “Did you go into the school grounds?”
He said, “No, I have no purpose to be there”.
I said, “Do you believe that on reflection being naked that close to a school
is appropriate regardless of fences and buildings?”
He said, “No, I don’t I believe that from what has happened it’s not a good idea.”
Mr Ker signed the officer’s notes confirming the statement as correct.
[5] Mr Ker elected not to give evidence.
The offence
[6] Section 27 of the Act provides:
27 Indecent exposure
(1) Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding [$2,000] who, in or within view of any public place, intentionally and obscenely exposes any part of his or her genitals.
(2) It is a defence in a prosecution under this section if the defendant proves that he or she had reasonable grounds for believing that he or she would not be observed.
District Court decision
[7] The Judge was satisfied from Constable Fox’s evidence that Mr Ker had been naked in the carpark and had thus exposed his genitals outside.2 He held the carpark was a public place and concluded that the act of exposure had been intentional. Mr Ker had made a deliberate decision to undress himself and wash in the carpark. The
Judge noted that it was unnecessary the act be seen by any other person for it to be obscene. He relied on R v Ceramalus3 for the proposition that for conduct to be obscene it must be capable of offending contemporary stands of propriety such that a reasonable observer would regard it with loathing, disgust and revulsion. It is implicit in the judgment the Judge considered these requirements made out as he held Mr Ker’s behaviour was, in context, “clearly obscene”.4
[8] Finally, Judge Bergseng rejected the defence under s 27(2). He did not consider Mr Ker had reasonable grounds to believe he would not be observed because even if he did use the door of the trailer as a screen, by walking in front of the trailer he exposed himself to the view from the school and the public generally.
The appeal
[9] In wide ranging submissions filed for the appeal Mr Nairn raised seven separate grounds of appeal:
(a) the Judge was wrong to conclude Mr Ker had exposed his genitals; (b) the Judge applied the wrong test for obscenity;
(c) the Judge failed to properly address the question of obscenity;
(d)the Judge applied the wrong mens rea and that he only asked if the appellant had exposed himself deliberately, not whether he intended in doing so to be obscene;
(e) the Judge applied the wrong standard or burden of proof to the question of whether Mr Ker had reasonable grounds to believe he
would not observed;
3 The judgment refers to R v Ceramalus [2012] 2 NZLR 46 (CA). However, that case dealt with a charge of behaving in a disorderly manner. It was Ceramalus v Police (1991) 7 CRNZ 678, which discussed the concepts of behaviour calculated to wound feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person in the context of a charge of offensive behaviour.
4 New Zealand Police v Ker, above n 1, at [13].
(f) the Judge erred in concluding that it was unreasonable for Mr Ker to think no-one at the school would see him given no-one at the school saw him; and
(g)the Judge erred in noting that an action could be indecent exposure even if no-one saw it.
[10] With respect to counsel’s submissions a number of the grounds are answered
by clear authority.
[11] As to ground (d), there is no requirement the exposure be done with intent that it be obscene. It is implicit in the phrasing used in s 27 “intentionally and obscenely” that there are two separate criteria. The act must be intentional and must also be obscene. For the act of exposure to be intentional requires nothing more than it be done deliberately. It need not be done with an intention to offend or to be obscene. In Philpott v Police Heron J said:5
[the Judge] was certainly not entitled to take into account an absence of intention to offend (and he did not do so) because the test is an objective one once the exposure is found to be deliberate. The absence of any necessary intention to offend may be part of the background circumstances but such a state of mind is not a necessary ingredient of the offence.
[12] As to ground (g), while for the act to be obscene it must have been possible for the act to be seen by someone else (Walker v Crawshaw),6 it is not necessary that the act actually be seen. Once it is established by evidence that the accused intentionally exposed his genitals, the issue of whether his conduct was obscene is determined by an objective inquiry. It is not necessary for the Court to find that persons present found the behaviour offensive. Again authority confirms the position. It is sufficient if the Court considers it would be so regarded by a person
whose views are representative of the community.7
5 Philpott v Police HC Christchurch AP 138-142/93, 13 July 1993 at 10.
6 Walker v Crawshaw [1924] NZLR 93.
7 Rogers v Police HC Auckland M873/75, 6 August 1975.
[13] In Cullen v Meckelenberg8 the Court accepted that it was sufficient if the behaviour could be witnessed to conclude the exposure was obscene. Of course, the practical position is that in each case something will have brought the behaviour to the attention of the authorities.
[14] The remaining points on this appeal can be summarised in the following propositions, namely that the Judge erred in finding that:
(a) Mr Ker exposed his genitals; (b) he did so intentionally;
(c) he did so in a manner which was obscene; and
(d)he did not have reasonable grounds for believing he would not be observed.
Did Mr Ker expose his genitals?
[15] Mr Nairn contended there was insufficient evidence for the Judge conclude beyond reasonable doubt Mr Ker actually exposed his genitals. Although this does not appear to have been an issue before the District Court Judge I accept it is an element of the offence which the Crown was required to prove beyond reasonable doubt. However in light of the evidence of Constable Fox that, when he arrived at the car park he observed Mr Ker to be unclothed, and that Mr Ker had walked directly into the officer’s line of sight as he walked from the far side of the trailer it was open to the Judge to conclude that was sufficient evidence Mr Ker had exposed
his genitals. As Heron J observed in Philpott v Police:9
Male genitalia does not lend itself to any refinement as to the extent to which
it is exposed once clothing is removed, …
Further, Constable Fox subsequently instructed his staff to arrest Mr Ker for being naked in public in front of the primary school children. The inference is that his genitals were exposed. There is no merit in this point.
Was the exposure intentional?
[16] Mr Ker conceded in his statement that he intended to have a wash. He deliberately took off his clothes. In taking off all his clothes and, subject to the defence in s 27(2), there is sufficient evidence that he intentionally exposed his genitals.
Was Mr Ker’s behaviour obscene?
[17] The principal issue in this case is whether Mr Ker’s action of exposing his genitals while he bathed in a carpark when he was potentially visible to school children at a primary school on the other side of the carpark was obscene.
[18] Mr Nairn submitted Mr Ker’s behaviour did not reach the requisite standard to be obscene. Counsel referred to Ceramalus v Police.10 Mr Ceramalus was charged with behaving in an offensive manner. In that case, while a group of primary school children and teachers were on a public beach Mr Ceramalus had walked past naked, spread out his towel nearby and proceed to sunbathe. The police were called and requested Mr Ceramalus to move further down the beach. He
refused to do so. He was arrested and charged with offensive behaviour. He was convicted in the District Court. On appeal Tompkins J considered the behaviour might be regarded as inappropriate, unnecessary and in bad taste, but it was not offensive behaviour sufficient to warrant the interference of the criminal law. Mr Nairn submitted that similarly, a reasonable observer would not regard Mr Ker’s behaviour with loathing, disgust and revulsion.
[19] In Ceramalus v Police11 Tomkins J identified three principles. First, the test is objective. Would the behaviour be regarded as offensive in the mind of a reasonable person? Second, the judgment of the conduct in question must, in every
case, be a matter of degree depending on the relevant time, place and circumstances.12 Behaviour that may be regarded as offensive in one place, or under certain circumstances, will not be so regarded in another place or under other circumstances. Third, the behaviour must amount to an interference with the rights of others sufficiently serious to warrant the interference of the criminal law.
[20] Since Ceramalus the Supreme Court have clarified the test for offensive behaviour in Morse v Police.13 Blanchard J described offensive behaviour as:
[67] ... behaviour capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind actually subjected to it in the circumstances in which it occurs, so that there is directly or indirectly (as discussed above) a disturbance of public order.
[21] The offence of indecent exposure under s 27 of the Summary Offences Act is regarded as more serious than offensive behaviour as it carries a maximum penalty of three months’ imprisonment or a fine not exceeding $2,000 whereas offensive behaviour carries the maximum penalty of a fine of $1,000.
[22] In Philpott v Police Heron J cited the general considerations referred to by Tompkins J and noted the charge of indecent exposure was directed, not at the preservation of moral standards, but protecting people from conduct which would give rise to loathing, disgust and revulsion. Where no such reaction is likely, and people are otherwise protected from it, then that has a bearing on whether the exposure is obscene.
[23] In principle I accept there could be situations where the exposure of genitals may not go so far as to be obscene (giving rise to loathing, disgust and revulsion) under s 27(1) but would be offensive behaviour under s 4(1)(a) (giving rise to arousing feelings of disgust or outrage). There is no bright line between the two offences. While the Supreme Court rejected the proposition that offensive behaviour under s 4(1)(a) was confined to indecent behaviour, it did not suggest indecent
behaviour was not or could not be offensive behaviour.14
12 Wainwright v Police [1968] NZLR 101 (SC) at 103, and Kinney v Police [1971] NZLR 924 (SC)
at 925.
13 Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1.
[24] In this, as in most cases, context is everything. The particularly relevant circumstances are that this was a public place but, unlike a nudist beach (or even a beach) where one might expect to confront partial or full nudity, members of the public would not expect to see a naked man in a carpark. Further, this carpark was adjacent to a school (even if not connected to the school). The evidence is that Mr Ker would have been in direct line of sight to the school. The incident occurred on a school day during term time at about the middle of the day.
[25] That Mr Ker did not have a reasonable expectation he would not be seen does not make the conduct obscene or offensive by itself but the fact he considered the issue is evidence that he perhaps appreciated the time, place and circumstances made his actions inappropriate.
[26] Next, it is relevant that there is no great utility in Mr Ker’s behaviour and no fundamental rights are infringed by its sanction. While there may have been no harm in that there has been no evidence of any child actually seeing Mr Ker the potential for that existed. As noted it is, in any event, not a requirement. The test under both offences is objective. Mr Ker’s actions were potentially an interference with the rights of others. Primary school children should not be potentially subjected to men exposing their genitals in a way visible to them while at school.
[27] Against that, the exposure of Mr Ker’s genitals was in the course of his washing himself. While thoughtless and inappropriate, the decision to wash himself which led to the exposure was not as blatant as other examples of exposure.
[28] Assessing Mr Ker’s behaviour as best as I can in the circumstances before the Court, I consider that, while it may not reach the standard of revulsion or loathing required for obscenity, it clearly satisfies the test for offensive behaviour as arousing feelings of disgust and outrage in the minds of reasonable people so as to lead to a disturbance of public order.
[29] It is open for this Court, on appeal, to direct a judgment of conviction for a different offence where, as here, the trial Court could have substituted the offence of
offensive behaviour and Mr Ker could have been found guilty of that offence.15
Further, the trial Judge must at least have been satisfied of the facts necessary to prove Mr Ker guilty of that offence.
Is the defence made out?
[30] In the circumstances, it is strictly unnecessary to determine whether Mr Ker had reasonable grounds to believe he would not be seen. But I am satisfied the Judge was correct to reject the defence. It is also relevant to penalty.
[31] Mr Ker elected not to give evidence. The high point of his case in response to his intention to support the defence is to be found in his statement. He said that he waited, looked around and decided it was okay because there were no children around and he also kept out of sight. He said his trailer was completely out of view.
[32] However, the evidence of Constable Fox is that both the Isuzu and the trailer were in a direct line of sight across the carpark and school grounds to school rooms. The photograph exhibits confirm Constable Fox’s evidence. They show the classrooms as being elevated above the car park and looking down on it. The Judge was entitled to infer from the constable’s evidence and the photographs that there was a direct line of sight from them to Mr Ker’s Isuzu, trailer and Mr Ker when he was naked. Critically, at the time the constable observed Mr Ker naked he was walking around the front of the trailer. There was no cover between him and the school at that time. He could not at that stage have had a reasonable belief he would not be seen. Mr Ker would not have been able to rely on the defence in s 27(2).
Summary/result
[33] For the above reasons I conclude that Mr Ker did not obscenely expose his genitals but, in a public place, he behaved in an offensive manner. The appeal against conviction is allowed. The conviction under s 27(1) of the Act is quashed.
Mr Ker is instead convicted of an offence under s 4(1)(a) of the Act. Given the
15 Criminal Procedure Act 2011, s 234.
circumstances of the offending, I re-impose the fine of $500 and confirm the order
for payment of Court costs in the District Court.
Venning J