Seymour v The Queen
[2021] NZHC 2322
•6 September 2021
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 chin to the top of her jeans), with her abdomen exposed up to just under her nipple line. The second photograph (taken at
3.15 am) showed the lower part of K’s bare abdomen, and her groin area which was covered by her jeans. There was no dispute that Mr Seymour took these photographs.
The charges
[5] Mr Seymour originally faced one charge of doing an indecent act on a child (s 132(3) of the Crimes Act) and two charges of intentionally making an intimate visual recording of another person (s 216H of the Crimes Act). The first charge related to the alleged rubbing of K’s stomach. The second two charges related to the two photographs. However, these photographs did not fall within the definition of “intimate visual recording” for the purposes of s 216H.4
[6] As a result, the charges were amended in the Crown charge notice to two charges of doing an indecent act on a child (s 132(3)). The particulars for the first charge were “by rubbing her stomach area”. The particulars for the second charge were “by taking photographs of her”. It is the conviction on the second charge that is the subject of the appeal.
The elements
[7] Section 132(3) provides that “everyone who does an indecent act on a child is liable to imprisonment for a term not exceeding 10 years”. This is expanded by s 2(1B) which provides that:
4 Section 216G defines this as a visual recording (including a photograph) made without the knowledge or consent of the person who is the subject of the recording, where the recording is of one of two kinds: (a) the subject is naked, has his or her genitals, pubic area, buttocks, or female breasts partially exposed, or is clad solely in undergarments, or is engaged in intimate sexual activity; or is showering, toileting or is dressing or undressing; and is in a place which would reasonably be expected to provide privacy; or (b) the visual recording is made from beneath or under the subject’s clothing or through the subject’s outer clothing in circumstances where it is unreasonable to do so, and it is a visual recording of a person’s naked or undergarment-clad genitals, pubic area, buttocks, or female breasts.
For the purposes of the Act, one person does an indecent act on another whether he or she –
(a)does an indecent act with or on the other person; or
(b)induces or permits the other person to do an indecent act with or on him or her.
[8] The charges did not specify whether s 2(1B)(a) or (b) was relied on. However, the particulars of the second charge indicated that it was Mr Seymour’s actions in taking the photographs that were alleged to be the indecent act. This meant it was s 2(1B)(a) that applied.
[9] As it was not in dispute that Mr Seymour took the photographs of K (a child), to establish this charge the Crown was required to prove beyond reasonable doubt that:
(a)taking the photographs was an act that would be regarded as an indecent act by right-thinking members of the community;
(b)it was an indecent act “with or on” K; and
(c)Mr Seymour was aware of the aspects of his act in taking the photograph that right-thinking members of the community would consider made that act indecent.
The District Court
The evidence
[10] The charges came about following a discussion between B and his father on 22 July 2019. The father, who gave evidence about Mr Seymour’s association with their family, said that B told him that he had seen two pictures of K on Mr Seymour’s phone. The father said B told him that Mr Seymour had walked up to K, pulled the blanket down and “started like, rubbing or taking photographs of her stomach”.
[11] This led to evidential interviews with K and B on 25 July 2019 that were produced by consent at the trial (with neither K nor B being required for cross-examination):
(a)In his interview, B said he was pretending to be asleep in the caravan when Mr Seymour came up to K, who was lying down and asleep on the bed, lifted up her top and took a photo on his phone. After that, Mr Seymour went back to his room.
(b)In her interview, K confirmed that Mr Seymour was a family friend who was regularly at their house and would have dinner with the family. He would also take K, B and sometimes their cousin to a farm in the weekends. He would give them money to spend but he would give K more than he gave B. K and B had recently stayed overnight in Mr Seymour’s caravan on three or four occasions. He would ask K if she alone wanted to stay but K would get B to stay as well. K and B slept on the bed and Mr Seymour slept by himself on the couch.5
[12] The Police conducted a search of Mr Seymour’s caravan on 12 August 2019 in which they located the cell phone with the two photographs of K. At that time, after being informed of his rights under the New Zealand Bill of Rights Act 1990, Mr Seymour answered questions put to him by Detective Constable Oliver.
[13] Mr Seymour told the officer that K was always asking him if she could stay. He had not wanted them to stay in his caravan because he liked to be on his own and he “just knew something would go wrong”. He explained that by this he meant that “I’d start abusing them. I didn’t want to start abusing them. … I never abused … the boy, but I did the girl. I only touched her puku”. He told her “oh jeez you have a nice Māori bread”. K’s parents were there, and they saw this. He said “[w]e would joke about her puku being like Māori bread”. He said it was hard because K’s mother kept pushing K on him. He thought they might say he was doing something he should not have been doing but “I only touched her puku, that’s all”. He said he never should have gone to their place and he was better off on his own.
5 K was asked questions by the interviewer intended to elicit whether she was aware of anything having happened when she was asleep in the caravan. These questions drew no response from K to suggest she was aware of anything.
[14] Mr Seymour told the officer that when K and her brother stayed with him at the caravan they slept on the double bed and he slept on the single bed. He was asked if anything else had happened. He said no. He was asked if the touching of K’s stomach had been under or over her top. He said it was under and that K had lifted up her top. He said this had happened at the family’s place about a month ago and it also happened once at the caravan. He said K had lifted up her top and Mr Seymour would joke about his Māori bread. He said nothing else had happened, and he thinks the family think he touched other parts but “he never went there”.
[15] The officer asked Mr Seymour if he had anything on his phone that the Police needed to know about. Mr Seymour said “[n]o. Just got photos of the kids on there
… just kids being kids”. The officer then asked Mr Seymour about photos found on his phone in the following exchange:
Q. We have found a photo on your phone. Tell me about that?
A. I took the photo but [K] lifted up her top, that was only once.
Q. When was that taken?
A. I think it was in the caravan when [K’s brother] got upset. [K’s brother] said “oh, you don’t take a photo of my puku”.
Q. What about the photo of her crotch area?
A. I took it.
Q. Tell me about that.
A. I went to take the photo of her puku but I just took it. I tried to take it of the crotch and the puku at the same time but it wouldn’t-of fit.
Q. Why did you take that photo?
A. I don’t know, I just took it.
…
Q. Was [K] awake when you took those photos?
A. Yes.
Section 147 application
[16] Mr Seymour’s defence relied on the Supreme Court’s decision in Rowe v R, which held that whether an act was indecent depends on the quality of the act itself
and not the surrounding circumstances and that motive cannot make an act, which is objectively not indecent absent that motive, indecent for the purposes of ss 125 and 126 of the Crimes Act 1961.6
[17] Mr Seymour contended this meant that, whether his act in taking the photographs was an indecent act, was to be judged by the content of the photographs and without reference to his alleged motive in taking them. As the photographs were not objectively indecent, the act in taking them was not an indecent act. A s 147 application was made on this basis.
[18] The Judge raised whether the particulars should be amended to Mr Seymour’s act in lifting K’s top. Mr Seymour’s position was that he would be prejudiced by this because counsel had not cross-examined B to test his reliability about this. The Crown responded that the central criminality was taking the photographs. The Crown’s position was that lifting K’s top was relevant to whether taking the photographs was an indecent act. It did not need to be particularised because it was an accompanying act (involving an element of staging) that demonstrated the indecency behind taking the photograph.
[19] The Crown also submitted that if the Judge considered the charge required amendment then the defence was not prejudiced. Whether K’s top had been lifted was always a central issue in whether taking the photograph was indecent. Without that, the Crown said it could not prove indecency.
[20] The Judge ruled that “the taking of the photograph is, in the circumstances of this case, capable in law of amounting to an indecent act” under s 132(3). He dismissed the application with reasons to follow. Following this, Mr Seymour elected not to give evidence.
6 Rowe v R [2018] NZSC 55, [2018] 1 NZLR 875. Section 125 makes it an offence to do any “indecent act in any place to which the public have or are permitted to have access, or within view of any such place”. Section 126 makes it an offence to do “any indecent act in any place” with “intent to insult or offend”.
District Court judgment
[21] The Judge delivered a reserved decision on the charges. He found the first charge not proven. This was because B had not mentioned seeing Mr Seymour rub K’s stomach in his evidential interview and K’s father had only reported B as saying “rubbing or taking photographs of her stomach”. The Judge considered this account of what B had said was too unreliable to prove the first charge. The Judge also considered that Mr Seymour’s statements to Detective Constable Oliver about rubbing K’s puku were about a different occasion.
[22] On the second charge, the Judge gave his reasons for dismissing the s 147 application made at the end of the Crown case. The Judge considered that the majority in Rowe had confined their decision to ss 125 and 126 and he could be guided by the obiter views of William Young J. Adopting those views, the Judge considered that whether taking a photograph of a child may constitute an indecent act under s 132 of the Crimes Act was to be determined having regard to community standards in light of all the circumstances, including (a) subject matter; (b) any associated posing; and
(c) the purposes of the photographer.
[23] The Judge considered there were obvious inferences to be drawn from the photographs – K was asleep, her shirt had been lifted to expose her abdomen up to near her nipple line, she was wearing tight-fitting jeans and the primary focus was the young girl’s chest and groin area. This focus pointed to the photographer’s sexual interest in his subject.
[24] The Judge inferred that Mr Seymour’s intent in taking the photographs was sexual gratification. He referred to Mr Seymour’s statements to the officer and considered that the possibility Mr Seymour might abuse K if left in private had crossed his mind. He considered Mr Seymour had not been forthcoming in his exchange with the officer about the photographs and could not offer any explanation for why he had taken the photograph of her groin area. He regarded the images as staged, sexualised in nature, up close and unbeknown to the child.
[25]He concluded that the charge was proven for the following reasons:7
[73] Here, the photographs were objectively indecent in the circumstances and would be regarded as such by community standards. The subject matter of the photographs depicted a young girl’s crotch area and abdomen. They were clearly of a sexualised nature. Also, the photographs were taken when Mr Seymour had a degree of control over the sleeping girl at around 3.14 am in his caravan. And I inferred from the photographs themselves and [B’s] unchallenged evidence that Mr Seymour must have moved the young girl’s shirt up to expose her abdomen up to her nipple line before taking the relevant images. The surrounding circumstances and the images themselves point to no other conclusion. In other words, there has been some staging by Mr Seymour before he captured the images in the photographs. And the photographs were taken in a private place in close proximity to the young girl without her knowledge or permission. Also, consistent with my earlier finding, the photographs were taken by Mr Seymour for the purpose and intent of sexual gratification. The prurient purpose of the photographer was established here.
The law
[26] The background to the obiter comments of William Young J in Rowe, relied on by the Judge in Mr Seymour’s case, is the Court of Appeal’s decision in R v S decided 27 years earlier.8That case involved objectively indecent photographs taken by an older man of a young girl. The man had photographed the young girl after getting her to pose in her mother’s undergarments. One of those undergarments had a torn crotch that the man pinned for the photograph. The photograph of the girl in this garment showed a small part of her genital area. The other undergarment had no crotch and the man had her pose in a manner that exposed her genital area for the photograph.
[27]The offence at that time created separate categories of offences:
(a)indecent assault of a girl (s 134(2)(a));9
(b)“being a male, who does any indecent act with or upon any such girl” (s 134(2)(b)); and
7 The Judge had earlier said that Mr Seymour admitted he had taken the photographs when K was asleep in his caravan. It is unclear what the Judge relied on here as Mr Seymour said K was awake when he took them. However, K’s brother had given evidence that K was asleep and the time they were taken supported that.
8 R v S CA273/91, 20 December 1991.
9 Section 132(6)(b) now provides that “doing an indecent act on a child includes indecently assaulting the child”.
(c)“being a male, induces or permits any such girl to do any indecent act with or upon him” (s 134(2)(c)).
[28] The man was charged with the second of these (s 134(2)(b)). This meant the focus was on his actions with the girl, rather than what he had the young girl do with him (namely posing in a way that exposed her genitalia to him as would have been the focus under s 134(2)(c)). The trial judge had directed the jury to consider whether the taking of the photographs was an indecent act with the girl. He was convicted following a jury trial and appealed.
[29] One of the issues on appeal was whether taking an indecent photograph of the girl was an indecent act “with” her. The Court of Appeal was of the view that “with” required more than “in the presence of”. It doubted whether it was necessary that the act be one in which both the man and girl participated. It considered that “with” might appropriately be interpreted as meaning “against” or “directed towards” but it did not reach a final view about this.10
[30] The other issue concerned whether taking the photographs could constitute an indecent act. The Court said:11
In the case of an indecent assault, it has long been recognised that the adjective “indecent” need not apply to the act itself; it is sufficient if it applies to the circumstances accompanying the assault. An indecent assault is thus an assault accompanied with circumstances of indecency. The Judge’s ruling and subsequent direction suggest that he adopted a broadly similar approach to the meaning of “indecent act”. But in doing so we think with respect that he did not appreciate that it is the quality of the act itself that is significant rather than the general circumstances in which it is committed. … an act that is not itself indecent will not constitute the offence even if the purpose is indecent. …
[31] The Court considered that the Judge was wrong to ask the jury to consider whether taking the photograph was an indecent act. The mere taking of a photograph was no more than a manner of recording what was there to be seen and the jury could only have found it to be indecent by looking beyond that act to the general circumstances. The general circumstances were not relevant to whether there had been an indecent act.
10 At 6.
11 At 5.
[32] However, the Court considered it was not a proper case for an acquittal, saying:12
… It is needful to look beyond the act of photography to ascertain whether any act of the appellant is capable of coming within the statute. While it may be possible to characterise the appellant’s whole course of conduct as indecent, the statute is limited to particular acts. To widen it could be dangerous. The appellant’s acts, in addition to taking the photographs, were to produce the garments, to pin the crutch of one of them, and to assist in setting the poses. The first could not be described as an indecent act, but the others could be, depending on the jury’s conclusion as to what the appellant actually did in those respects, and as to his accompanying intention. …
[33] In 2006, the new offences of taking, possessing or distributing an intimate visual recording were introduced into the Crimes Act (ss 216G to 216J). However, these offences were directed toward surreptitious filming (or taking photographs) that involved an invasion of privacy, for example by “up-skirt filming”, which had become easier as a result of technological developments.
[34] These new provisions followed recommendations of the Law Commission.13 In making its recommendations, the Law Commission noted the absence of a specific provision prohibiting taking a photograph or visual record of a person who was nude, partially nude or engaged in sexual or other intimate activity. Other potential avenues for prosecution were dependent on their circumstances.14 The Law Commission said:15
The only possible relevant offences under the Crimes Act 1961 are sections 125 and 126, the indecency offences, although it is debateable whether the act of surreptitiously recording another person in intimate circumstances will necessarily be an “indecent” act for the purposes of these provisions.
[35] Although expressed in less than categorical terms, these comments reflect the view taken in R v S that taking a photograph was not an indecent act (because the indecency can only come from the surrounding circumstances, and not from the act of taking a photograph itself, since that is only capturing that which is there to be seen). The Law Commission did not refer to what became the offences of committing an indecent act with a child or a young person (ss 132 and 134) or their predecessors
12 At 6-7.
13 Law Commission Intimate Covert Filming (NZLC SP15), 2004.
14 Giving the example of the classic “peeping Tom” offence under the Summary Offences Act 1981.
15 At 22.
(perhaps because of the uncertainty about whether this would be an act “with” the child following R v S).
[36] The Law Commission considered whether special provision should be made to recognise the vulnerability of children in this context. It decided it was unnecessary because this would be an aggravating factor in sentencing in any event. It also noted that the proposed s 98AA of the Crimes Act, which was at that time before the House and has since been included in the Act, would create new offences relating to taking images of persons under 18 for “sexual exploitation”.
[37] The upshot was that neither the ss 216H nor 98AA would have covered the conduct in R v S. The photographs of the child in that case were taken with her knowledge, which would mean that s 216H would not apply. And, while s 98AA covers images taken of a young person’s genitalia, the offence has other elements (for example, selling or renting the images or detaining the young person to take the images). This meant that photographic images taken of children or young persons with their knowledge or participation, for the photographer’s sexual gratification, were left for consideration under the “indecent act” offences of the Crimes Act or the “objectional publication” offences under the Films, Videos, and Publications Classification Act 1993 if the elements of those offences could be made out in the circumstances.
[38] After this, some cases involving conduct of the kind at issue in R v S were prosecuted under s 126 of the Crimes Act. This appears to have been because of the issue raised in R v S about whether taking a photograph of a child could be an indecent act “with” the child (required in ss 132 and 134 but not s 126) since both ss 126 and 132/134 similarly require an “indecent act”. In other words, if taking a photograph could not be an indecent act because it was merely recording what was there to be seen (the view in R v S), that would be just as problematic for a s 126 charge as it would be for a ss 132 or 134 charge.
[39] One of these cases was R v Annas.16 It involved a defendant convicted on four charges of performing an indecent act with intent to offend under s 126 of the Crimes
16 R v Annas [2008] NZCA 534.
Act.17 Three of these charges concerned the defendant photographing a young child when she was naked and the other charge was for photographing her when she was a teenager at an angle looking up at her underwear under her dress with her knees parted.
[40]The Court of Appeal said that there were two elements to s 126:
(1) performance of an indecent act; and (2) with intent to insult or offend. The first element was “an objective question to be answered by what the jury assesses to be the standards of right-thinking members of the community” and the second element was subjective.18 On the first objective question the Court said:
[57] Whether the photographing of a naked child is objectively indecent will depend on the circumstances. One extreme is a photograph taken in good faith in the course of a medical examination, or by loving parents of a child playing in a pool or at the beach. Neither will satisfy the objective test. The same photograph taken for obviously pornographic purposes could.
[41] The convictions were quashed not on this element but because of the trial Judge’s misdirections to the jury on the second (subjective) element and in relation to consent.
[42] Another case was Graham v R.19 There the defendant was charged under s 126 for photographing a child while she was naked from the waist down.20 On appeal the issue was whether the jury could be sure that the defendant had taken the photograph. The complainant had given evidence that the defendant had asked her to stand on the defendant’s bed so that he could take a photograph. In cross-examination she accepted that she could not be sure that the defendant had in fact taken a photograph of her when she was standing there as he had asked her to do. On appeal it was accepted that “the act of photographing her in the particular pose was indecent, if in fact a photograph was taken”.21 The Court of Appeal concluded that on the totality of the evidence the jury could be sure that the defendant had taken a photograph.
17 He was also convicted of raping another complainant.
18 At [56].
19 Graham v R [2012] NZCA 372.
20 He was also convicted of sexual violation for digitally penetrating her vagina from which there was no appeal.
21 At [6].
[43] These cases therefore proceeded on the basis that taking a photograph could be an indecent act. In both cases the photographs were objectively indecent and there was no legitimate context for them. These cases did not discuss whether taking an indecent photograph would be an indecent act “with” the subject of the photograph under s 2(1B)(a), nor consider whether s 2(1B)(b) might apply instead, for the purposes of the offence of “an indecent act on a child”.
[44] The meaning of an indecent act “with” someone, although not in the context of taking a photograph, was considered by the Supreme Court in Y v R.22 It involved a defendant who invited adolescent boys to his garage and showed them pornographic films. He permitted or encouraged them to masturbate in his presence. He remained with the boys while they did so and watched them. He did not engage in any concurrent sexual activity while he watched them. He was charged under s 132(3) (as extended by s 2(1B)(b)) with permitting the boys to do an “indecent act with or on him”.23 The issue was whether the boys’ acts qualified as “with or on” the defendant.
[45] The Supreme Court discussed overseas authorities to the effect that, where the defendant is the one performing an indecent act, and the question is whether it was “with” another person when there has been no direct physical interaction with that person, then it is necessary that the defendant and the other person be “acting in concert”. The case before the Supreme Court was different because the indecencies were at the request of the defendant. Further, the Court considered there was:24
… a need to recognise the vulnerability of children to sexual exploitation, especially by someone in charge of a child or otherwise in a position to control or influence that child’s conduct.
[46] The Court considered that the boys in the case before it were significantly under the defendant’s influence and their acts were therefore “with” the defendant. The Court went on to consider the “with or on” element where the focus is on the defendant’s indecent acts. It said:25
22 Y v R [2014] NZSC 34, [2014] 1 NZLR 724. The reasons of the Court were given by William Young J.
23 Section 2(1B)(a) and (b) cover what was s 134(2)(a) and (c) when R v S was considered.
24 Y v R, above n 22, at [16].
25 At [20].
… it will also be open to the finder of fact to conclude that the “with or on” element of the offence has been made out even where there was neither direct contact nor simultaneous related activity. If the presence of the child provides the motivation for the adult, and the child is, in this sense, a participant, if may be open to a finder of fact to conclude that the indecent acts in question were “with or on” the child. We consider that this is very likely to be so where the child was under the control or influence of the defendant at the time.”
[47] The Court concluded that R v S had taken too narrow an approach to what could constitute “with”. Where there was no direct contact nor simultaneous related activity, the indecent act could still qualify as “with or on” if the presence of the child and the defendant was not accidental, the defendant had instigated the indecent acts for his purposes and the defendant was able to control or influence the child.
[48] The Court did not comment on the second issue that had arisen in R v S, namely whether taking a photograph could qualify as an indecent act by the defendant. It did, however, refer to the Court of Appeal’s comments quoted at [32] above and note that this was a function of the charge having been brought under what was then s 134(2)(b) (“being a male, does any indecent act with or upon any such girl”), and that it would have been closer to Y v R if it had been brought under what was then s 134(2)(c) (“being a male, induces or permits any such girl to do any indecent act with or upon him”). In other words, having the girl dress and pose in a revealing way for the defendant’s photographs, would have been inducing the girl to do an indecent act with the defendant.
[49] This was the way the offending in LM v R was viewed.26 The appellant was a New Zealander living in Russia at the time of the alleged offending. He had taken a photograph of a young girl while she was masturbating the penis of an adult male in an apartment in which the defendant and girl and others were living. The appellant had also directed the posing of the scene that he photographed. To be liable in New Zealand for actions that had occurred in Russia it was necessary to show that the appellant’s conduct would be an offence in New Zealand. The Court considered this would have been an offence under s 132(3) of the Crimes Act as he had induced or permitted the girl to do an indecent act with or on him (that is, the extended definition of s 132(3) given by s 2(1B)(b)). The Court reiterated that, as held in Y v R, physical
26 LM v R [2014] NZSC 110, [2015] 1 NZLR 23. The principal decision was given by William Young J.
contact between the defendant and the girl was not necessary to be “with or on” the appellant.27
[50] It is to be noted at this point that R v S, Y v R and LM v R all involved indecent actions of the child (dressing in revealing underwear with her genitalia partly exposed to the defendant at his instigation; masturbating with the defendant’s permission or encouragement while the defendant watched; and masturbating an adult at the appellant’s instigation and in his presence). The focus was, or as in R v S could have been, on the indecent acts of the child induced by the defendant. The fact that photographs were taken by the defendant in R v S and LM v R was relevant to the “with” element because they were part of why the defendant had instigated the indecent act by the child. Graham and Annas potentially could have been decided on a similar basis if the charge had been brought under s 132(3).
[51] It is against this background that Rowe v R was decided. It also involved the taking of a photograph. The defendant was surreptitiously taking photographs, using a zoom lens, of three teenagers wearing bikinis who were about 30 metres away on the beach. A police officer noticed him doing so and this led to a charge under s 126 of the Crimes Act. That section provides that it is an offence if a person “who with intent to insult or offend any person does any indecent act in any place”.
[52] This was not a case where the defendant could have been charged with doing an indecent act on a young person (even though the teenagers were apparently under 16 years of age).28 This was because the focus had to be on Mr Rowe’s actions (as the teenagers were not doing anything indecent – they were dressed appropriately for the setting and behaving appropriately in that setting) and his actions were not “with or on” them because there was no direct contact between Mr Rowe and he was not able to control or influence them. The relevance of the case is as to when taking a photograph can be an indecent act when there was nothing objectionable in the particular images captured in and of themselves.
27 At [6].
28 Section 134(3). The officer estimated the teenagers were aged about 12 to 15 years old.
[53] Mr Rowe applied under s 147 for the charge to be dismissed contending that taking a photograph that was not in itself indecent could not support the charge. The trial judge rejected the application and Mr Rowe was convicted following the jury’s guilty verdict.
[54] In upholding the conviction, the Court of Appeal applied Annas, saying it represented the current law.29 It considered the surrounding circumstances determined whether the act of taking the photograph was indecent. It upheld the conviction taking into account: the use of a zoom lens with the teenagers as a focus; the photographs were taken over an extended period and were only of the teenagers; the images of the teenagers took up the entire photograph; they had been taken from a distance and in an apparently surreptitious way; and the defendant had no legitimate reason for taking them other than his stated desire to build up a collection of photographs of young girls.30
[55] The Supreme Court unanimously quashed the conviction. In doing so the majority judgment considered there was insufficient evidence to establish that “Mr Rowe’s acts comprised an indecent act under s 126”.31 It considered that the factors relied on by the Court of Appeal “were not evidence of indecency where neither the subject-matter nor the photographs were indecent in themselves” and in the absence of any exhibitionist behaviour to which s 126 was primarily directed.32 William Young J, in a separate judgment, considered that ss 125 and 126 were confined to exhibitionistic behaviour and that therefore Mr Rowe’s conduct could not fall within s 126.33
[56] In reaching its view the majority was concerned about criminalising conduct by focussing only on the surrounding circumstances to make something indecent when it otherwise would not be. It considered that it was the act that had to be indecent, not the surrounding circumstances, and to rely on motive to elevate something that was
29 Rowe v R [2017] NZCA 316.
30 At [28].
31 At [65].
32 At [65].
33 Rowe v R, above n 6, at [100]-[101].
not intrinsically indecent did not fit with the statutory scheme and would create uncertainty in the law.
[57]In reaching this view the majority said in a footnote:34
These observations are confined to the meaning of “indecent” in ss 125 and
126. It is not necessary in this case to address the meaning of “indecency” in other parts of the Crimes Act or in the Summary Offences Act.
[58] The majority nevertheless discussed R v S, from which it drew support for the view that with an indecent act it was the quality of the act that was important, whereas an indecent assault was an assault accompanied by circumstances of indecency. It considered that R v George, the authority on which R v S relied in making this distinction, had not been overruled in the United Kingdom on this point in the later decision in R v Court.35 It acknowledged that R v S had been overruled by Y v R “insofar as it relates to the requirement the indecent act be done ‘with or upon’ any girl”.36 It also referred to LM v R where “it was accepted that the appellant’s acts could comprise an indecent act under s 132(3)” where the appellant “took a photograph of the young complainant while she was masturbating an adult male” and he had “also directed the posing of the photograph”.37
[59]William Young J, however, went further and said:
[88] I am of the view that R v S was wrongly decided. The reliance on George was misplaced given the approach taken in Court. For the purposes of the offence of doing an indecent act on or with a child, the taking of a photograph may be indecent and the question whether it is should be determined having regard to community standards in light of all the circumstances including: (a) its subject matter; (b) any associated posing; and
(c) the purposes of the photographer. In these respects R v S was overruled by the decisions of this Court in Y v R and LM v R. In the latter case, the taking of an indecent photograph of a child was held to be an indecent act. I regard the conduct in LM v R as being in substance the same as it was in R v S – that is the taking of an indecent photograph of a child where the child had been
34 Footnote 28.
35 R v S had endorsed the view in R v George [1956] Crim LR 52 (Assizes) that “an act that is not itself indecent will not constitute the offence even if the purpose is indecent”. The majority in Rowe said that this aspect of George was unaffected by the House of Lords decision in R v Court [1989] AC 28 (HL). It also referred to the later decision of the Court of Appeal in England and Wales in R v Rowley [1991] 4 All ER 649 (CA) where, in allowing an appeal against a conviction on a charge of outraging public decency, it was said that “intention and motive” could not “supply lewdness of obscenity to the act if the act itself lacks those qualities”.
36 Rowe v R, above n 6, [45].
37 At [45].
posed by the photographer. In this situation, I see no requirement to focus on only the act (that is the taking of the photograph) and to ignore the context which I see as including any posing. To take such a narrow approach would be inconsistent with Court, in which the focus was not just on the act itself, but also on the defendant’s purposes in performing that act.
[60] William Young J went on to say that R v S had taken an “unrealistically narrow approach to context in relation to the offences involving indecencies with children”.38 He considered it likely that the prosecution had relied on s 126 in R v Annas and Graham v R because of this restrictive approach and that both of these cases should have been determined on the basis that the defendants had engaged in indecencies with children.39
[61] In making these observations, William Young J did not refer to the fact that Y v R and LM v R were about indecent acts of the child at the defendant’s instigation (the s 2(1B)(b) situation). The learned Judge appears to have developed his views about the cases involving photographing children to the point where he considered that the defendant’s actions in taking the photograph could be an indecent act by the defendant with a child depending on the circumstances (that is, a s 2(1B)(a) situation).
[62] Where the photograph of the child is of an image that is objectively indecent, it would seem that both the majority and William Young J would regard that as an indecent act and whether it was “with” the child would depend on the guidance given in Y v R. The majority, for example, referred to Australian authority that the taking of a photograph which is itself indecent could be an indecent act.40
[63] What is left unclear as between the majority and William Young J is whether motive or intention can turn an act which is not in itself indecent into an indecent act for the purposes of s 132. Although it expressed no view on this, the reasoning of the majority in relation to s 126 would seem to apply to an indecent act under s 132. The focus must be on the quality of the act, and whether objectively that is indecent, irrespective of an indecent motive on the part of the photographer.
38 At [101].
39 At [101].
40 At [64].
[64] In contrast, William Young J drew no distinction between an indecent act and an indecent assault. In both cases, motive was a relevant circumstance to whether an indecency had occurred. He considered that an offender who assaulted someone to satisfy a sexual fetish (forcibly removing shoes from women as in George or repeatedly hitting a young girl on the buttocks as in Court, each because of sexual fetish) would be an indecent assault.41
[65] However, even if the majority’s view is to be applied to s 132, it is arguable that it does not preclude a consideration of the surrounding circumstances where the act is capable of being indecent depending on its context. The photographs in Rowe were simply not capable of being indecent. They depicted teenage girls dressed in bikinis on the beach – taking the photographs was no more than capturing a record of what was there to be seen. The majority said that the only matters relied on by the Court of Appeal to find the act indecent were the surrounding circumstances but “the risk with an approach that focuses solely on the surrounding circumstances to show that an act is indecent” under ss 125 and 126 was that the conduct in issue became divorced from the core concept of an indecent act.
[66] This view finds support from R v O’Sullivan.42 This case involved a man who had a young girl massage his neck and shoulders and the lower part of his leg and foot. After this he asked her to lift her top up. She asked “why?”. He said “because” and she did not reply and went home and told her dad. The man was charged with doing an indecent act on a child under s 132(3). The Crown case relied on s 2(1B)(b) – that is, the man had induced or permitted the young girl to do an indecent act on him.
[67] The man was convicted of the charge following a judge-alone trial in the District Court. The Judge said the combination of the massages (particularly on his leg) and the request to lift up her top (for which the man had offered no explanation) constituted an indecent act under s 2(1B)(b).43 The “with or on” element was also satisfied because the child was physically involved in the combination of acts that were indecent.
41 R v George and R v Court, above n 35.
42 R v O’Sullivan [2006] NZDC 25428.
43 The defence contended only that this was not said and had been misheard by the girls.
[68] On appeal it was contended that the massage was not indecent and, absent any ambiguity about this, surrounding circumstances were not relevant. The High Court dismissed the appeal rejecting the argument that the massage by a young girl was not inherently indecent and the request to lift her top indicated an indecent motivation.44 Leave to appeal was dismissed by the Court of Appeal.45 Both the appeal courts relied on the Court of Appeal’s reasoning in Rowe v R.
[69] An application for leave to appeal was made to the Supreme Court.46 The Court noted that there was no jurisdiction to entertain the appeal because the Court of Appeal had declined leave. It said it had considered whether it might be appropriate to grant leave to appeal on a “leap frog basis” from the judgment of the High Court. This was because the High Court and Court of Appeal judgments were delivered before the Supreme Court’s decision in Rowe. It decided not to grant leave, saying:
[5] … Given, however, that the trial Judge drew the critical inference of indecency from the externalities of the applicant’s conduct at the time of the offending – the request to Y to lift up her top – we do not see the reasoning of the Courts below as arguably impeached by the later decision of this Court.
[70] Although it is necessary to be careful about placing significance on leave decisions, these comments suggest that evidence of motive may not be relevant for the purposes of s 132 if without that motive the act could not be indecent. It also suggests that the external aspects of a defendant’s conduct can be relevant to determine if an act, that is capable of being indecent depending on the context, is an indecent act. In O’Sullivan the request by an older man for the young girl to massage his leg was capable of being an indecent act with a girl depending on the context. When considered with the external circumstances in which that occurred - the request by the man for the girl to lift her top – the massage was an indecent act by the girl induced by the man.
[71] I conclude that the position as it currently stands is that motive cannot turn an act that objectively is not indecent into an indecent act for the purposes of s 132 (and s 134) at least where the indecent act is not of the indecent assault kind. The test for
44 O’Sullivan v R [2017] NZHC 2628.
45 O’Sullivan v R [2018] NZCA 201.
46 O’Sullivan v R [2018] NZSC 103.
whether the act is indecent is wholly objective. The focus is on the act but the objective circumstances of that act (the externalities) may assist with whether an act that is capable of being indecent is indecent. Motive (where known) may, however, be relevant to whether the indecent act was “with” the child because it may show that the presence of the child was not accidental and in that sense the child was a participant in the defendant’s actions.47
[72] Lastly, I consider R v Graham-Kerr and R v Smethurst, relied on by Mr Seymour, are not applicable because they concern a different statutory provision.48 Specifically they concern an offence “to take … any indecent photograph of a child”. The focus of that offence is squarely on whether the photograph is indecent. For that offence it has been held that the surrounding circumstances will only be relevant to determine whether the photograph was taken accidentally or included some indecency of which the photographer was wholly unaware.
Assessment
First ground of appeal
[73] If K had been awake, and if Mr Seymour had asked her to lift her top so he could take a photograph, the situation would have been closer to R v S, Annas and Graham. The question would have been whether Mr Seymour had induced K to do an indecent act (lifting her top for Mr Seymour so he could see her abdomen and take a photograph of it). But K was asleep and had not done anything. The focus must be on whether Mr Seymour’s actions were an indecent act with K. Consistent with this, the charge alleged that Mr Seymour did an indecent act by taking photographs of her.
[74] Mr Seymour contends that Judge Cathcart incorrectly relied on the views expressed by William Young J in Rowe v R, which he says were inconsistent with the views of the majority.49 He contends that R v S remains good law to the effect that,
47 In practice, where motive is known (for example, because the defendant has admitted a sexual interest in the child or has committed sexual offending in relation to the child proximate to the photograph taking) this may mean it will be admissible to show whether taking the photograph was an act with the child.
48 R v Graham-Kerr (1989) 88 Cr App R 302, [1988] 1 WLR 1098; and R v Smethurst [2001] EWCA Crim 772, [2002] 1 Cr App R 6.
49 Rowe v R, above n 6, at [88].
for the purposes of s 132(3), it is the act itself that must be indecent rather than the general circumstances in which it was committed.50
[75] Mr Seymour contends that lifting K’s shirt was not relevant because it had been disavowed by the Crown as the basis for the charge and counsel would have cross-examined K’s brother about this had it not been. He contends that the mere taking of the photographs was not objectively indecent. They were “odd, but not sexual” and the inferred motive could not convert what was objectively non-sexual into an indecent act.
[76] I consider taking photographs of a young girl’s jean-clad crotch and bare abdomen were capable of being indecent acts depending on the (external) circumstances. The photograph of her jean-clad crotch was focused on intimate body parts albeit covered by K’s jeans. The photograph of her bare abdomen was suggestive because of the way the top was raised to just below her nipple line, and because the angle of the photograph focussed on the top of her jeans and on her bare abdomen looking up towards the girl’s raised top. Both photographs on their face were capable of being innocent or sexually suggestive depending on the external circumstances.
[77] For example, the photograph of K’s bare abdomen would not be an indecent act if the photograph was taken by the girl’s mother to obtain an image of a mark on the girl that the mother wanted to ask a doctor about. But here the circumstances were that the photograph was taken by an older man, not related to her, while the young girl was asleep. He had approached the sleeping girl with his phone, and lifted her top up to just below the nipple line to take the photographs. There were no external circumstances that objectively supported a legitimate context.
[78] In these circumstances, taking the photographs would be regarded as an indecent act by right-thinking members of the community. It is not necessary to decide whether Mr Seymour had an indecent purpose. It did not matter if he simply liked young girl’s pukus because they reminded him of Māori bread without having any sexual interest in them. The element of carrying out an “indecent act” was satisfied.
50 R v S, above n 8, at 2-3.
[79] As to the “with” element, I accept the respondent’s submissions that this was satisfied on the basis of the guidance provided by Y v R. K was under Mr Seymour’s control because she was asleep, in his care and in his caravan. Her presence was the motivation for Mr Seymour’s actions in the sense that she was not captured in the photographs accidentally. Had K been awake, and had he asked her to lift her top so he could take the photographs (that is, having her pose for him), there would have been an indecent act “with” K in that she would have actively participated in Mr Seymour’s actions. Here, he was able to carry out the indecent act “with” her even without her active participation because she was under his control at the time.
[80] The last element was whether Mr Seymour was aware of the aspects of taking the photographs and the circumstances in which they were taken that right-thinking members of the community would consider made his actions indecent. This was not directly addressed by the Judge. However, there is no doubt that Mr Seymour was aware of the circumstances that made his actions indecent. He was aware that K was a young girl asleep in his care and he intended to take the photographs with the focus that they had (lifting her top to take them), and so was aware of these aspects also.
[81] The charge might more accurately have been particularised as “by taking photographs of K having first posed K by lifting her top”. I agree with the position the Crown advanced in the submissions on the s 147 application. The lifting of K’s top involved an element of staging that was part of the circumstances that made taking the photographs indecent. I do not accept that Mr Seymour was prejudiced because the particulars did not refer to this staging element.51 The Crown advised the Judge that the defence was on notice that it was relying on the lifting of K’s shirt as being an element of staging relevant to whether the taking of the photographs was an indecent act. The defence chose to run its case on the basis that, if the photograph itself was not objectively indecent, that was the end of the matter.
[82]I therefore conclude that this ground of appeal fails.
51 The District Court Judge apparently also rejected that the defence was prejudiced because he relied on this aspect of the circumstances in finding there to have been an indecent act, despite the submission of prejudice in the s 147 application.
Second ground of appeal
[83] Mr Seymour contends that if sexual motive was relevant then there was an insufficient basis for the Judge to infer that. The comment about “abuse” when rubbing her “puku” is said to be cryptic and there was no evidence from the search of Mr Seymour’s caravan that he had any sexual interest in children whatsoever.
[84] This ground of appeal falls away because I have determined whether there was an indecent act without reference to Mr Seymour’s motive. However, had it been relevant, I would have concluded that there was a sufficient basis for an inference of sexual motive for the reasons the Judge gave.
Result
[85]The appeal is dismissed.
Mallon J
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