Pregelj v Manison;	Wurramurra v Manison

Court of Criminal Appeal of the Northern Territory of Australia

Nader, Kearney, and Rice JJ.

20 August, 16 October, 3 November and 22 December 1987, at Darwin

Criminal law - offensive behaviour - mental elements of the offence - effect of codification of rules of criminal responsibility - construction of s.31 of Criminal Code.

Criminal law - meaning and application of mens rea at common law in relation to offensive behaviour - whether necessary intent goes to all the ingredients of the offence - whether offensive behaviour to be treated as per the public nuisance cases.

Cases applied:
Widgee Shire Council v Bonney (1907) 4 C.L.R. 977
Walker v Crawshaw (1923) Gaz.L.R. 50
Jeffs v Graham (1987) 8 N.S.W.L.R. 292

Cases referred to:
Worcester v Smith (1951) V.L.R. 316
He Kaw Teh v R (1983) 157 C.L.R. 523
Vallance v R (1961) 108 C.L.R. 56
R v Tolson (1889) 23 Q.B.D. 168
Sherras v De Rutzen (1895) 1 Q.B. 918
Lim Chin Aik (1963) A.C. 160
R v Morgan (1976) A.C. 182
R v Reynhoudt (1962) 107 C.L.R. 381
Morley v Malthouse (1924) S.A.S.R. 268
Normandale v Brassey (1970) S.A.S.R. 177
R v Turnbull (1943) 44 S.R.(NSW) 108
R v Stephens (1866) L.R. 1 Q.B. 702
R v Medley (1834) 6 C.& P. 292; 172 E.R. 1241
Barney v Akroyd (1872) L.R. 7 QB 474
Timbu Kolian v R (1968) 119 C.L.R. 47
R v Payne (1970) Qd.R. 260
R v Sweet (1972) Q.W.N. 28
Kaporonovski v R (1973) 133 C.L.R. 209 Geraldton Fisherman's Cooperative Ltd v Munro
(1963) W.A.R. 129
Anderson v Basile (1979) W.A.R. 53

'
Cases not followed:

R v Krosel (1986) 41 N.T.R. 34

Statutes:

Summary Offences Act, s.47
Criminal Code (N.T.), ss. 1, 3, 22, 26, 31 and 32 Criminal Code (Queensland), ss. 23 and 24 Criminal Code (Tasmania), ss. 13 and 14

Counsel for Appellants Solicitor for Appellants
Counsel for Respondent Solicitor for Respondent

:	C. Dowd; (later) P. Tiffin N.A.A.L.A.S.

Wallace

Solicitor for the Northern Territory

'
IN THE COURT OF  APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA

CA No. AP 5-6 of 1987

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

sec No. 75 to 76 of 1987 BETWEEN:
STEVEN GEORGE PREGELJ
Appellant
AND:

GARY FREDERICK MANISON
Respondent
AND:

IRIS WURRAMURA AND:

Appellant

GARY FREDERICK MANISON
Respondent

ORDER OF THE COURT

The order of the Court is that the appeals are allowed, and the findings and orders of the magistrate and the judge

'
•
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY OF AUSTRALIA

CA No. AP 5-6 of 1987

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

sec No. 75 to 76 of 1987 BETWEEN:
STEVEN GEORGE PREGELJ
Appellant
AND:

GARY FREDERICK MANISON
Respondent
AND:

IRIS WURRAMURA AND:

Appellant

GARY FREDERICK MANISON
Respondent

CORAM:	NADER, KEARNEY and RICE JJ

REASONS FOR JUDGMENT
(delivered 22 December 1987)

Nader J:	This is an appeal to the Court of Appeal from a decision of a single judge of the court, himself sitting on appeal from the decision of a magistrate finding offences of
offensive behaviour proved and placing the the appellants on good-behaviour bonds.

The prosecution evidence came from a number of policemen.	The only eyewitness to the behaviour complained of was Anthony Leonard Dyer, a constable of police attached to Berrimah Police Station.	Constable Dyer happened to live next door to the house in which the behaviour occurred in Fourcroy Street, Karama, a suburb of Darwin.	At about 8.50 pm on 27 August 1987, Constable Dyer was walking along a foot-lane which connects Fourcroy Street with a park behind the house, number 11, in which the behaviour occurred.		The constable's attention was drawn by movement in a bedroom on one side of the lane.	The room had a window opening onto the lane.	The window had no curtains. A light was on in the room.	The constable saw a' •.• white male who was naked lying on top of an Aboriginal female who too was naked.		They were on the floor of the room going through the motions of sexual intercourse.'	The house was about 7 or 8 metres from the lane.	The fence separating  the lane from the house was about one metre high.	The bottom of the window was close to the floor.	The constable continued to walk along the lane.	He said that he could not help seeing what he saw.	He   said he did not have to do any act 'whatsoever' to see the

persons other than just walk along the lane.		However, he was able to see the persons for sufficient time to say that the white male was in his twenties, that he had brown hair, that he was not overweight and that he was of medium build.	Of the Aboriginal female he said she was young and of small stature.	The man and woman 'appeared to to be in the far left-hand corner' of the room as the constable faced the window.	Notwithstanding his denial of any act in order to see what was happening in the house, Constable Dyer admitted that he looked into the room for as long as it took him to walk past the house: the time it would take to walk about fifteen paces.

Constable Dyer said he was offended by what he saw. He also said, 'It was just visible to me and I was a bit annoyed by it' .

Constable Dyer did not knock on the door of number 11 to inform the appellants that they could be seen from the lane, or to ask them to take steps to conceal themselves.	He returned to his house and reported to the police what he had seen.

The evidential story was then taken up by Richard David Moore, an Inspector of police, also a resident of Fourcroy Street.	At about 8.50 pm on 27 August 1987, he happened to overhear a police radio call to Fourcroy Street.	It concerned a complaint by a member of the police force.	Inspector Moore attended at Constable Dyer's address where they had a

conversation.	Inspector Moore then went to an intersection of McMillans Road about half a kilometre from Fourcroy Street.	He saw the appellants walking.	He stopped his car and spoke to them.	According to him, the following interrogation took place:

Inspector: 'Hang on a moment, I want to speak to both of you.'

The appellants stopped.

Inspector: 'I have received a complaint regarding your behaviour in Fourcroy Street.	The allegation is that you were engaged in sexual intercourse in that house. Is that correct?'

Male appellant:	'Yes, we had a root in that house.'

Inspector:	'Why didn't you do it in private?'

Male appellant:

'Don't know.	Didn't think.'

Inspector: you?'

'Do you agree that people outside could see

Male appellant:

'Yes, just wanted it.'

The admission into evidence of this brief interrogation fell short of a proper standard of fairness by reason of its form, but no objection was taken by counsel for the defendants.	The question, 'Why didn't you do it in private?', asked of a person who, judging even by the printed word of the transcript, is very unsophisticated, was wrong.	It was leading in a dangerous way.
To put to a suspect a question in which the very existence of a potentially contentious element of the suspected offence was implicit was fraught with the danger that the suspect may have uncritically accepted the premise on which the question is based. Likewise, the later question, 'Do you agree that people outside could see you?'	is quite capable of meaning, •	that I have told you that what you did was not done in private, do you accept what I say?'	Agreement with the proposition contained in that question cannot, in my opinion, be safely treated as an admission of a state of mind at the earlier time: it may be simply the
equivalent of saying, 'If you now say I was seen, I accept what
you say. I	These are not matters about which an appeal court is in a worse position than a trial court because neither has had the advantage of witnessing the interrogation.

The Inspector then interrogated the male appellant about what he described as 'his bona fides only'. Then he interrogated the female appellant as follows:

Inspector:	'What is your name?'

Female appellant:	'Iris.'

Inspector:	'Is what he said true?'

Female appellant:	'Yes.'

One has to make the assumption that the matter to which the female appellant agreed as true included the answers concerning the offensive behaviour and not merely the answers about the male appellant's bona fides, whatever that means.

The Inspector then interrogated the female appellant regarding her 'bona fides'.

After the completion of the interrogations the appellants were arrested and taken to a lock-up at Berrimah.

Robin Christopher Bullock, a Sergeant of Police, was called to corroborate the evidence of Inspector Moore.

The appellants gave evidence.		Steven George Pregelj said he had no fixed address, that he was a labourer/fisherman by occupation.	At the time of his arrest he lived at 11 Fourcroy Street.	He and the female appellant had moved into the empty house some weeks before their arrest.	There was no furniture.
They had no curtains, no bed.	They used a blanket for a bed and a couple of old curtains for cover.	Mr. Pregelj said that the

sleeping blanket would have been further to the left from where Constable Dyer said he saw them in the room.	He said the light was on in the bedroom because he felt like having a light on.	He agreed that he did have sexual intercourse with the female appellant on the night in question but said that he did not know they could be seen from outside the room. He believed they were concealed behind t,he wall.	He did not know whether that was the first time they had had sexual intercourse with the light on.	He said he usually liked to do it with the light on.	After their sexual activity they set out to walk towards Malak when, he said, they were stopped by the inspector and a few of his mates.	He said the inspector abused him.	The appellant said the inspector was not asking him questions 'He was telling me what I was doing.'	He said most of what the Inspector said was abuse.		He said he remembered the Inspector saying it was some kind of crime to have sex with an Aboriginal woman.

The male appellant said he told the Inspector, 'I didn't know I was doing anything wrong because we were way up against the side.'	He also said: 'Yes.	I didn't know I was doing anything wrong.	How was I supposed to know people were walking out late at night.'	He also said: 'It was late at night and I took the precaution to get up against the side there in case anyone did walk or look from the window.'

The female appellant, Iris Wurramura, said she was from Groote Eylandt and that she had stayed at 11 Fourcroy Street with

the other appellant.	She said she was not aware that what she was doing with Mr Pregelj could be seen from the street or footpath.	She said they took the precaution of being 'behind the wall'.	She did not know why the light was on because they usually left	off.	She said that she and Mr Pregelj were walking back to 9 Squires Court to see her auntie when 'the cop came up and pulled us over.'	She said they were talking to Steven 'but they didn't ask us question.	What he said, it's all bullshit.'		She said that the police told Mr Pregelj that they (Pregelj and Wurramura) were having sex on somebody's front lawn, and that another one told him they were having it in the park, but she said neither of those allegations was true.	She could not remember any abuse.	She told the court that on this occasion she had forgotten to put out the light.

In his submissions to the magistrate, the prosecutor said that the effect of the evidence of Inspector Moore and Sergeant Bullock was that the appellants did not think of the fact that what they did might be seen from a public place: 'They did not put any thought into it whatsoever.' But, there was evidence, to be inferred from each of them saying that they thought they were out of sight behind a wall (to which I have referred), that the appellants did give thought to the possibility of being seen from outside the house.

The decision of the learned magistrate may be summarised as follows:

The alleged behaviour took place.

It took place within view of	'the public.'

A person was in fact offended by what he saw.

The person was not unduly sensitive.

His Worship was satisfied beyond reasonable doubt the offence was proved.

His Worship did not overtly address himself to the mental elements of the offence of offensive behaviour at all.

The magistrate was told that neither appellant had any criminal convictions.	After hearing submissions on their behalf, he found the offence proved against each appellant and, without proceeding to conviction, released each on a bond to be of good behaviour for 6 months.

The appeals here appealed from were treated by his Honour as re-hearings on the transcript of the proceedings before the magistrate.	No party to these appeals has suggested that that procedure was not appropriate, although the issue had in fact been a matter of contention before the judge.	By reason of the nature of the appeal, his Honour did not observe either of the appellants or other witnesses giving evidence.

After submissions from counsel, the learned judge reserved for three days and gave judgment dismissing the appeals. I mention specifically his Honour's chief findings which I take
the liberty of paraphrasing, I trust without distorting the sense of his Honour's remarks:

While the appellants had the light on they took su_ch precautions as they could to be concealed from public view.

Because of the position of the windows and the lack of curtains, those precautions were not very effective and would not have obstructed Constable Dyer's view or the view of anyone walking through the lane and passing opposite the windows.

Because of the description of the room and the position of the window, the appellants could not reasonably have believed that they could not have been seen.	[I take it that his Honour is here expressing acceptance that the appellants believed they could not have been seen, but that their belief was not reasonable.	Otherwise his Honour's inclusion of the word 'reasonably' would not be warranted.	In any event there is no acceptable evidence or unequivocal finding that they did not believe they could not have been seen.]

The appellants had no intention of being, nor did they wish to be offensive.

His Honour then posed for himself the question: In those circumstances was the behaviour of the appellants offensive within the meaning of the Act?

The dictionary meaning of the word 'offensive' is of little assistance because it is plain that the word as used in the Summary Offences Act has a much more restricted meaning.

A wide variety of actions which many people would regard as offensive in the broad sense of that word would not come within the scope of the Act.

7 .		The behaviour of the appellants came within the definition given in Worcester v Smith (1951] VLR
316 at 318, being:

"Such as is calculated to wound the feelings arouse anger or resentment or disgust or outrage in the mind of a reasonable person."

The intent required in the offence is the intent to do the act complained of rather than to offend.	Deliberate intent to be offensive would normally be a factor increasing the penalty.

The appellants chose to have sexual intercourse naked and with the light on, at night, in circumstances when they knew or should have known that any passer-by in the lane could have seen them.		[I do not construe this as a positive finding that the appellants 'knew' they could have been seen.	First, as a matter of logic, the alternative 'or should have known' precludes it. Secondly, it would not be consistent with 3, above, nor,indeed, could it be founded upon any evidence in the case of which I am aware.	I do not believe it possible for his Honour to have made a finding of that kind, being subjective to the appellants, on the transcript alone, in the absence of a finding by the magistrate. Such a finding involves an adverse conclusion concerning the credit of witnesses whom the learned judge did not hear or see.	There is nothing in what the magistrate said that justified such an opinion of the appellants as to make it possible to disregard their evidence concerning the precautions they took to conceal themselves having sexual intercourse.	On the contrary, the sentencing phase before the magistrate seems to have proceeded on the basis that the appellants took steps to conceal themselves and that they had no belief or knowledge that they could have been seen.	To the extent that his Honour reached this conclusion by reason of the appellant Pregelj saying in evidence: '..		I reckon maybe the copper saw us and took a walk outside and

looked through our window.	They were always looking
through our windows, day and night.	We would look out the window and we would see them or their wife bloody just having a good look through.', I believe the conclusion was unwarranted.	The fact that a person, perhaps in a standing position making no attempt to conceal himself, can see, from inside his house, a person looking in cannot give rise to an inference that the former knew or should have known that, when in a position on the floor, having taken precautions to be concealed, the person outside would be able to see him.]

An Australian's home may be his castle, but if he chooses to turn it into some sort of wide screen entertainment for the public, he must accept the consequences.	[Insofar as this may be intended to express a finding, it is so inconsistent with what was said in 1, above, it would have to be disregarded.	I am sure that his Honour must have included the remark as a cautionary aside directed to persons, not the appellants, who might turn their homes into a wide screen entertainment of the kind described.	It ought to be said that the remark has no relevance to the appellants in this case.]

This was not a case where the behaviour could only be seen by the use of some difficult or extraordinary means of viewing.

The grounds of appeal to this court as framed are not helpful.	It was said that the judge erred in law in that the acts complained of did not amount to offensive behaviour within section 47(a) of the Summary Offences Act.	It was also
said that the decision of the judge was against the evidence and the weight of evidence.

The appeal to this court was argued chiefly on the basis that neither the magistrate nor the judge correctly identified the mental elements of offensive behaviour, and that if they had correctly done so they would have acquitted the appellants.	It is necessary to turn first to the statute creating the offence.

Section 47 of the Summary Offences Act is in the following terms:

'47.	OFFENSIVE, &c., CONDUCT
Every person who is guilty -

of any riotous, offensive, disorderly or indecent behaviour, or of fighting, or using obscene language, in or within the hearing or view of any person in any road, street, thoroughfare or public place;
of disturbing the public peace;
of any riotous, offensive, disorderly or indecent behaviour in any police station;

of offensive behaviour in or about a dwelling house, dressing-room, training-shed or clubhouse;
of unreasonably causing substantial annoyance to another person;	or

'
of unreasonably disrupting the privacy of another person,
shall be guilty of an offence.
Penalty $200 '

One can extract from that section the following:

Every person who is guilty of any offensive behaviour within the view of any person in any public place shall be guilty of an offence.

MENS REA UNDER THE COMMON LAW

I will touch briefly on the doctrine of mens rea as an aid to understanding the intention of the Criminal Code
(NT).	The landmark case of He Kaw Teh v R (1985) 157 CLR
523 shows how difficult and complex is the question what state of mind is required to render a person criminally responsible for proscribed conduct.	Although that case was concerned with possession of prohibited imports, some members of the High Court took pains to expound certain propositions of general application.

Brennan J, under the heading 'The General Principles', commencing at p564, explained that the essential foundation of criminal responsibility is an act or omission.	But,
criminal responsibility depends not only upon a person's act or

omission but also upon the circumstances in which the act  is done or the omission made.	It usually depends upon his state of mind at the time of the act or omission.	The definition of a criminal offence usually specifies only the prohibited act or omission (conduct), the circumstances, and
sometimes the results.	These elements have been called by Dixon CJ, 'the external elements necessary to form the crime':
Vallance v R (1961) 108 CLR 56 at 59.	But, a mental element

is usually implied in the definition of a crime.	This element is the mens rea or guilty mind.	'The full definition of every crime contains expressly or by implication a proposition as to a state of mind.': R v Tolson (1889) 23 QBD 168 at 187.

Gibbs CJ, (p528) considering section 233B(l)(b) of the Customs Act (1901) (Cth), which deals with the possession of prohibited imports, gave reasons relating to the question what mental elements apply to offences under that provision.	In his introductory comments his Honour noted that the provision did not contain any word, sµch as 'knowingly', that would have made the intention of the Parliament more clear.	Despite the absence of such specific language, his Honour observed that the provision had to be read 'in the light of the general principles of the common law which govern criminal responsibility.'	His Honour then quoted, as stating the relevant principle, a passage from Sherras v De Rutzen [1895] 1 QB 918 at 921.	The passage
is set out at p.•. of these reasons.	Gibbs CJ observed that there had been a tendency in Australia to regard the presumption

referred to in that passage as a weak one, at least in the case of modern regulatory statutes.	He referred to Proudman v Dayman (1941) 67 CLR 536 at 540; Bergin v Stack
(1953) 88 CLR 248 at 261.	His Honour said:

'However, the principle stated in Sherras v De Rutzen
has more recently been reaffirmed in the Judicial Committee and House of Lords (Lim Chin Aik v R [1963] AC 160 at
173; R v Warner [1969] 2 AC 265 at 272 and Gammon
Ltd v Attorney-General (Hong Kong) [1985] AC 1 at 12-13 and in this Court: Cameron v Holt (1980) 142 CLR 342 at 346,348.	The rule is not always easy to apply.	Its
application presents two difficulties -- first, in deciding whether Parliament intended that the forbidden conduct should be punishable even in the absence of some blameworthy state of mind and secondly, if it is held that mens rea is an element of the offence, in deciding exactly what mental state is imported by that vague expression.'

Brennan J said (p565-6): 'Nowadays, a presumption is made that mens rea is an element in a statutory offence though the offence is defined only by reference to its external elements.'	His Honour quoted with approval the	passage from Wright Jin	Sherras v De Rutzen referred to by Gibbs CJ. Brennan J also quoted a passage from Brend v Wood (1946)
62 TLR 462 at 463 to the effect that, unless a statute either clearly or by necessary implication rules out mens rea as a constituent of a crime, a man should not be found guilty of an offence against the law unless he has a guilty mind.	Brennan J said, referring to much authority, that it is now firmly established that mens rea is an essential element in every statutory offence unless, having regard to the language of the statute and to its subject matter, it is excluded expressly or by necessary implication.

In consequence, it can be said that mens rea would be an element of the offence of offensive behaviour in a common law jurisdiction unless, having regard to the language of the section creating the offence or its subject matter, it is excluded expressly or by implication.

Brennan J went on to say (p567) that there is a presumption that a statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventive measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur.	See Lim Chin Aik
(supra at 174).	Mens rea could not be excluded from an offence of offensive behaviour upon such reasoning.	There is no reason that I can see why the law would put persons in peril of criminal responsibility by reason of failing to take positive action to see that such behaviour does not happen.	I can see no reason why offensive behaviour should not be treated as an ordinary criminal offence where the penalty for guilt is intended to operate as a deterrent against the prohibited conduct.

The question then arises what states of mind are necessary to constitute mens rea so that a person will be criminally responsible for offensive behaviour.	Lord Hailsham of St Marylebone said that it was the "beginning of wisdom" to see that mens rea means a number of quite different things in

relation to different crimes: R v Morgan [1976] AC 182 at
213.	In He Kaw Teh, Brennan J said (p568) that the moral excuses which are recognised in relation to conduct that would otherwise be blameworthy find their counterparts in the categories of mental states that are indifferently described as mens rea.	At the same place, his Honour said that voluntariness and intent are ordinarily applicable to an act involved in an offence and knowledge or the absence of an honest and  reasonable but mistaken belief is the mental state ordinarily applicable to the circumstances in which a relevant act is done.

Brennan J referred to R v Reynhoudt (1962) 107
CLR 381 in which Dixon CJ and Kitto J dissented from the majority in holding that the mental elements of the offence of assaulting a member of the police force in the due execution of his duty include an intent on the part of the supposed offender going
to all the ingredients of the offence.	Dixon CJ said (p387) 'That (the aggravated assault) is a compound offence and I think that the guilty mind should go to the elements of which it is composed•..• Assault is of course an intentional act and in the case of the aggravated assault. •		intention must extend to the elements forming the whole offence.'		Dixon CJ said (ibid.) 'In short, I agree in the statement by which the majority of the Court in the second Galvin Case[l961] VR 740 at 749
summarized their view, --"The mental element, in our opinion, is the intention to do the whole act which is prohibited"'.

I	refer to that dissenting judgment for three reasons.	First, it isa	statement by a pre-eminent jurist on the material question. Secondly, it is referred to with what seems to me to be at least some approval by Brennan Jin	He Kaw Teh, p577.	Thirdly,
as I perceive the trend in the matter of mens rea, Dixon CJ's reasoning and conclusion in Reynhoudt may well be
accepted as correct today.	Brennan J concluded (ibid. p578) that where the text of the provision defining the offence, the general scope of the legislation and the nature of the evils to be avoided do not show which state of mind applies, the prima facie principle applies as it was expressed in Turnbull(1943)
44 SR[NSW] 108.	That was a decision of another pre-eminent jurist, Jordan CJ, with whom Davidson and Street JJ concurred. The appeal was against a conviction of knowingly suffering to be
on premises used as a house of ill-fame a girl under the age of
eighteen years.	Jordan CJ set the keynote of his reasons by saying, 'The general rule as to mens rea is clear and plain.		It is a well established rule of the common law that an act is not criminal unless it is the product of a guilty mind.': pl09.	His Honour regretted that that courts had not been single minded in their requirement for mens rea in criminal cases.	He said (ppll0-1):

'However, it is too late for this Court now to restore elementary and fundamental principles of justice in this field of law.	It is necessary now to take the cases as it finds them, and endeavour to solve the question upon a general consideration of the section, aided by certain guiding rules which have been sought to be evolved inductively by judges who in the past have endeavoured to reduce chaos to order in this field.	In the leading case of Sherras v De Rutzen[l895] 1 QB 918 at
921, it was stated by Wright J, that:

"There is presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered."

His Lordship, guarding himself by saying that there were other isolated and extreme cases, said that the principal classes of exceptions to the rule that
mens rea must be established in statutory as well as common law offences might perhaps be reduced to three:
where the acts were not criminal in any real sense, but were acts which in the public interest are prohibited under a penalty, e.g., statutes treated as prohibiting even the innocent possession of adulterated food or tobacco; (2) acts constituting public nuisances; and (3) where the proceeding though criminal in form, is really only a summary mode of enforcing a civil right; but that except in such cases as these there must in general be guilty knowledge on the part of the defendant or of someone whom he has put in his place to act for him generally or in the particular matter in order to constitute the offence.'

Wright J's actual words in Sherras v De Rutzen
(supra) concerning the public nuisance cases were, 'Another class comprehends some, and perhaps all, public nuisances: R   v Stephens Law Rep. 1 QB 702 where the employer was held liable
on indictment for a nuisance caused by workmen without his knowledge and contrary to his orders; and so in R v Medley
6 C &   P 292 and Barnes v Akroyd Law Rep. 7 QB 474.'	It
is to be noticed that Wright J did not assert unequivocally that mens rea did not apply to all public nuisance cases.	The cases referred to by Wright J are significant because they seem to have helped to propagate the learning that public nuisance cases form one of the groups of cases in which mens rea is attenuated: see eg, Norley v Malthouse (1924] SASR 268 at 269-270;
Normandale v Brassey[1970] SASR 177 at 182.	But the public

nuisances dealt with in the cases referred to in Sherras v De Rutzen were utterly different from the cases directed at the preservation of 'decorum'.	The counts in R v Stephens
were (1) for obstructing the navigation of a public river called the Tivy by casting and throwing, and causing to be cast and thrown, slate stone and rubbish in and upon the soil and bed of the river, and thereby raising and producing great mounds projecting and extending along the stream and waterway of the river; (2) for, being the owner of large quantities of slate quarried from certain slate quarries near the river Tivy, and unlawfully keeping, permitting and suffering to be and remain large quantities of slate sunk in the river, so that the navigation of the river was obstructed.	Mellor J said (p708) that in point of form the proceedings were criminal in nature but in substance, civil; the only reason for proceeding criminally was that the nuisance, instead of being merely a nuisance affecting an individual, or one or two individuals, affected the public at large, and no private individual, without receiving some special injury, could have maintained an action; the prosecutor could not proceed by action but must proceed by indictment, and if the proceedings were strictly criminal the prosecutor would be met with the objection that there was no  mens rea.	In R v Stephens the defendant was not aware of
his workmen's wrongful activities and, indeed, they acted
contrary to his instructions.	In R v Medley a gas
company was indicted for a nuisance in conveying the refuse of gas into a great public river, destroying and rendering the water

unfit to drink.	Barnes v Akroyd concerned a complaint of nuisance consisting in sending forth black smoke from a chimney of premises of the respondents in such quantity as to be a nuisance.	It was held that if the servants of the respondents caused the nuisance, the latter were the persons who created the nuisance and were responsible for so doing.	It seems to me that the proceedings on indictment in those cases to punish public nuisances were perfectly analogous to the kind of cases referred to by Brennan Jin		He Kaw Teh(p567) brought under
statutes the purpose of which is not merely to deter persons from engaging in prohibited conduct but to compel them to take preventive measures to avoid the possibility that, without deliberate conduct on their part, the external elements of the offence might occur.	Conduct amounting to offensive behaviour, whilst it may in one sense be described as nuisance, is vastly different both as to quality and seriousness from the nuisances that Wright J had in mind in Sherras v De Rutzen.	The
policy reasons for prosecutions for public nuisance being treated as they were have no application to prosecutions for offensive behaviour.	The former were clearly intended to ensure that persons with the capacity in the course of their industrial or business undertakings to cause significant detriment to large numbers of the public should run their undertakings in peril of punishment if they failed to take proper precautions to prevent the detriment from occurring.		Only the most artificial analogy could apply such reasoning to prosecutions for offensive behaviour and like offences.	There seems to me to be less policy

reason to treat offensive behaviour as warranting a reduction in the element of mens rea than there would be for many more serious crimes.

I do not think this conclusion is inconsistent with the attitudes of the general community.	I believe that an ordinary person, asked the question whether it would be just to convict and punish for offensive behaviour someone who was unaware that his conduct could be seen by a person in a public place, would answer unhesitatingly in the negative.

THE APPLICABLE LAW

The law governing the mental ingredients of the offence of offensive behaviour in the Northern Territory is
exclusively governed by the Summary Offences Act and the Criminal Code (NT Code).

It is clear from cases concerning the Queensland Criminal Code (Q Code), the Western Australian Criminal Code (WA Code) and the Tasmanian Criminal Code (T Code) that the Parliament intended it to codify the law pertaining to criminal responsibility to the extent that it intended to lay down minimum exculpating criteria.	The common law has no role.	In Widgee Shire Council v Bonney (1907) 4 CLR 977 at 981, Griffith CJ  said:

'It is contended further that a by-law cannot prohibit an act simpliciter, because, it is said, this would
be dispensing with the element of what is called mens rea in an offence.	So far as this last objection is concerned it may be dismissed with the
observation that under the criminal law of Queensland, as defined in the Criminal Code, it is never necessary to have recourse to the old doctrine of mens rea,
the exact meaning of which has been the subject of much discussion.	The test now to be applied is whether this prohibited act was, or was not, done accidentally or independently of the exercise of the will of the accused person (sec.23).'

The similarity between sections 31 and 32 of the NT Code and section 23 and 24 of the Q Code is sufficient to attract Griffith CJ's opinion to the criminal law of the Northern Territory.

Sections 23 and 24 of the Q Code are as follows:

'23.	Intention: Motive. Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.
Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.
Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.
Mistake of fact.	A person who does or
omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally respons.ible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the
express or implied provisions of the law relating to the subject.'

Sections 31 and 32 of the NT Code are as follows:

'31.	UNWILLED ACT, &c., AND ACCIDENT

A person is excused from criminal responsibility for an act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct.

A person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his conduct, and that particular act, omission or event occurs, is excused from criminal responsibility for it if, in all the circumstances, including the chance of it occurring and its nature, a reasonable person similarly circumstanced and having such foresight would have proceeded with that conduct.

This section does not apply to the offences defined by Division 2 of Part VI.

32.	MISTAKE OF FACT

A person who does, makes or causes an act, omission or event under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for it to any greater extent than if the real state of things had been such as he believed to exist.'

These sections occupy corresponding places in each code: sections 23 and 24 form part of Chapter V of the Q Code dealing in general with matters of criminal responsibility; sections 31 and 32 of the NT Code comprise Part II, headed CRIMINAL RESPONSIBILITY.	In each code sections 24 (Q Code) and 32 (NT Code) respectively deal with the matter of honest and reasonable mistake of fact.

Where a statute specifying an offence and its punishment includes some particular mental ingredient in the definition of the offence that may not be a requirement of Part II of the NT Code, that statute is also a source of law respecting the mental ingredients of that offence.

THE CONSTRUCTION OF SECTION 31

This question is by no means as simple to answer as the last.	The difficulty stems from the obscurity of wording of section 31 of the NT Code.	I say this with some confidence, because an examination of the authorities relating to the corresponding section of the Q Code (and the WA Code which is in the same terms) serves to show that, even after more than 80 years of operation of that section, they are far from clear: see for example Timbu Kolian v R (1968) 119 CLR 47, 53-5,
55-6, 63-6; Payne [1970] Qd R 260; Sweet [1972]
QWN 28; Kaporonovski v R (1973) 133 CLR 209;
Geraldton Fisherman's Cooperative Ltd v Munro (1963) WAR 129; Anderson v Basile (1979) WAR 53.	See also Dixon CJ's comments on the similar wording of s.13(1) of the T Code in Vallance v R(1961) 108 CLR 56.

Dr Elliott in Part I of his article MISTAKES, ACCIDENTS AND THE WILL: THE AUSTRALIAN CRIMINAL CODES,
asserted that Sir Samuel Griffith's optimism as to the clarity of

his codification was unfounded;	that after some years of case law there is confusion where the aim was clarity:	46 Australian Law Journal 255.	With the deepest respect to the authors of the NT Code, it is no more clear in some material respects than the Q
Code.

Section 31 of the NT Code, which has departed	rom the language of the Q Code, is as difficult to construe in its own ways.	The section provides a defence (in the loose sense) where the act, omission or event is not intended or foreseen by the accused as a possible consequence of his conduct.

Section 23 of the Q Code provides a defence where the act or omission occurs independently of his will and for an event which occurs by accident.

Section 13 of the T Code provides a defence for an act unless it is voluntary and intentional, for an omission unless it is intentional and for an event which occurs by chance.

Sections 32, 24 and 14 of the respective codes relating to honest and reasonable mistake are, it seems to me, substantially the same.

Section 1 of the NT Code defines 'act' as 'in relation to an accused person, means the deed alleged to have been done by him; it is not limited to bodily movement and it includes the

deed of another caused, induced or adopted by him or done pursuant to a common intention;'.	The definition of act does not greatly assist.	'Deed' is merely a synonym for 'act'.	However, the statement that it is not limited to bodily movement is significant.	I suspect that the draftsman was attempting to resolve the problem of the meaning of 'act' illustrated in Vallance v R (1961) 108 CLR 56:	what is comprehended by the
word 'act'?	The NT Code also defines 'event' as 'the result of an act or omission;'.	Neither 'omission' nor 'conduct' is defined.

A striking difference between section 31 of the NT Code and the corresponding provisions of the other codes is the more indiscriminate use of the terms 'act', 'omission' and 'event'.
Although this lack of discrimination is grammatically obvious, influenced by the ordinary meaning of the words, I imposed a distinction by construction: R v Krosel 41 NTR 34.	It
seemed an unnatural use of words to speak of foreseeing an act or omission.	Foresight seemed appropriate only for an event.	So I suggested that the section had the effect of excusing acts, omissions and events that were not intended and events that were not foreseen.	But, I would now accept the charge of superficiality.	A moment's attention to the words of subsection 31(2) shows that the author of the section intended no such complete distinction between 'act' and 'omission' on the one hand and 'event' on the other.	Subsection 31(2) opens with the words: 'A person who does not intend a particular act, omission or

event, but foresees it as a possible consequence of his conduct,.	Subsection 31(2) refers to acts and
omissions that can be foreseen.	Not only events can be foreseen under subsection 31(2).		What does it mean to say that an act was foreseen by the actor?	It surely cannot mean the bodily movements of the accused, for who would speak of foreseeing his own bodily movements as a possible consequence of his conduct?	I do not think the subsection can refer to the act of another caused or induced by the accused (see definition of 'act' below) because in either case the act would have been intended by the accused.	The proposition that 'act' does not mean what it ordinarily means is reinforced by the use of 'conduct' in both subsections.	Is there a distinction between 'act' and 'omission' on the one hand and 'conduct' on the other?	There would have to be a distinction, at least as to comprehension, if an 'act' of the accused can be a consequence of 'conduct' of the accused.
One can readily understand how an 'event' can be a consequence of 'conduct', but the antecedent of 'it' in the passage quoted of subsection 31(2) is 'act, omission or event', not 'event' only.
In Krosel, I should have adverted to the fact that the expression used in subsection 31(1) is 'possible consequence of his conduct', not 'possible consequence of his act or omission'.	I assume that the meanings of the words 'act', 'omission', 'event' and 'conduct' are'the same, respectively, wherever they occur in section 31.	I conclude, therefore that the words 'act' and 'omission' are wider in their comprehension than the mere bodily movement by which the other external ingredient of an offence

charged are brought into existence.	'Act' and 'omission' may often include the latter, but for the reasons stated I believe
they have different comprehension.	Just how wide is the comprehension of 'act' and 'omission' is another question.

There is a great deal of academic disagreement as to the meaning of 'act' and associated words in the Q  and T Codes.		The dispute includes extremes of possible interpretation.	Professor Colin Howard argues confidently that 'act' is equivalent in meaning to 'the external ingredients of the offence'.	Professor Eric Edwards argues that 'act' is confined to its primary meaning of muscular contraction or bodily movement.	Dr Ian Elliot, supra, argues yet another construction.	Even if I were able to do so, it would be inappropriate to enter the debate here.	The only conclusion I am able to reach, independently of the cases, is that 'act' in section 31 of the NT Code must include more than mere muscular contraction or bodily movement, if for no other reason, in order to make some sense of subsection 31(2).

Vallance demonstrated that the finest legal
minds in the land could not agree about the meaning of 'act' and, by implication, 'event' in the T Code.	Vallance was acquitted by a jury.	A Court of Criminal Appeal set aside the verdict of acquittal for misdirection or non-direction and directed a new trial upon one count in the indictment charging wounding under section 172 of the T Code.	Section 172 provides: 'Any person who unlawfully wounds or causes grievous bodily harm to any person

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whatever is guilty of a crime.'	Dixon CJ, after a courteous but trenchant criticism of the introductory part of the T Code, said that the wide abstract statements of principle about criminal responsibility were 'framed rather to satisfy the analytical conscience of an Austinian jurist than to tell a judge at a criminal trial what he ought to do.': p58.	His Honour was contrasting the method of the T Code with the method of the common law.	He said, 'In the Code these abstractions of doctrine are not the generalized deductions from the particular instances that follow: they come ab extra and speak upon the footing that they will restrain the operation of what follows.': ibid.	His Honour, having turned more particularly to the case in hand, asked the question:

'But is s.172 to be read in the Code as doing no more by way of defining the crime than stating the external elements necessary to form the crime, that is to say the wounding ...	, and adding the requirement of unlawfulness relying upon the introductory Part or so much of it as deals with criminal responsibility to define and import the elements which go to intention or other state of mind necessary or sufficient completely to constitute the crime?	That seems to be the primary question.

In the case of s.172 I think that the answer should be yes.	This answer represents, I believe, the plan upon which the Code is conceived and, to some but perhaps to no great extent, drafted.	The plan was to provide for specific crimes but to treat the complete definition of them as finally governed or controlled by Ch. IV (criminal responsibility)•••. Section 13(1) is expressed as a wide abstract generalization which of course ignores the elements of all or any specific crimes into the definition of which so to speak it must go.': pp59-60.

Those remarks, if correct, are equally applicable to the corresponding provisions of the NT Code,	In particular, the NT Code defines 'unlawful' and 'unlawfully' as meaning 'without authorization, justification or excuse;'.		This case does not involve a consideration of 'authorization' or 'justification', but it does involve 'excuse', which is the title of Division 4 of Part II, CRIMINAL RESPONSIBILITY, of the NT Code.	His Honour of course recognised that the definitions of some offences include criteria of criminal responsibility, i.e., mental elements, special to the offences.	His Honour said that subsection 13(1) appeared to him 'to be saying negatively that there shall be no guilt unless all acts of the accused forming the ingredients of the crime are voluntary and intentional.	It is the punishable act or acts to which the words appear .•.			to refer.	In the case of unlawful wounding the punishable act is the wounding.
It is not enough to say the "means" used, or perhaps one should say the use of the means, under s.13(1) must be voluntary and intentional and that the wounding need not.	The wounding is the crime, the punishable act, and it is the wounding which must be voluntary and intentional.': ppG0-61.	It seems to me that there are significant similarities between offensive behaviour and wounding.	The expression 'offensive behaviour' is merely a short way of saying 'an act which causes offence to another': the act of offending another.	The act of the defendant is the means by which the offence is brought into existence.	If the analogy is not false, and if Dixon CJ's analysis is correct, it is not enough to satisfy the NT Code equivalent to section 13 of

the T	Code to say the use of the means must be intended and that the offending need not.	The gravamen of offensive behaviour is the offending of another person, and the offending must be intended.		Behaviour that does not offend, at least potentially, cannot be offensive.	Behaviour, offensive in other circumstances, committed in complete privacy cannot be offensive. It cannot be in the nature of any conduct to be offensive without including in the definition of the conduct the circumstances which render it offensive.	Therefore, on one view of it, the offending of a person, actually or potentially, is an integral element of the proscribed conduct.	On that view of it the 'act' of the defendant includes the act of offending, for which he is excused from criminal responsibility unless the offending were intended or foreseen by him as a possible consequence of his conduct.	If that be a correct analysis, the appellants in the present case were excused by subsection 31(1) from criminal responsibility for their conduct because, while they knew of the potential of the act of sexual intercourse observed by another to offend, having taken precautions to conceal themselves, they did not intend to offend, nor did they foresee the possibility of offending anyone.	By 'intent to offend', I mean 'do an act with knowledge that the activity would, or at least could, offend'.

The other main opinion of the High Court in
Vallance was represented by the judgment of Kitto J.	His
Honour gave the word 'act' in section 13 of the T Code its narrow meaning.	He said that subsection 13(1) was framed to recognize

the distinction between, on the one hand, a bodily action performed by a person, entailing criminal responsibility either per se or in virtue of some quality of the action, some consequence caused by it ... , some accompanying intent or state of mind ••• , and, on the other hand, something eventuating in consequence of the action and attracting a criminal responsibility which the action otherwise would not have produced.	'When s.13(1) speaks of an act being voluntary and intentional, before turning to the event and speaking of that as not occurring by chance, it seems to me to be addressing itself only to the question whether a person charged acted of his own free will and by decision, before asking whether that which eventuated from his act was a merely chance result.': p64.	But, unlike subsection 13(1) of the T Code, subsection 31(1) of the NT Code does not exculpate merely for an event that occurs by chance, but for an event that is neither intended nor foreseen by the defendant as a possible consequence of his conduct.	If one were to apply the reasoning of Kitto J, the act of each appellant in the present appeal was the act of sexual intercourse and the offence that might be suffered by an observer was something that eventuated from the act: an event.	By virtue of s.31 of the NT Code, the appellants would not be criminally responsible for that event unless they intended it or relevantly foresaw it. 'Intended' in this context means, not that they desired it to happen, but that they did the act with knowledge, in its wide sense, that offence to someone would be	an actual or possible consequence.	I have already said that there was no evidence of

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knowledge on the part of either appellant that he (or she) would cause offence by their actions.	On the contrary, they believed
they were concealed, however unreasonable that belief might have been.

Offensive behaviour is not one of that class of offences especially designated by the NT Code as exempt from the provisions relating to criminal responsibility:	see section 3 and 22.	It follows that those provisions apply with full force to offensive behaviour.	This is so notwithstanding that, in applying the common law doctrine of mens rea to offensive behaviour in the past, the courts have not always applied it to all the circumstances of the offence.	But, in Walker v
Crawshaw [1923] Gazette Law Reports, 22 Feb. 1924, a decision

of the Supreme Court at Dunedin, Sim J was there concerned with a person convicted of wilfully doing a grossly indecent act in a public place.	On 14 June 1923 at 11.30 pm, a hire car was standing in a public street at the rear of a theatre.	The front and rear lights were lit but there was no interior light.	The hood of the car was up and the side curtains were in position.
Constable Brownlie saw the car and on approaching it he heard a shuffling noise in the car.	There was no-one in the front seat and he was unable to see into the rear portion of the car.	The constable put his hand over the back of the front seat and flashed his electric torch into the rear portion of the car.	He saw the appellant and a woman having sexual intercourse on the back seat.	Amongst other arguments on the appeal against his

'
'	conviction, it was contended by the appellant that he was justified in thinking that he would not be seen and that he was
detected only through the misdirected zeal of a prying policemen. The learned judge concluded that "As the magistrate has convicted the appellant, he must be taken to have found that there was a reasonable probability of the appellant being detected, and
that the appellant appreciated the risk of detection and deliberately and intentionally accepted that risk.'	Leaving aside the questionable proposition that the magistrate must be taken to have decided something he did not express, the point of the judgment for present purposes is that Sim J never doubted the necessity ('...he must be taken...') for a finding that the appellant knew of ('..•appreciated..•') the risk of detection.
Knowledge was the necessary mental ingredient in his Honour's mind.	That case shows that it is no novel proposition to suggest that the mental element implied in the definition of such offences, relating to a circumstance not integral to the central act, is knowledge.

I am aware of some cases of offensive behaviour, decided over the years during which the common law doctrine of mens rea has developed and which has recently been so fully expounded in some of the judgments in He Kaw Teh (1985) 157 CLR 523,
in which cases it has been said that an intention to offend is not an ingredient.	However, I am not at all sure that applying, say, the principles as expounded by Brennan Jin	He Kaw
Teh, a court would be correct to say today that mens rea does

,

not apply to all the external ingredients of offensive behaviour. Of course it must be kept in mind that offensive behaviour
provisions take a variety of forms, and special considerations may arise from that fact.

Counsel for the respondent argued that the fact that the maximum fine for offensive behavior is so trivial, a mere $200, is an indication that it is not a criminal offence in the full sense, but a device to impose decency, decorum and orderly behaviour on members of society.	Yeldham J considered that notion in Jeffs v Graham(l987) 8 NSWLR 292 at 296.	His
Honour was concerned with offensive conduct under section 5 of the Offences in Public Places Act (NSW) for which the
maximum penalty is also $200.	He said, 'The offence created is truly criminal in nature; and clearly causes a stigma to attach to any person convicted of it.		The penalty, whilst not heavy, is not insubstantial, at least to many of the people who would be caught by the sections's provisions; and I do not regard the subject matter of the offence as being really within the matter said, in cases such as Sweet v Parsley [1970] AC 132 at
163, to be one involving "potential danger to public health, safety or morals, in which citizens have a choice whether they participate or not".'

For these reasons I would allow the appeals and quash the findings and orders of the learned judge and the magistrate below.

•

Kearney J.	The history of these proceedings is set out fully by Nader J.	I agree generally with his Honour's approach and conclusions.	I will therefore be brief.

The offence charged is an offence of circumstance; as written, it consists of 2 elements - in this case, the act of sexual intercourse and the circumstance that the act was performed within the view of a person in the lane.	It is the circumstance of public visibility which is said to make the otherwise innocent act punishable.	In the words of Dixon C.J. in Vallance (supra) at p.59, these 2 elements are "the external elements necessary to form the crime"; together they constitute the "punishable act".	In common law terminology they constitute the actus reus of this offence.

There is however a third element which is not apparent from the wording of s.47.	Criminal responsibility for this offence is subject to the provisions of Part II of the Criminal Code, comprising ss.22-43.	The most important provision in the Criminal Code is s.31.	In my opinion, the word "act" in Code s.31(1) means the "punishable act" in the sense set out above.	The effect of s.31(1) is that the appellants are not criminally responsible for this offence unless they either intended the punishable act - that is,

both external elements - or foresaw it as a possible consequence of their conduct.

As a matter of common sense the appellants could not have intended to commit the punishable act unless they knew of the circumstance of public visibility.

The live question in this case was whether it was proved beyond reasonable doubt that the appellants knew that they could be seen from the lane in the location in the room where they performed the act, or foresaw that they might possibly be seen.	The short answer is that the evidence as
set out by Nader J. does not warrant any such conclusion being drawn.

I add the following observations.

On the question of fact whether the punishable act constituted "offensive behaviour", the learned Magistrate in deciding that the relevant questions were whether the person who saw the act was in fact offended by it, and whether that person was unduly sensitive, misdirected himself as to the question which required to be addressed.	It did not matter whether or not the witness to the act was offended or whether he was unduly sensitive.	The difficult question for the Magistrate's decision was whether, according to community standards of decorum, the act in question in the

circumstances in which it occurred constituted offensive behaviour.	It would have been open to the Magistrate to have so found, had his attention been directed to the question; community standards in this area are not yet those attributed many years ago to Mrs Patrick Campbell - "I don't
care what they do, so long as they don't do it in the street and frighten the horses".

I agree with the learned appellate Judge's comments about "wide screen entertainment", referred to by Nader J.

The vital question on the facts of this case concerned the mental element.	As Nader J. has pointed out, his Worship did not consider the mental element at all.	The explanation is that the case was not argued before him or before the learned appellate Judge on that basis.	Because of the way the case was approached before the learned Magistrate there was no evidence, or wholly insufficient evidence, from which the conclusion of the learned appellate Judge could be safely drawn that the appellants could not reasonably have believed that they could not be seen.

I concur in the order proposed by Nader J.

RICE J:	These appeals are from the decision of a
single judge of this Court dismissing appeals by both

'
appellants from a decision of the Court of Summary Jurisdiction sitting	at Darwin whereby a complaint of offensive behaviour was found proved against each of them.

Section 47 of the Summary Offences Act provides as
follows:-

"47.	Every person who is guilty -

of any riotous, offensive, disorderly or indecent behaviour, or of fighting, or using obscene language, in or within the hearing or view of any person in any road, street, thoroughfare or public place;
of disturbing the public peace;
of any riotous, offensive, disorderly or indecent behaviour in any police station;

of offensive behaviour in or about a dwelling house, dressing-room, training-shed or clubhouse;

of unreasonably causing substantial annoyance to another person;	or

of unreasonably disrupting the privacy of another person,
shall be guilty of an offence.
Penalty:	$200"

I have set out the whole of s.47 in order to show the diversity of offences contemplated by the section.

The offence with which both appellants were charged is confined to that part of s.47(a) which is set out in the complaint which charges both of them for that:-

"On the 27th day of August 1986 at Darwin in the Northern Territory of Australia, you were guilty of Offensive Behaviour within the view of any person in any road, street or public place, namely, 11 Fourcroy Street, Karama:	Section 47(a) of the Summary Offences Act. Particulars of Charge:	Did at about 8-50 p.m. have sexual intercourse in full view of a public place."

On 22 January 1987 the learned magistrate found the offence proved and without proceeding to conviction released both appellants on their own recognizance in the sum of $100 each to be of good behaviour for a period of six months.

Both appellants appealed from the decision of the Court of Summary Jurisdiction.	On 6 March 1987 Justice Asche (as he then was) dismissed both appeals.	It is from that dismissal that the appeals came before the Court of Appeal.

The facts are set out in the judgment of Asche J. as follows:-

"	At or about 8.50 pm Constable Dyer was walking along a footpath about 2 metres wide which runs between his residence and a house at 11 Fourcroy Street.	From a sketch which was compiled for me by both counsel, it appears that the house at 11 Fourcroy Street is directly opposite Constable Dyer's house across the lane.

Both houses are set back a little from Fourcroy Street, and the lane connects Fourcroy Street to a park. The house described as 11 Fourcroy Street has a fence along the pathway which Constable Dyer described as about 2½ feet or 1 metre high.	The bedroom windows of the house face outwards to the lane.

Constable Dyer says that in one of the bedrooms there was a light on and no curtains fitted to the window.
He describes the windows of this bedroom as full length

sliding windows running from close to the floor to close to the roof.	The only evidence of the width of these bedroom windows is that Constable Dyer says it took him about 15 paces to walk past the window.

Constable Dyer says that on walking past the window he observed a male and a female person, both naked	the male lying on top of the female and going through the motions of sexual intercourse.	He said:	'You couldn't help but seem them.'	They appeared to be in the far left hand corner of the room and on the floor.

Constable Dyer reported the matter to the authorities, and the couple were questioned.	They admitted having sexual ,intercourse at the time and place mentioned by Constable Dyer.	At the hearing before the learned Stipendiary Magistrate they said the same thing.
The appellant, Pregelj, said that he and the appellant, Wurramurra, had been living on and off at that house for about 2! weeks.	He said they had been invited to stay there by another lady.	He said it was all empty and they just moved in.		From this evidence I think it fair to say that no adverse inference should be drawn against the appellants by reason of their occupation of the house.	There is nothing to suggest that their occupation was illegal, and although it might have been somewhat casual and intermittent, I am prepared to accept that on this particular night, as lawful occupiers of the premises, they should be regarded no differently than any other owners, lessees or occupiers of premises.

Both appellants gave evidence that at the time in question there was no furniture in the house.	They used some old curtains to make up a bed on the floor. The appellant, Pregelj, was asked whether there were any lights on in the bedroom and he agreed that there were. He was asked why and his reply was:	'I felt like having the light on.'	He said there were usually lights all over the house.		Later he said:	'I leave the lights on, or if it is off, I usually like it when there are lights on.	It doesn't matter what we do.'
The appellant, Wurramurra, gave similar evidence, but said that they usually had the lights off and this was the first time they had the light on.	She said she forgot to put the lights off.	Both appellants agreed that there were no curtains in the window.

Both appellants said they had taken precautions not to be observed.	The appellant Pregelj said:	'We were behind the wall.'		He was asked the question:		'Were you taking any precautions to ensure?'	Answer:		'Yes.' Question:	'What precautions?'	Answer:		'The window

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maybe.		I can't remember how much space, but we were behind that.'	Question:	'Behind that.	What does that refer to?	Does that refer to the space from the window to the corner of the room?'	Answer:	'Yes.'	Later he said:	'It was late at night and I took the precaution
to get up against the side there in case anyone did walk or look through the windows.'

The appellant Wurramurra also said they took precautions.		Question:	'Had you tried to take any precautions to see that it could not be seen from the street or the footpath?'	Answer:	'Yes, we were behind the wall.'	The appellant Wurramurra said she was not aware they could be seen from the street."

From	the evidence given before the learned magistrate, the learned judge concluded that the appellants could be seen by a person in the lane;	that the lane was a public place and that the act of sexual intercourse performed by the appellants on that occasion took place within the view of a person in a public place within the meaning of s.47 of the Summary Justices Act.	Furthermore,
his Honour concluded that the appellants were lawfully on
the premises;	that while they had the lights on, they took such precautions as they could to be concealed from public view, although in view of the position of the windows and the lack of curtains those precautions were not very effective and would not have obstructed Constable Dyer's view or the view of anyone else passing through the lane and passing opposite the windows.	His Honour further concluded that in view of the description of the room and the position of the window, they could not reasonably have believed that they could not have been seen.		His Honour also concluded in favour of the appellants that they had no intention of being or wished to be offensive.

Nevertheless, after reviewing Worcester v Smith (1951) V,L.R. 316, Ball v McIntyre (1966) F.L,R. 237,
Hannaberry v Cowther (1945) V.L.R. 158, and Inglis v Fish (1961) V.R. 607, his Honour decided that the ultimate test is objective and that the behaviour of the appellants came within the definition given in Worcester v Smith (supra) at p.318, being "such as is calculated to wound the feelings, arise anger or resentment or disgust or outrage in the mind
of a reasonable person".	Moreover, his Honour, while
accepting that the appellants did not intend to be offensive, considered that insofar as intent is required in the offence, it is the intent to do the act complained of, rather than to offend.

In his reasons for judgment his Honour, in dealing with the question of intent, said this:-

"	Obviously there may be cases where an offensive act is committed unintentionally;	for example in the course of some drunken stag party, someone is stripped and pushed out into the streets.	In those circumstances the person concerned would have a defence that he did not intend to be naked in a public place.	But intention, to my mind, goes no further than that, and whether or not the behaviour is offensive is a matter to be determined objectively, from the circumstances.
Deliberate intent to be offensive would of course normally be a factor increasing the penalty.

In this case the appellants chose to have sexual intercourse naked and with the light on, at night, in circumstances when in my view they knew, or should have known, that any passer-by in the lane could have seen them.	They did not intend their behaviour to be offensive, but it was, within the meaning of the Act.
It is true they were in a private house, but the Act clearly accepts that behaviour can be offensive if within the view of any person in any road, street,

thoroughfare or public place.	An Australian's home may be his castle, but if he choses to turn it into some sort of wide screen entertainment for the public, he must accept the consequences."

With great respect to the learned judge, I am of the opinion that having found that the appellants did not intend their behaviour to be offensive, coupled with his earlier finding that "they took such precautions as they could to be concealed from the public view," it can not be imputed to them "that they knew, or should have known that any passer-by in the lane could have seen them".	Moreover,
his Honour's earlier finding that they (the appellants)

could not reasonably have believed that they could not have been seen, appears to have been based upon what his Honour said the appellant Pregelj conceded when he said, "I  reckon maybe the copper saw us and took a walk outside and
looked through the window.	They were always looking through our windows, day and night.		We would look out the window and we would see them or their wife bloody (sic.) just having a good look through."			(My emphasis.)	In my opinion, this does not amount to a concession or admission that on the night in question either appellant "knew or should have known that any passer-by in the lane could have seen them."	It is simply speculative reconstruction by the appellant Pregelj based on his assertion that Constable Dyer had on previous occasions looked through windows in the house both in the daytime and at night and that both appellants had looked out and seen Constable Dyer and his wife looking in.

Whatever the true position may have been, I am of the opinion that the appeal can be disposed of on another ground altogether.

Sec.47(d) creates (inter alia) an offence of offensive behaviour in a dwelling house, simpliciter.

Consensual sexual intercourse between adult couples takes place as normal human behaviour in virtually every dwelling house in the land.	It is ordained by society as natural and lawful human behaviour whether performed in bed or elsewhere in the dwelling house and whether in darkness or in light;		or, indeed, whether being capable of being viewed by a Peeping Tom or not.	It would be ludicrous to suggest, therefore, that the legislature intended for a moment to render such activity in that setting as offensive behaviour.	By necessary implication, therefore, I do not think that the legislature ever intended that such activity in that setting per se should come within the purview of s.47(d).

In my opinion, it follows that sec.47(a), similarly, was never intended by the legislature to proscribe consensual sexual intercourse per se in the broad circumstances I have postulated, even if capable of being viewed from the street or public thoroughfare, unless there exists the added element of an intention on the part of the

participants or one of them, to be "in or within the view of any person in any	public place."	I do not consider that sec.31 of the Criminal Code in any way detracts from this approach;	but on the contrary, reinforces it.

In Normandale v Brassey (1970) S.A.S.R. 177 it was held that a male, who had on numerous occasions exposed himself naked at the window of his house, and did so intentionally and not accidentally or by chance, was properly convicted and that it was not necessary for the prosecution to prove an intent to offend any person.	In my
view, that case is distinguishable from the present on the
ground that the behaviour involved an intentional exposure in front of a window with the object of being seen;	whereas here the behaviour was inherently natural and lawful and there was no intention on the part of either appellant to be viewed from outside.

Where the learned magistrate erred is that he took for granted that the act of intercourse was the "behaviour" per se, without considering the added element to which I have referred, namely, an intention on the part of the participants or one of them to be "in or within the view of any person in any •.• public place."	Having done so, he then applied the test of whether the "behaviour" did in fact annoy or offend and whether the person annoyed or offended was unduly sensitive.	Having concluded that that person

was annoyed and that "he was not unduly sensitive, even in this day and age," and having found that the behaviour took
place within the view of the public, he found the offence(s) proved.

In my opinion, it is important to bear steadily in mind the basic concept which surrounds human affairs, and that is, acceptable behavioural patterns are in no small measure influenced by time, place and circumstance.		To engage in sexual intercourse within the confines of one's dwelling house, however humble it may be, is one thing, but to do so with the intention of being viewed by a member of the public outside the dwelling house is another.	The former is acceptable by ordinary community standards whether the act is capable of being observed by a passer-by or not. This is because of the public's general recognition of the relative sanctity of the interior of a person's place of living.	To hold otherwise would be to impose on householders, who were engaged in lawful sexual intercourse, an intolerable burden of ensuring that curtains were always drawn or doors were closed, or both, if there was even the possibility of the participants being seen from a street whether with or without the aid of binoculars, and whether in daylight or at night, with the light on or light from another room or even moonlight filtering through.

Far different would be the case, however, if the occupants of the dwelling house chose to put on a performance of the sort envisaged by his Honour, namely, "if he chooses to turn it into some sort of wide screen entertainment to the public", since this necessarily involves an intention to be viewed and imports into the conduct an element of prurience which, if it exists, goes in aid of constituting the offence.	In the present case, the evidence is that no such intention existed.	(Compare Hannaberry v Cowther (1945) V.L.R. 158.)

In my opinion, there is a further matter which supports the appellants although it was not argued before us.

Under s.26 of the Criminal Code an act, omission or event is authorized if it is done, made or caused in the exercise of a right granted or recognized by the law.	(My
emphasis.)

Under the definition section, s.1 of the Code "an 'act' in relation to an accused person means the deed alleged to have been done by him;	and does not limit it to bodily movement and includes the deed of another caused, induced or adopted by him or done pursuant to a common
intention".

'
Under s.l "'event' means the result of an act or omission".

Accordingly, in my opinion, consensual sexual intercourse between.an adult male and female falls within these definitions, since the "act" is the deed of intercourse and the "event" is the behaviour which, in the present circumstances, is the result of the act.

Section 23 of the Code provides:-

"A person is not guilty of any offence if any act, omission or event constituting that offence was done, made, caused by him, was authorized, justified or excused."

For the reasons I have mentioned, consensual sexual intercourse between an adult male and female per se is a right recognized by law.	Therefore, in my opinion the behaviour resulting from that sexual intercourse, in the absence of any element of prurience, is authorized and accordingly lawful.

The present appellants, through force of circumstances may have behaved immodestly;	but justice should not be denied to the immodest, even though modesty may still be considered to be a virtue in this day and age.

For these reasons I would allow the appeal of both appellants, quash the order appealed from and the finding, determination, and order of the learned magistrate and in lieu thereof order that the complaint against both appellants stand dismissed and that the respondent pay the appellants' costs here, in the Court below and before the learned magistrate.