If I am offended, not by what I see a person doing, but by what I think he might do later, have I observed behaviour that the criminal law calls "offensive"?
Further, if I have gone out of my way to see what the person is doing, can I complain? He might have been unobservable by all but the most inquisitive.
Obviously, judges may disagree over what amounts to offensive behaviour. They may also disagree over whether offensive behaviour is nevertheless insufficiently serious to warrant the intervention of the criminal law.
Cases on questions such as these are encountered by all first-year law students. Far from being confined to serve as minor intellectual irritants for novices, such matters also cause disagreement among senior judges.
In R v R (2005) 21 CRNZ 610 (CA) the issues included whether it was offensive behaviour for the appellant to have concealed himself in his curtained van and taken pictures of uniformed schoolgirls as they arrived at school. He could only be observed with difficulty, and was observed by a police officer who went up to the van and peered through a gap in the curtains. One might wonder, at this point, whether such conduct by the police officer might itself be offensive. In any event, one of the Judges in the Court of Appeal, who is not named in the Court’s single judgment, thought the appellant’s behaviour was not, in law, "offensive". The conduct was, this Judge thought, amenable to innocent interpretation (para 39):
"Had the photographer been, for example, a police officer taking photographs for the purposes of a criminal investigation or a paparazzi [sic] taking photographs for a newspaper or magazine, the observable behaviour would have been identical."
But would it necessarily be sufficient to know more? If there was evidence, for example, that the photographs were to be used for sexual gratification, would the taking of the photographs then be offensive? This point did not require consideration by the majority in R, because they found that the behaviour was, albeit marginally, offensive.
This point was, however, considered in Rowe v Police 12/12/05, John Hansen J, HC Dunedin CRI 2005-412-000051. The same Mr "R" took photographs in the University Library. Perhaps learning from his earlier brush with the law, he did not, on this occasion, resort to subterfuge. While his actions were in plain view, there was insufficient evidence in the case to prove what he was photographing. On the point of whether the behaviour would be offensive if more was known, the Judge observed (para 46):
"…It is the action that must be offensive. As a matter of logic, if the observer has no knowledge of what is being photographed the content of the photographs cannot be used to create the necessary level of offence. But the Judge has gone further. She has referred to the downloading of material to the laptop, and possibly the other circumstances as well, as creating in the mind "the need to determine legitimacy". It is unclear from [this] how the need to determine legitimacy would arouse feelings of anger and/or potential disgust [the legal test for offensiveness], or what is the evidential basis for such a finding. While it may raise a need to investigate further, it falls short of what is required in the criminal sense."
His Honour also noted that in the earlier case, the Court of Appeal had referred to the possibility that evidence of the defendant’s purpose "may be relevant in considering and weighing to strike the balance between competing interests" (para 47). That, however, was said in relation to purpose that is evident to those observing the behaviour (see paras 31-34 of R v R, above).
Unfortunately, the Supreme Court refused leave to appeal from the decision in R v R, because the question of law was not framed in sufficiently general terms to come within the Court’s jurisdiction: Rowe v R [2005] NZSC 40 (23 June 2005).
This discussion highlights the importance of the distinction between the impact on us of our own thoughts, and the impact on us of other people’s conduct.
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