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James v The Queen

James v The Queen

Case [2012] NZCA 236 12 June 2012

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA656/2011
[2012] NZCA 236

BETWEEN RODNEY ALEXANDRE DE LA TOUR JAMES
Appellant

AND THE QUEEN
Respondent

Hearing: 15 May 2012

Court: O'Regan P, White and Miller JJ

Counsel: M B Meyrick for Appellant
L C Preston for Respondent

Judgment: 12 June 2012 at 3.00pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Table of Contents

Para No

Introduction  [1]
Representative counts  [6]
Particularity of counts  [17]
Possession of objectionable images   [25]
Leave to prosecute  [30]
Result[36]

Introduction

The appellant appeals against his convictions on four charges under s 131A of the Films, Videos, and Publications Classification Act 1993 (the FVPC Act) of having in his possession an objectionable publication. The separate charges related first, to photographic images on his computer hard drive, second, to video images on his computer hard drive, third, to photographic images on a USB flash drive and, fourth, to video images on the USB flash drive.
The appellant pleaded guilty to the two charges relating to the USB flash drive during his District Court Judge alone trial and was found guilty of the other two charges by the Judge.[1]
[1] R v James DC Hamilton CRI-2009-075-1221, 9 June 2011.
An appeal against a sentence of 21 months’ imprisonment was abandoned.
The appellant did not dispute that the images and videos of child pornography and bestiality were objectionable or that they were in fact on the computer hard drive and the USB flash drive. Instead he challenged all four convictions on the following grounds:
(a)The charges were bad in law as a result of being laid as representative counts;
(b)The charges lacked particularity in breach of s 329 of the Crimes Act 1961;
(c)The Judge erred in finding that the appellant was in possession of the objectionable images at material times; and
(d)Leave to prosecute had not been obtained in terms of s 144 of the FVPC Act.
We address each issue in turn.

Representative counts

Each of the four charges in the indictment read as follows:
RODNEY ALEXANDRE DE LA TOUR JAMES on or before 29th [or 27th] day of July 2009 at Thames without lawful authority or excuse had in his possession an objectionable publication knowing or having reasonable cause to believe that the publication was objectionable.
Representative charge.
Each charge was then followed by particulars, the first two referring to “Photographic images” on the computer hard drive and the second two referring to “Video images” on the USB flash drive.
For the appellant, Mr Meyrick argued that representative charges were inappropriate in this case and that the appellant was prejudiced as a result. Mr Meyrick acknowledged that, contrary to the position in Australia,[2] representative charges are permissible in New Zealand when a complainant is unable to distinguish between incidents in terms of their dates or details or a continuing cause of conduct would make it artificial to characterise the incidents as separate offences.[3] But he submitted…

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 James v The Queen

Details

AGLC: James v The Queen [2012] NZCA 236
Case: [2012] NZCA 236
Decision Date: 12 June 2012

CaseChat Overview and Summary

Rodney Alexandre de la Tour James appealed against his convictions for possessing objectionable publications in breach of s 131A of the Films, Videos, and Publications Classification Act 1993. The appeal was heard in the Court of Appeal of New Zealand by O'Regan P, White and Miller JJ. The appellant argued that the charges were bad in law as they were laid as representative counts, lacked particularity, the Judge erred in finding that he was in possession of the objectionable images at the relevant times, and leave to prosecute had not been obtained in terms of s 144 of the FVPC Act. The court found that the representative charges were not inappropriate, the particularity of the counts was sufficient, the appellant was in possession of the objectionable images at material times, and leave to prosecute had been obtained. The appeal was dismissed.

The appellant argued that the representative charges were bad in law and prejudiced him. The court found that the charges related to a continuing course of conduct which it would have been artificial to characterise as separate offences. The court noted that the evidence established that the images and videos on the hard drive were all created on a specific date and were still on the hard drive when it was seized by the police. The court found that there was no need for the charge to be described as "representative" and rejected the submission that the charges were bad in law as a result of being laid as representative charges or that the appellant was prejudiced in any way by the description of the charges as representative.

The appellant argued that each of the four counts in the indictment was invalid because the reference to "on or before 29 [or 27] July 2009" lacked sufficient particularity. The court found that it would have been preferable to avoid the "on or before" formulation, given that there was a limitation period on the bringing of charges. However, the court found that the appellant was not prejudiced by the use of the expression "on or before" the specified date because the actual dates relied on by the Crown were known and, if the evidence had related only to the period prior to 8 December 2007, the prosecution would have failed.

The appellant argued that he was not in "possession" of the objectionable publications because he was not in control of them once the computer was inoperable and there was no reasonable inference that the appellant knew that there were objectionable documents on the flash drive that he gave to the third party. The court found that there were factual findings by the District Court Judge rejecting the appellant's account that his computer workstation was inoperable after 2006 and his account that he had nothing to do with the files that were user created on 22 May 2008. The court found that the circumstantial evidence clearly showed that the appellant was in possession.

The appellant argued that the prosecution had not obtained proper authority to prosecute in accordance with ss 144 and 145 of the FVPC Act because the Commissioner of Police had not obtained leave from the Attorney-General and the Commissioner of Police had not delegated his power to a member of the Police of a level not less than Inspector. The court found that there was leave from the Attorney-General to prosecute the appellant and rejected the submission that the prosecution had not obtained proper authority to prosecute.

Orders