Diffin v Police - [2012] NZHC 2283

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2012-470-11 [2012] NZHC 2283

BETWEEN LEONARD GEORGE DIFFIN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 20 July 2012

Counsel: N Dutch for Appellant
N G Belton for Respondent

Judgment: 5 September 2012

JUDGMENT OF HEATH J

This judgment was delivered by me on 5 September 2012 at 4.00pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Tauranga
Counsel:
N Dutch, Tauranga

DIFFIN V NEW ZEALAND POLICE HC TAU CRI 2012-470-11 [5 September 2012]

Introduction

[1] Following a defended hearing in the District Court at Tauranga, Mr Diffin was found guilty on two charges of making an intimate visual recording and not guilty on two others.1 He was sentenced to 200 hours community work.2

[2] The two charges on which Mr Diffin was found guilty related, respectively, to

video recordings made at Mr Diffin’s home that depicted:

(a) a form of intimate physical activity being undertaken between Mr

Diffin and his then partner, and

(b) an elderly lady’s breasts, albeit substantially covered by clothing. [3] Mr Diffin appeals against conviction and sentence.

Grounds of appeal

[4] On the conviction appeal, Mr Dutch, for Mr Diffin, advanced three grounds: (a) In relation to the charge involving Mr Diffin’s former partner:
(i)The Judge erred in finding that the prosecution had proved beyond reasonable doubt that the activity was filmed deliberately, rather than accidentally. Accidental filming is not an offence.

(ii) The Judge was wrong to find that the recording had not been
“manipulated” in some way by police officers so as to make

1 Police v Diffin DC Tauranga CRI 2011-070-2390, 16 February 2012 (Judge Wolff). The charges were laid under s 216H of the Crimes Act 1961; set out at para [27] below.
2 Police v Diffin DC Tauranga CRI 2011-070-2390, 27 February 2012 (Judge Wolff).

the recording appear to have been made deliberately, when it was not.3

(b)In relation, to the charge involving the elderly lady, as a matter of statutory construction, s 216G(1)(b)(i) of the Crimes Act 1961 (the Act) only prohibits video images that are taken from a position below the area of the breasts. This point has its genesis in the statutory expression that the subject of the recording must be “from beneath or
under”.4

[5] Before the appeal was heard, Mr Diffin sought an adjournment to enable further inquiries to be undertaken into the alleged manipulation of the videotape. He had, earlier, been granted an adjournment for that purpose. At that time the hearing scheduled for 27 April 2012 was vacated and the appeal adjourned to 20 July 2012.

[6] Mr Diffin maintains that he has not had sufficient time to undertake necessary inquiries; he had just located an expert who, he suggested, was able to ascertain whether there had been any manipulation of the videotape. His views, in that regard, were set out in an affidavit that he swore in support of his application for an adjournment. At the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Diffin v Police

Details

AGLC: Diffin v Police [2012] NZHC 2283
Case: [2012] NZHC 2283
Decision Date: 5 September 2012

CaseChat Overview and Summary

In Diffin v Police, the appellant, Leonard George Diffin, appealed against his conviction and sentence imposed by the District Court at Tauranga. The appellant was found guilty of making an intimate visual recording of his former partner and an elderly lady without their knowledge or consent, and was sentenced to 200 hours of community work. On appeal, the appellant argued that the prosecution had not proved beyond reasonable doubt that the recordings were made deliberately, that the recordings had been manipulated by the police, and that the statutory definition of "intimate visual recording" only prohibited video images taken from a position below the area of the breasts. The Court found that the prosecution had not proved beyond reasonable doubt that the recording of the appellant’s former partner was made deliberately, and accordingly, the appeal against conviction on this charge was allowed. The conviction and sentence imposed in consequence were both set aside. However, the appeal against conviction on the charge involving filming of the female’s breast area was dismissed, and the sentence imposed of 200 hours community work was set aside, with a sentence of 100 hours community work substituted. The Court held that the statutory definition of "intimate visual recording" covered the images taken of the breast area, and that the images depicted the breast area underneath the person’s clothing.

Orders