Pearson v Police
[2015] NZHC 410
•10 March 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2014-409-000120 [2015] NZHC 410
NICHOLAS JAMES PEARSON
v
NEW ZEALAND POLICE
Hearing: 5 March 2015 Appearances:
R A Peters for Appellant
AMS Williams for RespondentJudgment:
10 March 2015
JUDGMENT OF NATION J
[1] On 12 September 2014, the appellant was convicted in the District Court upon two charges of making an intimate visual recording, per s 216H of the Crimes Act 1961.1 These charges stem from two separate occasions, on
30 December 2013 and 15 February 2014, where the appellant used his cell phone camera to view young females in fitting rooms at a clothing store. On
4 November 2014, Judge Couch sentenced the appellant to four months’ community detention, paired with 100 hours’ community work.2
[2] This Court must allow the appeal if it is satisfied the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has
occurred or if a miscarriage of justice has occurred for any reason.
1 New Zealand Police v Pearson DC Christchurch CRI-2014-009-1422, 12 September 2014.
2 New Zealand Police v Pearson DC Christchurch CRI-2014-009-1422, 4 November 2014.
N J PEARSON v NEW ZEALAND POLICE [2015] NZHC 410 [10 March 2015]
[3] In the context of this appeal, miscarriage of justice means any error, irregularity or occurrence in or in relation to, or affecting the trial that has created a real risk that the outcome of the trial was affected.
[4] The evidence of the two complainants was admitted by consent.
[5] The first complainant M was 12 years old. She said she was trying on shorts in a JJ’s changing room at Northlands Mall. She saw a cellphone appear at the bottom of the door to the changing room. She stated the camera of that phone was pointed into the changing room where she was standing. After seeing the phone she backed into a corner of the changing room to get away from the camera, at which point the camera disappeared.
[6] Significantly, in the context of this appeal, M said that she was trying on some shorts, went out of the changing room to see a friend and that after she had spoken to her friend about the shorts she went back into the changing room to change back into her jeans. She said she saw the cell phone appear at the bottom of the door as she was “about to get out of the shorts”. She did not say what she was wearing over her upper body at the time she had gone back into the fitting room, but as she had just returned to the fitting room from talking to her friend in the shop, it would be reasonable to infer that her upper body was covered by some garment at the time M saw the camera.
[7] M said that she waited for a couple of seconds after the camera disappeared, then opened the door, stepped out of the changing room and called her friend over and told her what had happened. As she was talking to this friend she made eye contact with a male who was leaving the store. She gave a description of him and a description of the phone she had seen.
[8] A witness who was an assistant manager at the shop gave evidence about what she observed at the time of this incident. She described herself as a friend of the appellant. They knew each other from working in neighbouring shops and had talked on a regular basis. The appellant asked this witness if he could take a photograph of a dress that he said he wanted to buy for his partner. The witness saw
him go to the back of the store near the fitting rooms. The witness was attending to another person in the store when the appellant walked “really fast” past her, said “Bye”, that he looked back and gave the witness “this bit of a guilty look like something had happened”. She described what he was wearing consistent with the description given by M as to the man she had seen leaving the shop.
[9] M and her friend were distressed. The shop manager rang security. The witness did not speak to the appellant further about the incident because she did not want to believe he had been involved in the incident.
[10] Complainant L was shopping in JJ’s clothing store on 15 February at 1.00 pm with two friends. In her statement she said she was in the JJ’s changing room trying on a bikini when she noticed some shoes close to the changing room door. She then saw a cellphone appear under the door. The phone went away quickly after it appeared. L initially thought that someone had just dropped their phone because it went away so quickly. She then saw the same cellphone reappear for a second time about four seconds later. She did not hear a photo being taken. When the phone appeared the second time she said “What are you doing?” but did not hear any reply. A short time later she left the changing room. She was talking to a friend. While she was speaking to her friend the shop assistant came up and said that a man had just taken a photo of her in the changing room.
[11] This shop assistant also gave evidence. She said complainant L and her friends were down the back of the store looking through sales gear and that one of them went into a changing room. She said the appellant went into the store. She knew him because he worked at the mall and because of the contact he had with the previous witness, the assistant manager. She watched the appellant going down beside a mannequin which was outside the changing rooms. She saw him get out his phone and put it under the changing room “and kinda looked at it and then tilted it further”. She said that where she was standing she “could see the silhouette of a person” and then “saw him just do this bump and I was like oh, he’s taking a picture and didn’t know what to do”. She said that he made a motion with his thumb where “the camera click thing” was. She said that at the time she saw him tilt the phone she was about six to eight metres away. She said she could see “just a skin-coloured
silhouette of a girl” and that was how she knew he was taking a picture but she could
not see what her hair colour was or anything like that or her facial features.
[12] This witness then called her manager who was on a break. The manager brought the appellant back into the store. The appellant said he had been in the store and said that he saw someone else taking the photo. Under cross-examination this witness confirmed she had seen “the skin-coloured silhouette of a person on the phone”. She said the image she saw on the phone “was moving”. She said she could tell it was a picture and not a screen saver image because “it was in that mode and she could see the person moving”. She said that when she saw him “do the thump” and start to uncrouch and come up she panicked and took a step back.
[13] A police officer who had been involved in both incidents, spoke to the appellant on 15 February 2014, and arrested the appellant for making an intimate visual recording in relation to the two incidents. The appellant completed a written statement in which he denied the allegations.
[14] The police officer seized the appellant’s cellphone. Another witness for the police was a clerk whose duties also included the examination of cellular telephones. He attempted to examine the cellular telephone which the police had taken off the appellant. He powered the handset on in an attempt to make a forensic extraction of data. The cellular telephone activated and defaulted to a locked screen that was password protected. He was unable to unlock the handset without a password and was thus prevented from carrying out a forensic examination. He was not able to extract any data from the handset.
[15] The Judge stated:3
[8] I am left in no doubt whatsoever that the person who was handling the cellphone in both cases was the defendant. I also find it an irresistible inference that on the 15 February incident that the defendant did actually record an image. There is no other sensible explanation for what Ms Smith saw him do. I also find there to be a very strong inference that the defendant did the same thing on 30 December. Quite simply there was no other reason why the defendant would put his cellphone under the door of a changing room with a girl or young woman in it other than to record an image of that
3 New Zealand Police v Pearson DC Christchurch CRI-2014-009-1422, 12 September 2014 at [8].
person. No other explanation has been offered, the defendant electing not to give evidence. Overall I find both charges proved beyond reasonable doubt.
[16] In his oral decision the Judge made no findings as to the clothing M had been wearing at the time she saw the camera in the incident on 30 December. In relation to the incident on 15 February the Judge referred to the fact the shop assistant had seen a silhouette of a person in a skin-coloured tone at the time the camera was being used. The Judge inferred from the evidence of L that “because she was trying on a bikini she would have been naked, or nearly naked”. He said this was consistent with what the shop assistant had seen on the screen of the cellphone.
[17] On his appeal, it was not suggested for the appellant that there was insufficient evidence to justify the Judge finding that it was the appellant who had been holding the cellphone at the time it was put under the door of a fitting room when a young girl was in that fitting room trying on clothes.
[18] This appeal is pursued on the basis that the evidence was insufficient to prove the appellant did actually record an image of the complainant so as to be guilty of the charge of intentionally or recklessly making an intimate visual recording of another person contrary to s 216H of the Crimes Act.
[19] It was also submitted the evidence was insufficient to prove that if the appellant had recorded a visual image it was an intimate visual recording as defined in s 216G(1)(a)(i). The contention for the appellant was that for it to be an intimate visual recording the person photographed had to be “naked or partially so or clad solely in the undergarments”.
[20] Mr Peters for the appellant referred to there being no evidence from any witness that they had observed the appellant taking a photograph at the time of the first incident. He acknowledges there was evidence from a shop assistant in relation to the second incident but said it should not have been sufficient given the distance between the shop assistant and the cellphone at the time it was used. The appellant referred to the fact that an examination of the cellphone produced no data. The appellant submitted the District Court Judge was not entitled to draw an irresistible
inference with either incident that the appellant did actually record an image, especially so in the absence of any data recovered from the cellphone.
[21] Mr Williams for the respondent, referred to the extended definition in s 216G(2) which applies to s 216H offences, and expands the definition of “intimate visual recording” to include one:
that is made and transmitted in real time without retention or storage in –
(a) a physical form; or
(b) an electronic form from which the recording is capable of being reproduced with or without the aid of any device or thing.
[22] The Judge found in this case that in each instance a photograph had been taken. This was a reasonable inference for him to draw given there was no other reason for the appellant to put his camera under the door to the fitting room and in a position where it could be used to photograph a young girl inside the fitting room.
[23] There was also direct evidence that a photograph had been taken on the second occasion through the evidence from the witness that she had seen the appellant press the appropriate spot on his cellphone when there was an image of the girl inside the fitting room showing on the phone. Given the direct evidence of what happened on the second occasion the Judge could also rely on that evidence as propensity evidence to help prove that the appellant had taken a photograph with his cellphone on the earlier occasion.
[24] The Crown suggested that evidence from the police clerk was sufficient for the Judge to find that the appellant had, after the incident on 15 July, reset the phone so that no one could access data on the phone without the password. It was suggested from this the Judge could have inferred there must have been images on the phone which the appellant did not want anyone else to see.
[25] It was also reasonable for the Judge to infer an image of the complainant had been recorded on the first occasion because not only had the phone been put under the door for the purpose of recording such an image, but M had stepped away when she saw the camera. The person holding the phone must have been able to see that
on the cellphone because he reacted by withdrawing the cellphone. The appellant who had used the camera then departed quickly from the shop. In those circumstances the Judge was entitled to draw the inference that the appellant had used his camera on the first occasion so that an image of the girl in the changing room did appear on the screen.
[26] However, even if the evidence had not been sufficient to show that a photograph was taken and recorded on the cellphone I accept the submission for the respondent that a charge can succeed under s 216H even if there is no evidence that the visual recording was stored or retained. Section 216G(2) simply requires that a visual recording is made in real time, and transmitted from the camera of the phone to the screen. This would mean the visual recording has been transmitted in an electronic form which is capable of being reproduced.
[27] For these reasons, the evidence was sufficient to establish that a visual recording had been made by the appellant in terms of the extended definition in s 216G(2).
[28] I now consider the second basis on which the appellant attacks the District
Court Judge’s decision.
[29] Section 216G defines an intimate visual recording as meaning a visual recording using a device:
(1) … without the knowledge or consent of the person who is the subject
of the recording, and the recording is of –
(a) a person who is in a place which, in the circumstances, would reasonably be expected to provide privacy, [there was no issue that these two elements were satisfied in this case and in so far as this case was concerned] that person is:
...
(i) naked or has his or her genitals, pubic area, buttocks, or female breasts exposed, partially exposed, or clad solely in undergarments; or
(iii) engaged in showering, toileting, or other personal bodily activity that involves dressing or undressing;
or
(b) [the recording is of] a person’s naked or undergarment-clad genitals, pubic area, buttocks, or female breasts which is made –
(i) from beneath or under a person’s clothing; or
(ii) through a person’s outer clothing in circumstances where it
is unreasonable to do so.
[30] The appellant says that in neither incident was there evidence to satisfy the requirements of s 216G(1)(a)(i). I accept the correctness of that submission in so far as the first incident was concerned. Given complainant M was wearing shorts and some garment over her upper body there is no basis on which the Judge could infer she was naked, or had her genitals, pubic area, buttocks, or female breasts exposed, partially exposed or clad solely in undergarments.
[31] In relation to the second incident the Judge had the evidence from the shop assistant that she saw a skin-coloured silhouette on the screen of the appellant’s cellphone. The Judge said he inferred from the evidence of complainant L that because she was trying on a bikini she would have been “naked, or nearly naked” and that was consistent with what the shop assistant said she saw on the screen of the cellphone. In my judgment the Judge could not infer from the fact the complainant was trying on a bikini that she was necessarily naked or nearly naked in the terms required to come within s 216G(1)(a)(i). She could have been wearing the bikini at the time the photograph was taken. Had that been the case she would not have been naked or had her “genitals, pubic area, buttocks or female breasts, partially exposed, or clad solely in undergarments”. Given the complainant said she was trying on the bikini at the time the camera was used, the evidence from the shop assistant of seeing a skin-coloured silhouette was not a sufficient basis for the Judge to conclude that in the second incident the complainant had been naked or nearly naked when the camera was used.
[32] Through the submissions for the respondent Mr Williams appeared to acknowledge the inadequacy of the evidence before the Judge in this regard. He relied on the provisions of s 216G(1)(a)(iii) and suggested the evidence was sufficient to establish the recording was of a person “engaged in showering, toileting, or other personal bodily activity that involves dressing or undressing”. He argued “M was trying on clothes in a changing room”. He submitted it would be
nonsensical to draw a distinction between a person dressing or undressing for the purposes of showering or toileting and someone dressing or undressing to try on clothes. He submitted that trying on clothing is obviously a personal bodily activity that involves dressing or undressing. He said that with what happened each complainant suffered a gross invasion of privacy and that a person who is dressing or undressing for the purpose of trying on clothes suffers the same loss of freedom to choose how they present themselves to others as a person dressing or undressing for the purposes of showering or toileting.
[33] These latter submissions are correct but the Court has to apply s 216G(1)(a)(iii) according to the plain meaning of the words used in that section and cannot adopt a different meaning or widen the scope of those words simply on the basis that it is necessary to make it an offence for a defendant to have engaged in the sort of behaviour which the legislation in a general sense is seeking to criminalise.
[34] If s 216G(1)(a)(iii) was intended to make it a crime for someone to photograph a person in circumstances which would reasonably be expected to provide privacy and that person is dressing or undressing it would have been simple for the legislation to be worded in that way. Instead, the words in s 216G(1)(a)(iii) draw a distinction between the showering, toileting or other personal bodily activity and the dressing or undressing which might be associated with such a bodily activity. For a conviction to be justified in terms of s 216G(1)(a)(iii) the prosecution thus had to prove there was a recording made when the person was engaged in showering, toileting or other personal bodily activity and that such activity involved dressing or undressing. The fact the person was involved in dressing or undressing on its own would not be enough. The normal and plain meaning of bodily activity must refer to an activity that affects the body. This is consistent with the way courts have considered what is required for there to be “bodily harm” in terms of s 188(2) of the Crimes Act. Showering and toileting are specific examples of such bodily activity. Dressing or undressing does not necessarily affect the body.
[35] I therefore find that the evidence in this case was not sufficient to show the appellant made a visual recording of the complainants when they were engaged in
showering, toileting or other personal bodily activity. Accordingly, even though they were involved in dressing or undressing when trying on clothes, what happened did not make the use of the camera an intimate visual recording in terms of s
216G(1)(a)(iii). On that basis the appeal in respect of both convictions has to be allowed as the evidence was insufficient to establish that the appellant had made an intimate visual recording of the complainant in each case.
[36] Section 234 Criminal Procedure Act 2011 states:
234 Conviction and sentence for different offence may be substituted
(1) Subsection (2) applies if a person was found guilty at trial of an offence (offence A) and the first appeal court allows the convicted person’s appeal against conviction for that offence.
(2) The first appeal court may direct that a judgment of conviction for a different offence (offence B), including an offence that the trial court could, in accordance with section 136(1), have substituted for offence A, be entered if satisfied that –
(a) the person could have been found guilty, at the person’s trial for
offence A, of offence B; and
(b) the trial judge or the jury, as required, must have been satisfied of facts that prove the person guilty of offence B.
(3) …
(4) If the first appeal court is satisfied that facts admitted by the convicted person in relation to the charge for offence A support a conviction for a different offence (offence B), the first appeal court may, if the convicted person agrees, direct that a judgment of conviction for offence B be entered.
(5) On making a direction under subsection (2) or (4), the first appeal court may –
(a) impose a sentence for offence B (whether more or less severe)
that is allowed by law; or
(b) remit the proceeding to the court that imposed the sentence for offence A and direct that court to take the action described in paragraph (a).
[37] Section 72 of the Crimes Act provides the following:
72 Attempts
(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
[38] I am satisfied that at the hearing of these charges the District Court Judge must have been satisfied that in each incident:
(a) The complainants were in the fitting room for the purpose of trying on clothes.
(b) In doing that they would have been dressing or undressing in circumstances where it was likely there would have been a time when they were either naked or had their genitals, pubic area, buttocks or female breasts exposed or partially exposed or clad solely in undergarments.
(c) At the time they were in the fitting rooms they neither knew of or consented to the appellant photographing them with his cellphone.
(d)When in the fitting rooms each of the complainants would reasonably have expected the changing room to provide privacy for them.
(e) On each occasion the appellant put his cellphone under the door to the changing room he used it to obtain a visual image of the girls who were inside when he expected they could be involved in dressing or undressing in a way that would have exposed parts of their body as referred to in 216G(1)(a)(i).
[39] Given the trial Judge would have been satisfied of those facts I am satisfied that on all the evidence the Judge would have been satisfied of facts that would have proved the appellant on each occasion was guilty of attempting to obtain an intimate visual recording of the complainant.
[40] Before me, Mr Peters for the appellant acknowledged the evidence was sufficient to prove the appellant was, on each occasion, attempting to make an intimate visual recording in terms of s 216H of the Crimes Act.
[41] Accordingly, in terms of s 234(2) Criminal Procedure Act 2011 this Court directs:
(a) In respect of the charge in CRN 14009001897 there be judgment that the appellant be convicted on a charge that on the 30th day of December
2013 at Christchurch he did attempt to intentionally make an intimate visual recording of another person (s 72 and s 216H Crimes Act 1961).
(b)In respect of the charge in CRN 14009001896 there be judgment that the appellant be convicted on a charge that on the 15th day of February
2014 at Christchurch, he did attempt to intentionally make an intimate visual recording of another person (s 72 and s 216H Crimes Act 1961).
[42] With a conviction to be entered on each substituted charge this Court can impose a sentence for the new offences (whether more or less severe) that is allowed by law or it can remit the proceedings to the Court that imposed the sentence for the initial offences.
[43] On each of the original charges the appellant was liable to a maximum penalty of three years imprisonment. Everyone who attempts to commit any offence in respect of which no punishment for the attempt is expressly prescribed by the Crimes Act or by some other enactment, is liable to “not more than half the maximum punishment to which he or she would have been liable if he or she had committed that offence”.4
[44] On each of the original charges the appellant was sentenced to community detention for four months with a curfew to start on 4 November 2014, during the curfew the appellant to be at 136A Aylesford Street, Christchurch with the curfew to
be from 7.00 pm to 6.00 am each day of the week except for Thursday when the
4 Crimes Act 1961, s 311(1).
curfew was to begin at 10.00 pm. He was also sentenced to 100 hours community work.
[45] Given the sentencing Judge had no evidence as to whether the appellant had retained whatever images he had recorded on his cellphone or any evidence as to how he might subsequently have used them, I proceed on the basis that he was sentenced having due regard to what he had done in using his cellphone to grossly breach the complainants’ privacy in photographing them when they were each in the fitting room trying on clothes. The gravity of what he did on each occasion and the effect it would have had on his complainants is no different with his being convicted now for attempting to make an intimate visual recording rather than actually making such a recording. In my view the sentences that were imposed in respect of the original offences remain appropriate for the substituted offences of attempting to make such a recording.
[46] Mr Peters, for the appellant, agreed that if convictions were to be substituted on attempted charges it would be appropriate for this Court to impose the same sentences now without referring the matter back to the District Court and without obtaining any further pre-sentence reports.
[47] On each of the substituted charges I accordingly impose the same sentence as was imposed on the original charges before the District Court, but direct there is to be deducted from the period of four months community detention and the 100 hours community work, any period of community detention or community work the appellant has already performed or been subjected to through the original sentences.
[48] The appeal against conviction is accordingly allowed, but with the appellant being convicted of substituted offences as set out above. On those substituted charges he is sentenced as set out above.
[49] The appellant is to report to a Probation Officer in the Probation Area in which he resides as soon as practicable (that is as soon as he can) and not later than
Tuesday, 17 March 2015.
Nation J
Solicitors:
Thompson & Morgan, Christchurch
Raymond Donnelly & Co., Christchurch
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