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The “intent to insult or offend any person”, was not an “abstract concept of dignity”.
“Rather, they only apply to actions intended to evoke from those intended to see the spectacle an emotional response – that of feeling insulted or offended,” Justice Young said.
A summary of the decision provided by the Supreme Court said it wasn’t possible to prove Rowe had a motive to insult or offend, as the images weren’t in and of themselves indecent, and there was no evidence he had intended to distribute them.
Rowe’s lawyer Steven Zindel told the Supreme Court justices that taking photographs of what may be seen in public, including girls on a beach, should not be considered an offence.
“Technology like iPhone means you could be snapped by anybody. If they don’t want to be snapped they should not wear that on the beach,” he said.
Rowe’s conviction is quashed and the court has ruled there is insufficient evidence to warrant a retrial.
Rowe was spotted by an off-duty police officer taking five photos of three teenage girls on Kaiteriteri Beach without them knowing in January 2016. He’d been crouched behind a caravan when he was seen by the off-duty officer.
Technology like iPhone means you could be snapped by anybody. If they don’t want to be snapped they should not wear that on the beach.
Steven Zindel, lawyer for Graham Thomas Rowe
He maintained at trial that he had been taking pictures for a South Island travel guide and believed he was allowed to take photos in a public place.
However the Crown’s case was Rowe’s behaviour was “inappropriate, offensive and insulting” to the girls. It was alleged that Rowe knew his actions were wrong and intended to insult.
In his closing address, Crown prosecutor Sefton Revell said: “The reality is that creepiness is not a crime.”
He said it was up to the jury to set the standard of decency and suggested they take into account the age of the girls, the lack of consent, the location and the purposes of taking the photos.
“I suggest there’s a sexual motivation there because there isn’t another explanation for it.”
Defence lawyer Rob Ord said taking photos of teenagers who were “obviously happy to be in full public view in their bikinis” was not indecent.
Rowe was found guilty at the Nelson District Court in January 2017, and was later sentenced to 120 hours’ community work and six months’ supervision.
He appealed to the Court of Appeal, which upheld his conviction on the basis that circumstances surrounding his actions were sufficient for the jury to conclude his taking of photographs had been indecent.
In that court’s decision given by Justice Lang, it was stated that had Rowe taken photographs of the beach as a whole, the fact that the three girls were captured in it would not have given the act a “sufficiently indecent flavour”.
“It is clear, however, from the fact that Mr Rowe used his zoom lens to focus on the three girls that they were the subject of his attention,” Lang said.
He said Rowe also took the photos “surreptitiously”, crouched behind a campervan, for an extended period without appearing to have an interest in photographing anything else at that time.
As to Rowe’s intent, Justice Lang said the trial judge had instructed the jury to determine whether, given the circumstances, Rowe could have honestly felt his actions had no potential to cause insult to the girls.
He said the jury had to “consider whether, in taking the photographs of the three girls, Mr Rowe intended to insult their dignity, including their rights to modesty and privacy, having regard to their age and the general circumstances”.
Justice Lang also referred to the Crown’s evidence that Rowe had been previously trespassed from Kaiteriteri Beach.
“This negated his insistence that he did not consider he was doing anything wrong.”
Stuff.co.nz
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