James v The Queen
[2012] NZCA 236
•12 June 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA656/2011 [2012] NZCA 236 |
| BETWEEN RODNEY ALEXANDRE DE LA TOUR JAMES |
| AND THE QUEEN |
| Hearing: 15 May 2012 |
| Court: O'Regan P, White and Miller JJ |
| Counsel: M B Meyrick for Appellant |
| 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 that representative charges were not appropriate here because there were single repetitive acts which could be distinguished from each other in a meaningful way.
[2]S v The Queen (1989) 168 CLR 266; Bannister v New Zealand (1999) 86 FCR 417; and New Zealand v Garchow, Labler, Moloney [2005] NSWLC 25.
[3] R v Qiu [2007] NZSC 51, [2008] 1 NZLR 1.
For the respondent, Ms Preston submitted that no miscarriage of justice had occurred as a result of the use of representative charges. The charges of possession related to a continuing course of conduct which it would have been artificial to characterise as separate offences. Although it would have been possible to identify separate images the subject of counts, to do so would have been time consuming and resource heavy and might also have been unfairly prejudicial to the appellant.
Under s 329(6) of the Crimes Act every count must in general apply only to a single transaction. The Supreme Court has indicated that a continuing course of conduct should not be charged as separate offences when it would be artificial to do so, but at the same time it would be another thing to charge as a single count repetitive acts which can be distinguished from each other in a meaningful way even if they relate to more than one act of a certain class or character.[4]
[4] R v Qiu above n 3, at [8] and Mason v R [2010] NZSC 129, [2011] 1 NZLR 296 at [9]–[10].
Under s 131A(1) of the FVPC Act it is “an offence” for a person to have, without lawful authority or excuse, in his or her possession “an objectionable publication” knowing or having reasonable cause to believe that the publication is objectionable. The expressions “objectionable” and “publication” are defined in ss 2 and 3 of the Act respectively.
The gravamen of the offence is the “possession” of the objectionable publication. As possession of an item is normally viewed as an act occurring at a particular time, a count alleging possession would be expected to refer to a specific date or to a specific period of time during which there was a continuing course of conduct. Discrete acts of possession during a given period can usually be charged separately without the need for a general representative count.
In the present case the indictment actually charged a continuing course of conduct so a representative charge was not appropriate. The words “Representative charge” in each count in the indictment, however, caused no prejudice to the appellant. The evidence established that the images and videos on the hard drive were all created on a specific date, namely 22 May 2008, and were still on the hard drive when it was seized by the police on 29 July 2009. The appellant’s defence that his computer was inoperable from 19 December 2006 was rejected by the Judge.[5] While it was inoperable when later seized by the police, it was capable of being made operable again without any difficulty. The specific dates of 22 May 2008 and 29 July 2009 and the period in between therefore provided sufficient particularity for the offences and there was no need for the charge to be described as “representative”.
[5] At [57].
As the appellant pleaded guilty during his trial to the two charges relating to the USB flash drive, there was really no basis for his complaint about the representative nature of those charges. The objectionable images and videos were on the flash drive when it was seized by the police from a third party on 27 July 2009. There was no dispute that the appellant had given the flash drive to the third party.
For completeness we note that the appellant did not suggest that the indictment ought to have included separate counts in relation to each of the objectionable images on the computer hard drive or the USB flash drive. Several hundred different objectionable images and videos were involved. It was in the interests of justice that a multiplicity of charges of that nature be avoided.[6] It would, however, also have been preferable if the particulars had identified the objectionable publications as the computer files that contained the objectionable images on the computer hard drive and the USB flash drive rather than the photographic and video images as it is the computer files that are within the definition of “publication” in s 2 of the FVPC Act.[7]
[6] Mason v R above at n 4, at [9].
[7]Compare Goodin v Department of Internal Affairs [2003] NZAR 434 (HC) at [26]–[43].
We therefore reject 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.
Particularity of counts
Mr Meyrick submitted next, in reliance on the decisions in Police v Wyatt[8] and Meyrick v New Zealand Police,[9] 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, especially when it was born in mind that by virtue of the two year limitation period under s 14 of the Summary Proceedings Act 1957 the earliest date for an offence by the appellant was 8 December 2007, being two years before the date the original information was sworn.
[8] Police v Wyatt [1966] NZLR 1118 (CA).
[9] Meyrick v New Zealand Police HC Hamilton CRI-2005-419-58, 31 July 2007.
For the Crown, Ms Preston submitted that no prejudice arose to the appellant from the allegation of offending “on or before” 29 [or 27] July 2009 because time was not of the essence of the offence. If the appellant had been able to establish that there was a reasonable doubt as to whether he could have been, or was in fact, in possession of the images within the two year period prior to that date, then the Crown would not have discharged its onus of proof to the requisite standard.
Mr Meyrick argued that the use of the expression “on or before” a specified date is not appropriate in a case where the date of the offence is an essential part of the offence. There is some support for that argument in this Court’s decision in R v Hughes, where the Court said:[10]
The general rule of course is that the date of the offence as specified in an indictment is not a material matter unless it is actually an essential part of the offence alleged. The date may be essential in particular cases, for example where there is a time limit on the bringing of charges, or because the age of the complainant is a critical matter. Alternatively, the date may become essential as a result of the way the case is conducted, see R v Dean [1932] NZLR 753. If the actual date of the offence is unknown, it may be stated as “on or about” a particular date, in which case it is open to the jury to bring in a verdict of guilty if satisfied that the offence had been committed within a reasonable period of the specified date, reasonableness depending upon the circumstances of the case: R v Wae Wae Uatuku [1948] NZLR 648. Or the date of the offence may be charged as some day or days unknown between two stated dates, Fennell v Paterson [1948] NZLR 954, 959. In that case K M Gresson J also stated:
“The information must state such facts as will reasonably inform the accused of the particulars of the charge having regard to the nature of the alleged offence and the matters which the informant may be expected to know.” (958-959)
[10] R v Hughes [1998] 1 NZLR 409 (CA) at 410–411.
We agree that it would have been preferable in the present case to avoid the “on or before” formulation, given that there was a limitation period on the bringing of charges. It would have been better if the indictment had either specified dates after 8 December 2007 or referred to the period of time between that date and 29/27 July 2009.
At the same time, however, we do not agree with Mr Meyrick that the appellant was prejudiced in this case by the use of the expression “on or before” the specified date because, as we have already noted, 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 decisions relied on by Mr Meyrick may also be distinguished on their facts. In Police v Wyatt this Court rejected a submission that an information alleging careless use of a motor vehicle causing bodily injury contained insufficient particulars. The Court pointed out that if a defendant could show that he or she was embarrassed in his or her defence by any lack of such particulars their supply might be ordered by the Court and an adjournment granted. No such request was made in the District Court in the present case.
Meyrick v New Zealand Police involved a charge similar to those in the present case, but the indictment here contained particulars relating to the images on the appellant’s personal computer and USB flash drive. If the appellant had been embarrassed by the absence of further particulars as to the specific date(s) of the alleged offending, he had the opportunity to seek them, but he did not do so. Indeed he pleaded guilty to the charges relating to the USB flash drive. To the extent that Meyrick might be read as suggesting that a charge of possessing an objectionable publication is invalid because such particulars were not included, we consider it was wrongly decided.
We therefore reject the submission that the appellant was prejudiced by any lack of particularity in the charges.
Possession of objectionable images
On this issue Mr Meyrick submitted that the appellant 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 difficulty with the first part of this submission is 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.[11] These findings were amply supported by the evidence summarised by Judge Clark in her decision.[12] She concluded:[13]
I am satisfied that there is a compelling circumstantial case against the accused such that I am satisfied beyond reasonable doubt that he had possession of the objectionable images in counts 1 and 2, in that he had actual control, that he knew what it was that he controlled, that he showed that he intended to exercise control and that he voluntarily possessed the images. In my view the circumstantial evidence clearly shows that the accused was in possession.
[11] At [57].
[12] At [58]–[62].
[13] At [62].
We agree with Crown counsel that there is no basis for setting aside these findings on appeal.
As far as Mr Meyrick’s submission relating to the possession and control of the flash drives is concerned, we find it difficult to go behind the appellant’s guilty pleas, especially in face of the undisputed presence of the objectionable material on the flash drive and the evidence of the third party that they were given to him by the appellant. To have persuaded us to go behind the guilty pleas, the appellant would need to have adduced cogent evidence from the third party and himself to support our doing so. In particular, he would need to have adduced evidence that the guilty pleas were induced by a failure on his part to appreciate the nature of the charges against him. He did not seek to adduce such evidence on appeal.
We therefore reject the submission that the Judge erred in finding that the appellant was in possession of the objectionable images at material times.
Leave to prosecute
Mr Meyrick submitted, in reliance on the decisions in R v O’Connell[14] and Meyrick v New Zealand Police, 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.
[14] R v O’Connell [1981] 2 NZLR 192 (CA).
Under s 144(1) of the FVPC Act a prosecution for an offence under s 131A may not be commenced without the leave of the Attorney-General. But under s 144(2) the Attorney-General may delegate the power to grant leave to the Commissioner of Police in respect of offences concerning any particular class of publications. Then s 144(3) provides:
The Commissioner of Police, in purporting to act under any delegation under subsection (2), shall, in the absence of proof to the contrary, be presumed to be acting within the terms of the delegation.
Under s 145(1) of the FVPC Act the Commissioner of Police may delegate to such members of the Police, of a level of position not less than Inspector, any of the powers delegated under s 144. Then s 145(2) provides:
Every person purporting to act pursuant to any delegation under this section shall be presumed to be acting in accordance with the terms of the delegation in the absence of proof to the contrary.
Mr Meyrick submitted that in this case there was no evidence of either delegation or of any person acting under any delegation.
For the following reasons, we consider this submission is without merit:
(a)In compliance with s 314 of the Crimes Act, the officer in charge in this case filed a memorandum of consent to prosecute, setting out the delegation of authority from the Commissioner, in the District Court on 8 December 2009.
(b)No challenge was made to the memorandum or the delegated authority to prosecute during the hearing in the District Court.
(c)When the issue was raised on appeal in this Court, the Crown produced, without opposition from the appellant, copies of the then Attorney-General’s delegation to the Commissioner of Police under s 144(2) of the FVPC Act dated 20 February 1995 and the then Commissioner of Police’s delegation under s 145(1) to the appropriate ranked officers dated 22 June 2009.
(d)Reading the memorandum from the officer in charge and these two documents of delegation, together with the presumptions in ss 144(3) and 145(2) of the FVPC Act, we are satisfied that there was leave from the Attorney-General to prosecute the appellant.
(e)If the appellant had raised the issue in the District Court, it would have been disposed of by this irrefutable evidence.[15]
(f)The delegation evidence produced to us distinguishes the present case from the decision in Meyrick where similar evidence was not produced.
[15] Compare R v O’Connell above n 14, at 196.
In order to avoid any future difficulty with this issue we suggest to prosecutors that as a matter of good practice it would be desirable to produce copies of the relevant delegations at the hearing of such charges.
Result
For the reasons given, each of the grounds of appeal is rejected. There has been no miscarriage of justice. The appeal is therefore dismissed.
Solicitors:
Berman and Burton, Ellerslie for Appellant
Crown Law Office, Wellington for Respondent
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