ELIAS CJ, GLAZEBROOK, O’REGAN AND ELLEN FRANCE JJ (Given by Ellen France J)
Table of Contents
Para No.
Introduction
[1]
Background
[3]
The factual narrative
[4]
The trial process
[8]
The statutory scheme
[13]
The judgment of the Court of Appeal
[23]
The submissions on appeal
[26]
Discussion
[31]
Textual considerations
[32]
Was the Court of Appeal correct to apply Annas?
[36]
The overseas authorities
[47]
England and Wales
[48]
Canada
[55]
Australia
[57]
Conclusion
[62]
Intention to insult
[66]
Effect of the police website
[67]
Result
[69]
Introduction
Following a trial by jury in the Nelson District Court, Mr Rowe was found guilty of a charge of doing an indecent act with intent to insult contrary to s 126 of the Crimes Act 1961. The charge arose out of an incident at Kaiteriteri beach near Nelson. On the morning of 23 January 2016, Mr Rowe was discovered by an off‑duty police officer taking photographs with a zoom lens. The subjects of the photographs were three bikini-clad teenage girls some distance away from Mr Rowe on the beach. They were unaware Mr Rowe was taking photographs of them.
Mr Rowe appealed unsuccessfully against his conviction to the Court of Appeal.[1] His further appeal to this Court[2] raises the question as to whether the evidence was sufficient to support the conclusion that Mr Rowe’s conduct comprised an indecent act with intent to insult. I address this question after setting out the background, the statutory scheme and the approach of the Court of Appeal.
On the morning of 23 January 2016, Sergeant Daniel Isherwood was visiting Kaiteriteri beach whilst on holiday. At about 9.40 am, whilst walking along the beach, Sergeant Isherwood saw a man bending down or crouching by a campervan. The man was holding a camera with the zoom lens extended pointing towards three girls whom the officer estimated were aged about 12–15 years. Sergeant Isherwood said he did not think the girls were aware of the man, identified as Mr Rowe who, at that point, was about 30 metres away.
Sergeant Isherwood returned to his car in…
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
AGLC
Rowe v R [2018] NZSC 55
Case
[2018] NZSC 55
Decision Date
CaseChat Overview and Summary
The case of Rowe v R involved an appeal against the conviction of Graham Thomas Rowe for doing an indecent act with intent to insult or offend, contrary to s 126 of the Crimes Act 1961. Mr Rowe was found guilty of taking photographs of three teenage girls on a beach in Kaiteriteri, Nelson, without their knowledge or consent. The Court of Appeal upheld the conviction, but Mr Rowe appealed to the Supreme Court. The central issue before the Supreme Court was whether the evidence was sufficient to support the conclusion that Mr Rowe's conduct constituted an indecent act with intent to insult. The Supreme Court held that the appeal should be allowed and the conviction quashed. The Court found that there was not sufficient evidence to establish that Mr Rowe's conduct comprised an indecent act under s 126, as the act itself was not indecent and there was no exhibitionist behaviour involved. The Court also noted that it was not necessary to deal with the second element of the offence, as the conclusion on the first element was determinative. The Supreme Court ultimately decided that it was not appropriate to direct a retrial given their conclusion that there was insufficient evidence to establish the offence.