Reckless
15th December 2014, 12:01
http://www.stuff.co.nz/national/crime/64142160/Biker-convicted-for-indecent-exposure-wins-appeal
Biker convicted for indecent exposure wins appeal
Last updated 14:23, December 14 2014
An Auckland man has successfully appealed his conviction for exposing himself to a woman while standing up on his moving motorcycle.
The October 2013 case turned on whether the accused was the same person who cruised back past the victim seconds after the exposure incident.
The victim, a woman identified as Mrs M in court documents, told the North Shore District Court she was walking her dog on Fairview Avenue, Oteha, to pick up her daughter from school on March 8 2013.
She noticed a man coming towards her on a motorbike, dressed in black with his face obscured by a helmet.
The man was standing up on his bike with one hand on the handlebars and the other on his exposed penis.
Mrs M said the man rode past her coming within two to three metres.
He continued on but turned around, Mrs M said, and came back past her, this time sitting down.
Mrs M noted down the numberplate and hurried home to call police.
The owner of the bike denied exposing himself but was convicted at trial with the judge preferring Mrs M's evidence to the
motorcyclist's.
The judge thought the alleged act was possible with the High Court saying: "The judge found (the defendant's) evidence that it was impossible for him to stand on his motorcycle, control it at 25 kilometres per hour and simultaneously masturbate, to be unconvincing."
The conviction was overturned on appeal to the High Court last month over the point of whether the second motorbike rider was the same as the first, obscene rider.
Though the District Court judge "did not understand it to be seriously pressed that there may have been a change in... rider, or alternatively a different motorcycle that came down for the second occasion" the fact that the motorcycle disappeared from view between sightings was persuasive to High Court judge Justice Pamela Andrews.
Justice Andrews said it was common ground that the accused was the second rider but there was a reasonable doubt over whether the first and second motorcyclists were the same person.
The justice said Mrs M's sightings were both fleeting and she was focused on different things in each of them - what the man was doing in the first incident and the numberplate in the second.
Her descriptions of the biker's clothing were generic and did not point to any distinctive characteristics and though she correctly identified the bike as having red on it, at the time she was talking about the second biker's vehicle and she was not asked about the first motorcycle, Justice Andrews said.
Mrs M told the court "the [offending] motorcyclist turned around, sat down on his motorcycle and drove back past me, very slowly", but she also admitted that at one point he was out of her view.
Justice Andrews said she could not "exclude the possibility that Mrs M was mistaken in identifying (the accused) as the offending motorcyclist".
"I conclude that there is a reasonable doubt as to whether he was that person."
The conviction was quashed.
Biker convicted for indecent exposure wins appeal
Last updated 14:23, December 14 2014
An Auckland man has successfully appealed his conviction for exposing himself to a woman while standing up on his moving motorcycle.
The October 2013 case turned on whether the accused was the same person who cruised back past the victim seconds after the exposure incident.
The victim, a woman identified as Mrs M in court documents, told the North Shore District Court she was walking her dog on Fairview Avenue, Oteha, to pick up her daughter from school on March 8 2013.
She noticed a man coming towards her on a motorbike, dressed in black with his face obscured by a helmet.
The man was standing up on his bike with one hand on the handlebars and the other on his exposed penis.
Mrs M said the man rode past her coming within two to three metres.
He continued on but turned around, Mrs M said, and came back past her, this time sitting down.
Mrs M noted down the numberplate and hurried home to call police.
The owner of the bike denied exposing himself but was convicted at trial with the judge preferring Mrs M's evidence to the
motorcyclist's.
The judge thought the alleged act was possible with the High Court saying: "The judge found (the defendant's) evidence that it was impossible for him to stand on his motorcycle, control it at 25 kilometres per hour and simultaneously masturbate, to be unconvincing."
The conviction was overturned on appeal to the High Court last month over the point of whether the second motorbike rider was the same as the first, obscene rider.
Though the District Court judge "did not understand it to be seriously pressed that there may have been a change in... rider, or alternatively a different motorcycle that came down for the second occasion" the fact that the motorcycle disappeared from view between sightings was persuasive to High Court judge Justice Pamela Andrews.
Justice Andrews said it was common ground that the accused was the second rider but there was a reasonable doubt over whether the first and second motorcyclists were the same person.
The justice said Mrs M's sightings were both fleeting and she was focused on different things in each of them - what the man was doing in the first incident and the numberplate in the second.
Her descriptions of the biker's clothing were generic and did not point to any distinctive characteristics and though she correctly identified the bike as having red on it, at the time she was talking about the second biker's vehicle and she was not asked about the first motorcycle, Justice Andrews said.
Mrs M told the court "the [offending] motorcyclist turned around, sat down on his motorcycle and drove back past me, very slowly", but she also admitted that at one point he was out of her view.
Justice Andrews said she could not "exclude the possibility that Mrs M was mistaken in identifying (the accused) as the offending motorcyclist".
"I conclude that there is a reasonable doubt as to whether he was that person."
The conviction was quashed.