Seymour v The Queen - [2021] NZHC 2322

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

NOTE: PUBLICATION OF NAME, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF 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 HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI 2021-416-2

[2021] NZHC 2322

BETWEEN
JOHN NORRIE SEYMOUR

Appellant

AND

THE QUEEN

Respondent

Hearing: 1 June 2021 (further submissions received on 18 August 2021)

Counsel:

T Epati for Mr Seymour M J Lillico for Crown

Judgment:

6 September 2021

JUDGMENT OF MALLON J

Table of contents

Introduction

[1]

The charges [3]

The background [3]

The charges [5]

The elements [7]

The District Court [10]

The evidence [10]

Section 147 application [16]

District Court judgment [21]

SEYMOUR v R [2021] NZHC 2322 [6 September 2021]

The law [26]

Assessment [73]

First ground of appeal [73]

Second ground of appeal [83]

Result [85]

Introduction

[1] John Seymour faced two charges of doing an indecent act in relation to a child.1 One charge was for rubbing the child’s stomach area. The other was for taking photographs of her. At the conclusion of a judge-alone trial in the District Court, Judge Cathcart found Mr Seymour not guilty on the first charge (rubbing her stomach) and guilty on the second (taking photographs).2 He was sentenced to six months’ supervision.3

[2] Mr Seymour appeals his conviction on the second charge. His appeal raises the issue of when taking a photograph can be an indecent act for the purposes of s 132 of the Crimes Act 1961. He contends the Judge was wrong to take into account the surrounding circumstances, including the Judge’s view that he was sexually motivated, to determine whether the act of taking photographs was indecent. He also says that the Judge’s finding that he had a sexual motive for taking the photographs was unreasonable.

The charges

The background

[3] Mr Seymour was aged 66 years at the relevant time. He was living alone in a caravan at a camping ground. The complainant (K) was aged ten years. Mr Seymour was a regular visitor to K’s family home. Mr Seymour gave both K and her brother
(B) lollies and money when he was with them. Sometimes K and B stayed overnight with him in his caravan.

1      Crimes Act 1961, s 132(3) (maximum penalty 14 years’ imprisonment).
2      R v Seymour [2020] NZDC 21006.
3      R v Seymour [2021] NZDC 5963.

[4] The events giving rise to the charge took place in the early hours of 18 July 2019 when K and B were staying overnight in the caravan. While they were sleeping, Mr Seymour allegedly lifted up K’s shirt and rubbed her bare stomach with his hand and then took two photographs on his cell phone. The first photograph (taken at
3.14 am) showed K’s torso (from under her…

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 Seymour v The Queen

Details

AGLC: Seymour v The Queen [2021] NZHC 2322
Case: [2021] NZHC 2322
Decision Date: 6 September 2021

CaseChat Overview and Summary

John Seymour was convicted by a judge alone in the District Court of taking photographs of a child, which amounted to an indecent act on a child. He appeals this conviction. The appeal raises the issue of when taking a photograph can be an indecent act for the purposes of s 132 of the Crimes Act 1961. Seymour contends that the Judge was wrong to take into account the surrounding circumstances, including the Judge’s view that he was sexually motivated, to determine whether the act of taking photographs was indecent. He also says that the Judge’s finding that he had a sexual motive for taking the photographs was unreasonable. The High Court finds that the photographs were capable of being indecent acts depending on the (external) circumstances and that the taking of photographs would be regarded as an indecent act by right-thinking members of the community. It was not necessary to decide whether Seymour had an indecent purpose. The "with" element was satisfied because K was under Seymour's control because she was asleep, in his care and in his caravan. The charge might more accurately have been particularised as "by taking photographs of K having first posed K by lifting her top". The appeal is dismissed.

Orders