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Wrongly Convicted Database Record
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Charge: |
Offensive behavior |
Sentence: |
NZL$500 fine and NZL$130 costs |
Years Imprisoned: |
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Year Crime: |
2013 |
Year Convicted: |
2014 |
Year Cleared: |
2016 |
U.S. State or Country of Crime: |
New Zealand |
County or Region of Crime: |
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City of Crime: |
Manukau |
Result: |
Judicially Exonerated |
Summary of Case: |
"Brian Ker was wrongly convicted on two separate occasions -- first in 2013 and then in 2014 -- of two different charges related to the same event in Manukau, New Zealand in November 2013. Manukau is a suburb about 14 miles south of Auckland. Ker was living out of his Isuzu truck and trailer, when he parked behind a service station and a tavern that shared a boundary with East Tamaki Primary School. A six-foot fence separated where Ker was parked from the school grounds, but elevated windows of some of the classrooms overlooked the parking area. Around noon Ker stripped naked and sponged himself clean using water from a small tub next to his trailer. A passerby saw Ker and notified the principal of East Tamaki Primary School, who called police. The passerby gave the information anonymously. The police officer who arrived saw Ker walk naked from behind his trailer, in view of two classrooms, as he went into his trailer's side door. When asked he came out wearing a shorts to talk with the police officer. He explained that he had been working wanted to clean himself up. Ker said he was aware of the school, and he waited until no children in the area could see him, and he didn't think any kids saw him. Ker was arrested and charged with indecent exposure. The police investigated, but were unable to find any witness who saw Ker naked. During Ker's bench (judge only) trial in the Manukau District Court in late 2013, the prosecution's case was that Ker being naked in public adjacent to the school was sufficient for him to be guilty of indecent exposure. The prosecution introduced no evidence that anyone complained about being offended by Ker's nakedness in public -- since the person who called only alerted the principle that he was naked -- and the only people who saw him naked where the unknown caller and the police officer. Ker read a statement in his defense, repeating what he told the officer at the time of his arrest. The judge found Ker guilty, ruling that the evidence showed he had been intentionally naked in a public place, and that it was not necessary for his nakedness to have been complained about by any person for it to be obscene. Ker was fined $500 and ordered to pay $130 in court costs. Ker appealed. In April 2014 the High Court quashed Ker's indecent exposure conviction, but substituted a conviction of obscene behaviour and imposed the same sentence of a $500 fine and $130 costs. Justice Geoffrey Venning stated in his ruling that "Mr Ker's actions were potentially an interference with the rights of others. Primary school children should not be potentially subjected to men exposing their genitals in a way visible to them while at school. While thoughtless and inappropriate, the decision to wash himself which led to the exposure was not as blatant as other examples of exposure. ... while it may not reach the standard of revulsion or loathing required for obscenity, it clearly satisfies the test for offensive behaviour as arousing feelings of disgust and outrage in the minds of reasonable people. I conclude that Mr Ker did not obscenely expose his genitals but, in a public place, he behaved in an offensive manner." Ker appealed the High Court's ruling. On June 22, 2016 New Zealand's Court of Appeal unanimously quashed Ker's conviction, ruling that offensive behaviour had to be observed - otherwise it could not cause public disorder. An essential element of offensive behaviour is that Ker must actually have disturbed public order, and because there was no evidence Ker offended anyone or caused any problems, the prosecution introduced insufficient evidence to support his offensive behaviour conviction." |
Conviction Caused By: |
Trial judge and appeals court judges erred in assessing Ker's non-disturbing nudeness outside his trailer. |
Innocence Proved By: |
"On June 22, 2016 New Zealand's Court of Appeal unanimously quashed Ker's conviction, ruling that offensive behaviour had to be observed - otherwise it could not cause public disorder. An essential element of offensive behaviour is that Ker must actually have disturbed public order, and because there was no evidence Ker offended anyone or caused any problems, the prosecution introduced insufficient evidence to support his offensive behaviour conviction." |
Defendant Aided By: |
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Compensation Awarded: |
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Was Perpetrator Identified? |
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Age When Imprisoned: |
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Age When Released: |
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Sex: |
Male |
Skin/Ethnicity: |
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Information Source 1: |
"Man caught nude near Auckland primary school has conviction overturned, By Staff, Stuff.co.nz, June 22, 2016" |
Information Location 1: |
http://www.stuff.co.nz/national/crime/81334922/Man-caught-nude-near-Auckland-primary-school-has-conviction-overturned |
Information Source 2: |
"Naked man 'not indecent exposure', By Staff, Stuff.co.nz, April 7, 2014" |
Information Location 2: |
http://www.stuff.co.nz/national/crime/10232009/Naked-man-not-indecent-exposure |
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Comments About Case: |
Innocents Database Created and Maintained by Hans Sherrer innocents@forejustice.org