The right to freedom of expression includes jogging naked in the park

Pointon v Police [2012] NZHC 3208 (30 November 2012)

The New Zealand High Court dismissed the appellant's offensive conduct conviction for jogging through a public park while naked. The High Court found that the appellant was exercising his right to freedom of expression under section 14 of the Bill of Rights Act 1990 (NZ) , and that the conduct, while "unwelcome", was not sufficiently offensive to amount to a criminal offence.

Facts

The appellant, Mr Pointon, was charged with "offensive behaviour" contrary to section 4(1)(a) of the Summary Offences Act 1981 (NZ). Mr Pointon, a naturist, had been jogging naked through a public park. He encountered a woman walking her dog, who made a complaint to the police.

A Community Magistrate convicted him of the charge on the basis that the complainant was "a reasonable member of the public" who was offended by the presence of Mr Pointon while naked. On appeal, the District Court held that the Magistrate had applied the wrong test. The Court held that the correct test was whether a reasonable woman, tolerant of Mr Pointon's freedom of expression, would be dissuaded from returning to the park by his conduct. The Court found that test satisfied and upheld the conviction.

Decision

On appeal, the High Court set aside the conviction.

Justice Heath held that at each stage of the proceedings it had "been accepted that Mr Pointon was exercising his right to freedom of expression", and that his conduct could be equated to words uttered to exercise free speech. His Honour endorsed the description of free speech by Sedley LJ in Redmond-Bate v Director of Public Prosections [1999] EWHC Admin 733 as including "the irritating" and "the unwelcome". His Honour also quoted Canadian case law, particularly Ontario Adult Entertainment Bar Association v Metropolitan Toronto (Municipality) (1997) 11 CR (5th) 180 which assumed that lap dancing was a form of expression.  Although he did not endorse the notion that lap-dancing was an exercise of the right to freedom of expression, His Honour held that these cases "make it clear that the boundaries of the right are wide".

His Honour acknowledged that previous case law on offensive behaviour had centred around protests, "and the application of the tests to a man running naked through the woods was not likely to have been at the forefront of the Judges' minds when they were formulated". However, he considered that in determining whether Mr Pointon's behaviour was offensive:

• the test is whether someone in the position of the complainant, "being respectful of Mr Pointon's right to express himself by running naked through the woods" in the prevailing circumstances, would have been offended;
• to be a criminal offence, Mr Pointon's conduct must have caused "such unease as to inhibit recourse" to the public place; and
• whether conduct would produce such an inhibition is determined by comparing what a reasonable person would tolerate as an exercise of Mr Pointon's freedom of expression with the complainant's entitlement to enjoy the use of a public amenity.

His Honour also referred to the previous case of Lowe v Police [2010] NZHC 137, where a naturist riding a bicycle had been acquitted of a charge of offensive behaviour. He held that consistent with that case, Mr Pointon's behaviour had to be analysed in its context with regard to the tests above.

On the facts of the case, His Honour found that Mr Pointon was a "genuine naturist" who was running when he "might reasonably have expected no school-aged children to be present" in the park. He found that while the sight of Mr Pointon's naked body "was, no doubt, 'unwelcome'" to the complainant, it was not sufficiently grave to inhibit a reasonable person from remaining in or returning to the park. He compared it to the sight of two gang members "innocently strolling along the same track, both wearing gang patches". Although a person might be "concerned and discomfited by their presence", their conduct could not be regarded as offensive behaviour. The complainant's decision not continue to use or to return to the park "was her choice, rather than something compelled by Mr Pointon's conduct".

Justice Heath also held that the District Court had taken into account an irrelevant fact when it considered the existence of non-public areas for the use of naturists. The District Court's view, that it was unnecessary for Mr Pointon to exercise his right to freedom of expression in the particular way he did, was "beside the point".

Commentary

Section 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is comparable to section 14 of the NZ Bill of Rights. Both instruments protect the right to freedom of expression, including the right to "seek, receive and impart" information and ideas of different kinds in different forms. Justice Heath's characterisation of Mr Pointon's conduct as being a form of "expression" could be applied to the very similar wording of section 15 of the Charter.

This would be consistent with the acknowledgment by Justice Kyrou in Magee v Delaney [2012] VSC 407 that "the threshold for establishing whether an act falls within the words 'impart information or ideas' in section 15(2) of the Victorian Charter is very low". Whether a particular act engages the right to freedom of expression under section 15 of the Charter, however, is a separate matter. In Magee, Justice Kyrou held that the act of painting over an advertisement was an act "capable of imparting information or ideas". However, His Honour held that exercising the right to freedom of expression "in the form of damage to a third party's property" was not protected by section 15 of the Charter.

It is also worth noting that Justice Heath regarded the availability of another form of expression (in the form of non-public areas for naturists) as irrelevant, and expressly disapproved the District Court's consideration of it. This suggests that the existence of a particular avenue of expression cannot be used to impugn a person's choice to use another, and could be applied to situations under section 15 of the Charter.

The decision is available online at: http://www.nzlii.org/nz/cases/NZHC/2012/3208.html

Tim Farhall is a lawyer at Allens