Y v R

Case [2014] NZSC 34 3 April 2014

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NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

SC 40/2013
[2014] NZSC 34

BETWEEN	Y (SC 40/2013) Appellant
AND	THE QUEEN Respondent

Hearing:	5 December 2013
Court:	Elias CJ, McGrath, William Young, Glazebrook and Blanchard JJ
Counsel:	C B Wilkinson-Smith, M M Wilkinson-Smith and H F Brown for Appellant A Markham and Z R Hamill for Respondent
Judgment:	3 April 2014

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

(Given by William Young J)

A conviction appeal following pleas of guilty

The appellant faced counts alleging indecencies with three underage boys. There was no dispute as to the facts. On the appellant’s argument his conduct did not infringe ss 132(3) and 134(3) of the Crimes Act 1961 under which the counts were laid. In the District Court,[1] Judge Paul agreed that this was so and, accordingly, the appellant was discharged under s 347 of the Crimes Act. A Crown appeal was, however, allowed by the Court of Appeal and the s 347 discharge was set aside.[2]
[1]R v Y DC Auckland CRI 2011-440-3042, 25 January 2012.
[2]R vY (CA321/2013) [2012] NZCA 458 (Arnold, Priestley and Ronald Young JJ).
On the basis of the Court of Appeal’s judgment the appellant had no defence to the charges he faced and, accordingly, he pleaded guilty on arraignment. He now appeals against conviction on the basis of the argument which succeeded in front of Judge Paul but was dismissed by the Court of Appeal. If this argument is right, it is common ground that he is entitled to have the convictions set aside.
Because this appeal is, in substance, a challenge to the judgment of the Court of Appeal on the s 347 appeal, he was granted leave to appeal directly to this Court.[3]

The issue on the appeal

[3]Y (SC40/2013) vR [2013] NZSC 62.

Two of the boys were 11 years old at the time of the offending and the counts in respect of them were under s 132(3) of the Crimes Act. The third was 12 years old and so s 134(3) was applicable in his case. In all instances, the appellant had induced and permitted the boys to masturbate in his presence. This occurred in the appellant’s garage in which there were items of likely interest to adolescent boys – a full-size flight simulator, computers, and remote control aeroplanes, helicopters and cars. On a number of occasions when the boys were in the garage, the appellant locked the connecting door to the house and showed the boys pornographic movies. This provided the context in which he permitted one of boys, and persuaded the others, to masturbate in his presence. The appellant facilitated or participated in what happened in various ways: the provision of lubricating gel, moving a stool for two of the boys and picking up one of the boys’ trousers and throwing them across…

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 Y v R

Details

AGLC: Y v R [2014] NZSC 34
Case: [2014] NZSC 34
Decision Date: 3 April 2014

CaseChat Overview and Summary

The appeal in Y v R was heard by the Supreme Court of New Zealand, which was asked to determine whether the appellant's actions constituted an indecent act "with or on" the child, as required by sections 132(3) and 134(3) of the Crimes Act 1961. The appellant argued that the indecent acts carried out by the boys were not "with or on" him, as there was no physical involvement by the appellant with the boys while they were masturbating and he did not carry out, concurrently with their masturbation, any indecent acts. The Court of Appeal had previously allowed a Crown appeal, setting aside the s 347 discharge, and the appellant now appealed against conviction.

The court considered the meaning of "with or on" in the context of the Crimes Act and concluded that the ordinary meaning approach should be adopted. The court rejected the narrower interpretation of the phrase adopted in Trower v R and the overly broad interpretation suggested by the appellant's counsel. The court held that the "with or on" element may be satisfied by direct contact or simultaneous and related activity, and that if there was neither, the jury should approach the "with or on" question by addressing whether the presence of both child and defendant was fundamental to what happened, whether the indecencies were instigated by the defendant, and whether the defendant was able to control or influence the child. The court found that the boys' acts were "with or on" the appellant, as he had induced or permitted the acts, and he was physically involved in a peripheral way, while the children were significantly under his influence.

The appeal was dismissed, and the convictions were upheld. The court held that the ordinary meaning approach did not impose retrospective liability on the appellant, as no decision of the court or the Privy Council had interpreted sections 132 and 134 in a manner inconsistent with the view adopted in this judgment. The resolution of the question of interpretation in this decision did not impose retrospective liability on the appellant, as there had been uncertainty in relation to the scope of sections 132 and 134.

Orders