Ker v Police - [2014] NZHC 1227

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 Respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ker v Police

Details

AGLC: Ker v Police [2014] NZHC 1227
Case: [2014] NZHC 1227
Decision Date: 3 June 2014

CaseChat Overview and Summary

In Ker v Police, Brian Ker appealed his conviction of indecent exposure under the Summary Offences Act 1981. Ker had been observed naked in a carpark adjacent to a school and was subsequently charged and convicted in the District Court. The High Court considered whether the District Court erred in convicting Ker of indecent exposure, and if so, whether it could substitute a conviction for a lesser offence. The court identified several issues, including whether the exposure was intentional and whether it was obscene. The court found that while Ker's actions were thoughtless and inappropriate, they did not reach the standard of obscenity required for a conviction of indecent exposure. Instead, the court found that Ker's actions constituted offensive behaviour under the Act. The appeal against conviction was allowed, and Ker was convicted of the lesser offence of offensive behaviour. The High Court reimposed the original fine of $500 and confirmed the order for payment of court costs in the District Court.

Orders