Justin Ames Johnston v R
| Jurisdiction | New Zealand |
| Judge | O'Regan J |
| Judgment Date | 06 July 2016 |
| Neutral Citation | [2016] NZSC 83 |
| Docket Number | SC 61/2015 |
| Court | Supreme Court |
| Date | 06 July 2016 |
[2016] NZSC 83
Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ
SC 61/2015
IN THE SUPREME COURT OF NEW ZEALAND
Appeal against the Court of Appeal's decision that evidence of intent could be taken into account in determining whether the acts of the appellant had proceeded past the point of preparation so as to constitute an attempt under s72 Crimes Act 1961 (Attempts) — the appellant was on one count of attempted sexual violation by unlawful sexual connection — appellant had been discovered outside a sleepout in which a 16 year old girl was sleeping — evidence of statements he had made about his intention to rape a teenage girl had been introduced by the Crown at trial — appellant argued that it was wrong to take into account evidence of intent when determining whether his acts had proceeded past the point of preparation so as to constitute an attempt under s72(2) (question [of] whether … act …. is … only preparation … and too remote to constitute an attempt … is a question of law) — whether the intent of the defendant was a relevant matter in the determination made by a judge under s72(2) — whether the conduct of the actor could be considered cumulatively when determining whether his or her actions had gone beyond the point of preparation.
R M Lithgow QC and N Levy for the Appellant
A Markham for the Respondent
The appeal is dismissed.
REASONS
(Given by O'Regan J)
The appellant was convicted following a trial by jury on one count of attempted sexual violation by unlawful sexual connection. He was sentenced to preventive detention. The trial was a re-trial: he had earlier been convicted but his conviction had been set aside by the Court of Appeal [ Johnston (CA 2012)]. 1 He appealed against conviction after the re-trial but his appeal was dismissed by the Court of Appeal [ Johnston (CA 2015)]. 2
The appellant applied for leave to appeal against the Court of Appeal's decision in Johnston (CA 2015). Leave was granted on one issue only: 3
The approved question is whether the trial Judge was wrong to conclude that the actions of the applicant on the night of the alleged offending were sufficiently proximate to constitute the actus reus of an attempt.
The granting of leave on that issue was not opposed by the Crown. The appellant sought leave to raise two other issues on appeal but leave was declined on those issues. 4
The events leading to the charge faced by the appellant occurred at a residential property. The property comprised a family home, a separate garage at the front of the property and a separate sleepout at the rear of the property. The home was at the end of a long driveway. A 16 year old girl (whom we will call Ms A), used the sleepout as her bedroom.
On the night in question, 19 July 2010, Ms A went from the family home to the sleepout at about 7 pm. About 30 minutes later, her father (Mr A) went out of the house to get firewood and discovered the appellant crouched on the back lawn in dark clothing, wearing a beanie and gloves and carrying a torch. There was evidence from which it could be inferred that he had armed himself with a garden fork. Mr A chased the appellant on to a neighbour's property. The appellant escaped after threatening Mr A. He was subsequently apprehended by the police. His car was located nearby.
There was evidence that the appellant had observed the property and Ms A's family on several occasions prior to the night in question. The evidence relied on by
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(a) a male intruder had been seen on the property about six weeks before the offending;
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(b) the appellant's car had been seen parked outside a neighbouring property on several occasions in the evenings prior to the night of the offending;
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(c) Ms A's family's wheelie bin full of rubbish had been stolen five nights before the offending (on a night that the appellant's car had been seen outside a neighbouring property);
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(d) a note pad with the phone number of the wheelie bin company on it was found at the appellant's flat;
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(e) either on the night of the offending or earlier, the appellant had spent some time on the driveway of a neighbour's property at a location that gave him a good view of the front door of Ms A's family's property. Six cigarette butts belonging to the appellant were found at that location.
There was evidence that the security lights at the property had been triggered, which the Crown said supported its theory that the appellant had been moving towards the sleepout when he triggered the security lights, and had then retreated to the location where he was disturbed by Mr A.
The Crown adduced evidence which it said supported its contention that the appellant's purpose for being at the property was to rape Ms A. This evidence consisted of:
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(a) evidence that, in 1993, the appellant broke into the home of a 26 year old woman and raped and sexually violated her. Although she did not know him, he used her name;
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(b) evidence that, in 1994, the appellant abducted a 15 year old girl from the bedroom of her family home, gagged and blindfolded her, took her away in a car and raped and sexually violated her;
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(c) evidence from a prison inmate, also a sex offender, who had been in jail with the appellant. This witness said that, in discussions that took place in 2006, the appellant had spoken openly about a sexual obsession with school-aged girls. He said that he had discussed a proposed bank robbery with the appellant. The appellant knew the bank manager had a teenage daughter and their discussions included the proposed abduction and rape of this girl as part of the offending. The appellant had given the witness a list of items to obtain in preparation for this offending, and the list also included the name of the female Department of Corrections psychologist and of his 15 year old victim from the 1994 offending. The list, in the appellant's handwriting, was produced in evidence. The witness had reported these matters to Corrections and police in 2006 and 2008; and
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(d) evidence from a witness with whom the appellant had shared accommodation at a halfway house. This witness said the appellant was obsessed with teenage girls and spoke about them constantly. He said the appellant had, in the period of November/December 2009, frequently spoken of an intention to abduct and rape a teenage girl once his parole conditions expired in February 2010. The witness had notified the police of these matters in January 2010. The present offending happened in July 2010.
Section 72 of the Crimes Act 1961 provides:
72 Attempts
(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
To place s 72 in its broader context, the law relating to attempts criminalises actions undertaken for the purpose of committing an offence, in circumstances where the intended offence is not ultimately committed. The Crimes Act treats attempts as being less threatening to social order (and less culpable) than completed offences by providing that the maximum penalty for an attempt is half the maximum penalty for the completed offence. 5
Section 72 requires both an intention to commit an offence and an act or omission giving effect to that intention. However, in many cases, it is only the actor's intention which indicates that an apparently (or possibly) innocent act or omission is criminal in nature. It is for this reason that intention has been described in relation to attempt as the essence of the crime. 6 Given the language of s 72(2) and (3), the act or omission relied upon must be “immediately or proximity connected with the intended offence” – it cannot be “only preparation” and therefore “too remote”. On the other hand, it need not be an act or omission which shows, unequivocally, an intent to commit the offence. 7 These factors provide the parameters for the actus reus of attempt.
The question whether the act or omission relied on by the Crown is “only preparation”, and therefore too remote, or is sufficiently proximate to constitute an attempt is a question of law for the judge. Although described as a question of law, answering the question will necessarily involve an evaluation of the facts. 8 The judge makes this evaluation on the basis of the Crown's case, but leaves to the jury
As a class, inchoate offences raise the risk of the criminal law over-reaching and imposing criminal liability on people on the basis essentially of their thoughts, which is generally considered to be an inappropriate basis for criminal liability. In relation to attempts, judges perform an important gate-keeping role when determining whether particular acts or omissions amount to more than mere preparation and so are sufficiently proximate to...
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