Tea tree lakes nude bathing case thrown out of court

Maxine Hawker at the tea tree lake where she was charged on January 20 with offensive behaviour for bathing naked. Photo Jeff Dawson

Chris Dobney

Non-mainstream lifestyle choices aren’t ‘axiomatically offensive’, Magistrate Dunlevy told Byron Bay local court on Friday, ruling that Sunrise resident Maxine Hawker had no case to answer for bathing naked at the tea tree lakes at Grays Lane in January.

The magistrate said that the police had failed to prove Ms Hawker’s actions were ‘calculated to wound feelings, or arouse anger, disgust, resentment or outrage’.

Ms Hawker, who represented herself at the hearing, told the court she had no idea she was breaking the law and had not seen a sign near the entrance to the lake, which had been recently installed, warning of penalties.

But within minutes of arriving and entering the water, she was issued a $500 fine for bathing naked, which she chose to fight, telling the court, ‘I’m not a criminal, I’m a law-abiding person.’

Therapeutic dip

Ms Hawker went with a male friend to the lake on a whim in the early afternoon of January 20 and decided to take a dip. Having recently had a shoulder operation, she told the court she thought it would be therapeutic.

She stripped off and her male friend, who was wearing board shorts, helped her into the water.

She said there were a few other people about, none of whom appeared the slightest bit perturbed that she was naked.

Senior Constable Michael Chaffey and Constable Timothy Hayes, of Brunswick Heads Police Station, told the court they witnessed Ms Hawker ‘very slowly and gingerly entering the water’ from about 40 metres away.

Reports of sexual assaults

Cross-examining Snr Const Chaffey, Ms Hawker asked him why he was patrolling the lake that day.

‘We had received reports of sexual assaults,’ he said, adding police were ‘targeting naked people as well as more lewd activity’, as they had been ‘asked to conduct “high visibility” patrols’.

‘Do you think a 56-year-old woman naked next to a man clad in shorts is going to be engaging in “lewd activity”?,’ Ms Hawker asked.

‘That’s not what we were there for,’ he replied.

Cross examining Timothy Hayes she asked him, ‘Do you consider a middle-aged woman being helped into the water by a man lewd behavior?’

‘I do consider nudity in a public place to be lewd, yes,’ he replied.

Sign defaced

Ms Hawker asked both officers about the recently erected sign indicating nude bathing was not allowed.

‘Can you tell me how long that sign had been there?’ she asked Snr Const Chaffey.

‘I guess a couple of months,’ he replied.

‘I hadn’t swum there for many months so hadn’t seen the sign before,’ she said.

She asked if he remembered that a man had approached them saying the sign was misleading, as the word ‘NOT’ had been scratched out, so it apparently indicated the site was in fact clothing optional. He agreed, but said, ‘I can’t recall any other part of sign being damaged.’

In summarising her case, Ms Hawker said, ‘there was no wilful intent on my part – I was not intending to offend anybody by any means. I have swum naked in that lake before; my intention was not to hurt anyone.’

The police prosecutor, however, said ‘she was naked, and in my mind being naked in a public place is reasonably assumed to be offensive.’

Magistrate’s ruling

But Magistrate Dunlevy disagreed, saying, ‘It is not the intention of the law to criminalise non-mainstream behaviour or people who fall outside the mainstream.

To be classified as offensive behavior, he said, the action must be ‘calculated to wound feelings, or arouse anger, disgust, resentment or outrage’.

‘When the police approached [Ms Hawker] she was given the opportunity to put on her clothes and she did so. She specifically told the police that she did not know there was some, either legal or de facto, prohibition about her being naked in the lake.

‘There was also discussion about the sign being damaged: that it was stating that rather than nude bathing not being allowed, it was allowed.’

But, he added, that was ‘a bit of a red herring as she discussed she honestly didn’t know she wasn’t allowed to bathe naked’.

‘In some places being naked in public is allowed [compared to] defecating, urinating, or having sexual intercourse in public [which] are never legal.

‘I will be finding that the element of calculation to cause offense cannot be proved,’ Magistrate Dunlevy said.

‘The fact of being naked at a waterhole in a district where being naked is allowed in some areas, it can be inferred it’s not so badly offensive that I would axiomatically have to conclude that the defendant would have deliberately sought to provoke that state of mind.

‘Even taking the prosecution’s case at its highest, I simply cannot conclude that the defendant deliberately acted to provoke,’ he said.

13 responses to “Tea tree lakes nude bathing case thrown out of court”

  1. Len Heggarty says:

    Non-mainstream lifestyle choices are ‘axiomatically offensive’ to rigid, conservative, stick-in the muds.
    This peaceful scene is quite arresting and in the middle of the lake are the sticks in the mud.

  2. anonymous says:

    Thank you .. common sense prevail’s .
    Still the stress and accustions of it all was so unnecessary ..

  3. Robin Harrison says:

    All beaches should be clothing optional but to calm the minds of those poor folk who’ve been led to believe human bodies have ‘dirty’ bits clothing required beaches should be made available. Preferably in remote spots where their thoroughly out of date attitudes won’t offend. Let them deal with the perves their attitudes have produced.

  4. Jon says:

    Let’s hope the police find better things to do with their valuable time.

  5. so police you could have taken our advise months ago and just worked out the difference between lewd behavior and nude bathing. Its not rocket science. I trust this precedent now make the law clear, bathing naked is not in itself offensive.

  6. Olga Maddox says:

    OMG. The police have gone mad revenue raising, so sick of it. Thefts and burgleries everywhere but police are hanging around a lake to charge a 65 yr old woman for taking a dip in the nude??????? Get real. A sensible judge at last. Glad she fought police idiocy. Olga Maddox. BALLINS

  7. Annie Villeseche says:

    Such a waste of resources and unnecessary stress for Maxine. The police could have given a warning and moved on, to focus instead on the real issues of sexual harassment in the area.

    But it was refreshing to hear the magistrate’s elegant analysis of the issue as he deconstructed the case of offensive behaviour. He infused great respect for the law.

    Let’s hope our police force becomes more discerning.

  8. Tony says:

    Common sense has won out.

  9. Neil Denison says:

    Police doing what they do best, harassing innocent people whilst the criminals roam free. This case should never have ended up in court

  10. Jeff says:

    Halluah maybe the police can now concentrate on crime, domestic violence, ice , etc and not be the puppets of local councillors.

  11. Shane Adams says:

    Thank you Maxine for fighting this – you have done a great service for our society, which does not want to go down the path of countries like Saudi Arabia telling women that their bodies nust be hidden away to prtect them from the men who need to change. Like that policeman. Maybe now the police can get on with fighting crime – crime being violence and stealing not having a body

  12. Derek Lightbody says:

    It is clear from this case that the Policeman who considers nudity of any kind in a public place to be lewd is sexually dysfunctional as he must think he too would be lewd if nude. It appears that the Policeman might have to go to a holiday to Croatia and do some learning of what constitutes lewd behaviour as the act of being nude certainly does not.

  13. Tiger Yan says:

    Does Byron Bay polices got brain to differentiate nudism and lewd behaviours? If they can’t understand, please go.back to school.

Leave a Reply

Your email address will not be published. Required fields are marked *


Become a supporter of The Echo

A note from the editorial team

Some of The Echo’s editorial team: journalists Paul Bibby and Aslan Shand, editor Hans Lovejoy, photographer Jeff Dawson and Mandy Nolan

The Echo has never underestimated the intelligence and passion of its readers. In a world of corporate banality and predictability, The Echo has worked hard for more than 30 years to help keep Byron and the north coast unique with quality local journalism and creative ideas. We think this area needs more voices, reasoned analysis and ideas than just those provided by News Corp, lifestyle mags, Facebook groups and corporate newsletters.

The Echo is one hundred per cent locally owned and one hundred per cent independent. As you have probably gathered from what is happening in the media industry, it is not cheap to produce a weekly newspaper and a daily online news service of any quality.

We have always relied entirely on advertising to fund our operations, but often loyal readers who value our local, independent journalism have asked how they could help ensure our survival.

Any support you can provide to The Echo will make an enormous difference. You can make a one-off contribution or a monthly one. With your help, we can continue to support a better informed local community and a healthier democracy for another 30 years.”

Echonetdaily is made possible by the support of all of our advertisers and is brought to you by this week's sponsors Vast Furniture & Homewares Ballina and Falls Festival Byron Bay.