The Queen v White [2007] NZCA 214 (30 May 2007)

Last Updated: 16 June 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA67/07
[2007] NZCA 214

THE QUEEN



v



GRAEME WHITE

Hearing: 14 May 2007

Court: William Young P, Glazebrook and Wilson JJ

Counsel: Mr White in person
A M Powell for Crown

Judgment: 30 May 2007 at 11.30am

JUDGMENT OF THE COURT

The application for special leave to appeal is granted on the following questions:

(a) Is the mens rea requirement for offences under s 4(1)(a) of the Summary Offences Act 1981 always limited to an intention to do the act in question?
(b) Should lack of intention to offend be taken into account in assessing whether a person is behaving in an offensive manner?
____________________________________________________________________

REASONS OF THE COURT
(Given by Glazebrook J)

Introduction

[1]	Mr White, on 15 September 2006, was found guilty in the District Court at Christchurch by Judge MacAskill of behaving in an offensive manner in a public place, an offence against s 4(1)(a) of the Summary Offences Act 1981. An appeal against that decision was dismissed by Fogarty J on 7 December 2006 and he refused leave to appeal to this Court on 8 February 2007.
[2]	Mr White seeks special leave to appeal on the following three questions:

(a) Whether a person without mens rea to offend can be guilty of offensive behaviour.
(b) Whether a person going about their lawful business without mens rea to offend is guilty of offensive behaviour when discriminated against by an observer on the grounds of skin colour, dress, religious practice, political practice, or social status.
(c) Whether the resilience of a reasonable person referred to in the judgment of R v Rowe [2005] 2 NZLR 833 at [23] (CA) ("The standard to be applied is not one of undue sensitivity, nor high tolerance, but rather the resilience of a reasonable person is to be applied.") defines an acceptable level of prejudice in an observer with regard to skin colour, dress, religious practice, political practice, social status.

Factual background

[3]

At about 7.20pm on the evening of 28 January 2006, Mr White was walking along the road near his home to tend to a goat. That part of the road where he was walking is visible from a neighbour’s property and from a nearby camping ground. When he left his house, Mr White was wearing what was described by witnesses as a leather bum bag across his genitals and a sack cloth top. A short way down the road he took the top off leaving him clad only in the leather bag with his buttocks uncovered.

[4]

Mr White was observed by Mr and Mrs Peters who were visiting Mrs Peters’ father who rents the neighbouring property. Mrs Peters’ evidence was that, as Mr White approached the house and at a distance of about of 20 metres or so, he looked towards her and moved his bag sideways around his hips exposing his genitals. She said that Mr White’s genitals were exposed to her view for about half a minute. Mr Peters largely confirmed the evidence of his wife. Mr White denied that he had exposed his genitals in the manner alleged.

District Court decisions

[5]

Judge MacAskill issued an interim decision on 30 June 2006 where he made certain factual findings and then a final decision on 15 September 2006 convicting Mr White.

[6]

In his interim decision, the Judge accepted the evidence of Mr and Mrs Peters that Mr White did move his bag in the way they described. However, the Judge was not satisfied that Mr White had looked towards the kitchen window as he approached the house and moved his bag so as to expose his genitals with a degree of deliberation. The Judge accepted that Mr White would not have moved the bag if he had known that his neighbours were watching. The Judge said:

I accept that it is likely that Mr White’s view was influenced by the sun low in the sky at that point but, quite apart from that, having seen and heard him give his evidence I accept that he would not have exposed himself in the way that I found he did, if he had known that he was being observed by his neighbours. The essence of it is that while I find that he deliberately moved his bag to one side, he did so not appreciating that he was being observed by the Peters or by anybody else.

[7]

The Judge, however, accepted the prosecution’s argument that Mr White was in a public place and was at risk of being observed. Mr White knew there were people staying in the camping ground. He also knew that there was a car in the neighbour’s driveway and, although Mr White did not turn his mind to it, there was a risk that there may have been people in the house looking out. The Judge called for further submissions on the issue of whether, in order to behave offensively in this kind of case, a defendant must know that he is being observed or whether some other state of mind, such as recklessness, carelessness or indifference, is sufficient.

[8]

Having received the further submissions, the Judge delivered his final decision of 15 September 2006. He held that the decision of this Court in Rowe authoritatively determined that there was no mens rea requirement, apart from an intention to perform the act itself. In this case Mr White, while walking along a public road, deliberately exposed his genitals. He was readily observable and was in fact observed. Mr White’s behaviour must be judged objectively by reference to the time, place and circumstances and was offensive. The Judge said:

I am satisfied that his conduct in walking on a public road in that locality, having deliberately exposed his genitals and when he was observable, had the tendency to seriously offend "right thinking" or "hypothetical reasonable" members of the community and is sufficiently serious to warrant the intervention of the criminal law. This conduct amounted to offensive behaviour.

[9]

The Judge held that it did not matter that Mr White did not think his behaviour was offensive or that some members of the community might not think it offensive. Although Mr White did not intend to offend anyone and would not have so behaved had he known that he would be seen, those factors go only to mitigation. The Judge said that the law does not require that Mr White’s conduct be directed at those who did or might observe him, or that he be reckless, careless or even indifferent as to whether he was observed by anyone. It is sufficient that he was observable. With respect to Mr White’s culpability, however, the Judge considered it relevant that there was plainly a real possibility of his being seen and this risk ought to have been recognised by him.

High Court appeal

[10]

Mr White appealed against his conviction. On 7 December 2006, Fogarty J dismissed the appeal. He held that whether the relevant behaviour is offensive has to be assessed objectively. It was thus no defence that Mr White did not intend to offend anyone and Judge MacAskill had correctly applied the law. Fogarty J also rejected Mr White’s submission that his behaviour was not offensive because people in his locality are used to his minimal dress and his conduct is acceptable in the area. Fogarty J held that it is left to the Judge in the case in question to assess whether or not the offence has occurred and this is judged in the light of all the circumstances. In this case, it was open to the Judge to find Mr White’s behaviour offensive.

Leave to appeal refused

[11]	Mr White’s application for leave to appeal to this Court was rejected by Fogarty J on 8 February 2007. The Judge held that in Rowe this Court intended to endorse a line of authority which establishes an objective test as to offensive behaviour and confines mens rea to a requirement that the Crown prove that the act in question was intentional.
[12]	Fogarty J acknowledged that this Court has not addressed the application of the law on offensive behaviour in a case where there is a positive finding of fact that the person convicted did not intend to offend anyone. He also acknowledged an Australian authority which required proof of intent to offend – Stone v Ford (1993) 59 SASR 444 (SC). The Judge considered that these matters were not sufficient for the subject to be revisited in this Court when the objective test has effectively been settled since 1967.
[13]	As to the complaint that the law is discriminatory, the Judge did not consider that the imposition of acceptable behaviour in public places undermines the prohibition on discrimination.

Discussion of special leave application

[14]

This Court in Rowe endorsed a line of authority holding that the test for offensive behaviour is an objective one and that mens rea to offend is not necessary. All that needs to be proved is that the offensive act itself was intentional. This Court has not, however, had to examine the question of mens rea in a case where there is a finding of fact that the defendant did not mean to offend anyone and that he would not have so behaved had he known he was being observed. Judge MacAskill treated these as factors going to mitigation and not to whether the offence had been committed. The Judge also held that the fact that Mr White knew or ought to have known that there was a real possibility of his being seen was an aggravation of culpability rather than a condition of culpability.

[15]

The issue arises as to whether there should be some modification of the objective test in the circumstances that pertained in this case. If thought desirable, this could be achieved in one of two ways:

(a) the modification of the mens rea requirement to take into account situations of this kind;
(b) taking into account any lack of mens rea at the point where the Court is making an evaluative assessment of all the circumstances of the case under consideration in order to decide the impact upon the hypothetical reasonable member of the community and whether the behaviour in question is sufficiently serious to warrant the intervention of the criminal law – see Rowe at [23] and [24]. In other words, the question is whether the subjective state of mind of the offender should be taken into account in deciding whether the behaviour is offensive and not merely in mitigation or aggravation of culpability as Judge MacAskill did.

[16]

We consider that these are issues of sufficient importance to merit a second appeal. It is arguable that a purely objective test has the potential in the circumstances of this and similar cases to extend the reach of the criminal law too far. Mr Powell, for example, posited the prospect of a person being prosecuted for "nipping out" unclothed to the letterbox thinking (perhaps on reasonable grounds) that he or she would not be observed.

[17]

We do not consider that the issues in Mr White’s second and third questions relating to discrimination arise squarely in this case. Although Mr White has a different view to many in the community as to proper attire, a view grounded in his particular Christian beliefs, his defence in this case was based on the fact that he would not have exposed his genitals had he known anyone was watching and that he did not do so. He accepted the need for (at least minimally) proper attire if people who might be offended were watching.

Result

[18]	We give special leave to appeal on the following questions (which are a modification of Mr White’s first question):

(a) Is the mens rea requirement for offences under s 4(1)(a) of the Summary Offences Act 1981 always limited to an intention to do the act in question?
(b) Should lack of intention to offend be taken into account in assessing whether a person is behaving in an offensive manner?

[19]	The fact that leave has not been granted on Mr White’s second and third questions does not mean that arguments relating to the New Zealand Bill of Rights Act 1990 cannot be raised when arguing the two questions on which we have given leave.
[20]	As this matter involves difficult questions of law and Mr White is a layperson, we consider that the Court hearing the appeal would be assisted by the appointment of an amicus curiae.

Solicitors:
Crown Law Office, Wellington