Andrews v Rockley [2008] QDC 104

DISTRICT COURT OF QUEENSLAND CITATION: Andrews v Rockley [2008] QDC 104 PARTIES: ADAM WILLIAM ANDREWS (Appellant) v SHANE ALAN ROCKLEY (Respondent) FILE NO/S: D 2469 of 2007 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 7 May 2008 DELIVERED AT: Brisbane HEARING DATE: 11, 25 February and 18 March 2008 JUDGE: Rackemann DCJ ORDER: Appeal allowed, conviction set aside and verdict of not guilty entered CATCHWORDS: Appeal – nude sunbathing – conviction for committing a public nuisance – whether acting Magistrate misunderstood evidence – whether behaviour disorderly or offensive – reasonable doubt – mistake of fact COUNSEL: Ms K Greenwood for the appellant Ms Rutherford for the respondent SOLICITORS: O’Shea Lawyers for the appellant Director of Public Prosecutions for the respondent -- 1 of 14 -- 2 [1] On 17 March 2007 the appellant was nude sunbathing on a beach when he was approached by two police officers, Senior Constable Rockley and Constable Winnett. He was subsequently charged, under s 6 of the Summary Offences Act 2005, with one count of committing a public nuisance. The prosecution relied, in particular, on the visibility of the appellant’s penis as he lay naked on the beach. Upon his trial before acting Magistrate Hasted, the appellant was found guilty, fined $100 and ordered to pay $118 court costs. No conviction was recorded. The appellant appeals against his conviction. [2] Section 6 of the Summary Offences Act provides relevantly as follows: “6 Public nuisance (1) A person must not commit a public nuisance offence. Maximum penalty—10 penalty units or 6 months imprisonment. (2) A person commits a public nuisance offence if— (a) the person behaves in— (i) a disorderly way; or (ii) an offensive way; or …. and (b) the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public. …” [3] The learned acting Magistrate found that “at the very least” the appellant had engaged in behaviour which was disorderly and was likely to interfere with the peaceful passage through a public place by a member of the public. It was submitted, on behalf of the appellant that, in so finding, the learned acting Magistrate erred in a number of respects, which may be summarised as follows: (1) The learned acting Magistrate misunderstood the evidence and inappropriately described the appellant’s evidence as self-serving and contradictory. -- 2 of 14 -- 3 (2) On the facts found, the appellant’s conduct ought not to have been held to be: (A) disorderly; or (B) likely to interfere with the peaceful passage through a public place by a member of the public; and (3) The learned acting Magistrate failed to consider the defence of mistake of fact, which was raised on the evidence (although not dealt with in submissions at first instance) but not negatived. [4] It is common ground that: (i) On 17 March 2007 the appellant was nude sunbathing on the beach. (ii) Four-wheel drive vehicles were permitted to travel along the beach, subject to regulation and, on the day in question, four-wheel drive vehicles, carrying members of the public, travelled along the beach by driving on the hard sand on the lower part of the beach (ie towards the water’s edge).1 (iv) The appellant was further up the beach, towards the soft sand and dunes (although there was some dispute about exactly how far up the beach the appellant was). (v) The appellant was lying on his back with his four-wheel drive vehicle positioned between himself and the lower part of the beach. (vi) The appellant’s penis was flaccid. (vii) The beach sloped downwards from the dunes to the water’s edge. (viii) There was a clearance, being the gap between the underside of the chassis of the appellant’s four-wheel drive vehicle and the surface level of the sand. 1 There was some dispute about how busy it was on the day. -- 3 of 14 -- 4 [5] The evidence of the police officers was to the effect that, whilst driving in their four-wheel drive vehicle, they were able to observe the appellant from the lower part of the beach, by looking towards and under his vehicle, through the clearance between it and the sand. It was submitted, on behalf of the appellant, that the learned acting Magistrate’s reasons demonstrated error in his understanding of the evidence when he said: “I find that as Rockley looked across over towards the vehicle and under it, Rockley observed a large-built, naked male, the defendant before this court, with his head on the northern side, laying on a towel, parallel to the motor vehicle and approximately one to one and a half metres to the western side of the vehicle, not visible to Rockley. I find that the police then drove past and performed a U- turn as they turned towards the vehicle and drove back.” [6] It was submitted that the police officers did not observe the appellant to be naked until they had already turned towards his vehicle (ie, after departing from the course otherwise taken by by four-wheel drive vehicles travelling along the beach). Counsel for the appellant referred to a number of passages of the evidence including a passage from the evidence of Senior Constable Rockley where he said “as we neared the vehicle I looked in across and underneath the vehicle”. Similarly, Constable Winnett referred to observing the appellant “as we’ve approached the vehicle”. [7] I am not persuaded that the learned acting Magistrate was mistaken in this regard. A vehicle travelling along the beach, on the hard sand parallel to the water’s edge, would “near” or “approach” the appellant’s stationary vehicle as it got to a point directly between the appellant’s vehicle and the water’s edge, even without deviating from its line of travel. Senior Constable Rockley’s evidence was that he looked across to and underneath the appellant’s vehicle, observed a large-built naked male, and clearly saw his penis before driving past the vehicle, performing a U-turn and then “as we turned back towards the vehicle … and drive back to the -- 4 of 14 -- 5 vehicle I saw the male person, which was the defendant jump up … and at this time I again clearly saw his penis.”2 [8] Senior Constable Rockley also drew a sketch plan, which was admitted into evidence. That plan depicts the path of travel of the police vehicle as continuing parallel to the water’s edge and 15 to 20 metres down the beach from the appellant’s vehicle. The plan shows that path of travel continuing, beyond the point where Senior Constable Rockley made his observation, prior to a U-turn being performed. [9] Constable Winnett explained that the point of observation was where “we proceeded to come up parallel to the four-wheel drive where I could see a male person from underneath the car … I observed the male person to be naked. I then proceeded to turn the car around … as I have turned the car around I have started proceeding back towards the car … at that time I’ve observed the male person, who was lying down originally stand up which gave me a complete view that he was naked.” 3 [10] The evidence of the police officers (considered together and with the sketch plan) provides a satisfactory foundation for the learned acting Magistrate’s finding in this respect. [11] It was also submitted that the learned acting Magistrate had erroneously rejected the evidence of the appellant, where it conflicted with that of the police officers. The learned acting Magistrate’s reasons state that he was impressed with the manner in which the police officers gave their evidence. While acknowledging some inconsistencies in their evidence, he considered that was in relation to matters “at the periphery” and was left with the impression that they were each attempting to give an accurate account, based on their recollection of the events on the day in 2 See T 7 of the transcript of 10 September 2007. 3 T 40-41 of the transcript of 10 September 2007. -- 5 of 14 -- 6 question. In contrast, the learned acting Magistrate was “not left with the same sense of the defendant’s evidence”. In that regard he said: “In my opinion the defendant was not an impressive witness in giving evidence to this court. I found his evidence at times to be self-serving and contradictory on significant points of evidence. For example, in cross-examination in answer to the question, ‘Did you say to constable Rockley on the day that you did see the no nude bathing signs?’, to which he answered, ‘no’. After Exhibit 2, the tape recording of the conversation between himself and Rockley was played, he then said that he did not say to Rockley on the day that he did see the no nude bathing signs. However, he sought to explain this contradictory ___ by saying that in advising Rockley that he had seen the signs he was speaking in the past tense, not in the present tense. Further, according to the notes that I took during the trial of these proceedings, in cross-examination, I have recorded the defendant’s response to a question asked by the police prosecutor that he knew what he did was wrong and that it was a punishable offence, however, in re-examination I have recorded in my notes that he said that he didn’t agree that his nudity will in all circumstances offend people. He explained that if you take a fair bit of effort and stay out of sight of people then you shouldn’t offend them. It is for these reasons that I accept the version of events given by the police officers where it conflicts with that of the defendant’s version of events.” [12] I agree that at least the last of the matters referred to by the learned acting Magistrate is not an example of evidence which is clearly contradictory. In the course of cross-examination, the appellant had been asked about his knowledge of signs, erected at distant beach access points, to deter nude bathing. It was then put to him4 that he knew it to be wrong for him to be naked in that place. His answer was “depending on what you want to call wrong”. The appellant had already given evidence of steps he had taken to shield his nudity from public view, so as not to offend anybody. His subsequent acceptance of an assertion that it was a punishable offence to be naked in that place at that time, does not strike me as being necessarily contradictory. 4 At T 94 line 40. -- 6 of 14 -- 7 [13] Read as a whole and in context, the appellant’s answers suggest that, in his mind, while his behaviour might have broken the law, it was not offensive. Such evidence might be more difficult to comprehend if it had been given by a lawyer, who realised that offensiveness is relevant to whether an offence had been committed, but the appellant is not a lawyer. His answers came in the context of being questioned about the signs and a suggestion that it was a punishable offence to be “naked in that place”. [14] The appellant was not charged with an offence of contravening the signs or being naked in a public place. Indeed I was informed that no such offence exists. Instead, he was charged with committing a public nuisance. His nudity could only be a punishable offence on that basis if, in the circumstances, it amounted to disorderly or offensive behaviour of a kind which had the effect, or was likely to have the effect, referred to in s 6 of the Summary Offences Act. That subtlety was not picked up in the questions which the appellant was asked about whether he knew it was a punishable offence to be “naked in that place”. Read as a whole and in context, it seems to me that the appellant’s evidence was reasonably consistent in asserting that, on that day in question, he believed that he had taken adequate precautions to avoid his nudity causing offence. [15] It is however, unnecessary to delay further on these matters. Apart from an issue discussed in the first paragraph of that part of the reasons extracted above, the respects in which the evidence of the appellant conflicted with that of the police officers primarily related to precisely how far up the beach the appellant had positioned himself and his vehicle, whether he was parallel to the vehicle or on some angle, and whether, in addition to placing his vehicle between himself and the lower parts of the beach, and leaving the front door open, the defendant had also erected an umbrella, to provide a further shield in the opposite direction. While -- 7 of 14 -- 8 those matters might be of some relevance, I do not regard them, or any other respect in which the appellant’s evidence differed from that of the police officers, as critical to the correct conclusion in this case. [16] It was submitted that, even on the facts as found, the appellant's behaviour could not be said to be disorderly or offensive or to have, or be likely to have, the effect referred to in s 6(2)(b). That was said to be so given the particular time, place and circumstances in which the appellant was nude sunbathing. This was the principal basis upon which the matter had been argued at first instance. In his reasons for judgment, the learned acting Magistrate accepted that what will constitute disorderly or offensive behaviour will vary with time, place and circumstance. He traversed the relevant authorities, to which he had been helpfully referred and, having observed that the standard to be applied is an objective one, His Honour proceeded to consider the evidence. That is an unexceptional approach. [17] In the course of examining the evidence, His Honour made reference to the “no nude bathing” signs, Senior Constable Rockley’s evidence that he found the sight of the appellant’s penis offensive, that the behaviour was in a public place where there was a significant amount of human activity (particularly by four-wheel drive traffic travelling along the beach past the point where the appellant was positioned) and that it was not “inconceivable” that families, including young children could be passing through and that concerned parents or carers would regard the “spectacle” to be inappropriate. His Honour concluded that: “It was for a combination of all these reasons that I am satisfied, beyond reasonable doubt, that the defendant’s behaviour, lying naked on a towel parallel to and approximately one to one and a half metres to the west of his green Nissan short wheel based four-wheel drive motor vehicle, that was parked approximately 15 metres from and parallel to the surf, facing a southerly direction at approximately 1:30 pm on Saturday, 17 March 2007, did at the very least – at the very least engage in behaviour that was of a kind as disorderly as recognised as s 6(2) of the Summary Offences Act and that that -- 8 of 14 -- 9 behaviour was likely to interfere with the peaceful passage through a public area by a member of the public.” [18] The learned acting Magistrate found that the behaviour was, at the very least, “disorderly”, but stopped short of finding that it was offensive. The concepts are different, but can overlap. Disorderly behaviour may be described as that which is likely to cause a disturbance or to annoy or insult others sufficiently deeply or seriously to warrant the interference of the criminal law.5 Offensive behaviour may be described as that which would produce, in a reasonable person, a significant emotional reaction such as anger, resentment, disgust or outrage.6 I would have thought that the behaviour relied upon in this instance would fall within both categories or neither. The defendant’s conduct in nude sunbathing was only likely to cause a disturbance or annoy or insult persons sufficiently deeply or seriously to warrant the interference of the criminal law if, having regard to contemporary standards and matters of time, place and circumstance, reasonable persons were likely to be offended by the “spectacle”. [19] Nude sunbathing in a public place on a beach within view of areas to which the general public has resort is conduct which potentially (depending upon time, place and circumstance) is capable of being regarded as disorderly or offensive, even by contemporary standards. It is ultimately unnecessary to determine whether (as the appellant contends) the learned Magistrate erred in concluding that the behaviour fell within s 6 in the particular circumstances of this case because, for the reasons which follow, the appellant ought not to have been convicted in any event. [20] The respondent’s further written submissions in this appeal concede that the defence of mistake of fact, under s 24 of the Criminal Code, was potentially open on the 5 Melser v Police [1967] NZLR 437, Coleman v Power (2004) 78 ALJR 1166. 6 See Ball v McIntyre (1966) 9 FLR 237 at 243; and Worcester v Smith [1951] VLR 316 at 318. -- 9 of 14 -- 10 facts, even though it was not mentioned in the submissions at first instance or in His Honour’s reasons. I am satisfied that, if the offence was otherwise made out, the defence was raised and not negatived. [21] Section 24(1) provides as follows: “24 Mistake of fact (1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.” [22] The appellant was charged on the basis that his penis was seen as he was lying nude on a public beach and the respondent submitted that the appeal should be considered on the same basis. The evidence suggests however, that the appellant honestly believed that his penis was not in fact exposed to view. That is a belief in the existence of a state of things. If that belief was reasonable, but mistaken, it will provide a defence, since the prosecution does not contend that the offence is made out in this case if the appellant’s penis could not be seen as he lay on the beach.7 [23] I have already mentioned the way the appellant had positioned his vehicle up the beach and himself on the opposite side of the vehicle to those who might be passing along the lower part of the beach, closer to the water’s edge. While there was a clearance under his vehicle, he was lying on his back and his penis was flaccid. In such circumstances one might reasonably expect that a person passing by along the beach in a moving vehicle, at some distance, would, if they happened to look in his direction and through the clearance, gain no more than a passing view of the appellant’s side and perhaps detect that he was naked, without seeing his penis.8 It would also have been reasonable to conclude that the appellant’s vehicle prevented 7 T 189 ll 12-20 of 18 March 2008. -- 10 of 14 -- 11 view of the appellant’s penis by any persons travelling along the beach, but who were not in a position to look to and under the clearance. [24] The appellant’s evidence was to the effect that, rather than “parading around” naked, he lay down and so positioned himself and shielded himself as to avoid causing offence to anybody. In particular, he confirmed that he would “absolutely not” have been comfortable had he thought people could see his penis. In that regard he said: 9 “… I can’t see how anyone would have actually seen me anyway; driving down the beach or up the beach at 50 kilometres an hour … on the hard sand at low tide. The way I was laying with my head towards the water and my feet towards the dunes with my penis laying between my legs, I can’t see how anybody could have seen my penis.”10 The respondent pointed to a passage of the appellant’s evidence at trial where he conceded that his penis was exposed,11 but read in the context of his evidence as a whole, I do not consider that could reasonably be taken to be an admission that his penis was visible from those passing along the beach or that the appellant believed it was so visible. [25] It was submitted, on behalf of the respondent, that any belief, on the part of the appellant, that his penis was not visible would not have been reasonable. In that regard, it was submitted that, given the slope of the beach, it was reasonable to conclude that the appellant could see through the clearance, down to those travelling along the lower part of the beach and could appreciate that those persons could, in turn, look up the beach and see him through the clearance. It was submitted that the appellant could not have been reasonably mistaken about his privacy. 8 There was some dispute about whether he was parallel to the vehicle or on an angle. 9 At T 102. 10 That is so whether he was parallel to the vehicle or on an angle. 11 T 95 l 5. -- 11 of 14 -- 12 [26] While those factors may have made it unreasonable for the appellant to have believed that his body was entirely shielded from view, they do not, in my view, establish that it was unreasonable for the appellant to have believed that his penis was not visible. As has been mentioned, the respondent submitted that the appeal should be limited to the particulars relied upon and did not seek to uphold the conviction on any basis other than visibility of the appellant’s penis. Further, the respondent disavowed reliance on what the officers saw of the appellant’s penis when they drove up to the appellant’s vehicle, prompting him to stand up and reach for his shorts.12 [27] Given the basis upon which the respondent sought to maintain the conviction, it is relevant to revisit the evidence of the police officers, each of whom was accepted by the learned acting Magistrate. Each gave evidence that they observed the appellant, whilst driving along the beach. Each made their observations from the same vehicle at or about the same point. While Constable Winnett was the driver of the vehicle, the evidence did not establish that he was so distracted by that responsibility as to have been unable to properly observe the appellant or accurately recall what he observed. One would expect, in those circumstances, that their evidence would be to similar effect, but it was not. [28] Senior Constable Rockley gave evidence that, although the appellant was lying flat on his back and Senior Constable Rockley was observing the appellant from a moving vehicle, by looking towards and through the clearance underneath the appellant’s vehicle, from a distance of some 15 or 20 metres,13 he could “clearly see” the appellant’s flaccid penis.14 Constable Winnett’s evidence, on the other hand, was that, at that point, he was able to observe the appellant and see that he 12 T 185 ll 5-20 from 18 March 2008. 13 The distance noted on the sketch plan. -- 12 of 14 -- 13 was naked,15 but it was when he had turned the police vehicle and proceeded towards the appellant, (prompting him to stand up) that he obtained “a complete view that he was naked”.16 Asked about the matter again, in examination in chief, Constable Winnett confirmed that he initially viewed underneath the vehicle and saw him naked 17 but later, when the appellant stood up, after the police approached his vehicle, saw his genitals.18 Constable Winnett did not say that he saw the appellant’s penis when he initially observed him to be naked. That difference in the evidence of the police officers was acknowledged by the respondent in the context of this appeal.19 [29] Oddly enough, this difference in the evidence as to what could be seen as the officers drove along the beach, was not dealt with, either in the submissions before the learned acting Magistrate, or in his Honour’s reasons.20 It did not relate to a “peripheral” matter. It went to the heart of the basis upon which the respondent attempted to obtain (and subsequently maintain) the conviction, namely that the appellant’s penis was visible from the location where people were driving along the beach. That Senior Constable Rockley’s evidence, in this regard, differed from that of Constable Winnett would appear to raise a reasonable doubt. The learned acting Magistrate, who had the advantage of observing the witnesses, regarded Constable Winnett as an apparently credible and reliable witness and his version of events is not improbable. [30] The respondent seeks to maintain the conviction on the basis that the appellant committed a public nuisance offence by nude sunbathing in circumstances where 14 T 7. 15 T 40 line 35. 16 T 41 line 10. 17 T 42 line 1. 18 T 42 line 5. 19 T 188 ll 13-23 from 18 March 2008. 20 Beyond noting the evidence of the witnesses. -- 13 of 14 -- 14 his penis was visible by members of the public traversing the beach, and that it would not have been reasonable for the appellant to have held a belief that his penis was not visible. The evidence of the police officers at trial however, left a reasonable doubt about whether the appellant’s flaccid penis was exposed to view as he lay on his back, on the opposite side of his vehicle. In any event, if the offence was otherwise made out, I am satisfied that the defence of mistake of fact was raised on the evidence and not negatived. [31] On the evidence it was at least possible, and indeed probable, that even if the appellant’s penis was visible, the appellant was acting under an honest and reasonable but mistaken belief that it was not. Accordingly he is not criminally responsible to any greater degree than if the real state of things had been such as he believed to exist. The respondent did not seek to maintain the conviction in the event that the appellant’s penis was not visible (or the appellant honestly and reasonably believed it was not visible). [32] Accordingly I allow the appeal, set aside the conviction and enter a verdict of not- guilty. -- 14 of 14 --