JESSETT v NEW ZEALAND POLICE [2021] NZHC 528

JESSETT v NEW ZEALAND POLICE [2021] NZHC 528 [1 April 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-485-000009[2021] NZHC 528BETWEEN VINCENT JESSETTAppellantAND NEW ZEALAND POLICERespondentHearing: 16 March 2021Counsel: C Nicholls for AppellantH M L Farquhar for RespondentJudgment: 1 April 2021JUDGMENT OF ISAC JIntroduction[1] Mr Jessett appeals his conviction on a charge of doing an indecent act withintent to assault or offend1 after a judge alone trial before Judge Tompkins (the Judge).2[2] There is no dispute that on 30 June 2020 Mr Jessett was walking down hisfather's driveway. The neighbour, Mr Hope, had set up CCTV cameras capturing thedrive. As he walked, Mr Jessett pulled the top of his pants down and momentarilyexposed part of his genitalia to the camera. He did this deliberately. Mr Jessettcontends he did so as a protest against Mr Hope's invasion of his family's privacy.[3] The grounds of appeal are:1 Crimes Act 1961, s 126, maximum penalty two years' imprisonment.2 New Zealand Police v Jessett [2021] NZDC 1542.(a) the conduct was protected under s 14 of the New Zealand Bill of RightsAct 1990 (NZBORA);(b) the conduct was not indecent; and(c) the appellant did not act with intent to insult or offend.[4] The appellant was sentenced to come up if called upon within six months.[5] Having reviewed the evidence, I am satisfied that the relevant act – fleetingexposure of the defendant's genital area to Mr Hope's CCTV camera – does notconstitute an indecent act. That conclusion should not be taken by Mr Jessett or othersas any form of approval of the conduct. As I explain in this judgment, had the natureof the exposure been different, or the quality and clarity of the image better, the resultof the appeal is likely to have been very different.Background[6] A shared driveway leads to the appellant's father's house as well as Mr Hope's.It is a double drive, in the sense that the driveway is sufficiently wide to permitseparate vehicular access on each side to both properties. For that reason it appearsthat the Jessett family at least consider their "side" of the shared drive to be their owndriveway.[7] There is also a longstanding feud between these neighbours. Mr Hope has setup CCTV cameras on his property. The cameras stream footage to screens which canbe viewed in Mr Hope's garden shed. The footage is also recorded.[8] One of the cameras on Mr Hope's side of the driveway captures the Jessett sideas well. Mr Jessett was aware of the cameras and that Mr Hope might view the footagecaptured.[9] While walking up the driveway on 30 June 2020, the appellant momentarilyexposed part of his genital area by opening his fly and pulling the top of his pantsdown as he moved past one of Mr Hope's CCTV cameras. He did so without stoppingor breaking his stride.[10] Mr Hope later saw the camera footage and contacted the police.[11] When first spoken to by police the appellant said the he flashed his penis at thecamera because of "a really long family feud" between his father and Mr Hope. Nomention was made of a protest. When the appellant gave evidence at trial he said heoften shows his middle finger, smiles or waves at the camera. He said he does suchthings to show Mr Hope that he and his family know Mr Hope watches them. At trialMr Jessett claimed his conduct was a form of protest.District Court decision[12] The Judge identified three issues:3(a) Was the act was indecent?(b) Did the appellant intended to insult or offend Mr Hope? and(c) Did the appellant's conduct amounted to an exercise of his right tofreedom of expression under s 14 of the NZBORA.[13] The Judge began by outlining the law relating to s 126.4 He cited Rowe v Rwhere a majority of the Supreme Court held that two elements must be satisfied inorder to establish an offence under s 126: the first objective element is that an indecentact was done, and the second subjective element is that the person who did the indecentact intended to insult or offend.53 New Zealand Police v Jessett, above n 2, at [6].4 At [10].5 At [10] citing Rowe v R [2018] NZSC 55 at [26]. Mr Rowe had taken photographs of teenagegirls in bikinis at the beach without their knowledge and saved those photos to his computer. Theissue was whether this behaviour fell within the scope of s 126.[14] The Judge noted that the Supreme Court declined to follow the previousapproach of the Court of Appeal in R v Annas,6 instead finding that:7Drawing these threads together, the textual considerations discussed suggestthat s 126 is primarily directed at exhibitionism, as understood broadly, ordisplay by a person to someone else. That approach is supported by thehistorical origins of ss 125 and 126 because of the link to the common lawoffence of outraging public decency.[15] He also noted the Supreme Court's finding that the approach to be undertakenwhen determining if an act is indecent is an assessment of the quality of the act itself,8and that the surrounding circumstances such as the defendant's motive or purposecannot make indecent an act that otherwise is not.9[16] Burley v Police, a decision prior to Rowe v R, was then cited.10 There, thedefendant was in the study in his home, completely naked except for a balaclava overhis face. He employed various sex toys on himself for 10 to 15 minutes in full view ofhis neighbours, who were young women. Mr Burley said he thought the prospect ofbeing seen by the young women – with whom he made eye contact several times –excited him, and he thought they might enjoy his performance.11 Mr Burley deniedintending to cause offence to the women.12 The Judge summarised Gendall J's ultimatefinding that Mr Burley had committed the offence under s 126, as Mr Burley wasclearly aware that he might be seen by his neighbours, and was in fact seen, butcontinued in open view of them.13[17] Next, the Judge looked at cases involving nudity and the right to freedom ofexpression under s 14 of the NZBORA.14 He noted the test for what may fall within6 At [12], citing R v Annas [2008] NZCA 534.7 At [13] citing Rowe v R, above n 5, at [62].8 At [14], citing Rowe v R, above n 5, at [63].9 At [14], citing Rowe v R, above n 5, at [63]. The Judge noted that the majority of theSupreme Court declined to outline the exact scope of s 126 but held that it was clear thatMr Rowe's actions were not indecent and did not satisfy the first element of the test under s 126.10 At [16], Burley v Police [2015] NZHC 324.11 At [16], citing Burley v Police, above n 10, at [5].12 At [16], citing Burley v Police, above n 10, at [5].13 At [18], citing Burley v Police, above n 10.14 At [19], citing Pointon v Police [2012] NZHC 3208 (Mr Pointon, a naturalist, was encounteredrunning fully naked in a park. He was charged with offensive behaviour under the SummaryOffences Act 1981. Heath J found that Mr Pointon was exercising his right to freedom ofexpression, and that a reasonable person would not have been offended to a degree to warrant theinvocation of the criminal law); Lowe v Police HC Wellington CRI-2009-484-135, 2 March 2010the bounds of freedom of expression under s 14 was discussed in the Court of Appeal'sdecision in Attorney-General v Smith.15 The Court held that the meaning Parliamentintended for s 14 of NZBORA was that it only applies to cases in which a party isconveying or attempting to convey a meaning to others.16[18] The Judge then turned to the first issue: whether the act was indecent.[19] He was of the view that the act itself – the appellant exposing his penis – wasan indecent act within the scope of the approach taken in Rowe v R.17 He noted theSupreme Court in Rowe v R considered the purpose of s 126 is to deal withexhibitionism, the display by a person to someone else.18 That is exactly what theappellant did by displaying his penis to a camera owned by Mr Hope, and the appellantknew that his actions would result in the footage Mr Hope would see.19[20] The Judge also concluded that the appellant intended to insult or offendMr Hope.20[21] He considered the appellant's actions stemmed from the longstandinganimosity between the families, before noting that the appellant himself said that hisintentions were to be "rude"21 and that his actions on this occasion "went a bit too farI think, obviously."22[22] The Judge acknowledged the appellant's conduct was less prolonged and lessserious that the conduct in Burley v Police23 but said it was clear that the appellant(Mr Lowe, a naturalist, was seen riding a bike. Clifford J found that Mr Lowe's behaviour was notoffensive, as he was a genuine naturalist, the complainant never actually saw Mr Lowe's genitals,and although she was disgusted by the behaviour, this was not enough to meet the (then) test foroffensive behaviour).15 At [22], citing Attorney-General v Smith [2018] NZCA 24. Mr Smith, a prison inmate, consideredthat it was a breach of his right to freedom of expression not to allow him to wear a wig while inprison.16 At [22], citing Attorney-General v Smith, above n 15, at [49].17 At [25], citing Rowe v R, above n 5.18 At [26].19 At [26].20 At [27].21 At [27].22 At [28].23 At [29], citing Burley v Police, above n 10.intended to offend and insult Mr Hope with his actions; it was both a continuation ofand an escalation of his past behaviour towards Mr Hope's cameras.24[23] Lastly, the Judge turned to consider whether the appellant's conduct wasprotected by s 14 of the NZBORA.25[24] The Judge reiterated the test in Attorney-General v Smith that whether someoneis exercising their right to freedom of expression is dependent on whether theyconveyed, or attempted to convey, some meaning with their actions.26 He noted it wasclear that the appellant was attempting to convey some meaning to Mr Hope with hisactions, which was to offend him, even if it was in the form of a protest as the appellantasserted.27[25] The Judge considered the appellant's case differed from Pointon and Lowe,28both of which concerned whether nudity constituted offensive behaviour under theSummary Offences Act, rather than an indecent act under the Crimes Act.29 Despitethis, the Judge considered the reasoning and commentary from those cases to remaineduseful.30 He said in both those cases the nudity was not seen as offensive because bothmen were naturalists who often went about and exercised naked.31 And, the men didnot intend to offend anyone but were merely exercising their right to freedom ofexpression, to show themselves as naturalists.32[26] President Kós' comments in Attorney-General v Smith were said to beparticularly relevant:33Protected expression is involved, for the reasons noted above at [33] of thisjudgment. But if Mr Pointon then puts his clothes on for the run home fromthe forest, the situation is quite different. In now adopting orthodox attire, heconveys no particular meaning to anyone seeing him.24 At [29].25 At [30].26 At [32], citing Attorney-General v Smith, above n 15.27 At [32].28 At [33], citing Pointon v Police, above n 14, and Lowe v Police, above n 14.29 At [33].30 At [33].31 At [34].32 At [34].33 At [35] citing Attorney-General v Smith, above n 15, at [50].[27] The Judge concluded:[36] Mr Jessett's momentary exposure of his penis to Mr Hope's securitycamera is undoubtedly offensive. Although Mr Hope explains that he wasmotivated by a wish to protest, he nevertheless intended to do, and did, anoffensive act. It would be a somewhat unusual outcome if a person's right tofreedom of expression under s 14 of NZBORA affirmed them legal protectionto offensively expose their penis at a camera whenever they objected to thecamera filming them.[37] Put another way, I do not consider that protection under s 14 ofNZBORA should allow a person, who has deliberately exposed their penis toanother person (albeit via a camera), to escape conviction for an offence thatthe majority of the Supreme Court in Rowe v R determined was expresslycreated to deal with such exhibitionism.[28] The Judge therefore found that the appellant's actions amounted to an indecentact,34 the appellant intended to insult or offend Mr Hope with this act,35 and that s 14of the NZBORA did not protect the appellant from criminal responsibility for hisactions.36 The test under s 126 of the Crimes Act had been met.37Approach on appeal[29] An appeal against conviction entered following a Judge-alone trial will onlybe successful if the appeal court finds that the trial court erred in its assessment of theevidence to such an extent that a miscarriage of justice has occurred, or that "amiscarriage of justice has occurred for any reason".38 A miscarriage of justice meansany error, irregularity, or occurrence in relation to the trial that has created a real riskthat the outcome of the trial was affected, or which resulted in an unfair trial.39[30] In Sena v New Zealand Police the Supreme Court examined the role ofs 232(2)(b) and the general function of an appellate court.40 The Court held that if anappeal court comes to a different view from that of the trial judge on the evidence, itfollows that the lower court has erred and the appeal must to be allowed.41 This34 At [38].35 At [39].36 At [40].37 At [41].38 Criminal Procedure Act 2011, s 232(2)(b) and (c).39 Section 232(4).40 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.41 At [38].approach does not mean the role of the appellate court is to consider the issues de novoas if there had been no hearing at first instance. It remains for the appellant to showthat an error has been made, and in assessing whether there has been an error, anappellate court must take into account any advantages a trial judge may have had.42SubmissionsAppellant[31] The appellant says s 126 of the Crimes Act must be given a meaning consistentwith the right to freedom of expression in s 14 of the NZBORA, if it can be given sucha meaning. He acknowledges that s 126 is a restriction on the s 14 right, but thats 126's scope depends on its meaning and purpose.[32] Because s 126 appears in a sub-part of the Crimes Act entitled "Crimes againstmorality and decency", the appellant submits the test requires consideration of whatthe community think of the behaviour in the context that it happened, and not what theindividual witness who viewed footage of the behaviour thought.[33] The appellant cites the Supreme Court's – and particularly Elias CJ's – decisionin Brooker v Police, where the Court considered what amounts to disorderly behaviourfor the purposes of the Summary Offences Act.43 He says the principles remain thesame in this context. He draws particular attention to Elias CJ's statement that:44Unpopular expression will often be unsettling and annoying to those who donot agree with itA tendency to annoy others, even seriously, is insufficientto constitute the disruption to public order which may make restrictions uponfreedom of expression necessary.[34] In this regard, the appellant says the focus ought to be on public morality anddecency. Should the public be offended by what the appellant has done? Whenassessed in context,45 the appellant fleetingly exposing himself as a protest to what42 At [38].43 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91, (2007) 23 CRNZ 346.44 At [12].45 The appellant also referred to the Court of Appeal's decision in R v Brooker (2004) 22 CRNZ 162,[2004] NZAR 680 (CA) to establish that the meaning given to an offence as defined depends oncontext, and that the Court of Appeal treated the offence of disorderly behaviour as entailing aquestion of degree: was the behaviour such as to merit criminal law sanction when measured byits tendency to annoy or offend a reasonable person?Mr Hope was doing (which the appellant found intrusive and violating) was notobjectively offensive.46[35] The appellant also argues it was wrong for the Judge to find beyond reasonabledoubt that he intended to insult or offend Mr Hope, given he was protesting.[36] He contrasts these facts with those of Burley v Police.47 In the present case, itis said, there was a momentary exposure of the appellant's penis to the camera, butthat went "nowhere near as far as the appellant in Burley." Although it can be inferredthe appellant expected Mr Hope to review the footage, it is reasonably possible that hedid not intend to insult or offend; rather just be noticed expressing himself that he didnot like being filmed on his father's driveway.[37] The appellant also says the Judge's analysis of how s 14 should be interpretedin reliance on Rowe v R48 appears to conflict with the analysis of the Supreme Courtin Brooker v Police.49Respondent[38] The respondent says that it was established on the evidence before the Judgethat the appellant did an indecent act and did so with an intention to insult or offend.[39] The appellant's conduct is clearly the kind of conduct that constitutes an"affront to the public" and was intended to be captured by s 126.[40] It was equally established to a standard beyond reasonable doubt that theappellant intended to offend or insult Mr Hope. It was clear on the evidence that the46 The appellant says judicial notice ought to have been taken of the fact that it is only recently thatCCTV technology has become available to the general public relatively inexpensively and hasallowed people like Mr Hope to set up numerous cameras around his residential property. He saysthe New Zealand public may consider being watched 24-7 on their own property to be extremelyuncomfortable and unsettling.47 Burley v Police, above n 10. At [42] Gendall J observed that Mr Burley's "performance went aconsiderable way beyond mere 'flashing', or a momentary exposure of the penis or genitals. Itinvolved continuous masturbation, whipping and the use and insertion of sex toys" And at [53]Gendall J concluded that "he [the appellant] would have realised his grossly indecent behaviourwould give offence to any normal child or adult who saw it, and in particular the teenage girls hebecame aware were watching him directly."48 Rowe v R, above n 5.49 Brooker v Police, above n 43appellant was aware he was being observed directly by the CCTV camera but also thatMr Hope was likely to review the footage and see the appellant exposing himself. Andit was clear that the appellant's intention was to insult or offend Mr Hope. The actoccurred against a backdrop of ongoing animosity between the families, and theappellant acknowledged in his evidence that he often walked past the camera and didsomething "rude".[41] The respondent submits although the appellant says that his intention was toprotest the presence of cameras, this does not preclude a simultaneous intention toinsult or offend.50[42] In relation to the NZBROA argument, the respondent accepts that theappellant's act in this case constituted "expression" and that s 126 places a limit on theappellant's right to expression but says the conditions of s 5 of the NZBORA are easilysatisfied. Section 126 prevents people exposing their genitals where the purpose is toinsult or offend and is clearly justified in a free and democratic society; it is a matterof public safety and decency. And the means – the prohibition under s 126 – is alsojustified. The harm posed by people exposing their genitals to insult or offend issufficiently serious to warrant criminal sanction.[43] In accordance with the Hansen methodology, the apparent inconsistency withs 14 is demonstrably justified under s 5. Section 6 of the NZBORA is therefore notengaged.51AnalysisIndecent act[44] Mr Jessett's case does not engage a fundamental human right such as freedomof expression or the right to protest. Rather, it turns on whether the relevant act wasindecent.[45] Section 126 of the Crimes Act provides:50 Citing Burley v Police, above n 10, at [25].51 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [88]-[92] per Tipping J.Every one is liable to imprisonment for a term not exceeding 2 years who withintent to insult or offend any person does any indecent act in any place.[46] As noted by the District Court, there are two elements to the s 126 offence: thedoing of an indecent act, and an intention to insult or offend. The test for the firstelement is objective. The second element raises a subjective question.52 The act neednot occur in public, but it must be done with an intention to insult or offend others.53[47] In Rowe v R, the Supreme Court observed that s 126 is directed towardsexhibitionism or display by a person to someone else.54 Exposure of the genitals ormasturbation are classic examples of conduct proscribed by the section.55[48] Central to the Supreme Court's conclusion that Mr Rowe's covert photographyof girls on a beach was the finding that the focus is on the quality of the act. Theremust be something in the nature of the act that is an affront to the public so as to makeit indecent.56 Surrounding circumstances such as the defendant's motive or intentioncannot make an act that would not otherwise be indecent into an indecent act unders 126.57What was the indecent act here?[49] An unusual feature of the present case is that the exposure was not directly toa human observer. It was captured by a video camera, which was later seen byMr Hope in his home. In this sense, this case is different from cases such as Rowe, asit is the content – and not the act of taking – of the photograph or image that is inissue.58 Does that make any difference?[50] In my view, it does. The relevant act in this case was the presentation to thecamera and the image that was then captured. The intermediation of the camera isimportant. The act did not involve a direct visual confrontation with the observer,52 Rowe v R, above n 5, at [26].53 At [32].54 At [32].55 At [33].56 At [63].57 At [63].58 Rowe v R, above n 5.which is a common hallmark of cases of indecency involving exposure, and a factorin my view going directly to the assessment of whether the act is indecent.59[51] The question is therefore whether exposure to the camera is an indecent act?In my view, having seen the content of the video, it was not. I consider the extent,duration and lack of clarity of the exposure in the present case can be distinguishedfrom cases involving flashers and other forms of direct exposure that have been foundto constitute an offence under s 126.60[52] The video is 13 seconds long in total. It is taken during the day, but it is rainingand the sun is low on the horizon causing significant shadows and light reflections.[53] The picture quality is also very poor. While it is certainly possible to discernMr Jessett Snr's driveway, some shrubs separating part of it from Mr Hope's drive,and the pavement and road outside the front of the driveways, the picture is grainy andunfocussed.[54] As the video begins, a person can be seen entering Mr Jessett Snr's drivewaywalking with the sun behind their back. They appear as a black shadow.[55] The shadowy figure walks towards the camera, but remains in shadow with nofeatures discernible until seven seconds into the video. At that point, the individualcan suddenly be seen to be wearing a blue-coloured top, dark pants and a rain-jacketdraped over their head. It is not possible to see their face at this point.[56] While walking towards the camera, and without stopping, slowing or breakingtheir stride, the figure can then be seen to open what may be a fly on their pants. Atthe nine second mark, the front of the fly is pulled open and down momentarily,revealing for what might be half a second a grainy view of the pubic area and, mostlikely, part of a penis. This occurs when the figure is some distance from the camera,59 Burley v Police, above n 10, Bulloch v Police HC Rotorua AP 27/99, 15 May 2000 and Lowe vPolice, above n 14 (albeit that the charge of offensive behaviour was not made out).60 This case highlights whether provisions in the Crimes Act dealing with crimes against moralityand decency are applicable to situations involving digital recording devices. If Mr Jessett's act ofcreating a video of his genital area is looked at under the lens of the Films, Videos, and PublicationsClassification Act 1993, it is unlikely to constitute an objectional publication.still moving, and is looking down toward the ground. And as noted, the relevantexposure lasts less than a second.61[57] The individual's pants are very rapidly closed and after walking a few moresteps, after 11 seconds, the individual has moved out of the field of view captured bythe CCTV camera.[58] Viewed objectively, and judging the quality of the act itself rather than theappellant's intention or motive, I am not satisfied it was indecent. Although Iacknowledge it is a different context, viewers of public television after 8.30pm will beexposed to far more explicit, vivid and sustained images of the human body.[59] And while I have no doubt that Mr Jessett did have an intention to insult oroffend Mr Hope by this momentary exposure at his CCTV camera, in keeping withRowe it is the quality of the act itself rather than the appellant's state of mind that mustrender the act indecent.62[60] Had Mr Jessett's conduct been capable of being seen from a public place I alsohave no doubt the conduct could amount to offensive behaviour contrary to s 4(1) ofthe Summary Offences Act or indecent exposure under that Act. But the key factorhere in my view is identification of the relevant act. I have found that the act was themost fleeting exposure by Mr Jessett of part of his genital area to a CCTV camera, andthus the creation of the image itself. Having viewed the image, it cannot be said to beindecent in the sense that it is an affront to the public,63 or – perhaps mostfundamentally – is sufficiently serious to warrant the sanction of the law.64[61] Also relevant to an assessment of whether the making of the image wasindecent in my view are two further factors. First, it appears that Mr Jessett was on hisfather's side of the driveway when he was filmed by Mr Hope. He was facing away61 Little of this detail is likely to be clear from a single viewing at normal speed and without stoppingthe video.62 Rowe v R, above n 5.63 Rowe v R, above n 5, at [63].64 See the trial Judge's direction discussed and upheld in R v Dunn [1973] 2 NZLR 481 (CA), at482–484.from the road, and what he did could only ever have been seen by someone on privateland, or who had access to the video feed from the CCTV camera.[62] It has been said that community attitudes on what is indecent are likely to bemore permissive where acts in question take place on private property, particularlywhere they are witnessed fortuitously.65 In Bulloch v Police,66 Rodney Hansen Jobserved that the question whether or not an actor could reasonably have foreseen thathis or her conduct would be seen plainly would be a factor in coming to a finaljudgment as to whether the act could be said to be indecent. Going on to consider thetension between observation of potentially obscene acts occurring on private property,and the right to privacy, his Honour, albeit in obiter, stated:67A judgment as to whether acts committed in the privacy of a home are to becharacterised as indecent for the purpose of the criminal law ultimatelyrequires a balancing of individual rights and the public interest. The individualright may be broadly identified with the right to privacy. Even if that does nomore than give practical effect to the old maxim "A man's house is his castle",it reflects "a reasonable expectation of privacy which is part of our sharedheritage": R v Menzies [1982] 1 NZLR 40, 51 (CA).The right to a measure of protection from prying eyes is recognised by thecriminal law in New Zealand in the offence of peeping or peering into adwelling house – s 30 Summary Offences Act 1981. That may more accuratelyreflect current community standards as to when it is appropriate for the law tointrude in cases such as the present. There may be a sizeable section of thepublic who, glimpsing through a window an act which would be indecent ifperformed in public, would see it as proper to immediately avert their eyesand hurry on.[63] While the images here were not of Mr Jessett inside the home, they were ofhim making his way lawfully down his father's driveway. The issue that has arisen isthat Mr Hope's desire to be kept safe from the unwanted attentions of the Jessett familyhave led him to install CCTV cameras which capture the Jessett side of the driveway.And to the extent he captures images of the Jessett family on their property, it callsinto question their interests in privacy and to be free from unwanted observation orrecording.65 Bulloch v Police, above n 59, at [23].66 At [23]. Bulloch involved an appeal against conviction under s 126. The circumstances were thatthe appellant had been observed by two women clearly masturbating in a room in his house. Hewas visible to them through a window. The Court found that rather than engaging in an obsceneperformance directed at the observers, unknown to them Mr Bulloch was in the middle ofconsensual relations with an intimate partner, and his actions were merely part of that congress.67 At [24]-[25].[64] Second, if the relevant act of indecency ends with the observation of the videofootage, which arguably it does, there was always the prospect that no-one would bewatching the live-stream as the exposure occurred, or that no-one would sit down laterand watch the 11 seconds in issue. Regardless, the evidence suggests the viewingoccurred in Mr Hope's home, well removed in place and time from Mr Jessett, or hisexposure to the camera. Those circumstances inform the quality of the act in question,in my view, and do not support a conclusion that the making of the image was anindecent act. As I understand the evidence, Mr Hope watched the video after it wasbrought to his attention by his wife. The fact Mr Hope actively went back through thefootage does not of course excuse Mr Jessett's behaviour, but the element ofunexpected and unwanted confrontation implicit in the offence is significantly reducedin these circumstances. That in turn informs the assessment of whether the act wasindecent.[65] Overall, I disagree with the Judge's approach. He appeared to accept,consistent with Rowe, that exposing genitalia was, per se, an indecent act.68 But in myview, the error of approach arose in the failure to focus on the nature of the exposure,the intermediation of the camera, and on the clarity (or lack of it), length and contentof the footage itself. Committing an indecent act is a serious offence. While clearlythere are a range of acts that will be caught by s 126, given the content of the video, Ido not consider Parliament could have intended to criminalise the conduct in issuehere.69[66] Having arrived at this conclusion, I need to stress to Mr Jessett, his family andto the wider public that in no way should this judgment be taken as condonation ofwhat Mr Jessett did. My judgment is very much confined to the particular facts of thiscase, and the nature of the footage captured on Mr Hope's CCTV camera. Had thefootage been clearer, more explicit, or had the act not been so fleeting, it is highlylikely that Mr Jessett's appeal would not have been successful. And given the troubledhistory between Mr Hope and the Jessett family, this decision should not at all be takenas any form of encouragement of Mr Jessett's behaviour. It was offensive andinappropriate.68 Rowe v R, above n 5.69 The conduct might, of course, constitute an offence under other enactments.Did Mr Jessett have an intention to insult or offend Mr Hope?[67] Although given the findings I have reached it is not strictly necessary toaddress the second ground of appeal, as I have noted, I have little hesitation inconcluding that Mr Jessett had an intention to insult or offend Mr Hope when heexposed himself to Mr Hope's CCTV camera. The appellant knew the camera wasthere, it was operating, and that Mr Hope would review the footage. The appellantsaid:I knew, I had a fair idea that Chris would go back and look for it.[68] Equally, when asked in cross-examination whether sometimes the acts he didtowards the camera were going to be insulting he said, "sometimes it is, yeah."[69] I have no doubt that the appellant exposed his penis as a form of what hethought amounted to a protest. But this concurrent intention does not preclude afinding that he also intended his actions to be insulting or offending. In Burley v Police,Gendall J accepted that intentions can exist simultaneously.70 There, the relevantintentions were sexual gratification and an intention to insult or offend. Here, therelevant intentions were to 'protest' and insult or offend.[70] This subjective stage of the inquiry must of course be located in a context ofongoing animosity between the neighbouring families. This was not a friend"flashing" another friend where an intention to insult or offend would be less obvious.NZBORA[71] Given the conclusion I have reached on the first ground of appeal, it isunnecessary to traverse the final ground advanced in support of the appeal, based onthe NZBORA.Conclusion[72] The appellant has established the Judge made an error to the extent amiscarriage of justice has occurred.70 See Burley v Police, above n 10, at [25].[73] The appeal is allowed and the conviction quashed.____________________________Isac JSolicitors:Crown Law Office, Wellington