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IN THE
HIGH COURT OF NEW ZEALAND
TAURANGA
REGISTRY
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CRI 2012-470-24
[2012] NZHC
3208
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BETWEEN ANDREW
LYALL POINTON
Appellant
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AND
NEW ZEALAND POLICE
Respondent
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Hearing: 3
October 2012
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Counsel: M
Bott for Appellant
N G Belton for Respondent
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Judgment: 30 November 2012
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JUGMENT OF HEATH J
This judgment was
delivered by me on 30 November 2012 at 2.00pm pursuant to Rule 11.5 of the High
Court Rules
Registrar/Deputy
Registrar
Contents
Introduction [1]
The District
Court judgments [3]
Competing
submissions [11]
“Offensive behaviour”:
legal principles
(a) Introductory
comments [15]
(b) From whose
perspective is the behaviour judged? [18]
(c) What is
“offensive” behaviour? [23]
(d) The tests to
be applied [32]
Analysis
(a) Freedom of
expression [33]
(b) Was Mr
Pointon’s behaviour “offensive”? [38]
Result [54]
Introduction
[1] Mr Pointon is a naturist. Around 8.30am on 23
August 2011, he went for a run along tracks in a wooded area within the Oropi
Bike Park, about 20 kilometres from Tauranga. Apart from running shoes, he was
naked. As he was running he encountered the female complainant, walking her
dog. She made a complaint to the Police. As a result, Mr Pointon was charged
with “offensive behaviour”, contrary to s 4(1)(a) of the Summary Offences Act
1981 (the Act).
[2] In a reserved
decision delivered in the District Court at Tauranga on 6 December 2011, a
Community Magistrate found Mr Pointon guilty and entered a conviction.1 Mr Pointon appealed against his conviction to a District Court Judge.2 On 11 June 2012, his appeal was dismissed.3 On 7
September 2012, the Judge granted leave to appeal out of time on a question of
law.4 However, he did not identify the question (or
questions) of law on which he thought a second appeal was justified.5
1 Police v Pointon DC Tauranga CRN 110700006717, 6 December
2011 (Best CM).
2 Summary Proceedigs Act 1957, s 114A(2).
3 Pointon v Police DC Tauranga CRI 2012-470-5, 11 June 2012
(Judge P A Moran).
4 Summary Proceedings Act 1957, s 114B(2).
5 The test for granting leave to appeal to
this Court under s 114B(2) of the Summary Proceedings Act 1957 is the same as
that applying when this Court considers whether to grant leave to appeal to the
Court of Appeal on a criminal appeal from the District Court: s 144(2). The
applicable principles are set out in R v Slater [1977] 1 NZLR 211 (CA),
in the context of the analogous “special leave” provisions of s 144(3). In
cases in which a District Court Judge considers leave should be granted under s
114B(2) it would be helpful to this Court if the relevant question (or
questions) of law were identified.
The District
Court judgments
[3] Community Magistrate Best heard evidence both from
the female complainant and Mr Pointon. In submissions, he was referred to Morse
v Police,6 and Lowe v Police.7 Morse was a case in which the Supreme Court re-examined the test for
offensive behaviour, in the context of an appeal against conviction under s
4(1)(a) for the burning of the New Zealand flag within sight of the Wellington
Cenotaph on Anzac Day. In Lowe, a case decided before the Supreme
Court’s decision in Morse, this Court allowed an appeal against
conviction, on a charge of offensive behaviour brought against a naturist who
was training on a bicycle in the nude.
[4] The Community Magistrate found that the
complainant was “a reasonable member of the public using that public park for
such purposes as it was created to accommodate [who] was offended by the
presence of [Mr Pointon], in his naked state at the time of the offence, in
that public place”. On that basis, he found the elements of the charge to have
been proved and entered a conviction.
[5] On appeal, while upholding the Community
Magistrate’s decision, Judge P A Moran disagreed with the approach taken. He
applied a test that he considered better reflected the Supreme Court’s decision
in Morse.8
[6] From the five
judgments given in Morse, Judge Moran distilled the following
propositions:
(a) To prove “offensive behaviour”, it is necessary
for the prosecution to prove behaviour that tended to provoke or bring about
disorder. Causing offence or annoyance is not sufficient.9
(b) Public order is
disrupted if it creates unease at a level that inhibits recourse to a public
place.10
6 Morse v Police [2011] NZSC 45; [2012] 2 NZLR 1.
7 Lowe v Police HC Wellington CRI-2009-485-135, 2 March 2010.
8 Morse v Police [2011] NZSC 45; [2012] 2 NZLR 1.
9 Pointon v Police DC Tauranga CRI-2012-470-5, 11 June 2012 at
para [8], with reference to Morse at paras [26], [29] and [38] per Elias
CJ and [64], [66] and [67] per Blanchard J.
10 Ibid,
at para [9], referring to Elias CJ’s judgment in Morse, at para [2] and
Anderson J, at para [127].
11 Ibid, at para [10].
12 Ibid, at para [11].
13 Ibid, at para [13].
(c) While the actual reaction of a complainant to
particular behaviour is relevant evidence, it is not enough, of itself, to
establish that the behaviour was, objectively, offensive.
(d) A contextual
assessment of the relevant behaviour is required. This requires consideration
to be given to the time, place and circumstances in which the behaviour
occurred and its effect upon a reasonable member of the public exposed to it.11 For that purpose, a reasonable member of the public is one who is
tolerant of the rights of others; particularly, the right to freedom of
expression.12
[7] The Judge, in
applying the test, had regard to the following circumstances:13
(a) Mr Pointon is a naturist, not an exhibitionist. He
holds the belief that it is “natural and proper” for a person to be naked and
that clothing is “an artificial construct that covers the human form”.
(b) When Mr Pointon runs naked, he exercises his right
to freedom of expression, guaranteed by s 14 of the New Zealand Bill of Rights
Act 1990 (the Bill of Rights).
(c) On this occasion, Mr Pointon was running in a
naked state in a public park. He was using tracks within a wooded area. Near
the intersection of two of those tracks he came across the complainant, a
mature woman who was walking her dog.
(d) The complainant
was sufficiently discomforted by the sight of Mr Pointon to insert keys that
she had in her pocket between her fingers to construct a make-shift weapon and
to return to her car. She did not
return to the park until she knew that Mr Pointon had
been apprehended.14
(e) While the
complainant described her reaction as “offended” and sufficiently “threatened”
not to return, she conceded that she “never felt unsafe or scared”.
[8] Judge Moran disagreed with the Community
Magistrate’s approach, on the basis that he had taken into account not only the
potential impact of Mr Pointon’s behaviour on the complainant but also other
types of people who were not actually exposed to it; for example children and
young persons.15
[9] While the
Community Magistrate had taken the view that Mr Pointon’s behaviour was
“inappropriate in a public place”, Judge Moran said:16
14 The evidence established that the complaint
was made after the complainant returned home and spoke to her husband. It was
the following day that steps were taken to charge Mr Pointon.
15 Pointon v Police DC Tauranga CRI-2012-470-5, 11 June 2012 at
para [22].
16 Ibid, at para [23].
[23] ... What was
required was an assessment of whether, in the circumstances, a reasonable and
tolerant mature woman would have been dissuaded from returning to the park in
which she had encountered the naked Mr Pointon on his run.
[10] The District
Court Judge, having identified what he considered to be the correct question,
was satisfied that Mr Pointon’s behaviour was offensive, for the purpose of the
Act. He said:
[24] . . . In the
context of this case, had the Police proved beyond reasonable doubt, that Mr
Pointon’s behaviour was such that a reasonable mature woman, tolerant of Mr
Pointon’s right to freedom of expression, would be inhibited in her recourse to
the park to the extent that she would be unwilling to return? The answer is
plainly “yes”.
[The complainant’s] reaction was not that of a prudish
intolerant woman. Her evidence of her reaction was measured and undramatic. It
may be taken as indicative of the reaction of a reasonable woman.
A reasonable rights
sensitive woman would be justified in taking into account the fact (established
at the hearing) that there are non-public areas set aside locally for the use
of naturists rendering naked
recourse to public
parks unnecessary for freedom of expression to be exercised.
(footnotes omitted)
Competing
submissions
[11] Mr Bott, for Mr Pointon, submitted that Mr
Pointon’s behaviour was a form of freedom of expression and was not such as to
attract the application of the criminal law. He contended that the fact that
the complainant may have experienced “a personal dislike” of her “chance
encounter with Mr Pointon”, and may even have “felt personal annoyance at his
particular use of public space”, was insufficient to render the behaviour
offensive, for the purpose of the Act.
[12] Mr Bott pointed to a “recurring theme” in Morse
of the need for some public disorder element to be linked to the conduct in
issue. He submitted that it could not be said that there was sufficient
evidence of public order being disturbed to find that the conduct was
offensive, at the time and in the manner it occurred.
[13] For the Police, Mr Belton contended that the
decisions of the Community Magistrate and the District Court Judge ought to be
upheld. He focussed on those parts of the judgments given in Morse that
define, within the concept of disrupting public order, conduct that “inhibits
or interferes with another’s use of public space”.
[14] Mr Belton
contended that the correct approach was applied by Judge Moran on appeal from
the Community Magistrate’s decision. He submitted that the appeal should be
dismissed.
“Offensive
behaviour”: legal principles
(a) Introductory
comments
[15] In Morse,17 the Supreme Court unanimously held s 4(1)(a) of the Act is concerned
with behaviour which, when objectively assessed, disrupts or disturbs
17 Morse v Police [2012] 2 NZLR 1 (SC).
public order. That approach was consistent with that
Court’s earlier decision in Brooker v Police,18 a
case involving a charge of disorderly behaviour. Because the trial had
proceeded on the understanding that no disruption to public order was necessary
for offensive behaviour to be made out, the evidence was held not “to allow a
confident conclusion of impact on public order to be drawn”.19 The conviction was set aside. For practical reasons, no retrial was
ordered.
[16] Section 4(1)(a)
of the Act creates offences of both disorderly and offensive behaviour:
18 Brooker v Police [2007] 3 NZLR 91 (SC).
19 Morse v Police [2011] NZSC 45; [2012] 2 NZLR 1 at para [57] per Elias
CJ.
20 See paras [19] and [20] below.
4 Offensive
behaviour or language
(1) Every person is
liable to a fine not exceeding $1,000 who,—
(a) In or within
view of any public place, behaves in an offensive or disorderly manner; or
....
[17] There are two
legal issues arising out of Morse that are relevant to this case:
(a) The first concerns the person from whose
perspective the conduct in issue should be objectively assessed. On that issue,
there was a division of opinion.20
(b) The second is
the test for “offensive behaviour”. On this point, the five Judges appear to have
been unanimous. Because they discussed the relevant concepts in different
words, some synthesis of their respective approaches is required.
(b) From whose
perspective is the behaviour judged?
[18] The first
question concerns the approach to be taken when making an objective assessment
of the behaviour in issue. Blanchard, Tipping and McGrath JJ considered that the “reasonable person” whose views
should be considered ought to be referenced to the person whom it is alleged
was subjected to the behaviour.21
[19] Both Blanchard and Tipping JJ considered that
objectivity was achieved by this person being one “who takes a balanced,
rights-sensitive view, conscious of the requirements of s 5 [of the Bill of
Rights] and therefore is not unreasonably moved to wounded feelings or real
anger, resentment, disgust or outrage”.22 McGrath
J referred to a degree of interference with the use by others of a public place
that must go beyond “what a society respectful of democratic values is
reasonably expected to tolerate”.23
[20] Both the Chief
Justice24 and Anderson J25 preferred
an approach based on the view that would be taken by a hypothetical reasonable
member of the public chosen by reference to a broader range of persons who
might be present and see the behaviour in issue. Elias CJ said:
21 Morse v Police [2011] NZSC 45; [2012] 2 NZLR 1 at paras [64] and [66]
per Blanchard J, [70]–[72] per Tipping J and [100] per McGrath J.
22 Ibid, at para [64] per Blanchard J and [70]
per Tipping J. Section 5 of the Bill of Rights states that the rights affirmed
in that statute are subject “only to such reasonable limits prescribed by law
as can demonstrably be justified in a free and democratic society”.
23 Ibid, at para [103].
24 Ibid, at para [30].
25 Ibid, at para [127].
[30] . . . It is not
necessary to tailor behaviour to the specific audience in order to protect the
vulnerable, such as children. In a public place to which all members of society
may have resort, the vulnerable and the young are included in the objective
assessment.
[21] Were I not bound by the majority’s views in Morse,
I would have approached this case on the basis of the those expressed by Elias
CJ and Anderson J, as captured in the extract I have set out from the Chief Justice’s
judgment. In my view, it is important that all potential classes of person who
may come across such behaviour should be taken into account in determining,
objectively, whether the behaviour crosses the “offensive” threshold.
[22] It seems to me,
with the greatest of respect, that the majority’s approach is wholly dependent
on chance; who happens upon the person concerned and whether that person is
sufficiently offended to make a complaint to the Police. I prefer the Chief Justice’s view
that to take the approach adopted by the majority has the undesirable effect of
making it uncertain when the criminal law might be invoked.26 That said, I must apply the majority’s approach.
26 Ibid, at paras [13] and [14]. See also the
Chief Justice’s observations in Brooker v Police [2007] 3 NZLR 91 (SC)
at paras [38] and [39].
27 Ibid, at para [2].
(c) What is
“offensive” behaviour?
[23] The concept of public order (or disorder) is
difficult to apply in the context of behaviour involving a naked man running through
the woods. If the person is running in a relatively remote location, it might
confidently be said that there is little prospect of disruption to public
order. In contrast, if a naked man were to do his gardening in full view of a
neighbour’s house at which a young girl lived, that conduct could conceivably
provoke a confrontation between the naked man and the girl’s father;
potentially leading to a physical conflict. That juxtaposition of conduct
involving public nudity emphasises the contextual nature of any analysis of
this type.
[24] However, a potential for physical violence is not
the relevant touchstone. As I read the judgments given in Morse, the
Supreme Court took the view, unanimously, that behaviour that inhibits others
from using or returning to a public place will be offensive, if of a sufficient
level to justify intervention of the criminal law. That being so, it was
unnecessary for the prosecution to establish a likelihood of violence to
support a case of a threat of disturbance of public order.
[25] Elias CJ was prepared to hold that an offence was
committed if the behaviour interfered “with use of public space by any member
of the public, as through intimidation, bullying, or the creation of alarm or
unease at a level that inhibits recourse to the place”.27
[26] Blanchard J
spoke of both direct and indirect effects of behaviour that might justify
classification as “offensive”. In the context of indirect effects, he referred
to “kinds of behaviour that in some circumstances might constitute a serious
interference with public order even where ... there was no realistic
possibility” that a breach of the peace
may ensue.28 Those observations were made by reference
to comments made by Gleeson CJ in Coleman v Power:29
28 Ibid, at para [62].
29 Coleman v Power (2004) 220 CLR 1 (HCA) at para [9]. The
Chief Justice’s observations were made in the context of charges of using
insulting language, contrary to ss 7(1)(d) and 7A of the Vagrants, Gaming and
Other Offences Act 1931 (Qld).
[9] It is open to
parliament to form the view that threatening, abusive or insulting speech and
behaviour may in some circumstances constitute a serious interference with
public order, even where there is no intention, and no realistic possibility,
that the person threatened, abused or insulted, or some third person, might
respond in such a manner that a breach of the peace will occur. A group of
thugs who intimidate or humiliate someone in a public place may possess such an
obvious capacity to overpower their victim, or any third person who comes to
the aid of the victim, that a forceful response to their conduct is neither
intended nor likely. Yet the conduct may seriously disturb public order, and
affront community standards of tolerable behaviour. It requires little
imagination to think of situations in which, by reason of the characteristics
of those who engage in threatening, abusive or insulting behaviour, or the
characteristics of those towards whom their conduct is aimed, or the
circumstances in which the conduct occurs, there is no possibility of forceful
retaliation. A mother who takes her children to play in a park might encounter
threats, abuse or insults from some rowdy group. She may be quite unlikely to
respond, physically or at all. She may be more likely simply to leave the park.
There may be any number of reasons why people who are threatened, abused or
insulted do not respond physically. It may be (as with police officers) that
they themselves are responsible for keeping the peace. It may be that they are
self-disciplined. It may be simply that they are afraid. Depending upon the
circumstances, intervention by a third party may also be unlikely.
[27] Blanchard J
summarised his view as:
[67] . . . I would
define offensive behaviour as 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.
[28] Tipping J
considered that “public order is sufficiently disturbed if the behaviour in
question causes offence of such a kind or to such an extent that those affected
are substantially inhibited in carrying out the purpose of their presence at
the place where the impugned behaviour is taking place”. He added that only if
“the effect of the behaviour reaches that level of interference with the
activity in which those affected are engaged is it appropriate for the law to
hold that their rights and interests should prevail over the right to freedom of
expression of those whose behaviour is in contention”.30
[29] Tipping J emphasised that application of this
touchstone was contextual, not abstract, in nature. For the purpose of the
assessment, the hypothetical person was required to be appropriately tolerant
of the rights of others. The Judge was of opinion that tolerance to the degree
thought appropriate by the Court was the pivot on which the law reconciled the
competing interests of public order and freedom of expression.31
[30] McGrath J
focussed on the need to establish that “the intensity of proved offensive
aspects of the defendant’s behaviour amounts to interference with the use by
others of the public place to the extent that the conduct should be classed as
offensive behaviour in terms of s 4(1)(a)”.32 The
Judge emphasised that, to amount to an offence, the proved conduct “must
involve a serious interference with the standards reflected in those community
expectations”.33 Referring to the need for balance between
the right of a person to freedom of expression and the right of members of the
public to freedom of peaceful assembly,34 McGrath
J said:
30 Ibid, at para [71].
31 Ibid, at para [72].
32 Ibid, at para [103].
33 Ibid.
34 New Zealand Bill of Rights Act 1990, s 18.
[110] On the other
hand, members of the public are entitled to enjoy tranquillity and security in
public places. They also enjoy rights protected by the Bill of Rights Act, in
particular, the right to freedom of peaceful assembly. That right, which is
usually claimed by those engaged in political protest, complements other civil
rights under the Bill of Rights Act, including freedom of expression. Freedom
of assembly is not limited to gatherings for the purpose of protest. It extends
to formal and informal assemblies in participation in community life.
Gatherings for purposes that are ostensibly less political are also important
to citizens for forming opinions and, ultimately, for participating in the
democratic process.
(footnotes omitted)
[31] Anderson J
observed that “public order may be affected in two broad ways depending on the
circumstances”. For present purposes, the first of the Judge’s classifications
is relevant. His Honour said that “behaviour in a public place, viewed
objectively, may have a reasonable propensity or likelihood to dissuade others
from enjoying their right
to use that place, whether by entering it or remaining in it. This is an
interference with another’s legal right to enjoy a public amenity”.35
35 Morse v Police [2011] NZSC 45; [2012] 2 NZLR 1 at paras [126] and
[127].
36 See paras [18] and [19] above.
37 See paras [25]–[31] above.
38 See paras [28]–[31] above.
(d) The tests to
be applied
[32] Acknowledging
that both Brooker and Morse were cases involving protests and the
application of the tests to a man running naked through the woods was not
likely to have been at the forefront of the Judges’ minds when they were
formulated, I endeavour to synthesise the views expressed in the Supreme Court,
by reference to the facts of this case:
(a) The complainant’s reaction is no more than
evidence of how a particular person did react in the situation under
consideration. The test is whether someone in her position, being respectful of
Mr Pointon’s right to express himself by running naked through the woods in the
circumstances prevailing at the time, would have been offended by the conduct.36
(b) For behaviour of the type exhibited by Mr Pointon
to amount to a criminal offence, it must interfere with use of a public space
by causing such unease as to inhibit recourse (or return) to the place.37 The relevant level of behaviour is fixed by reference to whether it is
of such a character as to attract the interest of the criminal law and render a
person liable to a conviction and a fine not exceeding $1000.
(c) The level of the
conduct producing the inhibition is determined by comparing what the
(hypothetical) reasonable member of the public of the kind who was actually
affected by the conduct would tolerate as an exercise of Mr Pointon’s freedom
of expression (on the one hand) with the complainant’s entitlement to enjoy
tranquillity and security when using a public amenity38 (on
the other).
Analysis
(a) Freedom of
expression
[33] Although it has
always been accepted that Mr Pointon was exercising his right to freedom of
expression,39 the nature of that right, in the particular
circumstances, is relevant to the question whether the conduct was “offensive”,
for the purposes of s 4(1)(a). That is because of the need to balance Mr
Pointon’s right to express himself against the right of a member of the public
to use amenities available to all.40 Section 14 of the
Bill of Rights provides:
39 See para [7](a) and (b) above.
40 See para [32](c) above.
41 Redmond-Bate v Director of Public
Prosecutions [1999] EWHC
Admin 733.
42 Ontario Adult Entertainment Bar Association
v Metropolitan Toronto (Municipality) (1997), 11 C.R. (5th)
180 (Ont CA).
Freedom of
expression
Everyone has the
right to freedom of expression, including the freedom to seek, receive, and
impart information and opinions of any kind in any form.
[34] For present
purposes, the conduct giving rise to the expression can be equated to words
uttered to exercise free speech. In Redmond-Bate v Director of Public
Prosecutions,41 Sedley LJ described the concept of freedom
of speech:
20. ... Free speech
includes not only the inoffensive but the irritating, the contentious, the
eccentric, the heretical, the unwelcome and the provocative provided it does
not tend to provoke violence. Freedom only to speak inoffensively is not worth
having. What Speakers’ Corner (where the law applies as fully as anywhere else)
demonstrates is the tolerance which is both extended by the law to opinion of
every kind and expected by the law in the conduct of those who disagree, even
strongly, with what they hear. From the condemnation of Socrates to the
persecution of modern writers and journalists, our world has seen too many
examples of state control of unofficial ideas. ....
[35] The right to
freedom of expression is protected in Canada by s 2(b) of that country’s
Charter of Rights. The cases that have been decided in that jurisdiction make
it clear that the boundaries of the right are wide. The most striking
illustration of that is Ontario Adult Entertainment Bar Association v
Metropolitan Toronto (Municipality).42 In
that case, the Court of Appeal of Ontario considered the right to freedom of
expression in the context of lap dancing undertaken in two adult entertainment
parlours within the city of Toronto. Delivering the judgment of the Court of
Appeal, Finlayson JA, said:43
43 Ontario Adult Entertainment Bar Association
v Metropolitan Toronto (Municipality) (1997), 11 C.R. (5th)
(Ont CA) at paras 49 and 50.
44 Irwin Toy Ltd v Quebec (Attorney-General) [1989] 1 SCR 927.
45 Dickson CJ, Lamer and Wilson JJ. Beetz and
McIntyre JJ dissented. The report states that Estey and Le Dain JJ took no part
in the judgment.
46 Irwin Toy Ltd v Quebec (Attorney-General) [1989] 1 SCR 927 at para [42].
49 I appreciate that
there are various versions of lap dancing, and thus the challenge of regulation
surfaces. To the extent that touching in close contact dancing is as benign as
the interveners' affidavits would suggest, then I may assume for these
purposes, but not decide, that close contact dancing conveys meaning, and is
thus prima facie constitutionally protected. There may be an expressive quality
to the touch that fosters the spirit of the dance.
50 The more
difficult question relates to the characterization of lap dancing in its more
explicit form. I am alive to the views expressed in Mara, supra, and Ludacka,
supra. However, I am also aware of the general judicial response to the process
of labelling certain conduct as expression for Charter purposes. In particular,
courts have been unwilling to assess the nature and content of certain
underlying conduct, which is the subject of a s. 2(b) inquiry, during the first
stage of the Irwin Toy analysis. Rather, courts have taken an expansive
view in approaching the characterization of conduct as expression, and have used
the inquiry under s. 1 of the Charter to assess the competing values and
interests that arise when viewing certain impugned conduct. I would adopt this
approach here and assume, but not decide, that lap dancing, even in its more
explicit form, is expression, even if only marginally so, given earlier
judicial pronouncements with respect to the broad classification of conduct
under s. 2(b).
[36] The Ontario
Court of Appeal, in Ontario Adult Entertainment, relied on an earlier
decision of the Supreme Court of Canada, in Irwin Toy Ltd Quebec
(Attorney-General).44 In that case, a majority of the Supreme
Court45 set out their view on the rationale for the
right to freedom of expression:46
We cannot, then,
exclude human activity from the scope of the guaranteed free expression on the
basis of the content or meaning being conveyed. Indeed, if the activity conveys
or attempts to convey a meaning, it has expressive content and prima facie
falls within the scope of the guarantee. Of course, while most human activity
combines expressive and physical elements, some human activity is purely
physical and does not convey or attempt to convey meaning. It might be
difficult to characterize certain day-to-day tasks, like parking a car, as
having expressive conduct. To bring such activity within the protected sphere,
the plaintiff would have to show that it was performed to convey a meaning. For
example, an unmarried person might, as part of a public protest, park in a zone
reserved for the spouses of government employees in order to express
dissatisfaction or outrage at the chosen method of allocating a limited
resource. If that person could demonstrate that his activity did in fact have
expressive conduct, he would, at this stage, be within the protected sphere …
[37] I make it clear
that I do not endorse the notion that lap-dancing could be viewed as an
exercise of one’s “freedom of expression”.47 I
refer to those authorities merely to explain the nature and potential scope of
the concept of the right. Mr Pointon’s right to run naked to draw attention to
his lifestyle choice is one that must be weighed, in the context of this case,
against the hypothetical reasonable person’s right to use the park, as a public
amenity.
47 See also, in this context, Priestley J’s
comments on the purported exercise of freedom of expression to call stray cats
in a loud voice in public: Thompson v Police [2012] NZHC 2234 at paras
[73]–[75].
48 Lowe v Police HC Wellington CRI-2009-485-135, 2 March 2010.
49 Ibid, at para [3].
(b) Was Mr Pointon’s
behaviour “offensive”?
[38] In Lowe v Police,48 Mr
Lowe appealed against his conviction on a single charge of offensive behaviour.
Clifford J described Mr Lowe as “a committed cyclist and naturist” who
“competes naked in naturist sporting events” as well as “some ordinary sporting
events, such as the Coast to Coast race”. There was uncontested evidence that
Mr Lowe had been competing and training in a naked state for many years,
without any complaint.49
[39] On 15 March 2009, coincidentally “World Nude Bike
Day”, Mr Lowe was training in Upper Hutt. While riding he was wearing a helmet
and a heartbeat monitor, but nothing else. He was seen by a woman who was
driving along the road on which he was cycling. Her five month old son was in
the car with her. She made a complaint to the Police. Mr Lowe was charged with
offensive behaviour.
[40] Clifford J
applied a test discussed in Brooker. At that time, Morse had not
been decided by the Supreme Court. The Judge found that the behaviour was not
capable of “wounding feelings or arousing 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”.50
[41] Clifford J
said:51
50 Ibid, at para [24], applying Brooker v
Police [2007] 3 NZLR 91 (SC) at para [55] (Blanchard J).
51 Ibid, at paras [28] and [29]. The Judge’s
reference to Ceramalus is to Ceramalus v Police (1991) 7 CRNZ 678 (HC)
(an offensive behaviour case) and R v Ceramalus CA14/96, 17 July 1996 (a
disorderly behaviour case).
[28] Here, Mr Lowe
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 Lowe’s nakedness in the
way they would be exposed to the nakedness of someone walking along a suburban
street. A car would pass Mr Lowe at some speed. Mr Lowe 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 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.
[42] Lowe provides an illustration of a
contextual analysis of behaviour that led the Court to the conclusion that
display of public nudity was not offensive. A similar clinical analysis is
required in respect of the present case, having regard to the revised test for
offensive behaviour outlined by the Supreme Court in Morse.
[43] There was
conflicting evidence before the Community Magistrate on the extent of the view
that the complainant had of Mr Pointon as he approached and ran past her. In
cross-examination, the following exchange occurred between counsel for Mr
Pointon and the complainant:
Q. Mr Pointon . . .
tells me that the closest he would have been to you at any one point would have
been about approximately 15 metres. You say it’s approximately maybe about two
or three metres, he says it’s approximately 15 metres. Would you agree with
that assessment?
A. Um, no I would
have thought it was closer than that.
Q. He says that you
were on the upper track and he was on the lower track?
A. No, well, you almost need to have a diagram to
explain it really, um. The track that I was on it, you know, I had just come
around a bend and, um, he was coming down and there was like that junction
point where he could whizz off down to the lower track that was heading down
and that’s where I saw him. I mean, I – ‘cos I had just come round a bend,
there – from where the bend was to where the junction was to take the central
path that he took, was quite close.
Q. But it would have
been, I’d imagine, a fleeting glimpse of him?
A. Um, well it was
long enough for me, for him to say, “Hello”, and for me to be shocked and for
him to, you know, I mean I got a fairly good indication of what he looked like;
I could give a description to the police, which I think was probably reasonably
accurate. It was more than a fleeting glimpse I think.
Q. How long would
you put it at?
A Oh, I don’t know,
um, 10/15 seconds, which I think is long enough. It was enough that, you know,
I was fairly put off by it.
[44] On the other
hand, Mr Pointon, after explaining his notion of naturism and the way in which
it affects his lifestyle, suggested that there was less time for the complainant
to see him. That issue was the subject of cross-examination by the prosecuting
sergeant:
Q. You said in
evidence that you try and use your discretion not to offending anyone, so by
saying that you acknowledge that your activity can be offensive to some people,
can’t it?
A. It may.
Q. So on this
particular day, when you say [the complainant] up ahead, and you say some 10 to
15 metres away, why did you not change direction and go another way?
A. Um, I didn’t see
her ahead. As I said, and I’ll say it again, that she was up to my left on
another track. Um, I did not have to deviate off my track at all.
Q. Okay, in your
evidence you say, I think you said, 10 to 12 metres away. In the notebook that
the constable read out in the conversation in the back of the patrol car, you
said, “Only a few metres away”?
A. Which could
constitute 10 to 12 metres.
Q. Or it could
constitute from me to you, which she said in evidence, and you admit to saying
hello?
A. To the dog.
Q. And now you say that was to the dog, not directed
at her? A. She might construe it as being directly to her.
Q. And you made no
attempt to cover your private parts with your hand?
A. Um, not until I’d
realised that there was a female figure up to my left on, on, on a upper track.
By that time it was, um, what would have been seen would have been very minimal
from a side-on perspective.
[45]
While the Community Magistrate did not attempt to resolve that conflict, I am
satisfied that it is of little moment. The basic facts are not disputed. Mr
Pointon was running on a week day at an hour when he might reasonably have
expected no school-aged children to be present on the tracks. He ran in a
relatively secluded area and had a chance encounter with the complainant. While
she expressed “shock” and felt, to some extent, a sense of vulnerability, the
evidence suggests that those emotions were stirred more by the unexpected sight
of a naked man running in her vicinity than by any sense of fear or
trepidation. That view of the evidence is largely consistent with the District
Court Judge’s summary on the first appeal.52
[46] While the actual reaction of the complainant is
relevant, it is not determinative. The issue is whether a reasonable person in
her position would have been offended by Mr Pointon’s naked body to such an
extent that the criminal law is required to respond to the offence caused. Mr
Pointon’s behaviour was, no doubt, “unwelcome”.53 But,
was it really sufficiently grave to inhibit the person from remaining in the
park or returning to it, to the point of requiring the intervention of the
criminal law? In my view, the answer is “no”.
[47] Judge Moran
identified two reasons for dismissing Mr Pointon’s appeal from the Community
Magistrate’s decision.54 With respect, I disagree with him because:
(a) In posing his test, I consider that the Judge did
not factor in sufficiently the need for the behaviour to be of a type that
would inhibit the reasonable affected person’s recourse to the park or willingness
to return to it to such an extent that the intervention of the criminal law was
justified.
(b) The Judge took
into account an irrelevant fact when he decided that a “reasonable rights
sensitive woman” would be justified in taking into account the existence of
non-public areas for the use of naturists, so as to render naked recourse to
public parks unnecessary.
[48] As to the first of those, the extent to
which the behaviour inhibits recourse or return to public areas was something
that was emphasised by all members of the Supreme Court in Morse. The
fact that the complainant felt inhibited from returning to the park until such
time as Mr Pointon had been apprehended does not, viewed alone, address the
balance between exercise of freedom of expression and the right of another to
enjoy tranquillity and security in a public place.55
[49] This point can
be illustrated by taking a hypothetical example of two gang members, innocently
strolling along the same track, both wearing gang patches. It would be not surprising
for a person in the position of the complainant to be concerned and
discomforted by their presence, and even to feel threatened. However, on any
view, their conduct could not be regarded as “offensive behaviour”. Should the
sight of a naked man, in the circumstances in which the complainant found
herself, be treated any differently? I think not. 5
2 See para [7] above.
53 Compare Redmond-Bate v Director of
Public Prosecutions [1999] EWHC Admin 733 at para [20]; set out at para
[34] above.
54 Pointon v Police DC Tauranga CRI-2012-470-5, 11 June 2012 at
para [24], set out at para [10] above.
[50] As to the
second, the Judge appears to have removed the element of freedom of expression
against which the right to tranquillity and security in public places is to be
weighed. The Judge reasoned that it was unnecessary for Mr Pointon to express
himself as he did because there were other areas in which he could do so. This
aspect of the Judge’s reasoning
casts doubt on whether he applied the test to which he expressly referred in
his judgment; namely, whether “a reasonable mature woman, tolerant of Mr
Pointon’s right to freedom of expression, would be inhibited in her recourse to
the park to the extent that she would be unwilling to return?”56 The doubt arises out of his view that it was unnecessary for Mr Pointon
to exercise his right to freedom of expression in that way. That is beside the
point. He did.
[51] On the facts of this particular case, I consider
that the prosecution did not prove that Mr Pointon was guilty of offensive
behaviour.
[52] It is accepted
that Mr Pointon is a genuine naturist. He had chosen a time of the day when it
was unlikely (though not certain) that children would be present on the track.
While the complainant was discomforted by the sight of Mr Pointon and, as I
read the evidence, instinctively responded to that feeling, the encounter was
brief. The position was really no different from that which might have arisen
had she encountered the hypothetical gang members to whom I referred
earlier.57
55 See
para [32](c) above.
56 Pointon v Police DC Tauranga CRI-2012-470-5, 11 June 2012 at
para [24], set out at para [10] above.
[53] In those circumstances, I consider
that a reasonable person having the characteristics of the particular
complainant would not have been offended to such a degree as to warrant
invocation of the criminal law. The complainant’s decision not to continue to
use or return to the park was her choice, rather than something compelled by Mr
Pointon’s conduct.
57 See para [49] above
Result
[54] For those
reasons, the appeal is allowed. The conviction entered in the District Court
and the sentence imposed in consequence are both set aside.
________________________________
P R Heath J
Delivered at
2.00pm on 30 November 2012
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