L v Police HC Wellington CRI-2009-485-135

[2010] NZHC 137

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-485-135

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 February 2010

Appearances: M Bott for the appellant

M Snape for the respondent

Judgment:      2 March 2010

JUDGMENT OF CLIFFORD J

Introduction

[1]      The appellant, Mr L  , was convicted on 20 August 2009 by two Justices of the Peace on one count of offensive behaviour under s 4(1)(a) of the Summary Offences Act.  Mr L   was ordered to pay a $200 fine and $130 costs.

[2]      Mr L  now appeals to this Court against that conviction.

L V POLICE HC WN CRI-2009-485-135  2 March 2010

Background

[3]      Mr L   is a committed cyclist and naturist.  He competes naked in naturist sporting events.  He also competes naked in some ordinary sporting events, such as the Coast to Coast race.  Mr L  ’s evidence before the Justices, and in an affidavit filed in this appeal, was that he has been competing and training naked for many years without any complaint.

[4]      On 15 March 2009, which was “World Nude Bike Day”, Mr L   was training on his bike in the nude.  He was wearing a helmet, in accordance with safety regulations,  and  a  heartbeat  monitor  across  his  chest.     Somewhere  near  the Akatarawa Cemetery in Upper Hutt, Mr L   was seen by Ms Chamley, the complainant.  Ms Chamley was driving along Akatarawa Road.  Her five month old son was in the car with her.  On seeing Mr L  , Ms Chamley stopped and called the police.  The police subsequently stopped and spoke to Mr L  .  He had by then ridden his bike some distance further along Akatarawa Road, away from Upper Hutt as I understood matters.  The police explained that someone had called saying that they had found his behaviour offensive.  Mr L   is recorded as having stated at that point “oh well, I know the law, if someone finds it offensive I have to put my clothes on”, and then having immediately put on a G-string.

[5]      Mr L   was subsequently charged with behaving in an offensive manner under s 4(1)(a) of the Summary Offences Act 1981.  A hearing was held before the Justices.  Mr L   appeared on his own behalf to defend that charge.

[6]      The  Justices  of  the  Peace  found  the  charge  to  be  proven.    Their  brief judgment, in its entirety, is set out below:

[1]       We find the prosecution has proved the case, as the witness was good enough for us.  She was quite concerned about it, Ms Chamley, and the police officers saw you in the nude and we classify that as offensive behaviour, and it says so in our manual.

[2]       Unfortunately Mr L   we understand all your submissions and we understand your concern, but we are going by this manual here, the Infringement Fine Manual and Guide No. 1 believe it or not is offensive behaviour.  We have to come to our conclusion we could fine you quite a substantial sum of money, but we are not going to do that we are going to

fine you $200.00 and $130.00 court costs.  You have got the right to appeal that if you wish.

[7]      Mr  L   originally appealed against  the decision  of the Justices  on  the grounds that it was wrong in fact and law.

[8]      In written submissions filed on Mr L  ’s behalf, the following detailed

grounds of appeal were identified:

a)    The Court failed to apply the correct evidentiary burden of “proved beyond  reasonable  doubt,”  preferring  instead  a  standard  of  “good enough for us”.

b)   The Court failed to give reasons as to why the evidence of [the complainant] was “good enough for” [them].

c)    The  Court failed to  apply the  correct  test in  assessing whether the

appellant’s behaviour was offensive in two ways:

i)     The Court found [the complainant’s] level of upset at seeing Mr L   as being “quite concerned about it”, rather than whether she was actually disgusted by what she saw; and

ii)    Even if [the complainant] was personally disgusted, [the test is whether the appellant’s behaviour] was “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”.

d)    The  Court,  in  reaching  its  decision,  …  abdicated  its  function  to objectively assess the evidence before it, … preferring to find itself bound by a publication – “the Infringement Fine Manual Guide” – a document of unknown legal standing.

Discussion

[9]      This is an appeal under s 115 of the Summary Proceedings Act 1957.   In general terms, an appeal such as this proceeds by way of a re-hearing on the basis of the evidence taken in the District Court.

[10]     Mr L   filed an affidavit for the purposes of this appeal.  He did so without leave.  That affidavit set out matters that were effectively disclosed by the transcript of proceedings, together with some limited additional factual material.   After discussion, Mr Snape for the police accepted that in the circumstances of this appeal

the  Court  could  have  regard  to  Mr  L  ’s  affidavit,  to  the  extent  that  it  did

constitute new evidence.

[11]     During the hearing of Mr L  ’s appeal I was also provided by Mr Bott with copies of a range of printed material reporting on instances of public nudity (for example, a group of naturists aged from 12 to 80 riding the Otago Central Rail Trail in the nude).  That material was tendered in support of Mr Bott’s submission that public attitudes to public nudity have changed, and that Mr L  ’s reported experience – of never before having received a complaint as to his nude cycling – accurately reflects a tolerant community attitude to this type of behaviour.   I understood that Mr Bott provided copies of that material to Mr Snape, or at least showed the material to Mr Snape before passing it to me.  Mr Snape did not raise any issue as to my being provided with that material.

[12]     Such evidential material was in my view, therefore, admitted by consent and I do not otherwise need to consider further the question of the admissibility of fresh evidence on an appeal.

[13]     Mr L   is, as noted above, a committed naturist.   As such, no doubt his personal view is that it is appropriate to be nude in a wide range of situations where others would consider that such behaviour was, at best, inappropriate.  This case is not, however, about the acceptability of Mr L  ’s views about nudity.  Nor is it, in my view, the role of this Court in this appeal to endeavour to set down broad guidelines as to when nudity in a public place may or may not constitute offensive behaviour.   Rather, this is an appeal against Mr L  ’s conviction, in the circumstances outlined above, for offensive behaviour.  The question I must decide is whether or not, in accordance with established legal principles, that conviction should be upheld.

[14]     In  saying  that,  I  am  not  unmindful  of  the  comments  of  Tompkins  J  in Ceramalus v Police,1 a case where nudity on a public beach within sight of primary school children and their teachers was held not to constitute offensive behaviour.

There Tompkins J commented as follows, adopting remarks of McCarthy J in Melser v Police:

The appellant submitted that this issue involved matters of general public importance.  He submitted that the human body is not an illegal object, it is not a threat to human society.   Nakedness on a beach, he contended, is therefore a valid form of free expression.   It is not prescribed by the Act, either in the letter or in the intent.  Socially objectionable behaviour does not come under the Act.

The  social  as  well  as  the  legal  importance  of  these  issues  has  been recognised by the Courts.  In Melser v Police [1967] NZLR 437, the Court of Appeal was concerned with a conviction on a charge of disorderly behaviour. McCarthy J at p 445 observed:

The task of the law is to define the limitations which our society, for its social health, puts on such freedoms.  Sometimes the law defines with precision the boundaries of these limitations: often the definition is stated only in general terms.  In these latter cases, the Courts must lay down the boundaries themselves, bearing in mind that freedoms are of different qualities and values and that the higher and more important should not be unduly restricted in favour of lower or less important ones.

[15]     In my view, the way the courts over time lay down boundaries in areas such as these is by responding to particular cases and by deciding whether, as regards the particular facts in question, the relevant offence – here offensive behaviour – has been properly established.

[16]     Of the various points of appeal advanced by Mr L  , the most significant – in terms of this appeal by way of re-hearing – is whether the Justices of the Peace did, as Mr L   asserts, apply the wrong test in determining whether his conduct was offensive or, if they applied the right test, whether they did so correctly?

[17]     In Brooker v Police, a Supreme Court case concerning disorderly and not offensive behaviour, Blanchard J set out the following test for offensive behaviour: 2

…Behaviour which is offensive is behaviour in or within view of a public place which is liable to cause substantial offence to persons potentially exposed to it.   It must, in my view, be 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.

[18]     In R v Morse Arnold J expressed his view of that test in the following terms: 3

…I note three features of Blanchard J’s description of offensive behaviour:

(a)     First, offensive behaviour is described by reference to its likely impact on persons potentially exposed to it.  Unlike disorderly conduct, there is no requirement of a tendency to disturb or violate public order.

(b)     Second,  the  subjective  reactions  of  those  actually  exposed  to  the conduct are not determinative.   Rather, the test incorporates an objective element by requiring that the conduct be capable of causing “substantial offence” by affecting the minds of reasonable persons in one of the ways described.  But the “reasonable persons” are the same type of people as those actually subjected to the conduct.

(c)     Third, in assessing the reasonable reaction, the circumstances in which the conduct occurs must be taken into account.

[19]     The substantive elements of offensive behaviour can, therefore, be seen as involving “substantial” offence, and as “arousing real anger, resentment, disgust or outrage”.    The test  is  to  be objectively applied,  in  terms  of the reference to  a “reasonable person”, but the reasonable person is to be one “of the kind actually subjected to it in the circumstances in which it occurs”.

[20]     I  turn  now  to  the  decision  of  the  Justices.    Although  Mr  L    had endeavoured to place submissions before the Justices based on the Brooker decision, that was not a matter the Justices referred to.  Their core conclusion is expressed in the following terms:

She was quite concerned about it, Ms Chamley, and the police officers saw you in the nude and we classify that as offensive behaviour, and it says so in our manual.

[21]     Ms Chamley herself had given evidence at the hearing to the following effect, when asked what her reaction had been when seeing Mr L   riding his bike in the nude:

A:     I just wondered what was going on, why was he biking completely naked, you know you are sort of wondering what he was thinking.

Q:      And your own personal feelings how did you feel when you saw that? A:      Fairly disgusted to be honest.

[22]     In re-examination, after Ms Chamley had confirmed to Mr L   that she had not been able to see his genitals, the prosecutor asked her to tell the Court again how she felt when she had seen his actions.  She replied:

Fairly disgusted.  I wouldn’t say I was victimised by it [Mr L   had asked her whether she felt victimised].  I mean there were probably – there were other people around that haven’t come forward as witnesses but I’m pretty sure they may feel the same way yeah.

[23]     By reference to the complainant’s own reactions, and the Justices’ assessment of them, I conclude that the Justices did not apply the correct legal test.   It is difficult, as Mr Bott submitted, to know what test they had in mind.   There is no relevant mention of the offence of offensive behaviour in the manual they referred to.   Whilst Mr L   had, apparently, endeavoured to draw their attention to the principles  expressed  in  Brooker,  the  Justices  did  not  refer  to  them  at  all. Furthermore, the Justices’ categorisation of Ms Chamley’s reaction as being “quite concerned”, and their subsequent finding that Mr L  ’s behaviour did constitute offensive behaviour, indicates that they had in mind a lower test than that set out in Brooker and confirmed in Morse.

[24]     As  noted  above,  that  test  requires  behaviour  liable  to  cause  substantial offence, or 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”.

[25]     In applying that test, I note first that Ms Chamley’s evidence was that she was “quite disgusted”.   The qualifier “quite”, together with the way in which she described her immediate reaction as being one of wondering what was going on, wondering why a man  was  biking completely naked,  in  my judgement  did  not indicate that Mr L  ’s behaviour had satisfied the test of causing “substantial offence” of “real anger, resentment, disgust or outrage”.  Offensive behaviour is not, of course, judged solely by the described reaction of a person who complains about it.  The test is an objective one, as has often been observed.  Nevertheless, I think evidence  from  a  complainant  which  fails  to  show  that  they  themselves  felt  a

sufficient  level  of  disgust  or  outrage  is  a  relevant  consideration.    I  note  that

Tompkins J took a similar approach in Ceramalus v Police.4

[26]     Turning to the objective approach, the Crown submitted that Mr L  ’s behaviour was to be distinguished from other cases where public nudity had not been held to constitute offensive behaviour, such as the earlier Ceramalus decision of Tompkins J, particularly by reference to the fact that it took place on a public road. In that, Mr Snape referred me to a later decision involving Mr Ceramalus.5    There Mr Ceramalus had walked naked along a public residential road, when he had been returning from nude sunbathing.  He was found guilty of offensive behaviour in the District Court, that conviction was upheld by the High Court and his application for

leave to appeal was declined by the Court of Appeal.  The Court of Appeal recorded that the complainant in that case was a neighbour of Mr Ceramalus.   She was recorded as being shocked that Mr Ceramalus was parading his nakedness beyond the confines of his own property.  She had previously seen him naked on his own property and occasionally he had come onto her property while still naked.  That was behaviour which she had reluctantly tolerated.   But she felt differently about him appearing naked on the street.

[27]     It was the Crown’s submission that Mr L  ’s behaviour, as it involved him cycling naked along a public road, was – as had been found in that later Ceramalus decision as regards a person walking naked on a public street – capable of causing offence as specified in Brooker, and his conviction should be upheld.

[28]     Here, Mr L   was cycling on a relatively quiet rural road.   He was not walking naked in a suburban street.   The complainant confirmed that she had not been able to see his genitals.  Furthermore, I do not consider that a person driving along a road, or even walking along it, would be exposed to Mr L  ’s nakedness in the  way they would  be  exposed to the nakedness  of someone walking along a suburban street.   A car would pass Mr L   at some speed.   Mr L   would no doubt also pass a pedestrian at some speed.   The opportunity for exposure to his

nakedness would therefore be considerably less than would be the case when a

4      Ceramalus v Police (1991) 7 CRNZ 678.

5      R v Ceramalus [1996] BCL 915.

person walks naked along a suburban street.  The particular circumstances here are, in my view, quite different from those in the later Ceramalus case.

[29]     Moreover, the way the complainant described her reaction, and in particular the Justices’ assessment of that reaction as the complainant being “quite concerned”, supports the conclusion that, in these particular circumstances, the test set down for offensive behaviour has not been satisfied.

[30]     On that basis, I allow Mr L  ’s appeal.  In doing so I note, at the risk of repeating myself, that this judgment does not mean that nude cycling cannot constitute  offensive  behaviour.    In  other  circumstances  a  court  would  need  to consider whether that type of behaviour could arouse 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.   That is a question to be assessed on the particular facts of each case.

[31]     In terms of the approach of the courts in Brooker, Morse and other cases, I have  considered  whether  there  may  have  been  some  element  of  freedom  of expression in Mr L  ’s behaviour.  As noted, the day on which this behaviour was observed was World Nude Bike Day.  Mr L  ’s behaviour could possibly be seen as an expression of opinion of support in that context.  Having said that, however, I note that Mr L   himself referred at his trial to it “coincidentally” being World Nude Bike Day.  The element of freedom of expression would not, therefore, appear to have been high in Mr L  ’s own mind, and in any event does not here require further analysis.

[32]     In these circumstances, I do not consider it necessary to review Mr L  ’s other  points  of  appeal  in  great  detail.    In  terms  of  the  extent  of  the  Justices’ reasoning, whilst their decision was short, it did encapsulate their reasons.   Put simply, they considered Ms Chamley’s evidence sufficient to establish the offence. There is in my judgement no reason to conclude that they did not apply the correct criminal standard of beyond reasonable doubt.  I think it would have been preferable if the Justices had been referred to the Brooker test, and had reflected that in their decision.  At the same time, and as evidenced by the wide range of views Judges of

the Supreme Court and the Court of Appeal have expressed in the cases I have referred to, the test is not a straight forward one.  In the circumstances, it is perhaps not surprising that the Justices chose to take a reasonably straightforward and matter of fact approach to their task.

[33]     Finally, and as I have noted, the reference by the Justices to their manual is somewhat mysterious, as the manual on its face does not appear to contain any relevant reference.

[34]     This appeal is therefore allowed, and Mr L  ’s conviction and sentence

quashed.

“Clifford J”

Solicitors:   M Bott, Barrister, Wellington for the appellant ([email protected]) The Crown Solicitor, Wellington for the respondent ([email protected])