|
Extract from NZ Police magazine Ten-One 28 February 1992 Page 10
LAW NOTES
Offensive Behaviour-Naked Sunbathing On Beach
Ceramalus v Police
(Unreported, High Court, Auckland, Tompkins J, 8 July 1991, AP 76/91)
This case is important because it is one of the few High Court
decisions to discuss the requirements necessary to prove a charge of
"offensive behaviour". In this case it centred on naked sunbathing on a
beach occupied by a large group of children.
Facts
Ceramalus was charged and convicted in the District Court of offensive
behaviour in a public place (section 4(1 )(a) of the Summary Offences
Act). He had walked naked onto a beach occupied by a large group of
school children aged between 8 and 11 years, whereupon he lay down to
"sunbathe", face up, only some 10 metres from part of the group.
He appealed, contending that what he had done was neither "behaviour" nor "offensive" within the meaning of the section.
The Issues
The High Court considered two issues:
1 Whether "behaviour" in this section was a matter of action
rather than appearance? Ceramalus contended that by walking naked his
behaviour was walking, but that his nakedness was not an action, and
therefore was not behaviour.
2 Whether the word "offensive" takes on its primary meaning of
"aggressive and having the quality of attack", or whether the secondary
meaning of "objectionable" applies?
Held
The First Issue
Ceramalus' behaviour encompassed his actions in walking along the beach
and lying upon it while naked. It was a combination of these factors
that amounted to his behaviour.
The Second
The true meaning of "offensive behaviour" was that which aroused
feelings of anger, disgust or outrage. The argument that it meant
"aggressive or attacking" was rejected.
Three Principles Emerge:
1 The test is objective - whether the behaviour would be regarded
as offensive in the mind of reasonable person. It is not
necessary to prove that persons present found the behaviour offensive.
The Court can have regard to current community standards, recognising
that what was previously offensive may not now be so. When the Court is
deciding what the attitude of responsible members of the community
would be, it would be helpful to take into account the effect the
conduct had on those actually there.
2 The judgement of the conduct in question, in every case, is a
matter of degree depending on the relevant time, place and
circumstances.
3 The behaviour must be a so serious interference with the rights
of others such as would justify the intervention of the criminal law.
For behaviour to be "offensive behaviour" it must be calculated to
wound the feelings, arouse anger or resentment or disgust or outrage in
the mind of a reasonable person.
Conclusion
Whereas the reasonable person would regard Ceramalus' behaviour as
inappropriate, unnecessary and in bad taste, they would not be angered,
disgusted or outraged by it, The appeal was allowed.
Comment
We are now at the stage where, if we are going to charge a person with
offensive behaviour there must be evidence to prove a deliberate intent
to offend.
If we can not prove that element, we will have difficulty in proving the charge.
However, an intent to offend might be inferred from the circumstances,
eg. masturbating in a carpark without peopIe around in broad daylight
may not of itself be offensive, but continuing when people enter the
carpark would be evidence from which and intention to offend could be
inferred.
Extract from NZ Police magazine Ten-One 28 February 1992 Page 10
|
|