McMillan v Police - [2013] NZHC 252

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…

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.

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Details

Case: [2013] NZHC 252
Decision Date: 19 February 2013

CaseChat Overview and Summary

McMillan v New Zealand Police involved a conviction appeal by Kevin Dean McMillan against a charge of meeting a young person following sexual grooming. The District Court found McMillan guilty under section 131B of the Crimes Act 1961, sentencing him to 200 hours of community work and intensive supervision for 18 months. McMillan argued that the meeting with the complainant was not intentional, and that even if it was, there was no intention to commit a sexual offence. The High Court had to determine whether the District Court's findings were supported by the evidence.

The court first assessed whether there was an intentional meeting as required by the statute. The prosecution argued that McMillan arranged to walk the complainant home, which constituted an intentional meeting. McMillan's counsel countered that this was a spontaneous act, not a premeditated meeting. The court found that the statutory requirement for an intentional meeting did not necessitate extensive premeditation, and the evidence supported the finding that the walk home was a separate, intentional meeting.

Next, the court examined whether McMillan intended to commit an offence under Part 7 of the Crimes Act at the time of the meeting. The prosecution relied on text messages and the complainant's testimony to show that McMillan intended to kiss the complainant, an act he considered indecent. The defence argued there was no direct evidence of such intent. The court concluded that the text messages and the complainant's testimony provided sufficient evidence to infer McMillan's intention beyond reasonable doubt.

Finally, the court addressed whether kissing the complainant would constitute an indecent act. The Crown accepted that consent was not a defence to the charge, and the court found that the act of kissing, given the context and respective positions of the parties, would be considered indecent by right-thinking members of society.

The appeal was dismissed, affirming the District Court's conviction.

Orders