IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000384 [2013] NZHC 1023

BETWEEN	GORDON DENNIS GREGG
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	8 April 2013	
Appearances:	S A Rees for Appellant
N Whittington for Respondent	
Judgment:	9 May 2013	

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 9 May 2013 at 12 noon
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………...

GREGG v NZ POLICE [2013] NZHC 1023 [9 May 2013]

Introduction

[1]   One day in February 2012 Gordon Gregg, a 58-year-old man, was standing at the dining room window of his house in Howick at about 2:50 pm. He was dressed only in his bathrobe and was masturbating. In the house next door the complainant, Ms S, a 21-year-old woman, was working as a nanny. Ms S was standing in the kitchen, which faced Mr Gregg’s house. She looked up from the sink and saw Mr Gregg masturbating. She maintained that they sustained eye contact for about 20 seconds before she left the room.

[2] Mr Gregg was found guilty following a defended hearing  before  Judge Clapham in the District Court at Manukau1 of doing an indecent act with intent to offend.2 He appeals his conviction on the ground that the Judge made the following errors:

Finding  that  Mr  Gregg  was  looking  at  the  complainant  and, consequently, that he intended to offend;

Characterising the appellant’s behaviour as indecent.

[3]      The appeal is a general appeal by way of rehearing and the correct approach is  that  described  in  Austin  Nichols  & Co  Inc  v  Stichting  Lodestar.3  It  is  for Mr Gregg to persuade this Court that the Judge’s decision was wrong and, if so, he will be entitled to a fresh assessment of the case.

[4]     I have concluded that the Judge was wrong to conclude that there was intent to offend, which disposes of the appeal without the need to consider whether the act was indecent. I therefore deal only with the issue of intent.

Intent to offend

[5]      Section 126 of the Crimes Act provides that:

1 NZ Police v Gregg DC Manukau CRI-2012-092-004277, 10 October 2012.
2 Section 126 Crimes Act 1961.
3 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 at [16].

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

[6]   The two elements of this offence are the performance of an indecent act and the intent to insult or offend. In considering these elements in R v Annas, Baragwanath J observed that:4
Whether what was performed is an indecent act is an objective question to be answered by what the jury assesses to be the standard for right thinking members of the community (R v Stamford [1972] 2 QBE 391(CA)); whether the defendant intended to insult or offend is a distinct subjective question.

And specifically on the nature of intent:

What must be captured … is whether the accused intended to insult or offend the complainant’s dignity, her right to modesty or privacy …

[7]      In finding that the element of intent was proved the Judge said:

[11]   So, I proceed on the basis that the person who chooses to stand by his window, fix [Ms S] with his eyes and continue with his masturbation is doing so being aware:

She is aware of his activity;

He continues with it;

Clearly it is, in my view, on these facts with the intention to offend her.  She, finding the conduct offensive.

[12] She, finding the conduct offensive, might be seen as a subjective test, but in this instance I couple with the intention to offend, so that it is the defendant commenced and carried on this conduct fixing [Ms S] with his eyes, continuing to masturbate he did so with the intention to offend her and she was so offended by her evidence and in the conduct which was in response to what she observed, she having satisfied herself what was going on.

[8]  The appeal proceeded on the basis that, in order to prove intent, the Police had to prove that Mr Gregg saw the complainant and that he continued looking at her knowing that she could see him. The ground of appeal is that, on the evidence, there is reasonable doubt as to whether Mr Gregg did in fact see Ms S.

4 R v Annas [2008] NZCA 534 at [56].

[9]   Ms S’s account of what she saw was not disputed save for her assertion that she and Mr Gregg had maintained eye contact. The defence was that because of the sun reflecting off the pool on Mr Gregg’s property it was reasonably possible that he had not, in fact, seen Ms S and, therefore, could not have maintained eye contact with her.

[10] There was uncertainty in terms of the precise line of sight between Mr Gregg and Ms S because the Police photographs of where Ms S had been standing were not accurate. The Police produced photographs showing a person standing before a window in the belief that it was the window Ms S was standing at. However, it was accepted that this was the wrong window. It was the dining room window which overlooked the decking to Mr Gregg’s swimming pool. In fact, Ms S was standing in the kitchen window which directly overlooked the pool itself.

[11] Ms S accepted that the incident occurred on a bright day in February and that the pool tended to reflect the sun:

Q.	It’s about 3 o’clock in the afternoon you said that you saw this, saw Mr Gregg doing what he did?

A.	That’s correct.

Q.	And it was a bright day that day?

A.	Yes.

Q.	There’s no clouds in the sky?

...

Q.	The sun doesn’t set for another five or six hours?

A.	Yeah.

Q.	Does it, at that time of year?

A.	Well I’m not sure to be honest. Like yeah. Like … yeah.

Q.	The pool actually reflects the sun when it’s up doesn’t it?

A.	Yeah.

Q.	So it makes the outdoor area very brightly lit is that correct to say?

A.	Yeah in a way.

Q. And you’ve said that Mr Gregg’s house is a little bit below your house?

A.	That’s correct.

Q.    And he would have had to have been looking up to have looked up into the kitchen window?

A.	That’s correct.

[12] Although initially Ms S did not accept that it was possible that Mr Gregg might not have seen her, later in her cross-examination she did make a concession that, although somewhat unclear, seemed to allow for that possibility. Initially she said:

A. So I was finishing up my lunch and stuff; I was over at the kitchen washing up the dishes getting a drink and stuff and just happened to look up and look into the window and I’d seen him standing there with only his robe standing there masturbating clearly looking at me in my eyes and I could see that he was – it wasn’t that he was standing there doing something you know just gazing out whatever he was standing there directly masturbating over me staring directly at me.

…

A.  Yeah it was during the act, you know, I had I had encountered you know just a solid eye to eye contact.

…

Q.	It’s possible that you’re mistaken that Mr Gregg could see you?

A.  I don’t think so.  I don’t think that with the eye contact that I had could be mistaken.

…

Q.   [Mr Gregg] had to look up to your house, he had sun shining on the pool which may have reflected and stopped him seeing inside your window.  Is it possible that you are mistaken as to him seeing you?

A.	I don’t think so no.

[13] Later in the cross-examination Ms S was asked again about the possibility of Mr Gregg not seeing her:

Q. I’m suggesting to you that he was casually looking out over his garden, do you accept that that is possible?

A.	It could be possible yes.	But with the direct eye contact I had anything could be possible.

[14] The Judge clearly found that Mr Gregg saw Ms S, indeed that he carried on his conduct “fixing [Ms S] with his eyes” he made no reference to the possibility of Mr Gregg looking out his window but not, in fact, seeing Ms S. He did not refer to the uncertainty over the line of sight, nor to the possible effect of the sun shining off the pool. This was a significant issue and, given the concessions that Ms S had made in relation to them there is, in my view, a reasonable possibility that Mr Gregg did not see her because of the reflection off the water.

[15] That reasonable possibility means that Mr Gregg ought not have been convicted, regardless of whether the act was properly regarded as indecent. The appeal is allowed and the conviction quashed.

P Courtney J