Brown v The Queen

[2021] NZHC 2086

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2021-441-14

[2021] NZHC 2086

BETWEEN

ROBERT JOHN BROWN

Appellant

AND

THE QUEEN

Respondent

Hearing:

10 August 2021

Counsel:

Appellant in person

C R Walker for Respondent

Judgment:

12 August 2021

JUDGMENT OF SIMON FRANCE J

[1]    Mr Brown appeals his conviction from a Judge-alone trial on four charges of sexual connection with a young person under the age of 16.1 The young person was aged 13 and 14 at the time of the sexual activity. It was accepted at trial the sexual activity occurred and that it was consensual. Mr Brown gave the young person money. The sole trial issue, repeated on appeal, is whether the defence under s 134A(1) of the Crimes Act 1961 was established by Mr Brown.

[2]Section 134A(1) provides:

(1)It is a defence to a charge under section 134 if the person charged proves that,—

(a)before the time of the act concerned, he or she had taken reasonable steps to find out whether the young person concerned was of or over the age of 16 years; and

1      R v Brown [2020] NZDC 1624.

BROWN v R [2021] NZHC 2086 [12 August 2021]

(b)at the time of the act concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years; and

(c)the young person consented.

[3]    Despite the onus being on Mr Brown to establish the defence to the balance of probabilities, he neither made a statement to the police nor testified.

[4]    At the time of the first sexual activity Mr Brown was 56 years of age and the boy was 13. Initial contact was via a dating app which is supposedly R18.  Each had a profile, with the boy describing himself as 18 years of age. Mr Brown initiated the contact, asking if the boy would take money for sex.

[5]    Before they met in  person,  information  was  exchanged.  The  boy  gave  Mr Brown his phone number, sent a picture and then a nude photograph. The boy says he received a photo of Mr Brown from below the eyes.

[6]    Mr Brown asked the boy his age.   He maintained the lie that he was 18.     Mr Brown said he was in his 40s and sent a photo of four $50 notes.

[7]    Mr Brown collected the boy from his home. More information was exchanged in the car. The boy said his own car was in the “chop shop” and that he had a restricted licence. They went to Mr Brown’s home. Sexual activity occurred. Mr Brown paid him $200.

[8]    Mr Brown drove the boy home. On the way home the boy asked Mr Brown to buy him cigarettes. When asked why he would not go into the shop to get them, the boy said he suffered from anxiety. Mr Brown bought the cigarettes.

[9]    Later, before the second sexual activity, the boy sent Mr Brown a text which said “You think I’m 18, but actually I’m 17”. The boy also told Mr Brown he was studying a course at the local technical institute, that he had a student loan and that he needed money.

[10]   Sexual activity occurred on nine occasions after the initial event. These nine occasions were covered by two representative charges, each relating to a type of sexual

contact. The same two charges, though not representative, were laid in relation to the first sexual activity.

Judgment under appeal

[11]   The Judge analysed the events in terms of knowledge and steps taken prior to the first sexual activity, and then in relation to the subsequent acts.

[12]   Concerning the first occasion, the Judge considered it was not reasonable to rely on the boy’s presence on an R18 app, and his claim of being 18. It was noted  Mr Brown had also lied about his age, so would be aware that these age claims can be false. There was no copy available of the photo sent by the boy to Mr Brown, but the Judge had available a contemporaneous photo taken some two months after the relevant date. Her Honour did not consider the photograph, and therefore the boy’s appearance, of itself provided a reasonable basis. Her Honour’s assessment was that he certainly looked like a young person, he could be around 16 or “above two years or below two years” from that figure – that is, 14–18.

[13]   Concerning the restricted driver’s licence, the Judge noted that Mr Brown did not take the reasonably obvious step of asking to see it.  Questioning on behalf of  Mr Brown suggested the boy had told him he kept the licence in his car, but the boy denied this and her Honour correctly noted there was no contrary evidence from    Mr Brown.

[14]   The Judge considered it was not reasonable with an obviously young person to rely on what the boy said and how he looked. Accordingly the defence failed.

[15]   Turning to the second occasion, the added information was the idea of studying at the technical institute and the student loan. There was also, however, the admission by the boy he had lied about his age, albeit claiming to still be above the age of consent.

[16]   The Judge emphasised the admission by the boy that he had lied about his age. This meant Mr Brown should have made further inquiry and did not. Also relevant was the age and maturity gap between them which again told against more reliance on the boy’s story. The defence was again held to have not been established.

Appeal

[17]   Mr Brown represented himself on appeal (but not at trial). He repeats submissions made at trial:

(a)it was an adult website where you need to pay by credit card to have a profile;

(b)the boy said he was 18;

(c)he asked him about school and was told about the technical institute and a loan; and

(d)the information about the restricted licence.

[18]   Mr Brown then refers to a number of other questions he allegedly asked, and steps he allegedly took (such as ensuring the technical institute taught the course the boy referred to). I advised Mr Brown at the hearing, and repeat now, the Court cannot have regard to matters concerning which there is no evidential base.

Decision

[19]   Addressing first, as the Judge did, the initial sexual activity, the reasonable steps on which Mr Brown relies are:

(a)the fact he met the boy on an R18 dating site; and

(b)things the boy told him.

[20]   Context is important. Mr Brown was a man in his late 50s seeking to pay a youthful looking person for sex. He knew nothing about the boy, having had no previous connection to him. The Judge’s assessment from a contemporary photo is the boy could have been anywhere from 14–18 years old.

[21]   There is very little evidence about the dating site. The boy confirmed you had to be 18 to join and that he had said he was. A police officer confirmed Mr Brown

showed him a photo of the boy on the app, but could not recall any details of the photo which is not now available. Its relevance is diminished anyway by the reality that Mr Brown met with the boy. What he looked like in the photo does not matter.

[22]   As an objective factor I consider little weight can be attached to the fact that the boy, obviously a young person, had a profile on the app.

[23]   Other than that, everything on which Mr Brown relied came from the boy in the form solely of oral information, unsupported by any material. Given the context I identified at the outset, I agree with the Judge that relying solely on what the boy said does not discharge the onus under s 141A of taking reasonable steps. I emphasis the age disparity, the neutral appearance of the boy which did not of itself provide a strong suggestion that he was of the age of consent, and the total lack of any prior knowledge of the boy. It was sex for money and there was opportunity to clarify the situation (or just not have sex with him).

[24]   After the first incident, the facts are worse for Mr Brown. Again everything relied on consists of oral statements by the boy, and included amongst them is acknowledgment by the boy he had lied about his age, and that he was younger than he said. There is also the incident concerning the cigarettes which obviously sparked Mr Brown’s suspicions.

[25]The appeal is dismissed.

Simon France J

Solicitors:

Crown Solicitor, Napier for Respondent