LM v R - [2014] NZSC 110

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NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

SC 143/2013
[2014] NZSC 110

BETWEEN	LM Appellant
AND	The Queen Respondent

Hearing:	17 June 2014
Court:	Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ
Counsel:	C T Patterson for Appellant M D Downs and K A Courteney for Respondent
Judgment:	13 August 2014

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

Para No
Elias CJ, McGrath and William Young JJ	[1]
Glazebrook and Arnold JJ	[31]

ELIAS CJ, McGRATH and WILLIAM YOUNG JJ

(Given by William Young J)

Table of Contents

Para No
A prosecution for offending which occurred in Russia	[1]
The core facts	[4]
Section 132(3) of the Crimes Act	[5]
Extraterritorial jurisdiction in respect of sexual offending against children	[7]
Section 144A and permutations of party liability	[14]
Overview	[14]
Permutation one: the alleged principal and party are both New Zealanders	[16]
Permutation two: the alleged principal is a New Zealander but not the alleged party	[19]
Permutation three: the alleged principal is not a New Zealander and the alleged party is a New Zealander	[21]
Legislative reconsideration is warranted	[25]
Determination of the appeal	[26]
Disposition	[30]

A prosecution for offending which occurred in Russia

The appellant stood trial before Judge Field in the Auckland District Court on a charge which alleged that he:
… on or about the 11^th day of March 2007 at Moscow, Russia, being a citizen of New Zealand … did an act to a child under the age of 12 years which would, if done in New Zealand, constitute an offence against Section 132(3) of the Crimes Act 1961.

The particulars were as follows:

Taking a photograph of [the complainant], then 7 years old, whilst she is masturbating the penis of an adult male.

The indictment referred to ss 144A(1)(a) and (2)(c) and s 66 of the Crimes Act 1961.

Section 144A provides for the prosecution of New Zealanders[1] for conduct which, if it had occurred in New Zealand, would be contrary to specified provisions of the Crimes Act involving sexual offending against children and young people. Amongst the provisions so specified is s 132(3), which deals with indecencies involving children under the age of 12. Although the way the count was laid was consistent with an allegation that the appellant was guilty as a principal,[2] the Crown case at trial was that the appellant was a party to the offending of the man depicted in the photograph (V). The appeal raises the issue whether s 144A permits prosecution where the defendant was a party to the alleged offending but not the principal offender.
[1]Meaning those who are citizens of, or usually resident in, New Zealand.
[2]The reference was just to “s 66” which encompasses the liabilities of both principals and parties. As well, it is not uncommon for…

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 LM v R

Details

AGLC: LM v R [2014] NZSC 110
Case: [2014] NZSC 110
Decision Date: 13 August 2014

CaseChat Overview and Summary

The Supreme Court dismissed the appeal by LM, a New Zealand citizen, who was convicted of offences under s 144A of the Crimes Act 1961, relating to sexual offences against children committed outside New Zealand. LM appealed against his conviction for party liability in relation to offences committed in Russia, where the principal offender was not a New Zealand citizen. The Court considered the legal issues concerning the extraterritorial jurisdiction of New Zealand law in respect of party liability for sexual offences against children and whether the statutory provisions sufficiently addressed party liability. The majority of the Court held that s 144A does not permit prosecution of a New Zealander on the basis of party liability if the principal offender is not a New Zealander. However, as LM was found to have committed the offence as a principal, his conviction was upheld. The Court also noted the need for legislative reconsideration to address the gaps in the current statutory provisions regarding party liability.

Orders