In this decision, the Supreme Court clarified the law relating to sections 125 and 126 of the Crimes Act 1961, relating to indecent acts.

On 23 January 2016, an off-duty police officer observed Mr Rowe taking photos with a zoom lens of three bikini-clad teenage girls at Kaiteriteri beach near Nelson. The girls were thirty metres away from Mr Rowe and appeared to be unaware that he was photographing them.

Mr Rowe was later charged with doing an indecent act with intent to insult, contrary to section 126. The charge related to five photos, in one, the girls appeared to be posing. The police officer found that Mr Rowe had three electronic devices with an extensive number of photos of young girls on the devices. No objectionable material was found on the devices.

Mr Rowe had been given a trespass notice from the same beach in 2012 for taking photos of young girls.

He believed that it was permissible for him to take the photos and he referred to the Police website, which stated that it was “generally lawful to take photographs of people in public places without their consent” and that it was “permissible to take photographs “of people where there is no expectation of privacy, such as a beach”.

Mr Rowe was found guilty at a trial by jury in the Nelson District Court. He appealed to the Court of Appeal, which upheld the conviction.

Court of Appeal

The Court of Appeal agreed with the trial judge that the jury should consider Mr Rowe’s intention to “insult the dignity of the girls in the photos, their right to modesty or privacy” by taking these photos “at their age and in those general circumstances.” It considered that the taking of a photograph could amount to an indecent act.

Supreme Court approach

The Supreme Court disagreed with the approach of the Court of Appeal. It looked at the statutory history and framework of sections 125 and 126 and previous cases from New Zealand and overseas.

125 Indecent act in public place

(1)   Every one is liable to imprisonment for a term not exceeding 2 years who wilfully does any indecent act in any place to which the public have or are permitted to have access, or within view of any such place.

(2)   It is a defence to a charge under this section if the person charged proves that he or she had reasonable grounds for believing that he or she would not be observed. 

126 Indecent act with intent to insult or offend

Everyone is liable to imprisonment for a term not exceeding 2 years who with intent to insult or offend any person does any indecent act in any place

Indecent Act

According to the Supreme Court, sections 125 and 126 are primarily about exhibitionism as understood broadly - or “display by a person to someone else”. The Hon Justice Ellen France outlined that the Crown must prove two elements to establish an offence under section 126: first, the doing of an indecent act, which is an objective test and second, an intention to insult or offend, which is a subjective question.

The Hon Justice Young opined that the most important consideration is how third parties who witness the behaviour in question would react.

In R v Annas, the Court of Appeal considered that the immoral purposes of the photographer could make indecent what was otherwise not an indecent photograph. The Supreme Court did not uphold this approach. In its view, only focusing on the surrounding circumstances to show that an act is indecent creates a situation where the conduct is disassociated with the core concept of an indecent act, which is central to both sections 125 and 126.

The Supreme Court found that neither the subject matter nor the photos taken by Mr Rowe were indecent and noted that there was no exhibitionistic behaviour. Justice Young confirmed that “s 126 must be confined to conduct intended by the defendant to be seen by someone and to result in that person being insulted or offended”. He agreed with Judge Zohrab, the trial judge, that the appellants’ actions were “creepy” but noted that the issue was whether he had breached criminal law.

After examining the case law and statutory scheme of sections 125 and 126, the Supreme Court decided that section 126 did not apply to the facts of this case. It noted that the only matters relied on to criminalise Mr Rowe’s conduct were factors such as his motive and purpose. In its view, to apply section 126 in a case like this would create uncertainty about how the law should be applied.

Intention to Insult

Since the Supreme Court found that Mr Rowe’s actions were not an indecent act, it did not need to address the issue of whether there was an intention to insult. But, in any case, the Court stated that since the images themselves were not indecent, it did not consider that it was possible to prove an intention to insult beyond reasonable doubt.

Website

The Court decided that since it found there was not enough evidence to constitute the offence, it was not necessary to look into Mr Rowe’s reliance on the statement on the police website. 

Decision

The Appeal was allowed and Mr Rowe’s conviction was quashed. The Court did not order retrial as it found that there was insufficient evidence to constitute the offence.

Image credit: Man taking mirror shot - Creative Commons licence via Pexels.

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