Secret photographer of girls strange but not offensive

Graham Rowe in the motorhome from which he photographed girls. Picture / Otago Daily Times

He lives alone in a motorhome and has a penchant for photographing girls and young women.

But the High Court this week decided that while Graham Thomas Rowe's behaviour may be strange, it is not necessarily offensive.

The 50-year-old Dunedin man, who was arrested using his digital camera in the Otago University library, has served up a legal conundrum and raised the issue of defining what counts as offensive these days - and what is just odd.

He may also have dramatically boosted privacy rights.

Rowe has been before the courts twice this year.

In the first case he was charged with offensive behaviour after taking pictures of girls walking to school along public roads. Rowe photographed them from inside his van and was found to have more than 100 rolls of films of girls aged 10-15.

The pictures were not obscene or objectionable - just girls on their way to school.

The case went to the Court of Appeal which upheld his conviction. The police argued Rowe's behaviour was "voyeuristic, involving a deliberate and furtive targeting of the girls and was therefore offensive".

Ruling in favour of the police, the Court of Appeal found Rowe had infringed against the "freedom to use and enjoy the public place in question".

In the second case, police found 13 images on his laptop, all of young women studying in the library, apparently unaware they were being photographed. Rowe had been spotted jumping up from his desk and quickly snapping pictures.

District court judge Emma Smith said that while the library was a public place, it was supposed to be quiet and secure.

"In the 21st century it remains reasonable to expect a library to afford a sanctuary ... where its occupants and perhaps particularly women can let down their guard from the ubiquitous risk of being photographed covertly," she said.

Rowe was convicted of offensive behaviour and fined $250.

However, he appealed to the High Court, which this week quashed the conviction.

Rowe's lawyer, Andrew Belcher, told the court that of the two women photographed who were called to give evidence, neither found Rowe's behaviour offensive - though they did think it was strange.

He may have been guilty of bad manners, but not offensive behaviour, said Mr Belcher.

There was also evidence that when Rowe was taking the photographs, no one knew what he was focusing on - one witness said that from what he saw, Rowe may have actually been taking pictures of an Oamaru stone wall in the library.

Justice John Hansen said Rowe was acting in a strange manner, crouching but making no effort to conceal himself, and using a large camera, but no reasonable person would have been offended by what they saw him doing.

"In my view a reasonable person would not have aroused in them by that behaviour wounding of their feelings, arousal of anger, resentment, disgust or outrage."

Professor Paul Roth, of the Otago University law school, said the two decisions had not contradicted each other because there were distinguishable facts.

"In the first case, the guy was hidden in a house van taking pictures of schoolgirls from behind the van's curtains," said Professor Roth. "This seemed 'sinister', without any legitimate purpose that was obvious. That behaviour was observable to the police constable who (ironically, in terms of privacy interests) peered into the van and saw what the guy was up to."

In the second case, Rowe's behaviour was not as furtive.

Writing in an Australian privacy law journal, Professor Roth said the first case had indirectly given people a right to privacy in public places under the criminal law. It set an interesting precedent with numerous implications.

"Given that one is free to look at whomever one wishes when the person is in a public place and later recall and describe that person, it is now forbidden to make a photographic record of the person in situations such as those concerned in the Rowe case.

"This case concerned schoolgirls. Would the same principle apply, say, if pregnant women, macho musclemen or members of a particular minority were the subjects?"

Dean Knight, law lecturer at Victoria University, said: "The courts are struggling with these broad terms of criminal conduct: What is offensive? What is disorderly? There are important principles at stake." Rowe declined to be interviewed.


Criminal - or just odd?
Case 1: From inside his motor-home, Graham Rowe photographed girls walking to school.
Verdict: Guilty of offensive behaviour
Case 2: Rowe photographed young women studying in the Otago University library, apparently unaware he was taking their pictures.
Verdict: Not guilty of offensive behaviour