A Brunswick Heads nude sunbather has escaped an offensive behaviour conviction for sleeping naked on the beach 300 metres south of the town’s surf club.
Kim Barbagallo received a three-month conditional release from Magistrate McMahon at Mullumbimby Local Court on Monday (October 22).
But unlike an earlier case heard before Magistrate Dunlevy at Byron Local Court, the police’s case was accepted by the court and the charge of offensive behaviour was sustained, even though Ms Barbagallo was asleep at the time.
According to submissions by senior constables Tracie Lyons and Dean Hunter, the pair were patrolling the beach at around 12.40pm on May 4 ‘driving north along the beach towards Brunswick Heads’.
Snr Const Hunter said in his statement, ‘About 300 metres south of the Brunswick Heads Surf Club I saw a female completely naked lying on the sand who I now know to be the accused’.
He added that as they approached he realised, ‘The naked accused appeared to be sleeping. A green coloured pushbike was nearby.’
Snr Const Hunter took two photographs of Ms Barbagallo using a police Mobipol device.
According to Snr Const Lyons’ statement, ‘I said to the accused in a voice loud enough to wake her, “Hello, it’s the police, can you please put some clothes on. I find this highly offensive as would other beach users and children that are here right now”.’
She says she told the defendant that, ‘If you wish to be naked on the beach you will have to go to the signposted designated Clothing Optional Beach area at Tyagarah.’
In cross examination, the police prosecutor asked Ms Barbagallo if she realised it was an offence to be naked on a beach that was not designated.
She responded that she did not and that she had ‘often seen people naked’ at that beach.
When the prosecutor asked her if she would expect to see people naked in Mullumbimby, she responded ‘it wouldn’t surprise me’.
In her submission, Ms Barbagallo said she had never previously been in trouble with the law and a conviction would make her employment situation very difficult.
Magistrate McMahon ruled, ‘I propose to release you on a conditional release order for three months without conviction.
‘If you do not commit any further offences in next three months the charge will be dismissed.’
*An earlier version of this story incorrectly reported that police found Ms Barbagallo in the dunes and implied that her sole defence for being naked outside the signposted area was her health. We apologise for these errors.
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