Diffin v The Queen
[2013] NZCA 460
•4 October 2013 at 2 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA427/2013 [2013] NZCA 460 |
| BETWEEN | LEONARD GEORGE DIFFIN |
| AND | THE QUEEN |
| Hearing: | 18 September 2013 |
Court: | Miller, Cooper and Lang JJ |
Counsel: | C G Tuck and M P Nepia for Applicant |
Judgment: | 4 October 2013 at 2 pm |
JUDGMENT OF THE COURT
AThe time for filing the application for leave to appeal is extended.
BThe application for leave to appeal is dismissed.
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REASONS OF THE COURT
(Given by Miller J)
Mr Diffin took an image looking down an elderly woman’s blouse as she sat or bent forward. It depicted parts of her breasts and brassiere that would not normally have been visible to others. In the District Court Judge Wolff convicted him of intentionally making an intimate visual recording, contrary to s 216H of the Crimes Act 1961.[1] An appeal against conviction failed,[2] and the High Court refused him leave to appeal to this Court on a question of law.[3] He now seeks leave from us.[4] The application for leave was brought out of time, but the Crown does not oppose on that ground. Accordingly, we extend time.
[1]Police v Diffin DC Tauranga CRI-2011-070-2390, 16 February 2012.
[2]Diffin v Police [2012] NZHC 2283.
[3]Diffin v Police [2012] NZHC 2594.
[4]Summary Proceedings Act 1957, s 144.
The proposed appeal raises one question of law: whether the legislation prohibits “down-blouse” recording. Mr Tuck contends that because it speaks of recordings “made ... from beneath or under” clothing it prohibits only “up-blouse” or “up-skirt” recording. This proposition would justify a second appeal, had it any merit.[5]
The legislation
[5]R v Slater [1997] 1 NZLR 211 (CA) . The question of law must be one that, in this Court’s opinion, ought to be submitted to the Court for decision by reason of its general or public importance or for any other reason.
One commits an offence by intentionally or recklessly making an intimate visual recording of another person. Section 216G defines “intimate visual recording”:
216G Intimate visual recording defined
(1)In sections 216H to 216N, intimate visual recording means a visual recording (for example, a photograph, videotape, or digital image) that is made in any medium using any device without the knowledge or consent of the person who is the subject of the recording, and the recording is of—
(a)a person who is in a place which, in the circumstances, would reasonably be expected to provide privacy, and that person is—
(i)naked or has his or her genitals, pubic area, buttocks, or female breasts exposed, partially exposed, or clad solely in undergarments; or
(ii)engaged in an intimate sexual activity; or
(iii)engaged in showering, toileting, or other personal bodily activity that involves dressing or undressing; or
(b)a person’s naked or undergarment-clad genitals, pubic area, buttocks, or female breasts which is made—
(i)from beneath or under a person’s clothing; or
(ii)through a person’s outer clothing in circumstances where it is unreasonable to do so.
(2)In section 216H, intimate visual recording includes an intimate visual recording that is made and transmitted in real time without retention or storage in—
(a)a physical form; or
(b)an electronic form from which the recording is capable of being reproduced with or without the aid of any device or thing.
Relevantly for our purposes, a recording such as a photograph becomes an intimate visual recording under s 216G(1)(b) when it is made without the subject’s knowledge or consent, and it depicts her naked or undergarment-clad breasts, and it is made “from beneath or under” her clothing.
We make several general points about the definition, using the facts for illustration. First, the legislation does not deem all visual recordings of a woman’s breasts intimate. That depends firstly on whether she has covered them with clothing. Should she choose to expose them, a recording is not intimate unless she is in a place which would reasonably be expected to afford her privacy.
Second, where the woman has clothed her breasts an image of them is intimate if made “from beneath or under” the clothing (or through it, where it was not reasonable to make the recording). The distinguishing quality of such recording is that it captures a view of the woman’s breasts that she did not intend others to see.
The third is that the questions whether a recording was of female breasts, and made intentionally or recklessly, and made from beneath or under clothing are questions of fact. This point disposes of a second question which Mr Tuck tried to characterise as legal in nature; whether these particular images showed enough breast to qualify as intimate.
Is the question of law arguable?
Mr Tuck argued that the legislation prohibits only recordings of female breasts taken using a recording device positioned below the breasts. That is so, he argued, because such is the ordinary meaning of “made …from beneath or under”.
Two points may be made about this. First, it is not correct to say that “under” ordinarily means “a position lower than, or beneath”. That is but one definition of the word given in the New Zealand Oxford Dictionary. Another is:[6]
within, on the inside of (a surface etc.) (wore a singlet under his shirt).
[6]Tony Deverson and Graham Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Oxford, 2005) at 1225.
In this case, the legislation requires that the recording be made from beneath or under the clothing, not the breasts. In context, “under” connotes “inside” or “within” clothing.
Second, Mr Tuck’s argument assumes that “from” directs a court to the location of the recording device. That assumption can easily be adopted on first reading, because the offence involves use of the device and, as Heath J observed, the drafting is infelicitous. But as a preposition, “from” is a flexible word capable of creating diverse relationships between things. Dictionary definitions demonstrate that its meaning varies with context. It may refer to the position of a person who observes something (“saw it from the roof”).[7] Mr Tuck would read it in that way. But it may also refer to a source (“dig gravel from a pit”).[8] The latter sense is apposite when the preposition addresses an image. By way of illustration, in Magic Merchandise Ltd v Lomu Barker J spoke of an image in this way:[9]
The print was made from a painting by a Mr Craig Primrose, said to be a renowned New Zealand artist of racing, yachting and sporting heroes.
[7]At 426.
[8]Ibid.
[9]Magic Merchandise Ltd v Lomu HC Auckland CP38/96, 3 March 1997 at 2.
Analysis of the legislation indicates that it uses “from” in this latter sense. When speaking of the recording being “made”, the section does not refer to the location of the recording device at all. If it did, the legislature would have gone to the trouble of prohibiting images taken by devices positioned inside clothing; this in legislation which takes covert recording as its mischief. Rather, the section refers to the “recording” being made, and a visual recording is an image, such as a photograph or digital image, of certain body parts; here, female breasts. “[F]rom beneath or under” is a compound preposition which signifies that a qualifying intimate recording must depict breasts seen beneath or under clothing. The image is taken from the breasts because they are its source.
Common sense supports this analysis. Because it opens at the neck a blouse or similar common upper garment is more likely to reveal a view of breasts from above than below, and we see no reason why the legislature should have chosen to permit one and prohibit the other. The legislative history confirms that Parliament did not intend to limit the offence in that way; on the contrary, the offending behaviour was colloquially described as “down-blouse” and “up-skirt” recording. The explanatory note to the Crimes (Intimate Covert Filming) Amendment Bill stated that:[10]
Intimate visual recording is also defined to mean a visual recording taken without the knowledge or consent of the person who is the subject of the recording, and which is taken beneath or under a person’s clothing (“up‑skirt” and “down-blouse” filming), or through a person’s outer clothing in circumstances where it is unreasonable to do so, for the purpose of viewing intimate areas of that person’s body or underwear.
[10]Crimes (Intimate Covert Filming) Amendment Bill 2005 (257-1) (explanatory note) at 2.
Undeterred, Mr Tuck suggested that perhaps Parliament had in mind CCTV cameras, which are now stationed in many public places to capture a view from above. But presumably such devices do not intentionally or recklessly record images of female breasts under clothing, and if they do we discern no policy reason why the operators should be excused liability.
We conclude that the proposed question of law does not merit submission to this Court for decision. For the reasons just given, the judgment of Heath J on appeal was plainly correct, and the proposed question is not seriously arguable.
Decision
The application for leave to appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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