Police v Thomas
[2016] NZHC 2174
•16 September 2016
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 RespondentJudgment:
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. Under cross- examination he accepted he did not have specific permission to install the Jenaus Cam program but told the Court he had a blanket permission to install software. He also acknowledged advising the complainant to keep the laptop open because opening and shutting the laptop can cause wear or damage to the hinges.
[7] Mr Thomas denied having an expectation of the complainant being in a state of undress when using the laptop, and that it came as a surprise to him to find the camera had been recording so much activity when he visited her in January. His explanation for cutting and pasting the recordings to his laptop without advising the complainant was that she “may not have wanted them deleted”.
District Court decision
[8] Judge Saunders found that a visual recording had been made without the knowledge or consent of the subject. His Honour was also satisfied the visual recording was intimate in nature and that it was made in a place where there was a reasonable expectation of privacy. He was not satisfied, however, that Mr Thomas possessed the requisite mens rea to find the offence proved. The relevant passages from his judgment are as follows:3
[34] For the police to prove the charge of intentionally or recklessly making an intimate visual recording of another person I would need to be satisfied beyond reasonable doubt that the defendant, between the dates alleged, knowingly set about recording the activities of another person, in this case [the complainant].
…
[50] The issue is not whether he had viewed them but whether he had either intentionally or recklessly caused the making of an intimate visual recording.
[51] In reaching a conclusion about that issue of mens rea, or guilty knowledge, I take into account that Mr Thomas did not specifically know when and where [the complainant] would operate her laptop computer.
[52] There is evidence that she was living in a flatting situation and that when the software and movies were installed it was in a common lounge or dining area of the flat. The defendant was not sufficiently aware of [the complainant’s] habits in relation to the use of the computer where I could hold that he was fixed with knowledge that [s]he would use it in her bedroom and scenes of an intimate nature would be captured.
[53] While I am satisfied about the unauthorised installation of the Jenaus program on 20 December 2014, it has not been established to the criminal standard of proof that the defendant did so with the intention of causing intimate visual recordings to be made.
Jurisdiction
[9] No issue is taken with the prosecution’s right to seek leave to appeal on a question of law against a ruling by the trial Court.4 The Court of Appeal has recently considered what may constitute a question of law in the context of s 296(2) of the Criminal Procedure Act 2011. Kos J in Brown v R observed:5
[16] “Questions of law” in the context of s 296(2) must raise one or more of the three standard errors classified by modern authorities as creating a question of law:
(a) A misdirection of law apparent in the decision (what Fisher J called
“a conventional legal question on unchallenged facts”);6
(b) Oversight of a relevant matter, or consideration of an irrelevant matter;7 or
(c) A factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence. 8
The first question
[10] The first issue identified as a question of law by the appellant is whether the Judge was correct to hold that, in order to find Mr Thomas recklessly made an intimate visual recording, he had to be satisfied that Mr Thomas knew the complainant would use her laptop in her bedroom and that scenes of an intimate nature would be captured. The question puts in issue the approach taken by Judge Saunders to the issue of mens rea. However, it mixes an issue of fact the Judge may have thought important to his assessment of Mr Thomas’s state of mind with the legal question of what the prosecution is required to prove to establish the requisite mens rea and whether the District Court had misdirected itself as to that element of the charge. The latter is a question of law, whereas the former is a consideration
which may inform a conclusion about the defendant’s state of mind.
4 Criminal Procedure Act 2011, s 296(2).
5 Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471.
6 Auckland City Council v Wotherspoon [1990] 1 NZLR 76 (HC) at 86.
7 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25]; Vodafone New
Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [51].
8 Bryson v Three Foot Six Ltd, above n 7, at [26]; Vodafone New Zealand Ltd v Telecom New
Zealand Ltd, above n 7, at [52].
[11] In my view, the question is better stated as whether the District Court Judge misdirected himself by requiring the prosecution to prove that Mr Thomas knew where the laptop would be used and that scenes of an intimate nature would be captured in order to establish the mens rea element of the offence.9
The offence
[12] Section 216H of the Crimes Act 1961 provides:
216H Prohibition on making intimate visual recording
Everyone is liable to imprisonment for a term not exceeding 3 years who intentionally or recklessly makes an intimate visual recording of another person.
[13] Section 216G defines “intimate visual recording”:
216G Intimate visual recording defined
(1) In sections 216H to 216N, intimate visual recording means a visual recording (for example, a photograph, videotape, or digital image) that is made in any medium using any device 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, and 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
(ii) engaged in an intimate sexual activity; or
(iii) engaged in showering, toileting, or other personal bodily activity that involves dressing or undressing; or
(b) 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.
(2) In section 216H, intimate visual recording includes an intimate visual recording 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.
[14] In the circumstances relevant to the present case, a person commits the offence of making an intimate visual recording if that person:
(a) makes a visual recording using a device; and
(b)the visual recording is of a person in a place which, in the circumstances, would reasonably be expected to provide privacy; and
(c) the recording is of a person who is naked, or partially exposed or clad solely in undergarments; and
(d) the person makes the visual recording intentionally or recklessly; and
(e) without the subject’s knowledge or consent.
[15] It is indisputable on the evidence that Mr Thomas made a visual recording of the complainant using a device in a place that would reasonably be expected to provide privacy, namely, if not in her own home, at least, her own bedroom; and that she was naked, or partially exposed or clad solely in undergarments in the recording. Judge Saunders found that the complainant did not have knowledge of the recording, nor did she give consent to the making of the recording.
[16] Recklessness will, unless the statutory context requires otherwise, involve actual foresight by a defendant of a possibility that the prohibited event or consequence may result from his or her actions, together with an intention to
continue the course of conduct regardless of the risk.10 A person is reckless if
10 R v Harney [1987] 2 NZLR 576 (CA) at 579; R v Tipple CA217/05, 22 December 2005 at [27]- [35].
knowing there is a risk that an event may result from his or her conduct, or that the circumstances may exist, the person nevertheless proceeds in that conduct.
[17] It follows that a person will recklessly make an intimate visual recording of another person if they have foresight that the visual recording may capture a person who is naked, partially exposed or clad solely in undergarments (insofar as it is relevant to the present circumstances) in a place which would reasonably be expected to provide privacy, and that notwithstanding that known possibility, the person made the visual recording.
[18] What is important in the circumstances of the present case is that the element of recklessness does not require knowledge that a person would be recorded in such a place in a state of undress; only that there was a risk of recording someone in the described intimate circumstances.
The District Court’s error
[19] While the learned District Court Judge identified the issue as being not whether Mr Thomas had viewed the recording but whether he had, either intentionally or recklessly, caused the making of an intimate visual recording, he misdirected himself as to the issue of mens rea.
[20] In addressing that issue, Judge Saunders stated that he took into account that Mr Thomas did not specifically know when and where the complainant would operate her laptop computer. Importantly, he held that he could not conclude that Mr Thomas knew the complainant would use the computer in her bedroom and that scenes of an intimate nature would be captured. On this basis Judge Saunders found the charge had not been proven. In approaching the issue in this way, the Judge erred in identifying what the prosecution was required to prove. The prosecution did not have to prove that Mr Thomas knew the complainant would use the computer in her bedroom, nor that scenes of an intimate nature would be captured. All the prosecution was required to establish was that Mr Thomas had an appreciation of such a risk.
[21] Leaving to one side the Judge’s focus on the complainant’s bedroom as apparently being the only part of the house where objectively there could be a reasonable expectation of privacy, the established error of law is the District Court’s requirement that Mr Thomas know that the complainant would use her laptop in the bedroom and that scenes of an intimate nature would be captured when all that was required to be established as a matter of reasonable inference was that Mr Thomas was aware of a risk of that occurring. I am fortified in that view by the District Court Judge’s conclusion that it had not been established to the criminal standard of proof that the unauthorised installation of the program was done by Mr Thomas with the intention of causing intimate visual recordings to be made.
[22] Accordingly, I answer the first question of law as I have restated it “yes”, the
District Court Judge did misdirect himself.
[23] It is not necessary for me to address the appellant’s submissions regarding the District Court’s focus on the prosecution’s need to “fix” Mr Thomas with knowledge that the complainant would use her laptop in her bedroom. It appears Judge Saunders considered that objectively this was the only place “in the circumstances”, where there would be a reasonable expectation of privacy on the part of the complainant. This finding may have related to the other element required to prove an intimate visual recording, namely knowledge of the risk the recording may capture a person naked, or partially exposed or clad solely in undergarments. It may be this factual finding was made by Judge Saunders because of the flatting context of the occupancy of the house.
[24] The circumstances of each particular case will no doubt influence whether there is a reasonable expectation of privacy in a particular place. However, in terms of the assessment of privacy within a dwelling house, it seems unlikely that a person’s reasonable expectation of privacy is limited to a bedroom. The explanatory note to the Crimes (Intimate Covert Filming) Amendment Bill is instructive:11
Intimate covert filming is the making of a surreptitious visual record of another person in intimate circumstances without the person’s consent or knowledge and in circumstances that the person would reasonably expect to
be private. It robs individuals of the freedom to choose how they present themselves to others. Because they do not know they are being filmed they cannot adjust their behaviour to minimise the intrusion and control how they are viewed.
[25] The expectations of privacy rights within a residential property have long been recognised, and in particular, that residential properties will have the highest expectations of privacy attaching to them, even allowing for some gradation within a residential property itself.12 I doubt the issue of whether a place is one where there is a reasonable expectation of privacy can be answered solely by reference to a particular area of the interior of a house, and particularly so when the range of
activities or circumstances protected by the offence is taken into account, including where a person is solely clad in undergarments.
The second question
[26] In order for the second question to constitute a question of law, I would need to be satisfied the District Court Judge on his finding of facts could only have found the offence proved and that no other conclusion was available. In support of that contention it was submitted the irresistible inference was that Mr Thomas either intended to make or was reckless as to the making of an intimate visual recording of the complainant.
[27] It was submitted the Judge found that Mr Thomas lacked candour about the reason for his installation of the software and that he had not been upfront and honest with the complainant over the purpose for which he installed the Jenaus Cam program on her computer. Judge Saunders observed that Mr Thomas’s actions raised real suspicions “about what he was up to”, and he lacked bona fides. It was submitted from this assessment of Mr Thomas and factual findings made by the Judge that the only reasonable conclusion was that Mr Thomas intended or at least was reckless as to the making of intimate recordings of the complainant, and that he must have appreciated the obvious inherent risk that a portable device with a motion activated camera might capture scenes of an intimate nature.
[28] Mr Thomas surreptitiously installed the visual recording program on the complainant’s laptop, knowing the program which would make the visual recording would be triggered by motion. He must also have been aware the program had been installed on a portable device designed to be carried to various locations. I accept it is difficult to envisage how anyone would not be alive to the reasonable possibility, if not likelihood, that a young person would use his or her laptop computer in their room, more so in a flatting situation. Even if the complainant did not use it in her bedroom, Mr Thomas had instructed her to leave the laptop open and there was an obvious risk it would be left in that position in her bedroom.
[29] While I accept there is a strong inference available that Mr Thomas must have foreseen the risk of the complainant having her laptop open when scenes of an intimate nature could be captured, I would need to be satisfied this was the only conclusion the trier of fact could have reached on the factual findings of the District Court Judge.
[30] Mr Thomas’s evidence, as apparently accepted by Judge Saunders, was that he did not specifically know when and where the complainant would operate her laptop computer. Judge Saunders concluded that Mr Thomas was not sufficiently aware of the complainant’s habits in relation to the use of the computer, and specifically that she would use it in her bedroom. While I have found that Judge Saunders misdirected himself on the legal test of mens rea, the Judge, rightly or wrongly, was entitled, to make these factual findings, and to take those matters into account in his assessment of proof of the charge.
[31] On an appeal limited to questions of law I must proceed on the basis of the Judge’s findings of fact. Arguably, there was no basis for the conclusions the Judge reached as to Mr Thomas’s knowledge but that is not how the question has been drafted. To the contrary, it is framed on the basis of the facts as the Judge found them. How those facts may translate when applying the correct test of whether Mr Thomas appreciated the risk of making an intimate visual recording by placing the program on the complainant’s laptop is not for me. The short point is that based on the Judge’s findings of fact, I could not conclude the District Court’s finding that Mr Thomas was not guilty of the charge constituted an error of law.
[32] In the absence of being able to conclude that no other finding other than guilt available no error of law arises. As a result, the second question as framed does not give rise to a question of law. I decline therefore to answer the second question.
Disposition
[33] Where an appeal Court finds a ruling to have been erroneous and in the case of a person’s acquittal to have also resulted in a miscarriage of justice, it must determine the appeal by either directing a new trial, remitting the matter to the trial Court in accordance with the opinion of this Court, or make any order the Court
considers justice requires.13
[34] Guidance on the meaning of a “miscarriage of justice” may be taken from the definition of the same phrase in s 232(4) of the Criminal Procedure Act, in respect of an appeal against conviction. Under that definition a miscarriage of justice includes an error, irregularity or occurrence in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected.14
[35] In R v Gwaze the Supreme Court considered where, as a result of an error of law, a new trial should be ordered.15 The Court observed, in relation to the procedure provided by the Crimes Act 1961, that it would be rare for an appeal Court which finds an error of law to have caused a miscarriage of justice to refuse to order a retrial. In particular, it ought not decline to grant a new trial on the grounds a conviction was unlikely, as that would pre-empt the decision of the fact-finder at trial. Factors which the Supreme Court considered could be taken into account in deciding whether to order a new trial, notwithstanding a finding of a miscarriage of
justice, included delay and whether a retrial would be a disproportionate remedy having regard to the seriousness of the charge.
[36] I am satisfied the error of law was one that was reasonably capable of affecting the outcome of the trial and therefore gave rise to a miscarriage of justice.
13 Criminal Procedure Act 2011, s 300(1).
14 Section 232(4)(a).
15 R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734.
The error was highly material to the acquittal of Mr Thomas and therefore the integrity of that result was undermined.16
[37] The s 216H charge is relatively serious, carrying a maximum sentence of three years imprisonment. While acquitted of this charge the subject of the appeal, Mr Thomas was convicted of a charge of modifying a computer system without authority and was sentenced to 120 hours community work. That offence carries a maximum sentence of seven years. However, as was noted by Judge Saunders, the offence of intentionally or recklessly making an intimate recording is likely to be
considered the more serious charge notwithstanding the lesser maximum penalty.17
On balance, I consider the prosecution should be afforded the opportunity to exercise its prosecutorial discretion to pursue a new trial if it considers that appropriate. I do not consider such a course to be disproportionate or the delay in bringing finality to the matter to be unnecessarily undue.
[38] Accordingly, in respect of the first question, leave is granted. The appeal is allowed. The acquittal is quashed and I direct a new trial in respect of the charge laid pursuant to s 216H of the Crimes Act 1961, namely that of intentionally or recklessly making an intimate visual recording of another person.
[39] In respect of the second question, leave is declined.
Solicitors:
Raymond Donnelly & Co, Christchurch
David Goldwater Barrister, Christchurch
16 R v Gwaze, n 15, at [57] and [61].
17 Police v Thomas [2016] NZDC 11515 at [3].
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