The Supreme Court has quashed the conviction of a man who took long-distance photos of three teenage girls at a beach and was confronted by an off-duty policeman.

The man, Graham Thomas Rowe, was convicted in the district court for “doing an indecent act with intent to insult” by taking the photos of the bikini-clad 12- to 15 year-olds with a long lens at Kaiteriteri Beach near Nelson. The district court judge described his actions as “creepy” and evidence was given one of the girls’ parents was “a little upset” and one “particularly” upset when they learned Rowe had taken the photos.

Rowe had previously had a trespass notice issued against him at the same beach after police had been called over a similar incident.

He had also faced two earlier prosecutions for taking photos of schoolgirls from a bus and of female students at the University of Otago library.

This time, police found Rowe had downloaded the photos in his car to devices containing a folder labelled “girls” but he argued in court that taking photos in a public place was legal and he took them for a travel book. He had not shared them and they were for his own enjoyment.

He appealed unsuccessfully to the Court of Appeal over his conviction and his sentence to community service and supervision and then took his case to the Supreme Court.

The Chief Justice, Dame Sian Elias, and four other judges said the Crown had to prove two things for a conviction under s 126 of the Crimes Act – the doing of an indecent act and an intention to insult of offend.

The prosecution said “all that is required is an act which is accompanied by circumstances that would be regarded by right-thinking members of the community as an affront to the general public morality or offensive to the general public”, and that Rowe’s guilt was complete as he “completed the act of taking the photographs knowing at the time that the inevitable consequence was that he had insulted the girls”.

The Supreme Court said there were dangers in an approach that held that surrounding circumstances could be evidence that Rowe’s act was indecent.

“Rowe took photographs of persons in public in the manner in which they presented themselves. The only matters relied on to criminalise his conduct in contrast with, for example, that of the parent who also took photographs of the girls or of a news media representative taking a similar photograph are factors such as his motive and purpose.

“Those matters are treated as elevating his acts, which are not intrinsically indecent, to acts which are indecent.”

It found that Section 126 was primarily directed at exhibitionism, or display by a person to someone else – linked to the common law offence of outraging public decency.

It was possible there could be support for applying Section 125 and Section 126 of the Act to broader cases including those “where additional acts such as posing or procuring are involved along with the taking of indecent photographs”.

But in Rowe’s case, the Supreme Court decided: “Whatever the exact bounds there was not sufficient evidence to establish that [his] acts comprised an indecent act under s 126.

“The factors relied on by the Court of Appeal were not evidence of indecency where neither the subject-matter nor the photographs were indecent in themselves and in the absence of any exhibitionistic-type behaviour.”

The Supreme Court said, given it did not believe the photos were indecent, it did not have to decide on whether Rowe had intent to insult or offend. “In ay event, we do not consider it was possible to prove beyond reasonable doubt an intention to insult in this case where the images themselves were not indecent.”

Justice William Young agreed with his colleagues’ conclusion but wrote a separate judgment. He said the district court judge’s description of Rowe’s actions as “creepy” was a “fair description but in issue before us, as it was in the earlier two cases, is the distinct question whether the appellant’s actions transgress the criminal law”.

The judge said: “I do not accept that indecency is always just a matter of fact to be determined by the trier of fact by reference to community standards and, in particular, I do not accept that we should approach the concept of “indecency” from the starting point that it has a singled meaning which can be applied uniformly throughout Part 7 [of the Crimes Act].”

He believed Parliament “had in mind only exhibitionist behaviour, that is behaviour where the indecent characteristic is associated with the presentation of a spectacle and thus something intended to be seen.

“The words [in s 126] “with intent to insult or offend any person” should be construed as meaning what they say,” Justice Young said. “They do not encompass an intention to insult or offend an abstract concept of dignity.

“Rather, they apply only to actions intended to evoke from those intended to see the spectacle an emotional response – that of being insulted or offended.

“On this basis s 126 must be confined to conduct intended by the defendant to be seen by someone and to result in that person being insulted or offended … I see the offences … confined to exhibitionistic behaviour and thus not engaged by [Rowe’s] conduct.”

Rowe’s appeal was allowed and his conviction quashed. The Supreme Court did not order a retrial.

Tim Murphy is co-editor of Newsroom. He writes about politics, Auckland, and media. Twitter: @tmurphynz

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