Seymour v Police - [2022] NZSC 38

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT AND ANY PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 159/2021
[2022] NZSC 38

BETWEEN	JOHN NORRIE SEYMOUR Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	William Young, Glazebrook and Ellen France JJ
Counsel:	T Epati for Applicant M J Lillico for Respondent
Judgment:	4 April 2022

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

After a judge-alone trial, the applicant was found guilty of doing an indecent act on a child contrary to s 132(3) of the Crimes Act 1961.[1] The offending involved the applicant, then 66 years of age, taking two photographs of a 10-year-old girl, K, while she was asleep in his care. The applicant’s appeal against conviction to the High Court was unsuccessful.[2] The Court of Appeal granted leave to appeal but dismissed the appeal.[3]
[1]R v Seymour [2020] NZDC 21006 (Judge Cathcart).
[2]Seymour v R [2021] NZHC 2322 (Mallon J) [HC judgment].
[3]Seymour v New Zealand Police [2021] NZCA 637 (Collins, Duffy and Dunningham JJ) [CA judgment].
The applicant now seeks leave to appeal to this Court on two grounds. The first ground is that the Court of Appeal erred when it found that, under s 132, the act of taking a photograph is capable of being an indecent act. The second ground is that the Court of Appeal was wrong to find that this Court’s decision in Rowe v R allowed for consideration of surrounding circumstances in determining whether an act, capable of being indecent, is in fact indecent.[4]

Background

[4]Rowe v R [2018] NZSC 55, [2018] 1 NZLR 875.

K and her sibling, B, were staying with the applicant overnight in mid‑July 2019. A little after 3am B, who was pretending to be asleep, saw the applicant adjusting K’s t-shirt, folding it to just below her nipple line. The applicant took two photographs. The first of these was from the top of her jeans up to her chin, including her exposed abdomen. The other photograph was a close up of K’s clothed crotch area, starting from the lower part of her abdomen.
The police became involved after B told his father what he had seen. A search was conducted on the applicant’s property and he told the arresting officer he had not wanted the two children to stay with him because he “just knew something would go wrong”. He added to this saying “I’d start abusing them … I never abused … the boy, but I did the girl. I only touched her puku.” He said that he and K “would joke about her puku being like Māori bread”.

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: [2022] NZSC 38
Decision Date: 4 April 2022

CaseChat Overview and Summary

In this case, the applicant, John Norrie Seymour, sought leave to appeal against the decision of the Court of Appeal that dismissed his appeal against conviction for taking indecent photographs of a child. The Court of Appeal had affirmed the decision of the High Court that the applicant's actions were an indecent act on a child contrary to s 132(3) of the Crimes Act 1961. The applicant raised two grounds for appeal, firstly, that the Court of Appeal erred in finding that taking photographs could constitute an indecent act, and secondly, that the Court of Appeal misinterpreted the Supreme Court's decision in Rowe v R, by considering surrounding circumstances in determining whether an act was indecent. The Supreme Court was asked to determine whether the applicant's appeal should be allowed to proceed.

The legal issues in this case were whether the act of taking a photograph could constitute an indecent act under s 132 of the Crimes Act, and whether the Court of Appeal correctly interpreted the decision in Rowe v R. The Court of Appeal had concluded that taking photographs could be an indecent act, depending on the subject matter of the photographs and the surrounding circumstances. The Court of Appeal also found that the reasoning in Rowe did not assist the applicant because if an act was capable of being indecent, surrounding circumstances could reinforce that conclusion. The applicant argued that clarification was necessary as to what would constitute an "act" for the purposes of s 132 to avoid the risk of over-criminalisation, and that the statutory scheme suggested that liability for taking such photographs was not addressed under s 132.

The Supreme Court found that the proposed appeal did not have sufficient prospects of success and did not give rise to the appearance of a miscarriage of justice. The Court was of the view that the arguments made about the effect of earlier decisions in Rowe, LM v R, and Y v R, had already been considered by the Court of Appeal. The Court did not consider this case to be an appropriate vehicle to consider broader questions of general or public importance that may arise for consideration at some point about the inter-relationship between the various provisions which criminalise aspects of visual recording by photographs or other medium. The application for leave to appeal was dismissed.

The final order of the Supreme Court was that the application for leave to appeal was dismissed. The applicant's appeal against conviction for taking indecent photographs of a child was therefore not allowed to proceed. The Court of Appeal's decision that the taking of photographs could constitute an indecent act under s 132 of the Crimes Act, and that surrounding circumstances could reinforce that conclusion, was upheld.

Orders