Showers min 16° - max 24°Nude Ken scores a win in court
12:00a.m. 29 April 2008
A Maroochydore magistrate challenged Queensland’s “double standards” on nude sunbaking when he dismissed a wilful exposure charge against an elderly Sunshine Coast nudist.
Magistrate Barry Barrett questioned whether Queensland was a state that, on one hand, allowed large numbers of people on Alexandria Bay for the Nude Olympics without challenge and, on the other hand, sought out older males hidden by vegetation on other secluded beaches “for alleged criminal conduct”.
“This court shall not be a party to such victimisation and double standards,” he said.
Mr Barrett said the prosecution was not justified after a “reasonable excuse” was established as a defence and awarded $2000 costs.
Outside Maroochydore Magistrates Court, artist Ken Wenzel said he had proved his point, after spending thousands of dollars on legal fees to fight a $75 fine.
“It does a lot for our cause and I think the Queensland government should take notice of this because ... we’re the only state or territory in Australia without legal beaches,” he said.
“There’s beaches in Queensland where police turn a blind eye ... there should be one law.”
The Maleny 77-year-old was charged with wilful exposure after police spotted him naked while patrolling for “nudism and homosexual behaviour” at the unofficial nude beach at Third Bay at Coolum in July 2005.
Mr Wenzel, who claims he was hidden by vegetation, said he saw police when they were more than 70 metres away and covered up.
He was initially found guilty in the Maroochydore court but the conviction was overturned on appeal. Yesterday, after a retrial in November, the charge was dismissed.
Mr Wenzel said his situation was a result of “police double standards and selective administration of the law”.
Lawyer Paul O’Shea said a magistrates court decision was unlikely “to set a binding precedent” because it was the lowest in the hierarchy, but other magistrates could now use it as a comparative case.
“It means people who take reasonable steps to prevent exposure, who do so in secluded beaches ... that are hard to get to, who do not expose themselves other than to other nudists ... have not committed an offence,” he said.
Free Beaches Australia vice-president Mark Hayter said he hoped Sunshine Coast mayor Bob Abbot would take notice and send in submissions to legalise nudity on at least one beach.
“I’m hoping that finally Queensland can come out of the dark ages and legalise nude beaches,” he said.
“We’re asking for signs at each end of the beach so people are pre-warned, if they still want to come down they can.”
President Anita Grigg said she had photographs of police officers patrolling at the Nude Olympics and regularly saw them on weekends surrounded by 200-odd nude sunbathers.
“(This court decision) means that justice has been done. It means this court has gone to the essence of the reasoning behind the law and has found it did not constitute an offence,” she said.
Related stories:
> Nude’s not rude, says Freebeach group
> We want our own official beach: nudists
> Sunshine Coast nudist takes battle to court
> Magistrate draws line in sand over nude bathing
Nudist, Kenneth Wenzel, outside Maroochydore courthouse last November. A Maroochydore magistrate has dismissed charges brought against him of wilful exposure, challenging Queensland's "double standards" on nude sunbaking.
Recent Comments
Lets see Super Mayor Abbot and the Queensland Government now work on establishing at least six Nudist Recreation Beach areas along the Queensland coast to cater for the already huge demand.
The Naturist Family lifestyle is already a multi-million dollar Tourist Industry in Queensland. Establishing nude beaches will go a long long way towards keeping nudist areas safe for famlies and the huge overseas tourist market to enjoy as part of Australias multi-cultural society.
I'm not discussing the legitimacy of nude sunbaking/swimming etc, I'm referring solely to inability of the Court to apply the law as it stands.
Who the hell does this half-baked JP think he is to say what OUR courts will and won't be used for ?!
The courts are there to consider cases on evidence, and apply that evidence to the relevant legislation. Not to decide whether or not you want to make a stance on freedom of liberties or expression. THAT does not come into the legislation you were supposed to be ruling on, Mr Barrett !
Again, I stress that I'm not bagging those who want to do the nudist thing, I'm commenting on the Magistrate's interpretation of his role within the judicial system (or absence of one).
I can readily follow his reasoning as explained in the Daily's story. The words "reasonable excuse" seem very relevant, but ignored by you.
To be excused BY LAW, it must satisfy certain provisions of the Criminal Code - this bloke's defence did not. For full details, Google "Qld Criminal Code" and look at the exculpatory sections - those which refer to things that are authorised, justified or excused BY LAW.
Instead, this Mag decided he didn't want to buy into a broader debate. The case was not about the broader issue, it was about the facts. Unfortunately the established facts were ignored in order to avoid the broader issue.
Will Mr Barrett now explain for the SCD readers how the law applies in the Noosa National Park? Why not? Because he doesn't want to discuss the broader issue, or the law?
What is the point in having a law if the court will not adjudicate on it? Indeed, we have been brought back to the broader issue by the beak's unwillingness to perform his role!
The letter of the law says they are breaking the law.
However police use this as discressionary legislation generally in the situation where someone is getting too boisterous or roudy or is causing a public nuisance.
We all get to enjoy if we're doing the right thing.
So throw another snag on the BBQ ....but just make sure that you're dressed whilst doing so, after all you wouldn't want to end up being half-baked. ;-P
Your point regarding drinking in a public place is fair enough, but there are a few MAJOR differences. First and foremost, the number of people who complain to police that a well-dressed, organised family enjoying a few drinks over a barbie is negligible. But, if you throw nudity into the mix (be it a bbq or on the beach or street) police receive numerous complaints from members of the public - which they then act on.
Someone having a few beers or some wine in a park does not 'morally corrupt' (if you'd ever heard some of the complainants you would know that is how the complaint gets made) people, especially kids, in the area. That's not just my view, that seems to be society's, in general.
This case was fairly simple in terms of the elements to be proven : the defendant (he didn't show it wasn't him) wilfullly (did he mean to be nude where another person might reasonably be expected to see him ?) exposed (the obvious), in a public place (no-brainer, or Mr Barrett ??? Something you know that we don't about that public beach ?).
To which element did he have a 'reasonable excuse' ? Did he 'reasonably' assume nobody would be on the beach, or that only blind people were going starkers that day, therefor nobody would see his appendage ? Or did he 'reasonably' believe he was so cold that he could not expose himself to another's view ?
Excellent. To all you drug users, wife bashers and miscreants, make sure you're not seen, cause then, apparently, its ok.
Saffer, you're a classic.
As for the others, you may want to check out Lockwood's case re the wilful aspect of the charge and while you're on it, Section 23 of that Code thing that 2 cents spoke about. In this context, wilful is opposed to accidental or unforeseeable. Did Mr Wenzel's piece just slip out? Naaa... You really gotta ask why he covered up when the coppers turned up? Doesnt that indicate wilfullness and guilt?
The question of nude sunbathing isn't the issue and shouldnt have been for the courts. The fact that support groups blah blah about other states and selective prosecutions is also irrelevant. After all, how many RSLs allow illegal two-up games on Anzac Day.
Bob Bates seems to make the point that reasonable excuse is very relevant. So what was it? Everybody's doing it? I thought it was legal? You turn a blind eye to them doing it but not me? Nope on all accounts.
On an aside, if it was me charged with wilful exposure and the charge was dismissed because of lack of evidence, I dont think I'd be celebrating that fact by putting my mug in the media.
Personally I turn a blind eye to all of this, even to coots who have the right to put their mug in front of a camera. There's no way that I'll be morally corrupted by cheerleaders or beer Ads !
As for gambling or manufactuing alcohol or growing tobacco or the sex industry, I know my place and I'll leave those growth industries to the government who represents our "civil society"....at least they're "wilfully" exposing us to to these ills.
No lack of evidence there.
The question remains , do they have a reasonable excuse ?
Maybe that's being a bit too cynical, but I don't give this government much credibility or time at all.
But it is time that Bob Abbott and the Super Council sit down with the FBA to discuss where this minority recreational group can persue their chosen lifestyle. This is what has been given to other groups such as dog walkers, 4WD owners, horse riders etc on the Sunshine Coast. Bob said he was a Mayor for all Sunshine Coast residents. It is time for him to prove it.
It seems to me that it's that fact that a beach is relatively inaccessible and regularly used by nudists for nude bathing is a reasonable excuse, and that the court was perfectly correct in law in finding that Ken Wenzel had such an excuse.
A public place is a public place no matter how much you want your agenda pushed !
And a scared magistrate is a scared magistrate, no matter how much he dresses up an "I don't want to make a decision on this" !
“Swimming was de-criminalised”? When was it a criminal offence, or even illegal?
People don’t have to wear togs on a beach everywhere in Australia. It appears there are legal nudist areas in every state and territory other than Queensland. Even the landlocked ACT has one somewhere!
The only thing that matters is the legal definition of a public place. So are you able to clarify for us what that is? It seems to be rather vague. You're talking about previous “conventions.”
And can you tell us what the magistrate is scared of?
Also, it appears that Free Beaches Australia, Inc. is a not-for-profit incorporated association, which means that its (volunteer) management committee and members receive no financial benefit from their activities.
What's YOUR agenda? You seem to be very vigorously opposed to all of this. You're supposedly from the southern end of the Coast. The proposals so far are for a section of beach towards the northern end…
This was a victory for reason, but some of the previous comments remind me of how Queensland is sometimes called The Deep North. To paraphrase:
"A large group of people doing it is OK, but one guy doing it is wrong, and the law is the law."
That is what's known as an oxymoron. A contradiction in terms. There is no awareness at all of the huge numbers of people elsewhere in this country and around the world who visit nude beaches. There is a nudist resort in Croatia, one of the poorest countries in Europe, that has 2,525 caravan and camping sites, 554 chalets and apartments, eight bars and restaurants, 15 toilet and shower blocks, two supermarkets, doctor's surgery, dentist, hairdresser, ATM, half an acre of swimming pool area and four kilometres of beach, all on 70 hectares, and caters for some 7,000 people in the peak season. Not to mention the huge number of nudist resorts, retreats, B&Bs etc. in every state and territory in Australia…
Darkknight:
Strange that it isn't legal for all Returned and Services League venues to conduct Two Up games, as they already accommodate almost every other type of gambling!
Reasonable excuse was not the issue. Ken had already won his appeal in a higher court. But he was taken back to court because the first magistrate did not properly deal with the wilful exposure part. Ken was found "NOT GUILTY" of wilful exposure because the prosecution did not prove beyond reasonable doubt that Ken exposed his genitals to the police. It is not illegal in Queensland to be merely nude in a public place. The law specifically requires there to be "wilful exposure" of the genitals.
The definition of "wilful exposure" has been set by this magistrate and the magistrate in the appeal to include a deliberate attempt to embarrass a member of the public or to gain some sexual gratification. This was not evident in this case. When Ken saw the two men come onto the beach (before he knew they were plain clothed police), he covered himself with a towel before they approached so as not to offend a member of the public.
Swimming in the surf was illegal in Australia until 1902.
The Australian Government's Culture and Recreation Portal ( http://www.cultureandrecreation.gov.au/a... ) tells us:
"Before 1902 it was illegal to swim in the surf in daylight hours, a law based on morality rather than safety with men and women allowed to 'bathe' in the early morning or late evening, and never at the same time!
In 1902 this law was openly defied by a male swimmer, William Gocher, who entered the water at Manly Beach at midday. He was arrested but no charges were laid, and subsequently ‘surf bathing’ became a popular past time."
It seems to me that history is merely repeating itself... William Gocher in 1902, Ken Wenzel in 2008.
Anyone else see the similarities??
One shouldn't forget either that 60 years ago, one brazen woman felt more comfortable with her midrift exposed (the forerunner of the bikini) and was arrested for wearing that at a public beach as it went against morality and public decency. That costume was very modest when compared with the bikinis of today. And for the record, toplessness in women is not illegal in Queensland. Nor is any game of two up on ANZAC day.
I think swimming being de-criminalised in has now been covered very well, thanks again, Jeff;
A public place is a place that is open to access to the public, or somewhere that might reasonably be expected to be visible from a public place (eg you can't stand in front of a second story bedroom window deliberately flashing yourself to pedestrians on the footpath out the front of your house). Again, Google "Qld Criminal Code" - look in the definitions section and find it there;
It seems to me the magistrate was scared of upsetting a minority group (such as FBA) and making a hot topic of nude beaches. I reckon he wanted a quiet end to this, but all he did by using his ratio decidendi (look it up, it has to deal with legal stuff ... seeing as we're talking about that sort of thing) was gain national tv coverage of the issue (much appreciated by FBA, I'm sure);
MY AGENDA - it shouldn't have been hard to work out, Marty. I laid it out in the second paragraph of my first comment ! I don't care either way about a nude beach, my criticism is about the (lack of) legal process applied to the matter.
"Southern end" vs areas being discussed being northern end : as I said, I'm not talking about the validity of nude beaches ... try putting your agenda aside for a moment and listen to someone else's response.
And Stelis, issues surrounding nudity (in public and on TV) usually relate to the reproductive organs of the person involved. As a male's organs are 'on the outside' and the female's 'on the inside', this is why there seems to be such an inconsistent double standard. Breasts are not reproductive organs (though many are often involved in the process ... back on track ...) so that is why topless is not deemed as severe. Hope that kind of helps, BUT, AGAIN ... I'm not arguing my opinion on it, just the legal interpretations of the term/s.
If you try our local beach, however, I would suggest an evening of the full moon as you will end up being more famous than Ken.
Ed: It's also online today ... http://www.thedaily.com.au/news/2008/may...
Some of these people won't be happy unless we go back to wearing neck to knee costumes and segregated bathing!
It is high time that the archaic laws should be questioned.
For too long Queensland has revenue raised because most who have enjoyed the activity of nude sunbathing have not had the balls they have been accused of exposing to take a stand against nudity being considered "criminal conduct".
Bring on the clothing optional beach in the Sunshine State! Just as I choose another channel when Big Brother hits the little screen because I do not like the show, there is the choice for bathers to choose another beach - there is only about 13 000 ks of Queensland coastline to choose from (http://www.ga.gov.au/education/facts/dim...)
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