Bikini snaps ‘not a crime’
The Supreme Court has quashed the conviction of a Nelson man who argued that taking photos of bikini-clad teenage girls on a beach was not indecent.
Graham Thomas Rowe, 61, was originally convicted for doing an indecent act with intent to insult. But in quashing the conviction all five Supreme Court justices ruled in favour of Rowe’s argument that taking snaps of young girls on Kaiteriteri beach, near Nelson, was not a crime.
While agreeing with Nelson Judge Tony Zohrab’s description of Rowe’s behaviour as ‘‘creepy’’, Justice William Young said it did not constitute an offence.
There had been no ‘‘exhibitionist’’ element to his actions – behaviour intended to be seen by someone and cause a victim to be insulted or offended – which was what section 126 of the Crimes Act was primarily focused on.
A summary of the decision provided by the Supreme Court said it was not possible to prove Rowe had a motive to insult or offend, as the images were not 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 an 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 photos of three teenage girls on Kaiteriteri Beach without them knowing in January 2016. He had been crouched behind a caravan when he was seen by the officer.
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 that Rowe’s behaviour was ‘‘inappropriate, offensive and insulting’’ to the girls.
It was alleged 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 of community work and six months of supervision.
He appealed to the Court of Appeal, which upheld his conviction on the basis that the 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.
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.’’