Y v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,McGrath,William Young,Glazebrook,Blanchard JJ
Judgment Date03 April 2014
Neutral Citation[2014] NZSC 34
Docket NumberSC 40/2013

[2014] NZSC 34

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, McGrath, William Young, Glazebrook and Blanchard JJ

SC 40/2013

BETWEEN
Y(SC 40/2013)
Appellant
and
The Queen
Respondent
counsel:

C B Wilkinson-Smith, M M Wilkinson-Smith and H F Brown for Appellant

A Markham and Z R Hamill for Respondent

Appeal from a Court of Appeal decision which set aside a discharge under s347 Crimes Act 1961 (“CA”) (power to discharge accused) granted by the District Court — appellant faced counts alleging indecencies with three underage boys under s132(3) Crimes Act 1961 (“CA”) (sexual conduct with child under 12) and s134(3) CA (sexual conduct with young person under 16) — appellant had induced and permitted the boys to masturbate in his presence — there was no physical involvement or contact by the appellant — whether appellant had permitted the complainants “to do an indecent act with or on him” — whether the acts of masturbation carried out by the boys were indecent acts “with or on” the appellant under s2(1B) CA (interpretation — person did an indecent act on another when they induced or permitted the other person to do an indecent act with or on them) — whether the appellant may have thought that his actions did not breach s132 CA and 134 CA and that the ordinary meaning approach to interpreting “with or on” would thus impose retrospective criminal liability

The issues were: whether Y had permitted the complainants “to do an indecent act with or on him”; whether the acts of masturbation carried out by the boys were indecent acts “with or on” Y; and whether Y might have thought that his actions did not breach s132 CA and s134 CA and that the ordinary meaning approach to interpreting “with or on” would thus impose retrospective criminal liability.

Held: The words “with or on” in s2(1B) CA should be construed in accordance with ordinary English usage. Authorities supported the proposition that, where the alleged indecent acts did not involve direct physical interaction, they were only “with” the other party if both parties were acting in concert. The actions had occurred in Y's garage which he had locked and were facilitated by the pornographic videos which he supplied. He had been physically involved, at least in a peripheral way. It would have been well open to a jury to conclude that Y had instigated what occurred. The children had been significantly under his influence. Against that background, the conclusion that the boys' acts were “with or on” the appellant might be thought to be obvious.

When s2(1B)(b) CA was engaged the defendant would have induced or permitted the child to do an indecent act. In most instances where there had been inducement or permission, the logical corollary was that the act was performed by the child “with or on” the defendant. The “with or on” element could be satisfied by direct contact or simultaneous and related activity.

If there was neither direct contact nor simultaneous related activity, the jury should approach the “with or on” question by addressing:

"whether the presence of both child and defendant was fundamental to what happened (accidental or incidental presence was not enough to satisfy the “with or on” requirement);

"where the indecencies were performed by the child, whether they were instigated by the defendant and were for the defendant's purposes;

"whether the defendant was able to control or influence the child (so as to compel the child's participation, whether active or passive).

If so, the likely conclusion was that the actions were “with or on” the child.

The decision in Trower v R had been wrongly decided and the judgment in R v S took too narrow an approach to the circumstances in which liability might be imposed.

The judgment resolved what was, at the most, an existing uncertainty in relation to the scope of s132 CA and s134 CA. It therefore did not impose retrospective liability on Y. The general issue of determination of the availability of retrospectivity arguments and their availability, was left open.

Appeal dismissed.

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by William Young J)

A conviction appeal following pleas of guilty
1

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

2

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.

3

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
4

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 the room. The appellant remained in the garage while the boys were masturbating and watched. There was, however, no physical contact between him and the boys and he did not engage in any concurrent sexual activity.

5

Sections 132( 3) and 134(3) are in similar terms. They provide respectively that everyone “who does an indecent act on” a child (being someone under 12) or a young person (being someone between 12 and 16) commits an offence. (In these reasons we use “child” as including a “young person”). The scope of these offences is amplified by s 2(1B) which is in these terms:

For the purposes of this Act, one person does an indecent act on another person 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.

6

The allegation against the appellant was that he had permitted the three complainants “to do an indecent act with or on him”. In issue is whether the acts of masturbation carried out by the boys were indecent acts “with or on” the appellant. On the appellant's argument, they were not as (a) there was no physical involvement by the appellant with the boys while they were masturbating and (b) he did not carry out, concurrently with their masturbation, any indecent acts. 4 This argument finds some support in two Court of Appeal judgments, R v S5 and Trower v R, 6 to which we now turn.

R v S and Trower v R
7

In R v S, the appellant had been charged under's 134(2)(b) of the Crimes Act, as it then was, which made it an offence to do “any indecent act with or upon” a 12 year old girl. He had persuaded her to pose for photographs wearing “flimsy and revealing” negligees. Two of the photographs he took were indecent. He also pinned the crutch of one of the negligees and assisted in setting the poses. The trial judge had left the case to the jury in terms which left it open to the jury to convict

on the basis of the instructions as to the poses and the taking of the photographs. The Court of Appeal disagreed with this approach: 7

… the act must be done with or upon the girl. The second of these prepositions conveys the sense of the girl being the object of the act. Some kind of physical contact, direct or indirect, is required. The preposition “with”, plainly intended to mean more than “upon”, widens the scope of the offence. We agree with [the appellant's counsel] that it means more than “in the presence of”. We doubt however that it means, as he also submitted, that the act must be one in which the man and the girl both participate.

After referring to some English authorities to which we will revert shortly, the Court went on: 8

It is needful to look beyond the act of photography to ascertain whether any other 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.

The Court quashed the conviction for doing an indecent act and ordered a new trial.

8

When R v S was decided, s 134 was addressed to sexual conduct involving...

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3 cases
  • Rowe v R
    • New Zealand
    • Supreme Court
    • 21 June 2018
    ...approach taken in R v S insofar as it relates to the requirement the indecent act be done “with or upon” any girl. 41 The Court's decision in LM v R is also of some relevance. 42 The primary issue in that case was as to the effect of s 144A of the Crimes Act. The appellant was a New Zealand......
  • LM v R
    • New Zealand
    • Supreme Court
    • 13 August 2014
    ...conduct, despite occurring overseas, would nonetheless amount to an offence. This was broadly the approach taken by the Court of Appeal in R v M. 18 This approach is consistent with the obligations of New Zealand under the Optional Protocol to provide for liability in respect of “complicity......
  • R v Kinghorn
    • New Zealand
    • Court of Appeal
    • 12 May 2014
    ...v Powell Duffryn Associated Collieries Ltd [1940] AC 152 (HL) at 169–170. 4 R v Slade [2005] 2 NZLR 526 (CA) . 5 Y (SC40/2013) v R [2014] NZSC 34 at 6 At [22]. 7R v Kinghorn, above n 1, at [33]. 8 At [34]. 9 At [33]. 10 At [40]. 11 At [40]–[41]. ...

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