Karl du Fresne
High Court judges are highly intelligent, well-educated people. Does that mean they get things right? Not necessarily.
OPINION: I believe Justice Paul Heath got it wrong when he ruled that Andrew Pointon was within his rights to go running while wearing nothing but a pair of shoes.
To recap, Mr Pointon was charged with offensive behaviour after a woman saw him running naked on a forest track near Tauranga.
Justice Heath compared the case with the hypothetical scenario of two patched gang members strolling along the same track.
''It would not be surprising for a person in the position of the complainant to be concerned and discomforted by their presence, and even to feel threatened,'' he said.
''However, on any view, their behaviour would not be regarded as offensive behaviour. Should the sight of a naked man, in the circumstances in which the complainant found herself, be treated any differently? I think not.''
Let's start by considering the judge's analogy with gang members.
I believe that in the eyes of most people, there is a qualitative difference between the sight of a patched gang member and that of a naked man.
New Zealanders have had decades of experience seeing patched gang members in the street. Some might find it a little intimidating, but it's part of the social landscape.
Public nudity, on the other hand, is something many in the community are not ready for. That was clear from the public reaction to Justice Heath's decision.
I have read his 20-page judgment. It is thorough and thoughtful, but I believe it comes to the wrong conclusion. As judges sometimes do, Justice Heath seems to get hung up on legal precedents that don't appear entirely relevant.
He cites one comment that stands out. In a Supreme Court decision, Justice McGrath referred to community expectations and the right of the public to enjoy tranquillity and security in public places. But Justice Heath appears to have placed more weight on Mr Pointon's right to express himself.
Prevailing public attitudes surely deserved more recognition. The judge should have asked himself, is the community at large ready for the sight of naked men in public? My guess is that the answer would be no.
He might also have considered the precedent he was setting. While in this case the decision might have related to a naked man on a track not used by many people, what's to stop the principle being extended to public parks, main streets and popular beaches?
As letter-writers have pointed out, the judge's ruling also gives licence to people whose motives for strolling around naked might be less pure than Mr Pointon's supposedly are.
I think the police got it right when they arrested Mr Pointon. It's the judge who is out of touch.
A curious aspect of the Hobbit frenzy that received scant public attention was the number of overseas actors on the red carpet who expounded fulsomely on what a marvellous place New Zealand is.
As if on cue, they all dutifully testified that they loved being here. A sceptic might have been forgiven for suspecting they had been briefed to say such things, perhaps as part of a grand PR strategy to boost support for the taxpayer-subsidised film and to nullify criticism from nitpickers.
After all, New Zealanders are notoriously susceptible to flattery - a fact well-known to publicists, who for decades have advised visiting celebrities that the key to winning our hearts to is to enthuse about our country.
This explains the remarkable number of overseas stars who tell wide-eyed journalists that they are thinking of moving here. No-one ever bothers to follow up a year later to see whether they have actually done it.
It seems the latest variation on this strategy, as shown by gay actor Sir Ian McKellen's videotaped comments to a Wellington seminar on same-sex marriage, is to hold out the prospect of coming here to get married - but only if the law is changed.
His comments played to our pride in New Zealand's record as a country of bold social reform and our childlike enthusiasm for Middle-earth hype, while simultaneously advancing a political agenda.
The English language is evolving so fast it's hard to keep up. Just when we're getting used to nouns being used as verbs (as in, ''if you access all that data it will impact on your internet bill''), we find the reverse is also happening.
Television promos urge us to tune in for ''the big reveal'', we're told there's a ''disconnect'' between what the Government is saying and what it's doing, and my fellow columnist Sean Plunket lists the ''epic fails'' of 2012.
Language purists might object, but resistance seems futile.
- The Dominion Post