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NANYANG TECHNOLOGICAL UNIVERSITY NANYANG BUSINESS SCHOOL AB1301 Business Law AUGUST 2011 Tutorial 1: Case law and

d statutory law techniques

Question 1 Carefully read the judgment (extract) of Wilkinson v Downton (Appendix 1). Problem Doris is aware that Rick habitually studies in the Library until closing time before walking back to his hostel via a dimly lit dirt track. Intending to play Rick a prank, Doris dresses up as a ghost and lies behind a bush in wait for him. When Rick suddenly sees this ghoulish figure spring up in front of him, he suffers severe shock and trauma and is now undergoing psychiatric treatment at the Institute of Mental Health. During the whole episode Doris did not utter a single word or make any noise but simply presented herself in front of Rick before disappearing into the dark. Required Does Rick have a case against Doris under the principle in Wilkinson v Downton?

Question 2 Section 27A of the Miscellaneous Offences (Public Order and Nuisance)(Amendment) Act reads: "Any person who appears nude...shall be guilty of an offence...". An extract of the Parliamentary Debates (Appendix 2) is enclosed. Problem Monty is in the habit of sleeping nude. One night, his kitchen catches fire as he is sleeping. Awakened by fumes from the intense inferno and with no time to spare, he rushes out of his house in plain view of his unfriendly neighbours. They are outraged and bring a private prosecution against him. Required Giving reasons for your answer, should Monty be convicted or acquitted under section 27A?

Assoc Prof Dennis Ong August 2011

APPENDIX 1 Wilkinson v. Downton Queen's Bench Division Wright J. 1897 May 8.

WRIGHT J. In this case the defendant, in the execution of what he seems to have regarded as a practical joke, represented to the plaintiff that he was charged by her husband with a message to her to the effect that her husband was smashed up in an accident, and was lying at The Elms at Leytonstone with both legs broken, and that she was to go at once in a cab with two pillows to fetch him home. All this was false. The effect of the statement on the plaintiff was a violent shock to her nervous system, producing vomiting and other more serious and permanent physical consequences at one time threatening her reason, and entailing weeks of suffering and incapacity to her as well as expense to her husband for medical attendance. These consequences were not in any way the result of previous ill-health or weakness of constitution; nor was there any evidence of predisposition to nervous shock or any other idiosyncrasy. The real question is as to the 100l., the greatest part of which is given as compensation for the female plaintiff's illness and suffering. It was argued for her that she is entitled to recover this as being damage caused by fraud, and therefore within the doctrine established by Pasley v. Freeman (1789) 3 T. R. 51 and Langridge v. Levy (1837) 2 M. & W. 519. I am not sure that this would not be an extension of that doctrine, the real ground of which appears to be that a person who makes a false statement intended to be acted on must make good the damage naturally resulting from its being acted on. Here there is no injuria of that kind. I think, however, that the verdict may be supported upon another ground. The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff--that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant. It remains to consider whether the assumptions involved in the proposition are made out. One question is whether the defendant's act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. I think that it was. It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to

produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed, and it is no answer in law to say that more harm was done than was anticipated, for that is commonly the case with all wrongs.

APPENDIX 2
Parliament No: Session No: Volume No: Sitting No: Sitting Date: Section Name: Title: 8 2 65 7 1996-02-27 BILLS MISCELLANEOUS OFFENCES (PUBLIC ORDER AND NUISANCE) (AMENDMENT) BILL MPs Speaking: Assoc. Prof. Ho Peng Kee (Senior Parliamentary Secretary to the Minister for Home Affairs); Assoc. Prof. Walter Woon; Dr Kanwaljit Soin; Mr Cheo Chai Chen; Mr Choo Wee Khiang; Mr Tan Soo Khoon (Mr Speaker);

Assoc. Prof. Walter Woon: Sir, I beg to move, (1) In page 7, line 32, after "who", to insert "intentionally". The first amendment that I am proposing to section 27A is self-explanatory. As it stands, section 27A merely says that "Any person who appears nude ... shall be guilty of an offence ...". If these were Victorian times, the mere appearance "nude" might revolt people's sensibilities. But we are 90 years removed from Queen Victoria, and the question of whether or not just the sight of a nude body is so disgusting that we have to criminalise it becomes an issue. If you do not have the word "intentionally", you are going to have arguments in courts between lawyers as to whether or not this is strict liability or not strict liability. Remember that apart from prosecution which is brought by the Police and by the prosecutors, there are things called private prosecutions. Do we want to open the door to this kind of situation where some prudish prim busybodies have seen a nude body and are so revolted and try to bring a private prosecution because they cannot stand the sight of nudity? So to make things clear, I have proposed that we insert the word "intentionally" in the first line of section 27A. The person only commits an offence if he intentionally appears nude. That cuts out all the problems of those who accidentally appear nude or do not intend to expose themselves. The problem of proving intention is one that the courts are well capable of handling. The laws are full of sections that require intention and prosecutors have thus far no problem of proving intention even in serious crimes like murder. I do not think it is beyond the wits of our public prosecutors to prove intention in something like appearing nude. Mr Choo Wee Khiang: Sir, I find that the proposed amendment by Prof. Woon to add the word "intentionally" before the phrase "appears nude" quite problematic. First of all, Sir, I cannot understand how a person can unintentionally appear nude. Can a person take off his clothes when he has no intention to do so? Not unless this person is sleepwalking or is unconscious and being stripped off by someone. But, I think, Sir, this provision actually seeks to protect the public from the embarrassment and harm that can be caused, especially to children, by the sight of a

naked human body parading around in his own apartment. The case cited by Prof. Ho, which was widely publicised, is indeed a very good point. When it comes down to protecting public morals and decency, especially those of our children's, I agree that we should take a strong stand. I am happy that Prof. Ho has assured the House that the Police will not take a blunderbuss approach. I think ample notice and warnings will be given to the so-called telephone subscribers and people who appear nude. I am sure sufficient notice and warnings will be given to them. Prof. Ho has actually assured the House. I do not think it is necessary for Prof. Woon to ask the House to consider adding the word "intentionally" just before the phrase "appears nude". Assoc. Prof. Ho Peng Kee: Sir, I would like to thank Mr Choo for his comments. He has mentioned the key point in my speech where I have mentioned that the Police will not take a blunderbuss approach. The intent behind this provision is to ensure that those who are exhibitionists, those who are regular, persistent or blatant, there will be in the law a tool by which Police can hit at them. I think the Yishun case brings up very clearly that Police should not be made to stand helplessly by, not being able to do anything, especially where public morals and decency are involved. Given the fact that we live very closely to one another, and I am sure our children will live even more closely to one another, this provision is necessary. Quite apart from the conceptual point that Mr Choo raised, ie, whether a person can really be nude unintentionally, from a practical point of view, if we insert the word suggested by Prof. Woon, it will in fact give an outlet for a person who actually is an exhibitionist to say that, "Oh, I was absent-minded about it." or "I didn't know that I was nude." How do you prove that he intentionally took off his clothes unless you have a video camera, and that Prof. Woon would not want because he will say there is big brother overlooking him. He may think it is an overkill, but given my assurances in this House and given the practical need to ensure that the situation in Yishun does not repeat itself, I hope that this Bill, as it is, will be passed. Assoc. Prof. Walter Woon: Sir, if Mr Choo cannot imagine how people can be accidentally nude, I suggest that he is a man of very limited imagination. You go to a beach, you do not have proper changing facilities, you change behind the bush and, for some reason, your towel gets caught in a gust of wind, or pulled away accidentally. Is that intentionally nude? Assoc. Prof. Ho has been the Master of a Hall of Residence. No doubt, he has heard of student pranks where on somebody's birthday, they decide that he should appear in his birthday suit. They strip him. They take him to the end of the road. They dump him in the bushes. Is that intentionally nude? Is this what you mean to prosecute? He is after all appearing nude in a public place. "Intentionally" is there to make it clear that only those who intend to appear nude are prosecuted, not those who through no fault of their own or through accident appear nude. This is the point. Does the Senior Parliamentary Secretary mean to say that if a person is nude in a public place, whether it is a fault or not, he is guilty of an offence and can be prosecuted? It is not the police that I am worried about. It is private prosecution by over-zealous members of the public, by people who are brilliant, by people who are prudish. This is

the kind of thing that we worry about. "Intentionally" nude makes it quite clear that you have to have the intention. As far as proving intention is concerned, like I said, the Penal Code and the whole corpus of statutes are full of sections that require the proof of intention. If the public prosecutor can prove sufficient intention to convict people of murder, why can they not deal with the intention in something like this? Mr Choo Wee Khiang: Sir, the Senior Parliamentary Secretary has already assured the House that the police is not going to take that kind of approach. I do not go to beaches as often as the Member does. I do not know about bushes. I am sure along the East Coast Park, there must be a proper place for you to change. While you are changing clothes, something drops off and you appear nude, I am sure the AG's Chambers and the police will have the view that you are doing it unintentionally. Someone must prove beyond reasonable doubt that he appears nude unintentionally. So let us look at it from a wider scope, from a macro point of view. How many Singaporeans appear nude at home and walk or parade around, or they change in the bushes? How often and how many of them really intentionally appear nude in public places? We are not trying to catch the general public, ie, the law-abiding public in Singapore. Not at all. I think we are trying to catch the exceptional ones. And I do not think Prof. Woon should be so eager in wanting to add the word "intentionally"... Assoc. Prof. Walter Woon: I take it from Mr Choo's speech that he does not think that people who accidentally appear nude should be prosecuted. Am I correct? Then why the resistance to making it plain in the law? Why leave it unsaid? This is the point. I think it is very unfortunate that we should have laws that are very wide, leave the definition to debates in the House, and when it goes to court, the court's hands are tied because the court does not have recourse to Parliamentary debates unless there is an ambiguity in the language. If the language is clear, the court must apply this. This is why I am saying that when we draft these laws, we have to be very, very careful about what we are doing. It is not just a philosophical point. It is also a practical point. We do not want to have a situation where people can be accused of breaking the law where there are no merits to the accusation because the law has been drafted widely and sloppily widely. Amendment negatived. Assoc. Prof. Walter Woon: Sir, I beg to move, (2) In page 8, at end, to add, "(5) It shall be a defence to a prosecution under this section that the accused reasonably believed that he was not exposed to public view.".". The last amendment that I have proposed is a defence to section 27A. Section 27A provides that if you are in a private place and you are nude and exposed to public view, you can be prosecuted for an offence. May I ask Members of the House again how many of them have sometimes appeared nude in their houses without thinking that anyone was watching? But somebody might be watching. We are talking about public housing here.

You have situations where you could, not realising that your window blinds are not properly closed, not realising that your lights may be on, and therefore people can see into your house, appear nude. We are making it an offence for a person to be nude in a private place when exposed to public view. I am saying that it should be a defence and you reasonably believe that you were not exposed to public view. For those people who are offended by the sight of nudity in their neighbours' houses, may I give a little simple piece of advice, "Stop looking into your neighbour's windows!" But for those people who are accidentally exposed, as it were, because they do not realise that people can see them, why should we make it an offence? Why should it be a police case? Police come banging on your door. The embarrassment of being seen is already enough without having a police officer knocking on your door, seeking entry as well to arrest you. I am merely asking that we should have a little bit of reasonableness here so that the person can show that he did reasonably believe he was not exposed to public view, he has not committed an offence.. Mr Choo Wee Khiang: Sir, I am quite amazed by what Prof. Woon is trying to propose because I think the amendment seeks to protect the public, and it appears to me that the Member is trying to protect the nudists. In our Asian society, how many of us have the habit, like what Mr Cheo said, of walking in our sleep without clothes on and, like what Prof. Woon said, accidentally walk around in private homes without any clothes on? How many of us do that? And I think if these people who appear nude and walk around in their own apartment and it is within sight, it will give rise to public embarrassment. If the public complains, the police will take the necessary action to investigate and find out more about it before the police and the AG's Chambers decide whether to prosecute them. I am sure the Senior Parliamentary Secretary can confirm it. So I do not think Prof. Woon should be too worried about adding the word "intentionally" and talking about nudity at home as an excuse. Is that what he is trying to say? I do not understand. Assoc. Prof. Ho Peng Kee: Sir, again, I think Prof. Woon is well meaning in his suggestion. Here, again, I hope that he would take a closer look at my speech where I put in context the reasons for the amendment. The police will not take a blunderbuss approach. Before the case goes to court, the AG's Chambers, which is the prosecutorial arm, in exercising its discretion, will look at all the circumstances of the case. Indeed, a person can be nude in his own home in many circumstances. It can be intentionally. It can be absent-mindedly. It can be unknowingly. But the point is that harm is done. If it is once-off or irregular, those factors would be taken into account by the police and the AG's Chambers in deciding whether or not to prosecute. Assoc. Prof. Walter Woon: May I ask Mr Choo whether he baths fully clothed? Or is there some occasion on which he disrobes completely? The problem is not just nudity. If you look at subsection (2) of section 27A, you will see that "for the purpose of this section, the reference to a person appearing nude includes a person who is clad in such a manner as to offend against public decency or order." Does Mr Choo keep himself fully clothed at all times? Is there not some time when he is partially disrobed at least? This is the problem that this kind of wide drafting gives us. You are in your bedroom. You do not realise that the blinds are partially open. You are in a state of partial disrobement.

Somebody has peeped in. They call the police. They say, "That is an offence under section 27A, please nab the fellow." Police come and bang on your door and say, "I am sorry, you have committed an offence." The embarrassment is already there. It is not just the police that we are worried about. In fact, it is not the police I am worried about. I am not worried about the AG's Chambers. The people in AG's Chambers have got commonsense. I am worried about private prosecutions by people who want to use this kind of thing as a means to harass their neighbours. Have you not heard of vindictive neighbours who will try and get other people into trouble? You leave the door open for them literally in a case like this. All I am asking is that we have a simple section that says, "If you didn't realise that you are exposed to public view, you haven't committed an offence." What is so difficult about that? Or are we saying that merely exposing to public view is so heinous a crime that you must commit an offence? I do not think our society is that prudish. At the end of the 20th century, we do not have this kind of Victorian aversion to flesh that existed when these sections were first drafted. So all I am saying is, let us have a little bit of reasonableness so that the person can say, "Look here, I really didn't realise that these doors were open, the windows were open, the curtains were open." It is a defence. Mr Choo Wee Khiang: Since Prof. Woon asked about my private life, I think I ought to reply. As a result of my upbringing, I am properly clothed at all times. I do not know about the Member. Since I am properly clothed at all times, I am not giving any chance for the public to complain about me walking around in my house nude. So probably, the Member has a chance to explain to the House about himself? Amendment negatived.