Seymour v Police
[2022] NZSC 38
•4 April 2022
| 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 |
| AND | NEW ZEALAND POLICE |
| Court: | William Young, Glazebrook and Ellen France JJ |
Counsel: | T Epati for Applicant |
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”.
The District Court Judge took the view the photographs were objectively indecent based on the circumstances, and would be considered as such by community standards. Relevant factors were the staging of K, the subject matter of the photographs and the control the applicant had over K. The Judge did not consider the decision in Rowe was governing because it dealt with ss 125 and 126 of the Crimes Act.
In the High Court, Mallon J concluded Rowe was applicable but the decision did not preclude consideration of surrounding circumstances where the act, depending on the context, was capable of being indecent. Relying on the circumstances of the applicant, being an older man, taking the photographs, while K was asleep, and lifting K’s shirt, the Judge concluded the taking of the photographs “would be regarded as an indecent act by right-thinking members of the community”.[5]
[5]HC judgment, above n 2, at [78].
The Court of Appeal agreed with the High Court that the reasoning in Rowe was applicable, but did not consider it assisted the applicant for the following reasons. First, while the focus was on the act itself, the act of taking a photograph was capable of being indecent. Whether it was would “mainly hinge on the subject matter of the photograph”.[6] Second, the Court interpreted Rowe as authority for the proposition that “if an act is incapable of being indecent, it cannot be made indecent solely by the surrounding circumstances”.[7] If the act is capable of being indecent, “the surrounding circumstances could reinforce that conclusion”.[8]
[6]CA judgment, above n 3, at [52].
[7]At [53].
[8]At [53].
The Court found that, contrary to the position in Rowe, the taking of the photographs here was capable of being an indecent act given the focus on K’s crotch and exposed stomach, and where the photographs “involved the sexualisation of K and would be considered both disturbing and indecent by most members of society”.[9] The Court then identified the surrounding circumstances which reinforced that conclusion, including the staging of the photographs, the time at which they were taken, and K’s age.
The proposed appeal
[9]At [55].
In support of the first proposed ground of appeal, the applicant says that clarification is necessary as to what will constitute an “act” for the purposes of s 132 so as to avoid the risk of over‑criminalisation. It is also submitted that the statutory scheme suggests liability for the taking of such photographs is not addressed under s 132. Under the proposed second ground, it is submitted that the Court of Appeal was wrong in its interpretation of Rowe.
In supporting the judgment of the Court of Appeal, the respondent submits that LM v R[10] and Y v R[11] rebut any suggestion that the taking of photographs of a child cannot amount to an indecent act on a child under s 132. Whether the act is indecent will depend on factors such as the subject matter of the photographs and any associated posing. In determining that question, the Court of Appeal was correct to conclude that the reasoning in Rowe did not assist the applicant.
[10]LM v R [2014] NZSC 110, [2015] 1 NZLR 23.
[11]Y v R [2014] NZSC 34, [2014] 1 NZLR 724.
As is apparent from the discussion above, the proposed appeal would reprise the arguments made about the effect of this Court’s earlier decisions in Rowe, LM v R, and Y v R, in the Court of Appeal. We see those arguments as having insufficient prospects of success. This case is accordingly not 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.[12] It follows that we do not see any matters raised by the applicant as giving rise to the appearance of a miscarriage of justice.[13]
Result
[12]Senior Courts Act 2016, s 74(2)(a).
[13]Section 74(2)(b).
The application for leave to appeal is dismissed.
Solicitors:
Rishworth Wall & Mathieson, Gisborne for Applicant
Crown Law Office, Wellington for Respondent
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