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.’
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.
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.’
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.