McMillan v Police
[2013] NZHC 252
•19 February 2013
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-000383 [2013] NZHC 252
BETWEEN KEVIN DEAN MCMILLAN Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 5 February 2013
Appearances: V Withy for Appellant
J Shaw for Respondent
Judgment: 19 February 2013
JUDGMENT OF VENNING J
This judgment was delivered by me on 19 February 2013 at 4.30 pm, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, Auckland
Copy to: V Withy, Auckland
MCMILLAN V NEW ZEALAND POLICE HC AK CRI-2012-404-000383 [19 February 2013]
Introduction
[1] Following a defended hearing in the District Court at Auckland the appellant was convicted on one count under s 131B of the Crimes Act 1961 of meeting a young person following sexual grooming. Judge Wade sentenced him to 200 hours community work and intensive supervision for a period of 18 months.
[2] The appellant appeals against conviction.
Background
[3] At the time of the offending the appellant was a 19 year old teacher’s aide. The complainant was a 12 year old female student at the school. They exchanged mobile phone numbers and between Tuesday, 16 August 2011 and Wednesday, 24
August 2011, exchanged over 400 text messages. A number of the text messages were sexually suggestive or otherwise inappropriate, particularly given the age of the complainant and the nature of the appellant’s role at the school. The appellant concedes the texts were inappropriate.
[4] In addition to the text messages the appellant and complainant spoke to each other at school during interval and lunch breaks during that period.
[5] On Friday, 19 August 2011 the complainant, together with a number of her friends, went to the school hall in the afternoon where the appellant was teaching bowls to other students. The appellant was drinking a beer. The complainant said she asked if she and her friends could have some but the appellant did not reply. The complainant took a beer and started drinking it. The appellant said he did not see the complainant and the other students drinking.
[6] After the other students went home the complainant remained at the hall with the appellant. The complainant said that the appellant typed into his phone a message something like “I so badly want to kiss you right now” and showed it to her on his phone screen. The appellant denied doing that.
[7] The appellant then suggested he walk the complainant home. She accepted that he did not touch her or try to touch her during the walk.
[8] The next day the appellant went to Napier to attend a referees’ course. There was only one text between them that day, and none on the next two days although the text exchange recommenced on 23 August. The texting relationship then ceased about a week before the complainant’s father learnt of the contact between the two and complained to the school and police.
[9] The text messages were retrieved and analysed by the police. The victim then gave an evidential interview. The appellant was also interviewed. He was subsequently charged.
[10] At the conclusion of the prosecution case, the defence made a submission of no case to answer and indicated defence evidence would not be called. Judge Wade reserved his decision. In his reserved decision delivered on 14 August the Judge found the charge proved.
District Court decision
[11] Judge Wade referred to the ingredients of the offence as explained by the Court of Appeal in R v S.[1] The Judge noted that, in the present case, the issues were whether there was a subsequent intentional meeting as required and whether, at the time of the meeting, the appellant had the intention to commit a relevant sexual offence under Part 7 of the Crimes Act. In this case, the prosecution relied on the appellant’s intention to kiss the complainant, which it categorised as an indecent act.
[1] R v S [2009] NZCA 64.
[12] Judge Wade noted that, in the course of his video interview, the appellant had suggested that he wanted to walk the complainant home so as to explain to her face to face why the communications between them had to stop. However, that was inconsistent with the resumption of text messaging between them on 23 August and the content of those messages. Where there was a conflict between the evidence of
the complainant and the appellant the Judge preferred the evidence of the
complainant. He did so because he considered some of the assertions made by the appellant in his interview with the police were palpably false and secondly, the complainant had given evidence on oath whereas the appellant relied on his unsworn video interview, substantial parts of which were plainly exculpatory.
[13] In finding the charge proved the Judge concluded that, while the initial meeting on Friday evening at the bowls training may have been accidental, the appellant then engineered the walk home with the complainant. The Judge said he was satisfied that at that time the appellant intended on some future occasion at the least to commit an indecent assault if not more. The Judge noted that on numerous instances during the exchange of texts the appellant made comments to the effect he wished he was not a member of staff and wished he could ask the complainant out. The Judge considered that to be a clear indication that, not only did the appellant realise it was wrong to make sexual advances, but that it would be considered indecent by right thinking members of society and yet he decided to carry on. He found the charge proved.
Grounds of appeal
[14] The appellant raises the following grounds of appeal:
(a) there was an insufficient evidential foundation for the Judge to find that the appellant intentionally met with the complainant as required under s 131B(1)(a)(i);
(b)there was insufficient evidence for the District Court Judge to find that, at the time of any such meeting, the appellant intended to take an action which would be an offence under Part 7 of the Crimes Act, s 131B(1)(b); and
(c) even if the appellant intended to kiss the complainant, which was denied, such action would not be an indecent act in all the circumstances.
[15] A related issue arises. At [16] of his decision, the Judge referred to the offence under Part 7 as an indecent assault. The Crown accepts that consent, which would be a defence to such an assault, cannot be excluded on the evidence. However, the Crown suggests the reference to an indecent assault was a slip as the case was prosecuted on the basis the intended offence under Part 7 was an indecent act, namely kissing the complainant. I return to this point later.
Decision
[16] In the present case the prosecution was required to prove the following:
(a) that the appellant had met or communicated with the complainant on an earlier occasion;
(b) that the complainant was under the age of 16 years;
(c) that the appellant intentionally met the complainant on a second or subsequent occasion; and
(d)at the time of intentionally meeting the complainant he intended to take an action that would be an offence against Part 7 of the Crimes Act.
[17] The defence provided in s 131B(2) does not apply.
[18] It is not in issue that the appellant had communicated with and also met the complainant on a number of earlier occasions. Nor is it in issue that the complainant was under the age of 16. She is 12 years old. The focus of the appeal was on (c) and (d) above.
Was there an intentional meeting?
[19] Ms Withy noted that the prosecution case was initially that the appellant had arranged to meet the complainant on the afternoon of Friday, 19 August 2011 when
he was teaching bowls in the school hall. She noted that was not made out because the complainant accepted in her supplementary evidence-in-chief that she went to the hall on her own initiative rather than at the request of the appellant.
[20] Ms Withy accepted that the Judge had found that the arrangement to walk the complainant home was an intentional meeting for the purposes of the section, but submitted that the offer to walk the complainant home was, in the circumstances, no more than an extension of the unexpected meeting (from the appellant’s point of view) between the appellant and complainant at the bowls training. While the offer to walk her home may have extended the time the appellant and complainant spent together it was an offer made without any prior planning or consideration. It was spontaneous and did not involve any prior arrangement.
[21] She submitted that the evidence did not support the Judge’s finding that the
walk home constituted a meeting for the purposes of s 131B(1)(a)(i).
[22] In R v S, the Court of Appeal confirmed the need for the second or subsequent meeting to be an intentional meeting and considered what was required for such an intentional meeting. In that case the appellant was a bus driver who had initially met the complainant, a student, on the school bus. Apart from the contact he had arising out of that situation, when she had turned 13 the appellant had given her a necklace, but in the presence of her mother. Then, some months later, the appellant saw the complainant in the street. He stopped his car beside her and asked to meet her outside a nearby school. She walked there while he drove there to meet her. There then followed a number of interactions between the pair.
[23] Counsel for the appellant in R v S submitted that the meeting outside the school, although intentional in that it was suggested by the appellant, was insufficiently premeditated and planned to meet the requirements of the section. The Court of Appeal rejected that submission stating:
[18] ... A meeting purposefully arranged by an alleged offender is an intentional meeting for the purposes of the offence even if the forming of that intention and its implementation were not the subject of extensive premeditation, planning and reflection.
[24] Ms Withy and Mr Shaw took different messages from the above statement. They both relied on it to support their argument. Ms Withy submitted that the statement confirmed that the intentional meeting must be purposefully arranged. She submitted there was no such purposeful or intentional meeting in the present case because the appellant had not made any arrangement to meet the complainant at the bowls’ training. The complainant had stayed on at the bowls training when the other students had left and that the appellant’s action of walking her home was simply an extension of the earlier unplanned and unintentional meeting.
[25] Mr Shaw submitted that the Judge was correct to find the walk home was an intentional meeting and that the Court had effectively eschewed the imposition of a gloss on the statutory wording. He submitted that, in context, the Court of Appeal’s reference to a “purposefully arranged” meeting related to the circumstances of that case. It was a rejection of the submission that extensive planning and premeditation was required.
[26] In normal usage a meeting is the coming together of two or more persons. It may be by accident or by arrangement. It may be momentary or for a lengthy period. It may be between strangers or people known to each other. However, the meeting contemplated by the section in this case is an intentional coming together of the appellant and the complainant following previous contact between them. In my judgment, the requirement under s 131B(1)(a)(i) that the meeting be intentional requires nothing more than proof that the accused, in this case the appellant, intended that there would be an occasion when he and the complainant would be together and took steps to achieve that. As the Court of Appeal in R v S accepted, there need not be any extensive premeditation.
[27] The evidence about the arrangement for the walk home was as follows. The complainant said the appellant told her that “we’re going home now and then he was walking me”. In her previous evidential interview she had said:
Then he was like, “Right, we’re going home now.” And I was like, “We?” And then he was like, “Yeah, I’ll walk you home.” And then I was like, “My house is ages away.” And then he was like, “So,” And then he was like, “Wait, I’ll just go tell my mum that I’m going to my friends house.” And I was like, “Okay then.” And then and then he came back, I said, “No I swear
you don’t want to come, you don’t want to walk me home.” And then he’s like, “Is it going to be too awkward for you?” And I was like (makes noise), and oh yeah and then like he walked me to like the shops and then yeah, and then I was like, okay I’m going to go now and then yeah.
[28] In his video interview, the appellant gave various versions of the arrangement. Consistently though, he accepted that he instigated the arrangement that he would walk the complainant home:
So and, um, and so I sort of said to her look would you have a problem if I just dropped you up in ..., because I’m walking up that way? ... And she said no it’s fine and we, um, - and I made sure that we took the more public route.
And later:
And I felt more of a safety thing because I wouldn’t want my sister walking home that late at night by herself, and she’s about three years younger, two years younger than my sister. ... So I just sort of said look, for safety reasons I’ll walk you home.
And later:
I said “Look how are you getting home?” ... And she said, “Oh, I’m walking.” ... And, um, I just said, “Okay well I’m walking up to ... shops, do you want to walk with me?”
[29] Accepting for present purposes that the initial meeting at the bowls training was accidental, it was open on the evidence for the Judge to find, as a matter of fact, that the appellant then made an arrangement to spend time with the complainant on the separate occasion and event of walking her home. Such arrangement, which the appellant accepted was at his suggestion, is sufficient to satisfy the requirement for an intentional meeting. The arrangement the appellant made to walk the complainant home changed the nature of the contact between the two in these circumstances from the initial, unintentional, meeting at the bowls training to an intentional meeting. It was a separate event to the previous meeting at the bowls training.
What did the appellant intend at the time?
[30] Ms Withy next submitted the Judge was wrong to conclude that the second element in issue in this case, namely the intention to commit an offence against Part
7 had been proved beyond reasonable doubt.
[31] Ms Withy submitted there was no direct evidence the appellant had any intention to take an action that would amount to an offence under Part 7 of the Crimes Act. The appellant had expressly denied any such intention in his police statement and no intention was ever directly expressed to the complainant. Further, the complainant accepted that no physical contact had occurred between them. The complainant accepted that the appellant was about 1.5 metres away from her.
[32] While accepting that the appellant acknowledged he was attracted to the complainant and that many of the text messages sent by him to her had a sexual tone to them, Ms Withy submitted there was no express statement of any intention to commit a sexual act in relation to the complainant. Indeed, the appellant appeared to acknowledge that he could not act given his position in the school as a teacher aide. She noted that the appellant was effectively distancing himself from the complainant as he had acknowledged the relationship was inappropriate.
[33] Ms Withy referred to the English Court of Appeal decision of Gaviria v R,[2] and in particular the requirement for proof that the necessary intention must exist at the moment of the meeting:
17. We turn to the all important intended meeting. The statute visualises the commission of an offence whether or not that meeting takes place; it is sufficient if, with the intention of meeting, A travels to B or B travels to A. In each case, however, A must intend to commit a relevant (sexual) offence. Thus, either when A travels to B, waits for B to arrive or at the moment of meeting, A’s sexual intention must be proved. It is not enough that, during the course of a meeting, started without any such intention, A then decides to take advantage of the situation and commit an offence: the crime then will be the commission of or the attempt to commit that offence. The offence contained within s. 15 is not engaged.
[2] Gaviria v R [2010] EWCA Crim 1693.
[34] I accept that statement of the law. The issue is the appellant’s intention at the
time the meeting is arranged.
[35] The previous contact between the appellant and the complainant is relevant to the issue of the appellant’s intention at the time of arranging to walk the complainant home. The evidence of the previous texts and the explicit nature of some of these texts suggests that the appellant was physically attracted to and sexually interested in the complainant and wanted to kiss her.
[36] It is sufficient to refer to some of the text messages identified by the Judge and translated by him from text speak to confirm that point:
You’re cute/hot for a girl of your age
I wish I wasn’t a member of staff, laugh out loud
I wish I could ask you out
I love your smile it’s what kept me warm today
It’s all good don’t worry I’m not going to rape I always respect girls
Laugh out loud so how far have you gone with a guy
What guys have you gone out with that I’ll have to watch out for
Well you’re my crazy princess
I wish I could’ve hugged you today when you said you were cold
You’re so hot
I’ll buy you chocolate tomorrow
You are hot, beautiful, amazing, sexy, gorgeous and just so lovely
I wish I could spend every minute of every day with you
If I asked you out what would you say
You’ll know that you miss someone very much when every time you think of that person, your heart breaks into pieces and just a quick hello from that person can bring the broken pieces back.
Wish I was your blanket, I wish I was your bed, I wish I was your pillow underneath your head, I want to be around you I want to hold you tight and be the lucky person who kisses you goodnight.
[37] In addition there is the text exchange about the complainant’s Facebook page:
haha i was just reading ur [facebook] page and ur latest status I could make come true but itl b really hard
, bahaha Ayee ? Whaat last one ? Uhmm ...x
Bout ur crush kissing u on friday.x
[38] The walk home occurred on the Friday. Further, in the course of his video interview the appellant accepted, in his own words, he was something of a “sex addict”.
[39] While I accept there may be a distinction between the appellant’s text persona and his behaviour in person, the text messages show he was physically attracted to the complainant and was thinking about kissing her. Then there is one important feature of the evidence that the appellant’s case fails to address. It is the complainant’s evidence that, at the conclusion of the training at the hall, and before the appellant said he would walk her home, he wrote on his phone something like “I so badly want to kiss you right now” and then showed the complainant that message. While the appellant was asked if he could remember that and said no, significantly the complainant was not cross-examined on that point. The Judge was entitled to accept the complainant’s evidence that the incident occurred.
[40] The note on the phone showed that, shortly before making the arrangement to walk the complainant home, the appellant wanted to kiss her. While, for whatever
reason, the appellant did not then put that desire into effect, when that note is read in the context of the previous text messages, it provides an evidential basis from which the Judge could infer beyond reasonable doubt that, at the time of the intentional meeting, walking the complainant home, the appellant intended to kiss the complainant. The fact the appellant did not actually kiss the complainant is relevant to sentence but is not determinative of his guilt or innocence on the offence itself, which focuses on his intention.
[41] There is a further point about the evidence. In the course of his video interview the appellant suggested that he walked the complainant home because he wanted to distance himself from her and that he told the complainant that they could not continue with their relationship. Ms Withy referred to that explanation and
pointed to the lack of texts after the 19th as consistent with the appellant’s evidence.
However, the complainant denied that the appellant said anything of that nature to her during the walk. The Judge was able to assess the complainant’s evidence and, for the reasons he gave, accepted her evidence. The Judge was entitled to do so.
[42] Further, while there was a quiet patch in their communications, there were still a substantial number of texts subsequently exchanged between the appellant and the complainant, particularly on 23 August. As Mr Shaw submitted, the texts suggest the complainant’s cell phone had been taken off her for a time. The texts resumed after the complainant got her phone back. During the course of those resumed texts and on the evening of the 23rd the appellant sent the following text to the complainant:
A special smile a special face. a special someone, i cant replace. i luv u i always will. uve filled a space no one can fill.
[43] That message is hardly consistent with the appellant’s case that four days earlier he had told her their relationship, (such as it was) could not continue, nor is the volume of the text messaging between them on the 23rd consistent with the appellant’s case. It appears the communications only came to an end when it became clear that other students were openly talking about the relationship between the appellant and complainant and the appellant may well have reflected on his position
at that time.
[44] I conclude the Judge was entitled to find that, at the time the appellant arranged to walk the complainant home, he intended to kiss her.
[45] That leads to the last issue, whether kissing the complainant would have been an offence under Part 7 of the Crimes Act and the reference by the Judge to the kiss being an indecent assault. The Crown concede that it cannot exclude the complainant would have consented. However, as Mr Shaw submitted, the Judge’s reference to indecent assault appears to be a slip. The case was prosecuted on the basis of an indecent act. In the preceding paragraph the Judge had referred to an indecent act. I agree that the relevant offence is under s 134(3). Consent is no defence to such a charge: s 134A(2). The issue is whether kissing the complainant would be regarded as an indecent act.
[46] Ms Withy submitted that the fact any kiss would have been consensual was relevant to whether the kiss could be said to be an indecent act.
[47] The act in question must be one that, given the time, place and circumstances would be considered indecent by right minded persons as such as to warrant the sanction of the law: R v Dunn and R v Armstrong.[3] The complainant’s likely consent could be relevant but the overriding feature is the respective positions of the two parties. It is clear from the appellant’s own statement as to his position as a teacher’s aide that he was aware that, because of his position of responsibility within
the school and towards students, what he wanted to do, to kiss the complainant, was wrong. He was a person in some authority over the complainant. Further, the age gap is significant. He was 19, she was 12. The appellant was not intending a social kiss to the cheek. His intention to kiss the complainant was sexually motivated. Given the context of the prior communications between the parties and their respective positions the act of the appellant kissing the complainant would reasonably be regarded by right thinking members of society as indecent:
R v Annas.[4]
Result
[3] R v Dunn [1973] 2 NZLR 481 (CA); R v Armstrong [2007] NZCA 221.
[4] R v Annas [2008] NZCA 534 at [56].
[48] For the above reasons the appeal against conviction must be dismissed.
Venning J