Police v Thomas - [2016] NZHC 2174

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-69 [2016] NZHC 2174

BETWEEN
NEW ZEALAND POLICE

Appellant

AND

ROY THOMAS Respondent

Hearing: 13 September 2016

Appearances:

B Hawes and P A Norman for Applicant
D Goldwater for Respondent

Judgment:

16 September 2016

JUDGMENT OF MANDER J

[1] The respondent, Mr Roy Thomas, was charged with an offence of making an intimate visual recording.1 Judge Saunders dismissed the charge.2 The Crown seeks leave to appeal the Judge’s decision on two questions of law:

(a) Was the Judge correct to hold that, in order to find the defendant had recklessly made an intimate visual recording, he had to be satisfied the defendant was fixed with knowledge the complainant would use her laptop in her bedroom and scenes of an intimate nature would be captured?

(b)Was the Judge correct to find that, on the facts as he found them to be and given the definition of “intimate visual recording” in s 216G of the Crimes Act 1961, the defendant was not guilty of making an
intimate visual recording under s 216H of that Act?

1 Crimes Act 1961, s 216H.
2 Police v Thomas DC Christchurch CRN-15009006122, 20 June 2016.

NEW ZEALAND POLICE v THOMAS [2016] NZHC 2174 [16 September 2016]

Background

[2] In 2014 the female complainant requested Mr Thomas to install some software on her laptop computer. Unbeknown to The complainant, when Mr Thomas installed the requested software he also installed a program called Jenaus Cam. This program provides a real time monitoring system which can link to a phone application. It also creates a video recording of whatever is captured when it is activated. The program is motion activated.

[3] The complainant did not become aware of the installation of the program until after Mr Thomas visited her in January 2015 to install some movies on her laptop. At that time, he downloaded a number of video files that had been captured by the program onto a hard drive he had brought with him. Subsequently, the complainant became aware that images were stored on her laptop which recorded her in her bedroom in a state of undress.

[4] Mr Thomas was confronted by the complainant and her two male flatmates. He agreed to allow his laptop computer to be inspected. Mr Thomas admitted installing the program on the complainant’s laptop and that he had copied some of the videos to his hard drive. He denied having viewed the videos.

[5] A complaint was made and the complainant’s computer sent for forensic analysis. Mr Thomas was interviewed by the police. He acknowledged he used his email and password to activate the Jenaus Cam program, and he accepted he had not told the complainant that he had control over the program on her computer.

[6] Mr Thomas gave evidence in the District Court. He maintained he installed the program with consent, and claimed the complainant could not have been listening or did not understand what he had told her about it.…

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 Police v Thomas

Details

AGLC: Police v Thomas [2016] NZHC 2174
Case: [2016] NZHC 2174
Decision Date: 16 September 2016

CaseChat Overview and Summary

The case of Police v Thomas concerned an appeal by the New Zealand Police against the acquittal of Roy Thomas on charges of making an intimate visual recording without the complainant's knowledge or consent. The District Court dismissed the charge, finding that the prosecution had not proven the requisite mens rea for the offence under the Crimes Act 1961. The Crown sought leave to appeal on two questions of law: whether the District Court correctly held that Thomas needed to know the complainant would use her laptop in her bedroom for the offence to be established, and whether, given the facts as found by the District Court, Thomas was not guilty of the offence. The High Court found the District Court erred in its interpretation of the mens rea requirement, determining that the prosecution only needed to prove Thomas appreciated the risk of making an intimate visual recording, not that he knew specific details of the complainant's use of the laptop. This error constituted a miscarriage of justice, warranting a new trial. The Court granted leave to appeal on the first question but declined it on the second, as the factual findings of the District Court allowed for multiple conclusions. The Court quashed the acquittal and ordered a new trial on the charge of making an intimate visual recording.

Orders