A naked man living in a trailer who gave himself a spongebath in a carpark opposite an Auckland primary school has had an offensive behaviour charge quashed.
The Court of Appeal today said Brian Ker had been cleared of the charge as his nude outdoor bathing session was not disruptive to public order.
The charge was the second to be quashed since the initial November 2013 incident at an East Tamaki public car park.
At the time, Mr Ker was living in his Isuzu truck and trailer in a carpark overlooked by classrooms at East Tamaki Primary School.
He had stripped naked and washed himself with a sponge using water from a small tub next to his trailer.
A member of the public saw him and alerted the school's principal, who called police.
When the constable arrived Mr Ker walked around the trailer in full view of two classrooms.
Although there was no evidence at his trial any child or adult had seen Mr Ker naked, the policeman who first approached him said: "A nude man outside a primary school is fairly memorable."
Mr Ker said he had been working and was simply cleaning himself after he became hot.
He claimed he was out of sight of the school and although he was aware children were nearby he had waited until they had gone.
There was also a high fence and elevated classrooms between his trailer and the school.
At the time the police failed to find witnesses to the naked washing.
The case went to trial at the Manukau District Court and Mr Ker was found guilty of indecent exposure and fined $500 and $130 in court costs.
But he appealed to the High Court, specifically challenging the nature of his behaviour.
Justice Geoffrey Venning found that although Mr Ker's exposure was intentional, to be indecent the offender had to obscenely expose any part of his genitalia.
Mr Ker's nudity did not reach the standard of revulsion or loathing required for obscenity and the conviction was quashed.
However, he considered young primary school children should not be potentially subjected to men exposing their genitals and convicted Mr Ker of offensive behaviour.
But in the Court of Appeal Justice Edwin Wylie said there was no evidence that anyone saw Mr Ker other than the person who called the school principal and the first policeman.
The caller was not identified and did not give evidence.
Although Mr Ker's action's were intentional he did not intend them to be offensive.
There was no evidence suggesting any disruption to public order and elements of the offence were not established.
Justice Wylie said the conviction entered by Justice Venning must be quashed with no retrial to take place.
