Hogg v The Queen - [2019] NZHC 1254

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000091

CRI-2019-404-00092 [2019] NZHC 1254

BETWEEN
DANIEL JOEL HOGG

Applicant

AND

THE QUEEN

Respondent

Hearing: 6 May 2019

Appearances:

C Dunne and M Phillipps for Applicant D G Johnstone for Respondent

Judgment:

5 June 2019

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 5 June 2019 at 11.30 am
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Solicitors:
Public Defence Service, Auckland Crown Solicitor at Auckland

HOGG v R [2019] NZHC 1254 [5 June 2019]

Introduction

[1] The appellant, Mr Hogg, was convicted by Judge Tremewan in the District Court at Waitakere, following a Judge-alone trial, of indecently communicating with a young person under the age of 16 years, contrary to s 124A of the Crimes Act 1961.1

[2] Mr Hogg appeals his conviction on two grounds. First, he argues that evidence of the communications was wrongly admitted, and, secondly, that the Judge was wrong to find that the communications were indecent.

[3] The Crown opposes the appeal, arguing that the Judge correctly ruled that evidence of the communications was admissible, and further, that the Judge correctly directed herself as to the legal test for indecency and made appropriate findings on the evidence.

Background

[4] Mr Hogg owns and runs a pizzeria and, in December 2017, he hired the complainant to work for him. She was 15 years old at the time. She was employed by Mr Hogg at the pizzeria until March 2018. Over this period, Mr Hogg regularly communicated with the complainant using the computer application known as Facebook Messenger. Some of the communications related to the complainant’s employment. Others were of a more personal nature.

[5] The communications the subject of the charge started at 11.15 pm and continued until 11.28 pm on 21 January 2018. The communications read as follows:

Mr Hogg: “All good I don’t think weather is going to be any good. I just got of the pool tho which was nice as”.

Mr Hogg: “Spose I should get dressed”.

Complainant: “Meh, sometimes helps :D”.

Mr Hogg: “Lol just lying on my bed in the nude messaging you :D :D oops”.

Mr Hogg: “Lol I know you wish you could be here for that :D :D :D jokes”.

1 R v Hogg [2018] NZDC 26372.

Complainant: “Can’t say that I agree :D :D :D”.

Mr Hogg: “Lol can’t say I know what that means :D”. Complainant: “That I don’t wish I was there hahah”.

The colon and capital letter – “:D” – denote an emoji. They appeared in the messages as a grinning face. The communications in bold were the subject of the charge.

[6] The police obtained the communications in the course of executing a search warrant in relation to an unrelated matter.

[7] Relevantly, in November 2017, a man boarded a bus on the North Shore in Auckland. While sitting on the bus, he exposed…

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 Hogg v The Queen

Details

AGLC: Hogg v The Queen [2019] NZHC 1254
Case: [2019] NZHC 1254
Decision Date: 5 June 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Daniel Joel Hogg appeals against his conviction for indecently communicating with a young person under the age of 16 years. Hogg argues that evidence of the communications was wrongly admitted, and that the Judge was wrong to find that the communications were indecent. The Crown opposes the appeal, arguing that the Judge correctly ruled that evidence of the communications was admissible, and further, that the Judge correctly directed herself as to the legal test for indecency and made appropriate findings on the evidence. The court found that the evidence was not improperly obtained and was properly admissible, and that the Judge did not err in finding that the communications were indecent. The appeal against the admission of the communications and the appeal against conviction are dismissed.

Orders